Battese v Communication Workers Union of Australia
[1996] IRCA 368
•14 August 1996
DECISION NO: 368/96
CATCHWORDS
INDUSTRIAL LAW - Election inquiry - No point of principle.
Industrial Relations Act 1988: 221(c) and (d).
No. NI 594 of 1994
Noel Battese v Communication Workers Union of Australia and Australian Electoral Commission
MOORE J
SYDNEY
14 AUGUST 1996
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA ) NI 594 of 1994
)
NEW SOUTH WALES DISTRICT REGISTRY )
BATTESE
Applicant
IN THE MATTER OF AN ELECTION
FOR AN OFFICE IN THE COMMUNICATION
WORKERS' UNION OF AUSTRALIA POSTAL
AND TELECOMMUNICATIONS BRANCH,
NEW SOUTH WALES
JUDGE: Moore J
PLACE: Sydney
DATE: 14 August 1996
ORDER OF THE COURT
THE COURT ORDERS THAT:
Mr Eric Alford shall forthwith act in the office of Branch Secretary in the New South Wales Postal and Telecommunications Branch ("the Branch") of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia ("the Union") pending declaration of the results of the new elections ("the 1996 elections") ordered by the Court on 21 June 1996 ("the acting period").
Notwithstanding anything in the Rules of the Union, Mr Eric Alford shall not exercise any power or perform any duty of the Branch Secretary for the purpose of preferring or advantaging any person or group of people who are candidates in the 1996 elections.
Messrs Quentin Cook, David Dawson, Thomas Maloney, Gil Enzon, Stephen Tout, Colin Broadbridge, Barry Poulson, Steve Dodd and Andrew Horton shall act in the office of organiser in the Branch from noon on Friday 23 August 1996 for the acting period. Provided that no person, other than Mr Quentin Cook, shall act in an office pursuant to this order until they have filled up ballot papers in the manner and by the time provided for in order 4(ii).
Pursuant to Order 34, the Court orders:
(i) The appointment of Paul Dennison Westwood ("the expert") by orders made on 5 and 21 June 1996 a Court expert be varied so as to require that he inquire into and report on the question:
In a final report, "Did any of the persons whose sample writing is submitted in accordance with paragraph (ii) of this order forge ballot papers in the elections to which this inquiry relates and, if so, who?"
(ii) Any person who desires to act in an office by operation or order 3 shall attend the New South Wales District Registry and fill up, in the presence of and in the manner requested by the expert, 20 blank ballot papers on or before noon, on Friday 23 August 1996 or such lesser or greater number of ballot papers as the expert may request.
(iii)The expert shall warn any person so attending that
they need not fill up the ballot papers as it might create evidence that could tend to incriminate them.
(iv) The expert shall compare bundles of ballot papers prepared pursuant to order 6A(iii) of 21 June 1996, with the sample numerals provided in accordance with paragraph (ii). The bundles to be examined are those comprising of three or more ballot papers.
(v) The continuing appointment of the expert is conditional upon the expert accepting by letter to the Registrar of the Court the following conditions:
(a)The fee or any part of it for providing the final report is an hourly rate of $165 per hour, plus disbursements but not exceeding $4,000 in total.
(b)Subject to paragraph (vii), the fee or any part of it would be payable only upon the provision of the final report within the time specified in paragraph (vi).
(vi) The final report and seven copies thereof are to be sent to the Registrar of the court on or before 4.00pm on Wednesday, 28 August 1996.
(vii)Liberty to apply on 24 hours notice to any person
affected by this order.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA ) NI 594 of 1994
)
NEW SOUTH WALES DISTRICT REGISTRY )
BATTESE
Applicant
IN THE MATTER OF AN ELECTION
FOR AN OFFICE IN THE COMMUNICATION
WORKERS' UNION OF AUSTRALIA POSTAL
AND TELECOMMUNICATIONS BRANCH,
NEW SOUTH WALES
JUDGE: Moore J
PLACE: Sydney
DATE: 14 August 1996
REASONS FOR JUDGMENT
On 21 June 1996 the Court made orders in an inquiry under Division 5 of Part IX of the Industrial Relations Act 1988 ("the Act"). The inquiry concerned elections conducted in 1994 in the New South Wales Postal and Telecommunications Branch ("the Branch") of the organisation which, at the time of the elections, was called the Communication Workers Union of Australia ("the Union"). The composition of the Union has altered since 1994 as a result of amalgamation.
In addition to an order declaring the 1994 elections void, orders were made that new elections be held. Orders were made concerning the occupation of office prior to the completion of the new elections. For reasons I gave in judgments published on 3 June 1996 and 21 June 1996, the individuals who were to act in office had to provide samples of their handwriting for analysis by a Court appointed expert. The handwriting had to be provided by noon on Friday, 28 June 1996. Unless the handwriting was provided the order ceased to have any effect.
Twelve individuals upon whom the order would have operated so as to result in them acting in an office, did not submit the handwriting as contemplated in the order. Had they done so they would have acted in the office occupied by them prior to and after the void 1994 elections. Three individuals upon whom the order was to operate did submit handwriting and as a consequence they commenced to act in the office of organiser from noon on 28 June 1996. The failure of the twelve individuals to submit the handwriting had the result that from noon on Friday 28 June 1996 no-one was acting in the office of Branch President, Branch Secretary, Branch Assistant Secretary and nine of the elected organiser positions.
That resulted in three notices of motion which I deal with in this judgment. Before setting out the issues they raise, it is necessary to recount, in summary form, certain events that occurred on or shortly after 28 June 1996.
During the afternoon of 28 June 1996 the Communications Divisional Executive ("the Divisional Executive") of the Union met though the meeting was conducted by telephone. On the previous day the Divisional Secretary had sent a letter to members of the Divisional Executive identifying four scenarios that might arise the following day depending upon the extent to which individuals submitted handwriting for examination. By 3.00 p.m. on Friday 28 June 1996 the Divisional Executive had considered the position resulting from the submission of handwriting by only three individuals. It decided to appoint Mr T Alford to act as what it described as "the Administrator" of the Branch, and Mr Absolom to act as "an Assistant to the Administrator". Alford's appointment was "until the matter is heard before the Industrial Relations Court" and Absolom's was "until the declaration of the results of the new election". At a further meeting held on 3 July 1996 the Divisional Executive appears to have altered its earlier decision appointing the Administrator and Assistant Administrator to the extent that the duration of the appointment was "until further order of the Court". It is to be noted that the Divisional Executive meeting of 28 June 1996 was attended by thirty-two of the thirty-six members of the Divisional Executive which included Messrs Metcher and Chalker. Both Metcher and Chalker were affected by the orders made on 21 June 1996 and were two of the twelve individuals who did not submit handwriting for expert examination.
On 3 July 1996 the Branch Committee of Management of the Branch recommended the appointment of eight individuals as temporary organisers. Alford made the appointments. Five of those appointed were members of the Branch Committee of Management and had been elected to office within the Branch in elections conducted in 1995. A sixth temporary organiser had been elected a delegate to the Divisional Conference in those elections.
The notices of motion I earlier referred to were filed by the Union on 1 July 1996, by the applicant in the inquiry, Mr Noel Battese on 8 July 1996 and by a party to the inquiry, Mr Quentin Cook on 2 July 1996. The notice of motion of the Union sought orders the precise legal effect of which is not entirely clear. However as the proceedings progressed it became plain that what the Union sought as its primary position were orders either declaring the appointment of the Administrator and the Assistant Administrator as valid appointments or an order rendering them valid and making such modifications as might be necessary to the Union's rules to enable them to administer the Branch. The orders sought by Battese were, in effect, to declare void the appointment of the temporary organisers and to appoint named individuals to act in the offices that had been unoccupied since noon 28 June 1996. One individual identified in Battese's application was Mr Edward Mason who was proposed to act in the office of organiser pending the completion of the new elections. In due course, Mason appeared for himself and put submissions in support of his appointment. The orders sought by Cook became, for relevant purposes, an order appointing Cook to act in the office of organiser in lieu of Mr Ken Rand who was one of the individuals nominated in Battese's application. Cook otherwise supported the orders sought by Battese.
The submissions of the parties addressed a variety of matters. I do not propose to detail all that was put nor canvass all the evidence in detail. The issues may conveniently be summarised in the following way. I accept they may be stated differently though the way I have formulated them is not intended to be of any significance. Firstly, whether the Court should perpetuate the appointment of Alford and Absolom or only one of them and, if not, who should be appointed to act in the office of Branch Secretary and Assistant Secretary. Secondly whether the appointment of the temporary organisers should be perpetuated and if not who should be appointed to act in the office of organiser. Thirdly, who should act in the office of Branch President though this matter received little attention because the duties of Branch President may be performed by one of the Vice Presidents. As a matter of fact one of the Vice Presidents has elected to carry out those duties. This has not been resisted by the other Vice President. There thus appears to be no pressing need to appoint any person to act in that office.
The perpetuation of the appointment of Alford and Absolom is resisted on two basis. The first is, it is submitted, they are both aligned to a political group within the Union if one can speak of allegiances and grouping within the Union in this way. Thus it cannot be assumed either will perform their duties impartially and there is evidence to suggest that, to this point, they have not. The second is that the Divisional Executive did not have the power to make the appointments and the positions of Administrator and Assistant Administrator have no foundation in the rules.
It may be accepted that the rules make no express provision for the appointment of either an Administrator or an Assistant Administrator in the circumstances in which Alford and Absolom were appointed. Rule 46(c) of the Divisional Rules of the Union make provision for the appointment of a person to manage the affairs of a Branch but that power arises in different circumstances. Such an appointment may be made by the Divisional Executive after members of a Branch Committee of Management or Branch offices have been suspended. Such a suspension may occur after a Branch Committee of Management or an officer has refused to comply with the Rules of the Union or a lawful resolution of the Divisional Conference or direction of the Divisional Executive. The suspension and appointment occurs only after in inquiry and determination in the manner provided for in the rules. The combined effect of the submissions of Cook and Battese were that both Rule 46(c) and rule 46(b), which confers autonomy on a Branch though that provision is subject to the operation of the rules generally, evidence an intention within the rules that any general power the Divisional Executive might have should be construed so as to deny a power to appoint an Administrator or Assistant Administrator if to do so infringed upon Branch autonomy and was a circumstance other than that described in rule 46(c). The Union, on the other hand, points to the powers of Divisional Conference found in rule 8 which, by operation of rule 13, may be exercised in certain circumstances by the Divisional Executive. The powers of the Divisional Conference include a power in rule 8(dd) to:
"Generally to do all acts, matters and things that may appear to conference to be in the best interests of members".
Reference was made to the decision of Pincus J in Sharpe and Ors v Goodhew and Ors (1990) 96 ALR 251 at 273. His Honour dealt with the validity of the appointment of a person to carry out the functions and exercise the powers in two branch offices in the Queensland branch of a federally registered organisation. One of the branch officers had resigned and the other had been suspended. The appointment was made by the Federal Council of the organisation in exercise of a power that was expressed in very broad language. His Honour took the view that the appointment was authorised by the rule as it enabled the Federal Council to interfere in the management of Branches. His Honour also viewed the rule as being subject "to an implied limitation that such interference be reasonably necessary". It is unnecessary, for present purposes, to dwell on the question of power. I am inclined to the view that the Divisional Executive did derive power from rule 8(dd) to appoint an Administrator and Assistant Administrator in the circumstances in which it did. Whether it should have done so is an entirely different question. It is unnecessary to dwell on this issue of power or to express a concluded view because the Court's task is to determine whether a discretionary power arising under s221 of the Act should be exercised to appoint a person to act in one of the offices which is presently vacant.
I do not understand any party to submit that the decision of the National Executive was not a bona fide one. I should say, however, the course I consider the Union should have adopted was to approach the Court rather than the Divisional Executive appointing a person, in effect, to act as Branch Secretary. In acting as it did the Divisional Executive may, at the least, be described as having pre-empted consideration of the matter by the Court. I can understand that union officers might adopt the position that the affairs of a union should be managed by the members of a union and those officers elected by the members. As a consequence, the members of the Divisional Executive may have viewed it is appropriate, in the present circumstances, to act to deal with the consequences of the failure of the twelve individuals to provide the writing for expert examination. However it would have been plain to anyone who had an appreciation of the stage this inquiry had reached, that there was a real prospect the Court would be called upon to deal with the consequences of the actions of the twelve individuals. It was a situation resulting from an order of the Court and it was appropriate that it be dealt with by the Court. It must be accepted that the legal representatives of the Union sought ex parte orders on Friday 28 June 1996 and were met with a request to file a notice of motion which was to be made returnable the following Wednesday. However that application to the Court was made after the decision had been made by the Divisional Executive. It was an application that sought orders, in essence, ratifying what the Divisional Executive had done.
I now consider what should be done about the office of Branch Secretary. The evidence concerning the conduct of Alford which is said to demonstrate that he is or may be partisan is, in my opinion, of limited consequence. It includes the dispatch by office staff of the Branch of material to workplaces of members portraying as officers, Messrs Jarman and Metcher at a time when they had ceased to hold office by virtue of their failure to submit handwriting for expert examination. Also pointed to was an incident involving the attendance of Cook at the Parramatta offices of the Branch and remarks said to have been made by Alford to Cook. Battese gave evidence and detailed several matters which he said illustrated the partisan approach of Alford. As to the first matter I am satisfied that Alford did not know that the material was being sent out and took steps to stop it when made aware that it was. As to the second matter the evidence of various witnesses as to what occurred leaves me with an entirely unclear picture of what was said by whom and in what circumstances. As to the matters that Battese complains of, I view them as comparatively trivial. Alford gave evidence and I was not left with the impression that he had been or was likely to be demonstrably partisan in his approach when carrying out the duties of Branch Secretary.
The choices I confront are to make an order appointing Alford to act in the office of Branch Secretary or to appoint Battese's nominee, Mr Stephen Tout, who was an unsuccessful candidate for that position in the 1994 Branch elections. In those elections Tout formed part of the Challenge team which was a group or ticket endorsed by Battese. A third choice, and one advanced by Battese as an alternative, was to appoint Mr J Baird to act in the office. He is a former and respected Commissioner of the Australian Industrial Relations Commission and the Australian Conciliation and Arbitration Commission, and before that, held office in the Amalgamated Metal Workers Union.
I indicated in my reasons for judgment of 3 June 1996 that "a touchstone in considering what orders might be made (appointing someone to act in an office until a new election was completed) is the will of the electoral manifest in elections: see Re Patterson; Re Association of Railway Professional Officers of Australia (Supra) at 384-385 per Gray J and Re Birch; Re Australian Workers Union (SA Branch) (No. 2) (1991) 37 IR 420 at 436 per Keely J". The difficulty I now confront is that the person who would have enjoyed the benefit of that approach in relation to the office of Branch Secretary, Jarman, failed to provide handwriting and effectively removed himself from consideration as a person to act in the office. While Tout received 2,231 votes in the 1994 election it cannot be said that any order appointing him to act in the office of Branch Secretary would involve giving effect to the will of the electorate in the sense that a majority of members voting in an election has viewed him as the appropriate person to occupy the office. That being so other considerations must arise.
The order made on 21 June 1996 was made under s221(1)(c) though the order was conditional. Plainly an unconditional order could be made under s221(1)(c) ordering that Jarman act in the office of Branch Secretary though this course has not been suggested by any party. I refer to it because it directs attention to the source of the Court's power to appoint either Alford or Tout, or indeed anyone else. The source of that power is s221(1)(d) which refers to a number of circumstances in which an order might be made under s221(1)(d). I do not suggest that the circumstances identified in s221(1)(d) circumscribe the discretionary power the Court has. The identified circumstances establish when the power may be exercised. Nonetheless they illustrate the types of situations where an order may be made and provide some indication of considerations that might be relevant in the exercise of the discretionary power. I refer to the provisions of s221(1)(d) because one of the circumstances in which an order might not be made under s221(1)(c), and thus an order may be made under s221(1)(d), is when to do so is prejudicial to the efficient conduct of the affairs of the organisation.
In the Branch the new elections are presently under way. Having regard to what emerged during the inquiry as to the manner in which the 1994 elections were conducted and more recent evidence concerning what is being said and done in relation to the new elections, it is plain that the new elections will be vigorously contested. The Branch Secretary plays an important, indeed essential, administrative function within the Branch. The duties attaching to the office are set out at length in rule 54(b)(iii) of the Divisional Rules of the Union. In my view, on balance, it is desirable that whoever performs the duties of Branch Secretary should not have a direct interest in the new elections in the sense that they have a direct and immediate association with one of the groups contesting the election. If the person acting as Branch Secretary did have a direct interest it may, in my opinion, detrimentally and materially affect the conduct of the affairs of the Branch. That being so I am not prepared to make an order that Tout act in the office of Branch Secretary.
The following appears in the cross-examination of Alford:
"Is it correct that in the 1994 elections for the Federal team, you were on the Jarman/Natour/Watson ticket?---My name probably endorsed that ticket, yes."
While Alford was not a candidate in the 1994 Branch elections it is plain from his answer that he was a supporter of a political group which included the Natour/Jarman ticket contesting positions in the Branch in the 1994 elections. Alford lives in Victoria. He has previously held office in the Victorian Branch of one of the organisations which, by amalgamation, presently constitutes the Union. That included a period as Branch Secretary of the Victorian Branch. He presently holds office as a Divisional Assistant Secretary of the Communications Division of the Union. He was elected unopposed to that position in 1994. Alford's connection with one of the groups that are likely to contest the new elections is a factor militating against him being appointed to act in the office of Branch Secretary. However he provides, what is, in my opinion, in the circumstances the only practical alternative. While another person outside the Union was nominated as a possible appointee, it was not a matter pursued at any length or in any detail by counsel on behalf of Battese. I have decided that an order should be made appointing Alford to act in the office of Branch Secretary. I propose to make an order incidental to that order requiring Alford to perform those duties impartially and in a way that will not favour any candidate or group of candidates in the forthcoming elections.
As to the position of Assistant Branch Secretary I presently see no need for anyone to act in that office. Nor do I see any need for Absolom to act in any capacity in the Branch by order of the Court or otherwise. If necessary I will make an order giving effect to that view.
I turn now to consider the vacant offices of organiser. The position of temporary organiser is not an office within the Branch. A temporary organiser nonetheless performs the duties of a person elected to the office of organiser, though a temporary organiser does not sit on the Branch Committee of Management. I do not view it as appropriate simply to allow the temporary organisers to continue to occupy their positions. It is inappropriate for two reasons. The first, as I earlier adverted to, is that the appointment of the temporary organisers followed upon and was facilitated by the appointment of Alford by the Divisional Executive, a decision which I do not wish to endorse or tacitly approve. The second, and related, reason is that the appointment of the temporary organisers had the practical effect of enabling individuals to carry out the duties of an elected organiser in place of those individuals who would have acted in that office had they submitted handwriting for expert examination. Those individuals appointed to the position of temporary organisers were all aligned with the Natour/Jarman group within the Branch of the Union. It is the same group from which the nine individuals who did not submit handwriting came. They would have acted in the office of organiser had they done so. Again I would not wish to endorse or tacitly approve the conduct of the twelve individuals by permitting individuals from the same political group to occupy, de facto, all organiser positions. I have earlier said that the reasons given for the conduct of the nine individuals who did not submit handwriting, to the extent evident in material before the Court, is, in my opinion, a spurious one.
In identifying who might now be ordered to act in the office, there is no individual or groups of individuals identified at this stage in the proceedings who have actually been elected to the office of organiser by the membership of the Branch. Thus there is no individual or group of individuals who might be appointed to act in the office of organisers because it reflects the will of the electorate.
Various combinations of individuals are advanced on behalf of the Union, Battese, Cook and Mason. There is no plainly preferable way of resolving the dilemma. The least unsatisfactory way of dealing with it is, in my opinion, to make an order which has the effect of providing some semblance of balance, among the organisers, between competing political groups within the Branch. It was submitted that if that approach was to be adopted regard should be given to the composition of the Committee of Management of the Branch in striking that balance. However to engage in that exercise involves a consideration of the likely role of the Committee of Management in the period during which the new elections will be conducted and its relationship with the duties that will be performed by the individuals who will act in the office as organiser by order of the Court. That task is too speculative in character.
The manner in which that balance can be achieved is another question. I have received, by way of written submission, several suggestions as to how that might be achieved. Two possible methods were identified by the Union. The first was embraced on behalf of Cook though plainly as a secondary position.
The individuals proposed by the Union are intended firstly to create a balance between employees of Australia Post and employees of Telstra, secondly a balance between the political groups within the Union and thirdly to take account of the comparative electoral support amongst the individuals concerned. That electoral support was either manifest in the 1995 Branch elections or the void 1994 Branch elections. The list provided on behalf of Battese simply repeats the names of some individuals originally proposed in the notice of motion though identifies them by reference to their background, that is, Australia Post or Telstra.
As I understand the manner in which the lists were prepared, the only material difference between that proposed by the Union and accepted by Cook and that proposed by Battese, if only a limited number of people are to be drawn from Battese's list, is that Mr Damien Jacques, who stood for the position of organiser as part of the Challenge Team, would not be appointed and Tout would be. As noted earlier Tout received 2,231 votes when contesting the position of Branch Secretary in the 1994 elections. Jacques received 2,472 votes when contesting the position of organiser in the 1994 elections. While there is a difference between these figures, it is not, in the present context, a material one. While I accept that Tout did not contest the position of organiser the same is true of a number of the individuals proposed by the Union as appropriate to act in the office of organiser. As it is Tout rather than Jacques that is proposed on behalf of Battese as a person appropriate to fill a position nominally allocated to his group, I should give effect to that proposal. Mason has advanced reasons why he should act in an office. However within the Challenge Team which was the group he appears to have been allied to, at least until recently, he received a number of votes that were significantly less than the votes received by others. He received 1,423 votes when he contested the office of organiser in the 1994 elections as part of the Challenge Team. Having regard to his comparative lack of electoral support, I do not propose to order that he act in an office.
I have decided that an order should be made that Messrs Quentin Cook, David Dawson, Thomas Maloney, Gil Enzon, Stephen Tout, Colin Broadbridge, Barry Poulson, Steve Dodd and Andrew Horton act in the office of organiser pending the completion of the new elections. Each of these individuals, save for Cook, will have to submit handwriting for expert examination though I do not view it as necessary for Alford to do so as it is unlikely he would have had any direct involvement in the 1994 Branch elections given that he lived and worked in Victoria.
As this is likely to be the last judgment given in the inquiry it is appropriate that I refer to one other matter. It is not relevant to the issues I have just dealt with but it is, in my opinion, a matter that should not go unrecorded. Following the orders of 21 June 1996 further examination of ballot material was undertaken by Mr Westwood. He has given evidence about that further examination. What was revealed was a matter that I had not appreciated to that point, namely that in his original examination there were a limited number of fraudulently completed ballot papers favouring candidates who were not part of the Natour/Jarman team. Those numbers were increased by his later examination. Thus, it would appear, electoral fraud was not the province only of those supporting the Natour/Jarman team but it was perpetrated by others involved in the 1994 elections as well.
I certify that this and the preceding eighteen (18) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore.
Associate: ........ ........ ......
Dated: 14 August 1996
APPEARANCES
Counsel for the Applicant: Mr S Rothman SC
Solicitor for the Applicant: Maurice May & Co
Counsel for Mr Cook: Mr P King
Solicitor for Mr Cook: Paul Etherington &
Associates
Counsel for the Organisation: Mr W Haylen QC
Solicitor for the Organisation: R L Whyburn & Associates
Solicitor for the
Australian Electoral Commission: Australian Government Solicitor
Solicitor for Australia Post: Brian Muir & Associates
Solicitor for Mr Mason: Appeared in person
Dates of Hearing: 10 and 15 July 1996 and
2 August 1996
Date of Judgment: 14 August 1996
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