Derek Graham Nicholson v D J Mighell

[1995] IRCA 563

CATCHWORDS

INDUSTRIAL LAW - Registered organisations - Election inquiry - Irregularities - Rules - Construction of rules - Jurisdiction of Court under s221 Industrial Relations Act 1988 - Holding over

Industrial Relations Act 1988 ss 221

Re Patterson; Re Association of Railway Professional Officers of Australia (1987) 19 IR 373, 384-385

Smith v Operative Painters and Decorators Union of Australia, Western Australian Branch (1992) 44 IR 357

Re Birch; Re Australian Workers Union (SA Branch) (No 2) (1991) 37 IR 420, 436

No. VI 4765 of 1995

DEREK GRAHAM NICHOLSON v D.J. MIGHELL AND OTHERS

Marshall J
Melbourne
13 October 1995

IN THE INDUSTRIAL RELATIONS        )
  )
COURT OF AUSTRALIA  )
  )

VICTORIA DISTRICT REGISTRY  )  Nos. VI 4765 of 1995

DEREK GRAHAM NICHOLSON

Applicant

D.J. MIGHELL AND OTHERS

Parties

JUDGE:         Marshall J

PLACE:         Melbourne

DATE:  12 October 1995

ORDER

THE COURT ORDERS THAT:

1.Until the declaration of the result of the election to be conducted for the offices of Branch Secretary and Branch Assistant Secretary in the Victorian Branch of the Electrical Division of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia pursuant to the order of the Court of 18 September 1995, Dean Jonathan Mighell and Gavin Mark Marshall shall act in the offices of Branch Secretary and Branch Assistant Secretary.

2.Liberty to apply is reserved on not less than 48 hours written notice to each other party.

NOTE:             Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS        )
  )
COURT OF AUSTRALIA  )
  )

VICTORIA DISTRICT REGISTRY  )  Nos. VI 4765 of 1995

DEREK GRAHAM NICHOLSON

Applicant

D.J. MIGHELL AND OTHERS

Parties

JUDGE:         Marshall J
PLACE:         Melbourne
DATE:  13 October 1995

REASONS FOR JUDGMENT

BACKGROUND

On 18 September 1995 the Court made the following orders in this matter:-

1.An irregularity has occurred in relation to the election for the office of Branch Secretary of the Victorian Branch of the Electrical Division of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia by the failure of the Returning Officer to reject the nomination of Dean Jonathan Mighell for that office.

2.An irregularity has occurred in relation to the election for the office of Branch Assistant Secretary for the Victorian Branch of the Electrical Division of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia by the failure of the Returning Officer to reject the nomination of Gavin Mark Marshall for that office.

3.The Court declares that election for the office of:

(a)Branch Secretary; and

(b)Branch Assistant Secretary

of the Electrical Division of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, the result of which was declared on 29 August 1995, is void.

4.The Industrial Registrar shall make arrangements for new elections to be held for the offices of Victorian Branch Secretary and Victorian Branch Assistant Secretary of the Electrical Division of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia as soon as is reasonably practicable with the time allowed for the taking of all relevant steps in such elections to be as near as possible to the times allowed in the rules of the Division with the necessary changes.

5.It is noted that the Court will hear evidence and submissions today regarding the issue of holding over.”

Due to the shortness of time available for the Court to hear full submissions on the issue as to which persons should occupy the offices the subject of the inquiry pending the new elections, the Court heard submissions as to which persons should hold such offices until 5.30 p.m. on 6 October 1995 on the basis that full submissions would be heard on that issue on that day.

On 18 September 1995 at the conclusion of counsels’ submissions the Court made the following interim order:-

“Until 5.30 p.m. on 6 October 1995 or further order Dean Jonathan Mighell and Gavin Mark Marshall shall act in the offices of Branch Secretary and Branch Assistant Secretary of the Victorian Branch of the Union.”

On 6 October 1995 full submissions were made by counsel for various parties to the inquiry.  In addition the Court granted leave to the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the organisation”) to be made a party to the inquiry.  Mr Nolan of counsel appeared for the organisation.  Mr Bromberg of counsel appeared for the applicant, Mr Borenstein appeared for Messrs Mighell and Marshall.  Mr Lamplugh (solicitor) appeared for the various parties in support of the applicant and Mr Hallowell (solicitor) appeared for the Australian Electoral Commission (“AEC”).

Shortly prior to the conclusion of the hearing on 6 October 1995 the Court informed the parties that it was not in a position to give a decision in the matter.  The Court told the parties that it would announce the order it would make during the following week and that reasons for judgment would be delivered subsequently.

On 12 October 1995, the Court made the following orders:

“1.Until the declaration of the result of the election to be conducted for the offices of Branch Secretary and Branch Assistant Secretary in the Victorian Branch of the Electrical Division of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia pursuant to the order of the Court of 18 September 1995, Dean Jonathan Mighell and Gavin Mark Marshall shall act in the offices of Branch Secretary and Branch Assistant Secretary.

2.Liberty to apply is reserved on not less than 48 hours written notice to each other party.”

The Court’s reasons for making the orders made on 12 October 1995 are set out below.

THE EFFECT OF THE RULES

Mr Bromberg submitted that the rules of the organisation properly construed had the effect that Mr Main and Mr Gray held over as Branch Secretary and Branch Assistant Secretary respectively.  He submitted that Rule 30 produced that result.  Rule 30 is a transitional rule which was designed to facilitate the amalgamation of two organisations known as the Electrical, Electronic, Plumbing and Allied Workers Union of Australia (“EPU”) and The Communications Workers Union of Australia (“CWU”).  The amalgamated organisation is divided by the rules into three divisions:-  Electrical, Plumbing and Communications.  Messrs Main and Gray held office in the EPU.  Rule 30.7 effectively provided, insofar as is material, that Messrs Main and Gray upon amalgamation were to become office holders in the organisation.  Rule 30.8 deals with “term of office” and materially provided that the term of office of Messrs Main and Gray would expire upon “the declaration of the elections to be held in 1995”.

Mr Bromberg submitted that as the Court has declared void the elections for the offices for which Messrs Main and Gray stood, that no valid declaration has occurred and consequently Messrs Main and Gray have at all times continued to hold their offices of Branch Secretary and Branch Assistant Secretary in accordance with the rules.  Mr Bromberg also referred the Court to Rule 15.19.15 of the rules of the Electrical Division of the organisation.  That rule provides that:-

“A person elected to office pursuant to the provisions of this rule shall, unless otherwise provided in these rules, retain it until a successor is duly elected unless he/she dies, resigns or is removed from office in accordance with these rules.”

Mr Bromberg contended that “duly elected” meant validly elected and as the Court has held that the election for the relevant offices was flawed no one has been “duly elected”.

Mr Borenstein, in reply, contended that the declaration of the election was not void ab initio but that it was a voidable act which was voided by the orders of 18 September 1995.  He submitted that it was a declaration that had legal effect unless and until it was overridden by an order of the Court.

I agree with the submissions of Mr Borenstein on this issue and reject those of Mr Bromberg.  In my opinion the declaration of the result is operative until it is rendered void by an order of the Court.  In fact, the applicant in this inquiry obtained a rule to show cause from the Court on 1 September 1995 in VI 95/4610 on the presumption that the declaration was then valid.  Plainly the intention of Rule 30.8 referred to above was to permit former officers of EPU to hold such equivalent offices in the organisation without facing another election until elections were conducted and a result declared in the scheduled 1995 elections.  Rule 15.19.15 of the rules of the Electrical Division takes the matter no further.  In my view Messrs Mighell and Marshall were elected to the offices of Branch Secretary and Branch Assistant Secretary respectively on 29 August 1995 and on that date Messrs Main and Gray ceased to hold those respective offices.  On 18 September 1995 the elections as a result of which Messrs Mighell and Marshall attained office were declared void.  The Court then made an interim holding over order which continued in their offices Messrs Mighell and Marshall.  As a result of the order of 12 October 1995 that position will obtain until the declaration of the result of that election presumably in December 1995 according to the timetable which the AEC has planned for the conduct of the new election.

JURISDICTION

The interim order which the Court made on 18 September 1995 on the question of holding over was made pursuant to s221(1)(c) of the Industrial Relations Act 1988 (“the Act”). It was an order to the effect that persons (i.e. Messrs Mighell and Marshall) who hold office (i.e. pursuant to the declaration of 29 August 1995) continue to act in those offices until 5.30 p.m. on 6 October 1995 or further order. The order the Court made on 12 October 1995 was also an order under s221(1)(c). Mr Bromberg submitted that the Court was not empowered to make such an order. He contended that s221 deals with interim orders and not orders consequential upon the Court finding that an irregularity had occurred. He said that the section was “intended to give the Court power to deal with circumstances where, prior to the inquiry being determined, there is a need to address the situation of who should hold office” (transcript p.33). Mr Bromberg submitted that Gray J incorrectly relied upon the predecessor to s221 in Re Patterson; Re Association of Railway Professional Officers of Australia (“Re Patterson”) (1987) 19 IR 373, 384-385. He gave as an example of the appropriate use of s221 the decision of Lee J in Smith v Operative Painters and Decorators Union of Australia, Western Australian Branch (1992) 44 IR 357, where the Court made a holding order pending the conduct of the inquiry.

I do not believe that the Act intends that holding over orders pursuant to s221 of the Act are only able to be made prior to the Court making orders consequent upon a finding as to whether an irregularity has occurred. Mr Bromberg conceded that there was no authority to support that proposition. It is inconsistent with the approach of Gray J in Re Patterson, which was followed by Keely J in Re Birch; Re Australian Workers Union (SA Branch) (No 2) (“Re Birch”) (1991) 37 IR 420, 436. I reject the proposition of Mr Bromberg in this case. I find that the Court has the power to make a holding over order under s221(1)(c) of the Act. Whilst s221 of the Act is headed “Interim Orders” I do not believe that that means that the section can only be availed of prior to the making of an order in relation to an irregularity. The heading to ss221(1) is “Power of Court to make orders”. In any event the headings to s221 and s221(1) are not parts of the Act. See Pearce and Geddes “Statutory Interpretation in Australia”, 3rd ed, (1988), Sydney: Butterworths, at 13.

WHO SHOULD HOLD OVER?

In Re Patterson at 385, Gray J said that:-

“... In most cases, the preferable course is to act upon the last expression of the will of the voters, even though that expression may possibly be flawed by the irregularities which the court has found to have occurred.”

I agree, with respect, with that approach.  I do not believe that the instant case is one where that course should be departed from.  It does not matter that the winning margin was a very narrow one.  It is nonetheless an expression of the will of the majority of those who voted.

I am fortified in my decision that Messrs Mighell and Marshall hold over in their offices pending the declaration of the result of the new election by the support for that position by the State Council of the Electrical Division of the organisation which is constituted by persons elected to office on 30 August 1995 pursuant to an election which was held not to have been affected by irregularities.  Such persons collectively hold their offices pursuant to an expression of the will of the membership in recent times.  I am also fortified in my decision by the submissions of the organisation which urge the cause that the Court has adopted.  In so referring to the submissions of the organisation I am not to be taken as expressing a view necessarily in concurrence with the precise reasons given by Mr Nolan for the organisation so submitting.  I do however draw comfort from Mr Nolan’s reliance on Re Patterson.

For the above reasons the Court made the order it did on 12 October 1995.

THE COURT ORDERED THAT:

1.Until the declaration of the result of the election to be conducted for the offices of Branch Secretary and Branch Assistant Secretary in the Victorian Branch of the Electrical Division of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia pursuant to the order of the Court of 18 September 1995, Dean Jonathan Mighell and Gavin Mark Marshall shall act in the offices of Branch Secretary and Branch Assistant Secretary.

2.Liberty to apply is reserved on not less than 48 hours written notice to each other party.

I certify that this and the preceding 8 pages are a true copy of the Reasons for Judgment herein of His Honour Justice Marshall.

Associate:

Date:  13 October 1995

Counsel for the Applicant:  Mr M Bromberg

Solicitor for the Applicant:  J N Zigouras & Co

Solicitor for the Australian
Electoral Commission and the
Returning Officer:  Mr R Hallowell of the Australian
  Government Solicitor

Counsel for Messrs Mighell
and Marshall:  Mr H Borenstein

Solicitor for Messrs Mighell
and Marshall:  Howie & Maher

Counsel for the Communications,
Electrical, Electronic, Energy,
Information, Postal, Plumbing
and Allied Services Union of  
Australia:  Mr J. Nolan

Solicitor for the Communications,
Electrical, Electronic, Energy,:
Information, Postal, Plumbing
and Allied Services Union of  
Australia:  Jones Staff & Co

Solicitor for various other Parties:                 Mr R Lamplugh of Dwyer & Co

Date of hearing:  6 October 1995

Date of judgment:  13 October 1995