Ecob, E.C. v Australian Workers Union

[1992] FCA 927

Re: ERNEST CHARLES ECOB
And: AUSTRALIAN WORKERS' UNION
No. N I17 of 1992
FED No. 927
Number of pages - 13
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Wilcox J.(1)

CATCHWORDS

Industrial Law - Election inquiry - Ballot for delegates to organisation's National Convention - Number of Branch delegates based on membership at previous 31 July - Influx of new members by s.202 agreement between 31 July and closure of nominations - Number of nominations corresponded with number of delegates to which the Branch would be entitled on basis of its enhanced membership - All candidates declared elected - Irregularity - Question of what order ought to be made - Insufficient time to re-open nominations - Necessity for notice before making validation order under s.258 of Industrial Relations Act - Order for ballot amongst existing candidates by persons who were members on 31 July 1992.

Industrial Relations Act 1988, ss.202, 223 and 258.

HEARING

SYDNEY

#DATE 27:11:1992

Counsel for the Applicant: R.C. Kenzie QC and B.D. Hodgkinson

Solicitors for the Applicant: Carroll and O'Dea

Solicitor for the Respondent: R. McClelland of Turner Freema n

Counsel for the Queensland Branch of the AWU and AWU of Employees, Queensland: S.E. Herbert

Solicitors for the Queensland Branch of the AWU and AWU of Employees, Queensland: C.A. Sciacca and Associates

Counsel for the Australian Electoral Commission and J E Curtis: L. McCallum

Solicitors for the Australian Electoral Commission and J.E. Curtis: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

1. It be found that an irregularity has happened in relation to the election for the office of delegates to the 1993 annual Convention of the organisation.

2. It be declared that the said election is void and the persons purporting to have been elected not to have been elected.

3. The Industrial Registrar make arrangements for the completion of the election in accordance with the following directions:

(a) that the number of delegates to be elected shall be eight;

(b) the time for withdrawal of nominations be extended to 5 pm on Wednesday, 2 December 1992;

(c) in the event of a ballot being necessary, ballot papers be dispatched not later than Wednesday, 23 December 1992 to all persons who were members of the Queensland Branch of the organisation on 31 July 1992; and

(d) the ballot close at 5 pm on Wednesday, 13 January 1993.

4. There be liberty to all parties to apply on two days notice.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

WILCOX J: The matter before the Court is an application for an inquiry into alleged irregularities in connection with an election for delegates to the 1993 annual Convention of the Australian Workers Union. The application has been made by Ernest Charles Ecob, who is a member of the organisation and the secretary of its New South Wales Branch.

1. Two or three years ago the organisation's rules were amended so as to add two rules, 92 and 93, relating to the making of agreements between the organisation and State-registered unions. These rules were designed to permit members of State-registered unions to become members of the organisation. Pursuant to the new rules an agreement was made with a South Australian union in early 1991.

2. On 5 June 1992, the Executive Council of the organisation resolved to enter into an agreement under the new rules with the Australian Workers Union of Employees, Queensland. This union is registered under Queensland law. It offers eligibility to a wider spectrum of persons, in terms of occupations, than does the federal organisation.

3. For reasons that do not appear, there was some delay in the implementation of the resolution. On 23 July 1992, the Executive Council passed a resolution authorising the making of the agreement. The agreement was signed on 29 July 1992. However, it could not take effect until it was approved by the Industrial Relations Commission under s.202 of the Industrial Relations Act 1988. An application for approval was made on 28 August 1992. It came on for hearing in September. During that hearing, there was discussion regarding the form of the agreement. As a result of the discussion, the agreement was amended. The amended agreement was signed on 14 October 1992. On 15 October, Vice President Moore determined that he was satisfied that the s.202 agreement complied with the Act. It was registered on the following day, Friday, 16 October. It thereupon came into effect.

4. Under the agreement as approved, members of the Queensland State union became members of the federal organisation with all the rights and privileges of membership, including the right to nominate for elective office and to vote in elections for officers of the federal organisation.

5. Each year - usually in January or February - the Australian Workers Union holds a National Convention. The Convention is the supreme governing body of the organisation. The next Convention is scheduled to commence on Monday, 18 January 1993. The rules provide for a yearly election, by members of each Branch, of Convention delegates. The persons entitled to nominate for election as delegates, and to vote for the delegates in the event of a ballot being necessary, are the people who were members of the particular Branch on the previous 31 July. This means that, in the absence of some extraordinary order, the persons entitled to vote for the Queensland delegates at the Convention due to commence on 18 January next are those who were members of the Queensland Branch on 31 July 1992. Those persons did not, of course, include the people who became members of the federal organisation pursuant to the Queensland s.202 agreement; that agreement was not in force at 31 July 1992.

6. On 28 August 1992, the returning officer, Mr J.E. Curtis of the Australian Electoral Commission, called for nominations for various offices within the Queensland Branch of the federal organisation. These offices included the positions of delegates to the 1993 Convention. Nominations closed on 19 October 1992. That day was the Monday immediately following the Friday upon which the s.202 agreement was registered in the Industrial Relations Commission. When nominations closed, it was found that there were 13 candidates for election.

7. The rules of the organisation provide for the number of Convention delegates from each Branch to be calculated by reference to the number of members of that Branch. It is not necessary to set out the detail of the rules. It is sufficient to say that, if the people who became members of the organisation upon registration of the s.202 agreement were counted, the Queensland Branch was entitled to 13 delegates to the 1993 Convention. If those persons were not counted, Queensland was entitled to only eight delegates.

8. The organisation apparently informed Mr Curtis that the Queensland Branch was entitled to 13 delegates. As there were 13 nominees, Mr Curtis declared all the nominees duly elected. The declaration of election was made on 4 November 1992.

9. On the day of the declaration of election, this proceeding was commenced. Mr Ecob contended that Queensland was entitled to only eight delegates because the number of Queensland Branch members had to be ascertained as at 31 July. Although there was previously some dispute about Mr Ecob's proposition, all parties now agree that it is correct; and that, on the basis of the 31 July membership, Queensland is entitled to only eight delegates. Consequently, all agree that an irregularity has occurred in connection with the election.

10. However, the parties disagree as to the course which should now be taken. The contention of Mr Kenzie QC, senior counsel for Mr Ecob, is that, there being only eight vacancies and 13 nominees, there ought to be a ballot to choose amongst the persons already nominated. Mr Kenzie says that the electorate should consist of those people who were members of the Queensland Branch at 31 July last, in accordance with the usual rule. He suggests that, if this course is followed and the Court so permits, some candidates may withdraw from the ballot; so it may not be essential to hold a ballot. But if, in the end, there are more than eight candidates, it is still practicable to complete a ballot before the Convention is due to commence. I agree that this course is practicable, although it will place stringent demands on the returning officer.

11. Mr Herbert, counsel for the Queensland Branch of the organisation and the State registered union, with the support of Mr McClelland, the solicitor for the federal organisation, contends that the appropriate course is to permit all 13 nominations to stand. Mr Herbert says that the Court should validate what has already occurred. His argument is that the Queensland State union set in motion the making of the s.202 agreement before 31 July and that the subsequent delays were not its fault. Counsel submits that it would be unfair to the Queensland Branch for the number of its delegates at the forthcoming Convention to be determined by reference to an outdated membership figure.

12. In developing his submission, Mr Herbert emphasised the fact that the Executive Council of the federal organisation recently considered what course ought to be taken in connection with the 1993 Convention. The Executive Council unanimously accepted a proposal which would permit Queensland to have 13 delegates. The way in which this occurred was that, on 13 November 1992, the Executive Council adopted a new rule 94; a rule whose application was limited to the 1993 Convention. I will not set out the text of the resolution. It is sufficient to say that the new rule would have amended the meaning of the word "members", where it appears in the rules relating to the determination of the number of persons by reference to which the number of delegates is to be calculated. In relation to the 1993 Convention, "members" would mean all the members shown in the Branch balance sheet of July 1992, together with the persons who were members of the State union on 31 July 1992 and were admitted to membership of the organisation pursuant to the s.202 agreement on or before 20 November 1992. On this basis, Queensland would be entitled to 13 delegates. Mr Herbert argues that the Court ought to give effect to the Executive Council's decision. He says that, although there was an irregularity in declaring the election, the Court could give effect to the Executive Council's view by validating the declaration of the poll under s.258 of the Industrial Relations Act.

13. Another possibility canvassed in argument is for the Court to order the re-opening of nominations, on the basis that there are 13 places to be filled. The argument in favour of this course is that there was no time for the people who became members pursuant to the registration of the s.202 agreement on 16 October to nominate for election as a delegate before nominations closed on the following Monday. It is said that, if the number of Convention delegates is to be fixed by reference to the s.202 members, it is only right that these members have the chance to nominate.

14. One problem about this last suggestion is that, if nominations are re-opened, it will be impossible to complete the election before the scheduled commencement of the Convention on 18 January. It would be necessary to allow at least three weeks for nominations; the usual period, stipulated by the rules, is four weeks. It would be necessary to allow at least a further three weeks for the taking of a ballot. This would take the declaration of the poll beyond the presently planned Convention date. Theoretically, it would be possible to vary the Convention date, so as to make it commence in February. But such a variation may be inconvenient to many delegates, who have already made plans to attend Sydney for the Convention and have arranged to take leave from work. I do not think that it would be right to allow problems in respect of the Queensland delegation to inconvenience a greater number of people; perhaps to the point of excluding some individuals from being able to represent their own Branch. Re-opening nominations for 13 positions is not a practicable solution.

15. The suggestion that the Court should permit 13 Queensland delegates to attend the Convention, but without reopening nominations, is bolstered by the unanimous resolution of the Executive Council. It is, perhaps, unusual for a resolution in relation to voting at a National Convention to be supported by delegates coming from all States and holding all the shades of opinion represented in the Executive Council. During the course of argument, I was impressed by this circumstance and wondered whether the Court should make orders carrying into effect the wishes of the Executive Council. It is rightly said by Mr Herbert that this is not a case where one Branch is seeking to increase its representation over the opposition of other Branches; and it could be said, although I do not think that Mr Herbert expressly made the point, that the unanimous resolution suggests that the 13 member delegation would not confer any factional advantage. Mr Herbert argues that to allow the declaration of the election of the 13 candidates to stand, would be to give the Queensland Branch its full representation, on current membership figures, with all members having a full right of participation, other than the opportunity for the s.202 members to nominate.

16. Seductive though it is, I have decided that I should not accede to Mr Herbert's submission. As Mr Kenzie said in reply, it is one thing to say that there is unanimity on the Executive Council; it is another thing to assume that there is no other view amongst the members. I do not know what views are held by individual members. A Queensland member might regard it as an advantage to have a greater number of Queensland delegates at the Convention than if the rules were strictly applied; but not necessarily so. A Queensland member who favoured a position which was a minority view within the Queensland Branch, but was supported by delegates from other Branches, might feel it a disadvantage for there to be a greater number of Queensland delegates. I have no information to guide me as to whether or not there are people in that position. In the end, I think that the case has to be decided on the basis of principle. Although the Court should always give weight to the wishes of those with day-to-day responsibility for the management of registered organisations, adherence to logic and principle is a matter of prime concern. It is simply illogical to deal with the matter on the basis of the number of persons who are now members of the Queensland Branch, that is after the influx of the s.202 members, without those people having any opportunity to participate in the selection of their representatives. It seems to me a fundamental tenet of democracy, whether in the political or industrial arena, that representatives should be chosen by the constituency they represent.

17. The evidence indicates that some 15,000 people were added to the roll of the Queensland Branch of the organisation as the result of the s.202 agreement taking effect. It is because of that considerable influx that the number of delegates to which the organisation will be entitled in the future has increased from eight to 13. It would be contrary to the principle to which I have referred to have regard to that increase in membership without ensuring that the delegates truly represent the new members. Of course, if the views of those 15,000 people are in line with those of the other Queensland members this may not matter. But I have no way of knowing whether or not this is so.

18. The course which is proposed by Mr Kenzie - that is to say, to apply the rules as they were on 31 July - has the disadvantage that the new members will not have any role in the Convention whatever. The number of delegates will not reflect the fact that the new members have joined the organisation; and, of course, the new members will have no say in the selection of the delegates. But to take this course is to do what the rules themselves provide. The rules provide a cut-off date of 31 July, a period some six months ahead of the Convention. No doubt, this is for practical reasons. The rules envisage a three months gap between the cut-off date and the opening of any ballot; and then time for a ballot is provided. If I accede to Mr Kenzie's submissions, I merely apply the rules as they are. It is unfortunate that the processing of the s.202 agreement could not be completed by the end of July; but this is the fact and I think, on balance, that I ought not to take a course which sacrifices principle to the accident of these events. Of course, the present problem applies only to the 1993 Convention. In future years, the new members will not only be entitled to be counted for the purposes of calculating Queensland's delegation; they will also be entitled to participate fully in the election of delegates, being free to stand for election and to vote.

19. A further aspect of the matter which influences me is that, in order to take the course proposed by Mr Herbert, I would have to make an order under s.258 of the Industrial Relations Act validating the declaration of the election. If I did not do this, but simply declared that there was an irregularity without further order, there would be a grave risk of challenge to decisions made at the Convention, on the basis that irregularly elected delegates had participated in them. It would not be in anybody's interests for this possibility to be left open. However, when I consider the application of s.258, I have to bear in mind that subs.(5) prohibits the Court from making a validating order without first satisfying itself that such an order would not do substantial injustice to any member of the organisation. Ordinarily, in my experience invariably, notice is given to persons potentially affected by a proposed validating order, so that they may come to Court if they choose and put a case in opposition to the order. Where the relevant people are known, it is possible to communicate with them directly. In a case such as the present, where any member might claim to be adversely affected, the only way of giving notice would be by an advertisement in the daily press or, preferably, in the organ of the organisation, "The Worker". I am told that the next edition of "The Worker" will not be published until the end of December. The daily press would be an ineffective means of reaching all members of the organisation.

20. If I were to require notice of the application for validation to be given in "The Worker", the matter could not be resolved before the commencement of the Convention. On the other hand, if I were to dispense with notice, I could not be satisfied that an order would not do substantial injustice to a member. I could only be satisfied on that score by making the assumption that no member would prefer to be represented by eight delegates rather than 13. Although that may be the case, I cannot know this to be so; and I do not think that I should enter into speculation on the matter. Once again, the time constraint presents a substantial problem. It militates against the use of s.258, an essential feature of the course proposed by Mr Herbert.

21. I have sympathy for the situation in which the Queensland Branch finds itself. I understand that its officers feel it unfortunate that the Branch cannot take advantage, in terms of number of delegates, of the recent increase in membership. But in a situation of practical difficulty such as this, the safer course is to adhere to principle. Accordingly, I propose to make the following orders.
    

(1) I find that an irregularity has happened in relation to the election for the office of delegates to the 1993 annual Convention of the organisation;

(2) I declare the said election void and the persons purporting to have been elected not to have been elected;

(3) I order the Industrial Registrar to make arrangements for the completion of the election in accordance with the following directions:

(a) that the number of delegates to be elected shall be eight;

(b) the time for withdrawal of nominations be extended to 5 pm on Wednesday, 2 December 1992;

(c) in the event of a ballot being necessary, ballot papers are to be dispatched not later than Wednesday, 23 December 1992; and to all persons who were members of the Queensland Branch of the organisation on 31 July 1992; and

(d) the ballot shall close at 5 pm on Wednesday, 13 January 1993.

(Counsel sought liberty to apply.)

1. I will add to the orders:
   

(4) Liberty to all parties to apply on two days notice.