Gavin Mark Marshall v Garry Main, Graham Nicholson and Anthony Battle

[1995] IRCA 332

CATCHWORDS

REGISTERED ORGANISATIONS - UNION ELECTIONS - Use of union funds and/or resources for electioneering purposes - Interim Orders

Industrial Relations Act 1988, s209

Scott v Jess (1984) 3 FCR 263, 287-289 (principle 4)
Darroch v Tanner (1987) 16 FCR 368, 370-372
Re Collins ex parte Hockings (1989) 167 CLR 522 at 529
Valentine v Butcher 51 FLR 127 at 138-139
Saddington v Oliver 48 IR 115 at 116
Anderson v Johnson (1990) 22 FCR 326, 335
Buchanek v Jones (1989) 34 IR 102 at 104

No. VI 3910 of 1995
GAVIN MARK MARSHALL v GARRY MAIN, GRAHAM NICHOLSON and ANTHONY BATTLE

MARSHALL J
MELBOURNE
25 JULY 1985

IN THE INDUSTRIAL RELATIONS COURT            )  
  )  )  

OF AUSTRALIA  )  

)  No. VI  3910 of 1995  

VICTORIA DISTRICT REGISTRY  )  

BETWEEN:  GAVIN MARK MARSHALL

Applicant

AND:  GARY MAIN, GRAHAM NICHOLSON
  and ANTHONY BATTLE

Respondent

JUDGE:     Marshall J

PLACE:     Melbourne

DATE:       25 July 1995

REASONS FOR JUDGMENT DELIVERED EX TEMPORE AND REVISED FROM THE TRANSCRIPT

On 21 July 1995 I granted a rule calling upon the respondents to show cause why the following orders should not be made against them:

“1.         That the respondents and each of them perform and observe the rules of the Electrical Division (“the Division”) of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the Union”) by ceasing and refraining, by themselves, their servants or agents, or otherwise, from using the funds and/or resources of the union to:

(a)         support or promote certain candidates in the current elections for offices in the Victorian Branch of the Division to the exclusion of other candidates;

(b)          influence voters to support certain candidates in the current election being conducted within the Division to the exclusion of other candidates.

2. Such further or other orders as to the Court seems appropriate.”

I further ordered that:

“...until 4.30 pm on 25th July 1995, or further order, the respondents and each of them by themselves, their servants or agents, or otherwise, cease and refrain from using the funds and/or resources of the Union for electioneering in the current elections for offices in the Victorian Branch of the Division which commenced on or about 3 July, 1995.”

The proceeding before the Court is an application under section 209 of the Industrial RelationsAct 1988 (“the Act”).   That section provides so far as is presently material:

“(1)        A member of an organisation may apply to the Court for any order under this section in relation to the organisation.

(2)          Before making an order under this section, the Court shall give any person against whom the order is sought an opportunity of being heard.

(3)          The Court may refuse to deal with an application for an order under this section unless it is satisfied that the applicant has taken all reasonable steps to try to have the matter the subject of the application resolved within the organisation.

(4)          At any time after the making of an application for an order under this section, the Court may make such interim orders as it considers appropriate, and, in particular, orders intended to further the resolution within the organisation concerned of the matter the subject of the application.

(5)          An order under subsection (4) continues in force, unless expressed to operate for a shorter period or sooner discharged, until the completion of the proceeding concerned.

...

(9)          In this section:

...

“order under this section” means an order giving directions for the performance or observance of any of the rules of an organisation by any person who is under an obligation to perform or observe those rules.”

On the return of the rule to show cause, the applicant and the respondents appeared by counsel.  Mr Borenstein for the applicant submitted that the interim orders made should be continued until the hearing and determination of the application or further order. Mr Borenstein did, however, accept that if I was minded to have interim orders continue to bind the respondents, such orders should only apply to the second and third respondents during their normal working hours.  Mr Haylen QC for the respondents opposed the continuation of interim orders against his clients.

The applicant is a member of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the Union”). The Union is an organisation of employees registered under the Act. It is divided into a number of divisions. One such division is the Electrical Division. In turn the Division is constituted by State branches known as divisional branches. One such branch is the Victorian Divisional Branch (“the Branch”). The applicant is attached to the Branch. The first respondent holds the office of Victorian Divisional Branch Secretary. The second and third respondents hold various honorary offices in the Branch and each of them has been engaged on a short term basis at various periods of time as an organiser in the Branch. They are currently so engaged.

Each respondent is a member of the Union and is under a duty to perform and/or observe the rules of the Union. 

An election is currently being conducted in the Branch in relation to which the applicant on the one hand, and the respondents on the other are in opposing teams. The time for receipt of nominations has expired and ballot papers are due to be posted to members on the roll of voters on 7 August 1995.  The ballot is due to close on 28 August 1995 at 10.00 am. 

I have been advised by Mr Borenstein that the applicant would require seven days for the filing of any further affidavit material in support of his case for final relief.  Mr Haylen QC indicated that he would require at least a further seven days for filing of any affidavit material by the respondents.

In the circumstances, given the heavy commitments to future hearings of the members of the Court, there is no real prospect of a final determination of the application prior to the close of the ballot.  Consequently the effect of the grant of a continuation of interim relief will be tantamount to final relief.  In similar circumstances, Gray J, held that:

“For this reason it seems to me that the Court should scrutinise very carefully the application for interim orders.”

See Buchanek v Jones (1989) 34 IR 102 at 104. I agree with that approach in the circumstances of this case.

I also agree with his Honour that one should carefully scrutinise hearsay evidence admitted on an interlocutory application:

“... to ensure that what is effectively final relief is not granted on too slight an occasion.” (at 104).

The applicant’s complaint in the proceedings is essentially that the funds and resources of the Union are being improperly used by the second and third respondents with the acquiescence or knowledge of the first respondent who has a duty under the rules of the Union to:

“...be responsible for the administration of the Divisional Branch and shall exercise control over all employees of the Divisional Branch.” (Rule 12.5.4 of the rules of the Electrical Division).

The applicant complains of three incidents which he contends amount to an improper use of the funds and resources of the Union by the respondents.  I deal below with those incidents in the order they were raised in the applicant's affidavit.

(1)  The first 18 July 1994 incident - (East Camberwell)

There is evidence before the Court that the applicant was told by Mr Coughlan (a member of the Union and a member of the same team as the applicant) that the second respondent attended Coughlan's workplace at East Camberwell at about 1.30 pm and called the members working there together. In the course of such “address” or meeting the second respondent urged a vote for the “incumbent team” of the respondents and denigrated members of the opposing team to which the applicant belongs. Coughlan advised the applicant to the effect that the second respondent was driving a union car in relation to such attendance. The applicant was cross-examined in Court today by Mr Haylen QC. The only presently relevant cross-examination in relation to this incident concerned the fact that Coughlan belonged to the same team as the applicant. Although the evidence regarding this incident is of a hearsay nature, (see section 75 Evidence Act 1995), there was no challenge to the proposition that members had been urged by an organiser in the course of his duties, as such, to vote in a particular way in the elections.  There was no challenge also to the evidence that members had heard the second respondent denigrate the team to which the applicant belongs. If the facts disclosed by this evidence (albeit hearsay) were proved by direct evidence at a final hearing they would reveal a strong case that a breach of the rules had occurred in the sense described in Scott v Jess (1984) 3 FCR 263 287-289 (principle 4). See also Darroch v Tanner (1987) 16 FCR 368 370-372, Re Collins ex parte Hockings (1989) 167 CLR 522 at 529 per Gaudron J.; Valentine v Butcher (1981) 51 FLR 127 at 138-139 and Saddington v Oliver (1993) 48 IR 115 at 116.

(2)          The 20 July 1995 incident -  (CSL). 

The applicant gave evidence that at about 10.45 am on 20 July 1995 he attended the premises of the Commonwealth Serum Laboratories at Parkville in the course of his duties as an organiser in the Branch.  He told the Court that after arriving at the site for a meeting of members he noticed the second respondent's presence.  He said that the second respondent told him that the first respondent had employed him to cover the applicant's area.  The applicant expressed the belief that the second respondent was at the meeting to electioneer.  I am unable to conclude from the evidence regarding this incident that the second respondent had attended the site with a view to canvass votes for the incumbent team and or denigrate the opposing team.  As the applicant conceded when under cross-examination he merely had a suspicion that the first respondent had sent out the second respondent to the site to electioneer.

(3)          The second 18 July 1994 incident - (Exhibition Centre). 

The applicant's evidence was that two members of the team to which he belonged, being candidates for office in the election, had been told by members present at a meeting at the Exhibition Centre construction site that the third respondent had urged a vote for the incumbent team and handed out electioneering material in support of that team. The material is exhibited to the applicant's affidavit and accuses the applicant and two other persons of "treachery"; with the word "treachery" appearing in darker print than the other words constituting the body of the document. The team to which the applicant belongs was described as "the Splinter Group", and was accused of "making a grab for power" which "will have a destabilising effect". The pamphlet then set out what it described as the "record of the union over four years of Gary Mains (sic) leadership team ...". A series of positive points allegedly in favour of a vote for the incumbents is set out. In the circumstances of an election in an organisation registered under the Act it will not always be easy to produce direct evidence of incumbents and their supporters using union resources to distribute campaign literature which lauds the incumbents and denigrates their opponents. Although the evidence of this incident relies on second hand hearsay, and although if relief is given today to the applicant it will in all practical likelihood operate throughout the period of the ballot, the Court should not be slow to grant relief where there is some evidence of incumbents circulating union propaganda by union employees and/or officials, during working hours where the respondents do not seek to raise evidence in reply to contest such allegations.

Mr Haylen QC submitted that the applicant had not contacted the first respondent about the complaints which he raises in his application to the Court. Mr Haylen QC submitted that pursuant to section 209(3) the Court should refuse to deal with the application because the applicant had not taken all reasonable steps to have the matter the subject of the application resolved within the union. Mr Borenstein in submitting to the contrary referred me to Troja v Curran (1989) 30 IR 129, 138, and Anderson v Johnson (1990) 22 FCR 326, 335. I agree with the approach taken by Keely and Gray JJ respectively in those matters, to the effect that the Court should be reluctant to readily invoke its discretion under section 209(3) in circumstances were the applicant seeks to prohibit what is contended to be an unlawful use of the funds and resources of the union.

For the above reasons I will continue interim relief in this matter in the following terms.  The Court orders:

(1)          Until 10.00 am on 28 August 1995, or further order, the first respondent by himself, his agents or otherwise, cease and refrain from using the funds and/or resources of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the Union”) to:

(a)          support or promote certain candidates in the current elections for offices in the Victorian Branch of the Electrical Division of the Union to the exclusion of other candidates;

(b)          influence voters to support certain candidates in the current election being conducted within the Victorian Branch of the Electrical Division of the Union to the exclusion of other candidates;

(2)          Until 10 am on 28 August 1995, or further order, the second and third respondents during their normal hours of work, by themselves, their agents or otherwise, cease and refrain from using the funds and/or resources of the Union to:

(a)          support or promote certain candidates in the current elections for offices in the Victorian Branch of the Electrical Division of the Union to the exclusion of other candidates;

(b)          influence voters to support certain candidates in the current election being conducted within the Victorian Branch of the Electrical Division of the Union to the exclusion of other candidates;

(3)The directions hearing is adjourned to a date to be fixed;

(4)Liberty is reserved to any party to apply on 24 hours notice in writing to each other party.

I certify that this and the preceding (6) pages are a true copy of the Reasons for Judgment delivered ex tempore and revised from the transcript herein of His Honour Justice Marshall.

Associate:

Date:  25 July 1995

Counsel for the Applicant:  Mr H Borenstein

Solicitor for the Applicant:               Howie & Maher

Counsel for the Respondent:           Mr W Haylen Q.C.

Solicitor for the Respondent:           Ryan Carlisle Thomas

Date of hearing:  25 July 1995

Date of judgment:  25 July 1995

IN THE INDUSTRIAL RELATIONS COURT            )  
  )  )  

OF AUSTRALIA  )  

)  No. VI 3910 of 1995  

VICTORIA DISTRICT REGISTRY  )  

BETWEEN:  GAVIN MARK MARSHALL

Applicant

AND:  GARY MAIN, GRAHAM NICHOLSON
  and ANTHONY BATTLE

Respondents

JUDGE:     Marshall J

PLACE:     Melbourne

DATE:       25 July 1995

ORDER

THE COURT ORDERS THAT:

(1)          Until 10.00 am on 28 August 1995 or further order, the first respondent  by himself, his agents or otherwise, cease and refrain from using the funds and/or resources of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the Union”) to:

(a)          support or promote certain candidates in the current elections for offices in the Victorian Branch of the Electrical Division of the Union to the exclusion of other candidates;

(b)          influence voters to support certain candidates in the current election being conducted within the Victorian Branch of the Electrical Division of the Union to the exclusion of other candidates;

(2)          Until 10.00 am on 28 August 1995, or further order, the second and third respondents during their normal hours of work, by themselves, their agents or otherwise, cease and refrain from using the funds and/or resources of the Union to:

(a)          support or promote certain candidates in the current elections for offices in the Victorian Branch of the Electrical Division of the Union to the exclusion of other candidates;

(b)          influence voters to support certain candidates in the current election being conducted within the Victorian Branch of the Electrical Division of the Union to the exclusion of other candidates.

(3)          The directions hearing is adjourned to a date to be fixed.

(4)          Liberty is reserved to any party to apply on 24 hours notice in writing to each other party.

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