In the matter of an application by Christopher Keily for an inquiry in relation to an election for offices in the Transport Workers Union of Australia (Victorian Branch)

[1995] IRCA 289

IN THE INDUSTRIAL RELATIONS COURT  )
  )
OF AUSTRALIA  )  VI 95/1291
  )
VICTORIA DISTRICT REGISTRY        )

IN THE MATTER of an Application by CHRISTOPHER KEILY for an Enquiry in relation to an election for Offices in the Transport Workers Union of Australia (Victorian Branch)

CORAM:    RYAN J

PLACE:    MELBOURNE

DATE: 9 MAY 1995

MINUTE OF ORDERS

THE COURT ORDERS:

1. That the application to substitute David Thomas Grove as applicant made by motion on notice filed 4 April 1995 by Christopher Keily be refused.

1. That the inquiry be terminated in respect of the election for the following offices in the Transport Workers Union of Australian (Victorian Branch):

- Branch President

-Branch Vice-President

-Federal Councillors (3)

-Branch Industrial Research Officer.

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

IN THE INDUSTRIAL RELATIONS COURT  )
  )
OF AUSTRALIA  )  VI 95/1291
  )
VICTORIA DISTRICT REGISTRY        )

IN THE MATTER of an Application by CHRISTOPHER KEILY for an Enquiry in relation to an election for Offices in the Transport Workers Union of Australia (Victorian Branch)

CORAM:    RYAN J

PLACE:    MELBOURNE

DATE: 9 MAY 1995

REASONS FOR JUDGMENT

RYAN J:   There are before the court two motions.  One motion is by Christopher Keily seeking leave to substitute David Thomas Grove as applicant in the present inquiry, which was instituted by an order of myself on 27 January 1995, on an application filed on 25 January 1995 by Mr Keily.  The second motion is by William Noonan seeking an order that the inquiry be terminated. 

Application to substitute David Thomas Grove as applicant
The evidence discloses that Mr Grove was an unsuccessful candidate in the election the subject of the inquiry, which was conducted for various offices in the Victorian Branch of the Transport Workers Union of Australia (the "Union").  His standing to be substituted as applicant has been challenged on the ground that, at all times between 1989 and 1992, during which period Mr Grove applied to become a member of the union, he was employed by the Union as an industrial officer within its Victorian Branch, and was not eligible for membership under any limb of Rule 4 of the Rules of the Union, which governs eligibility for membership.

That Rule effectively confines eligibility to persons employed, or seeking to be employed, or usually engaged in an industrial pursuit, including as independent contractors, in connexion with transport or driving operations other than in transport on water or by rail or tramways.  Rule 4(B) provides further that:

"The union shall also consist of such other persons as are elected officers of the union and admitted as members thereof." 

That express provision, as well as a wealth of accumulated authority and industrial understanding, precludes the argument advanced on behalf of Mr Grove that the driving which he was required to do as an essential part of his work as an industrial officer was sufficient to bring him within the general occupational criteria on which the earlier part of Rule 4 is predicated.

In an affidavit affirmed and filed today, Mr Grove has deposed to employment in various capacities since 1992, some of which would clearly have made him eligible for membership of the union.  The relevant part of Mr Grove's affidavit concludes with this paragraph:

"It has always been my intention to continue to work in the industry and for this reason I have maintained my financial membership in the union since the day I became a member."

However, there is no evidence that Mr Grove ever applied for membership at any time since 1992 during which he was presumptively eligible. Since s 218 of the Industrial Relations Act (the "Act") requires that an applicant for an inquiry must be, at the time of claiming the existence of an irregularity, be or have been within the preceding 12 months, a member of the relevant organisation, I must refuse the application to substitute Mr Grove as the applicant. 

Application to terminate the inquiry
I now turn to deal in part with the motion by Mr Noonan, which is effectively for an order summarily terminating the inquiry. I am satisfied that the power to make such an order is conferred by s 223(5) of the Act which provides:

"Without limiting the power of the Court to terminate a proceeding before it, the Court may, at any time after it begins an inquiry into an election, terminate the inquiry, or the inquiry to the extent that it relates to specified matters."

In my view, one ground on which that discretion can be exercised is that on the evidence at the time of the application for summary termination, there is no serious question of fact or issue of law to be resolved by a continuation of the inquiry.

One alleged irregularity on which the present inquiry was instituted is related to the compilation of the roll of voters.  The relevant paragraphs disclosing facts relied on, as verified on affidavit by both the original applicant Mr Keily and the proposed new applicant Mr Grove, are:

"44.The names of the following eligible persons do not appear on the roll of voters: John Brown 26 Robbins Street, Ivanhoe; John Robert Lester 8/35 Murray Street, West Brunswick.  (Further names will be provided at the hearing.)

1. The roll of voters contains the names of persons where no address other than a place of work is given including employees of Tempo Services Pty Ltd, Tullamarine; Qantas Airlines Tullamarine; Bonlac Foods 566 St Kilda Road Melbourne; Ansett Australia Tullamarine; Department of Finance PO Box 141 Melbourne; Australian Airlines Tullamarine.

46:The roll of voters contains the names of persons where the address given is outside Victoria." 

No further names of persons allegedly omitted from the roll have been supplied since the application was instituted, and I am not persuaded that the omission alleged, if it were made out, might have affected the result of the election which has since been declared.  I have not been referred to any provision in the Rules of the Union which precludes the insertion on a roll of voters of addresses of the places of employment of some of those voters instead of their last known residential addresses.  There is no evidence that the relevant roll includes persons whose residential addresses are outside Victoria. 

However, even if the allegations in either or both of paragraphs 45 and 46 were capable of raising an arguable case that an irregularity had occurred, as with the omission alleged in paragraph 44, I am not persuaded that either irregularity alone or in combination with the other might have affected the result of the election in the sense required by s 223(4) of the Act.

In these circumstances and for the reasons expressed above, the inquiry, as far as it affects offices in which there has been no challenge to the eligibility of any specific candidate, will be terminated. 

As I indicated before I commenced these reasons, I shall reserve my judgment on that part of the motion which goes to elections where a challenge has been made to the eligibility of specific candidates and I shall pronounce those reasons and make appropriate orders as soon as possible. 

I certify that this and the preceding four (4) pages are a true copy of the reasons for judgment of his Honour Justice Ryan  

Associate:

Date:

Counsel for the applicant,

Mr C Keily and Mr D Grove:     Mr Liversidge

Solicitors for the applicant
and Mr Grove:

Counsel for Mr W Noonan:          Mr M Bromberg

Solicitors for Mr W Noonan:         Maurice Blackburn & Co