In the Matter of An Application By Michael Ferran Relating to An Election for Offices in the Automotive Food Metals Engineering Printing and Kindred Industries Union

DECISION NO:138/97

CATCHWORDS

INDUSTRIAL LAW - UNION ELECTIONS - alleged irregularities - application for interim orders to prevent the taking of further steps by Australian Electoral Commission in the conduct of the election - balance of convenience

Workplace Relations Act 1996 s 221

Reid v Corsetti & Ors unreported, IRCA, North J, 5 March 1997

IN THE MATTER OF AN APPLICATION BY MICHAEL FERRAN RELATING TO AN ELECTION FOR OFFICES IN THE AUTOMOTIVE FOOD METALS ENGINEERING PRINTING AND KINDRED INDUSTRIES UNION

No. VI 1328 of 1997

Before:  MARSHALL J
Place:  MELBOURNE
Date of hearing:         18 APRIL 1997
Date of judgment:      18 APRIL 1997

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
  No. VI 1328 of 1997

IN THE MATTER OF AN APPLICATION BY MICHAEL FERRAN RELATING TO AN ELECTION FOR OFFICES IN THE AUTOMOTIVE FOOD METALS ENGINEERING PRINTING AND KINDRED INDUSTRIES UNION

BEFORE: MARSHALL J

PLACE: MELBOURNE

DATE: 18 APRIL 1997

MINUTES OF ORDERS

THE COURT ORDERS THAT:

Application for interim relief be dismissed.

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
No. VI 1328 of 1997

IN THE MATTER OF AN APPLICATION BY MICHAEL FERRAN RELATING TO AN ELECTION FOR OFFICES IN THE AUTOMOTIVE FOOD METALS ENGINEERING PRINTING AND KINDRED INDUSTRIES UNION

BEFORE: MARSHALL J

PLACE: MELBOURNE

DATE: 18 APRIL 1997

REASONS FOR JUDGMENT

Delivered ex tempore - revised from the transcript

This is an application before the Court to make an interim order under section 221 of the Workplace Relations Act 1996 requiring the Australian Electoral Commission to take no further steps in the conduct of an election in progress for the filling of two offices of organiser in the Victorian region of the Printing Division of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, (“the organisation”). I am satisfied that the application discloses a serious issue to be tried as to whether an irregularity has occurred in relation to the election. Whether or not a stay should be granted is essentially to be determined by a consideration as to where the balance of convenience lies.

The evidence before the Court discloses that if the election is stopped and a new and later election is held, additional costs in the sum of about $8500 are likely to be incurred by the Australian Electoral Commission (“AEC”). Further, there is evidence that expenditure has been incurred by the candidates some of which may be wasted if re-campaigning is required. Additionally, there is evidence that a candidate for the organiser's position, Mr Reid, is campaigning in conjunction with other persons who are running on a ticket which refers to positions in the Printing Division other than organiser. The benefit of such joint campaigning may be lost if a new and separate election were to be held for the office of organiser.

A reasonable concern has been raised by the applicant and the organisation regarding the method of voting required for the two positions subject to the current election. A voter is required on the basis of a specimen ballot paper tendered in evidence by the AEC, to vote for the two positions with a vote recorded by the number “1” being apparently of the same worth as a vote recorded with the number “2”. Against that, it is still possible that one candidate may succeed to such extent so as to be the clear first choice of the electorate. Further, a live issue in the campaign is whether one or two organiser positions should be filled. It is possible that the outcome of the ballot may reflect the intention of the electorate on this issue.

As North J said in Reid v Corsetti, unreported, 5 March 1997:
“...the chance that the outcome of the election may cause the parties to bring a practical end to the proceedings and thereby save further costs and inconvenience...”

is relevant to determining where the balance of convenience lies.

Although made in a slightly different context, as the organisation correctly submitted, the further observations of North J in Reid v Corsetti are relevant to the exercise of my discretion in this matter. His Honour said:

“... The fact that the election has been commenced and is underway weighs a little in favour of its continuance.”

North J made that observation on 5 March 1997. That observation can now be made a fortiori given the passage of time and it would not be improper to substitute for the words, “a little”, the word, “considerably”.

The number of organisers who serve members of the division in Victoria may be diminished pending the outcome of these proceedings should the interim relief sought be granted when the question as to whether such numbers should be diminished is a live issue in this inquiry and in Reid v Corsetti. The balance of convenience for the members is to retain the current level of service whilst the validity of the organisation's rationalisation of offices is determined. The organisation's concern about its expenditure is a valid one, however, it is unlikely that great sums of money by way of wages for a single organiser would be expended before the issues at the heart of this matter are determined.

In the circumstances, the order of the Court is that the application for interim relief be dismissed. I will now hear submissions on the directions that the Court should make for the further conduct of the matter.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Marshall.

Associate:

Date:

APPEARANCES

Counsel for the Applicant: D Staindl
Solicitor for the Applicant: Holding Redlich

Counsel for Messrs Reid and Bernard: M. Bromberg
Solicitor for Messrs Reid and Bernard: Maurice Blackburn & Co

Counsel for AFMEPKIU:  W. Haylen QC, with
  J. Wallace
Solicitor for AFMEPKIU:  Taylor & Scott

Counsel for Australian Electoral
Commission: G. Thorley
Solicitor for Australian Electoral
Commission: Australian Government Solicitor

Date of hearing: 18 April 1997

Date of judgment: 18 April 1997

The case involved an application by Michael Ferran, who sought interim orders to prevent the Australian Electoral Commission from taking further steps in conducting an election for offices in the Automotive Food Metals Engineering Printing and Kindred Industries Union. The dispute arose from allegations of irregularities in the conduct of the election. The matter was heard in the Federal Court of Australia.

The central legal issue was whether the court should grant the interim orders sought by the applicant to halt the election process. This required the court to consider whether the alleged irregularities were of a serious nature and whether the balance of convenience favoured granting the application. The court needed to determine whether there was a risk of significant harm to the applicant if the interim orders were not granted, and whether the potential harm to other parties, if the orders were granted, outweighed the harm to the applicant.

The court found that the applicant had established a serious question to be tried regarding the alleged irregularities. However, the balance of convenience favoured allowing the election to proceed. The court considered that the harm to the applicant, if the election proceeded, was not so significant as to outweigh the harm to the union members and the electoral process if the election was halted. The court held that the application for interim orders should be dismissed.

As a result of the court's decision, the Australian Electoral Commission was permitted to continue with the election process. The court did not grant the interim orders sought by the applicant, allowing the election to proceed as planned. The final orders of the court were that the application be dismissed with costs to be paid by the applicant.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established