In the Matter of an Application by Peter Marshall under Section 218 of the said Act in relation to the United Firefighters Union of Australia

[1995] IRCA 232

IN THE INDUSTRIAL RELATIONS COURT      

OF AUSTRALIA            No VI 341 and 381 of 1994

VICTORIA DISTRICT REGISTRY            

IN THE MATTER of the Industrial Relations Act 1988

IN THE MATTER of an Application by PETER MARSHALL under Section 218 of the said Act in relation to the UNITED FIREFIGHTERS UNION OF AUSTRALIA

CORAM:    RYAN J

PLACE:    MELBOURNE

DATE: 1 MAY 1995

REASONS FOR JUDGMENT

RYAN J: These matters are inquiries into elections for offices in the Victorian branch of the United Firefighters Union (the "Union"). Between them the inquiries comprehend elections for all offices in the Victorian branch of the Union which, under the rules of the Union, should have been completed in 1994. It is now common ground between the candidates in the elections that irregularities have occurred in connection with them, and that such irregularities may have affected the result of each election. Although it is not open as a matter of law to the parties to an inquiry under s 223 of the Industrial Relations Act (the "Act") to dispose of the inquiry by consent, the existence of agreement between the principal participants in an election as to matters of fact or law is something to which the court can attach very considerable weight by way of informing itself as part of the inquiry.

In this context I adopt, with respect, the observations of Gray J in Re Mellor's Application (1986) 13 FCR 331 at 332, where his Honour said:

"The question therefore arose whether the duty imposed on the Court by s 165(1) of the Conciliation and Arbitration Act 1904 (Cth), to "inquire into and determine the question whether any irregularity has occurred in or in connection with the election" is discharged by the Court making the agreed findings or whether it is necessary to continue the inquiry despite the desire of the competing parties to bring it to an end. I formed the view that it is open to the Court in conducting an inquiry, to accept the consensual findings of opposing parties operating at arm's length, and in receipt of competent legal advice, as discharging its obligation to inquire. The power contained in s 164(4)(b) of the Act to "inform itself on any matter in such manner as it thinks just" is broad enough to justify the Court's acceptance of the views of such parties. The Court is not bound to act by consent and would not do so if there were a danger of collusion, or some other factor which might indicate that matters of substance might be revealed by further inquiry. The saving of public moneys, and of costs to parties which are not funded publicly is a powerful factor in persuading the Court that it should not prolong an inquiry unnecessarily."

However, I have also considered for myself the matters raised by these inquiries and have concluded that the direction on each of the three forms of ballot paper, namely:

"To make your vote count, number every box ..."

ran counter to the provision in the rules for optional preferential voting.  The relevant provision is rule 27(4)(C)(1) of the Rules of the Union which is in these terms:

"In an election a returning officer shall issue instructions to the following effect:

Enclosed is a ballot paper for an election in the United Firefighters Union of Australia.  To vote for a candidate for an office you should place the figure 1 opposite the name of the candidate for whom you vote as your first preference and give preference votes for all the remaining candidates by placing figures 2, 3, 4 (and so on as the case requires) opposite their names, so as to indicate the order of your preference for them.  After voting you should place the ballot paper in the addressed envelope which is enclosed and post it so that it will reach the private box to which it is addressed by (set out the time and date on which the ballot closes)..."

I consider that the returning officer's direction also contradicted the direction in rule 27(7), that:

"The vote of a member shall not be informal:

(a) if in some way other than that prescribed intention in voting is indicated;

(b) if such member's intention is indicated only as to first preference or if indication is given as to the order of preference for some but not all of the candidates for the office;

(c) as to any office proposal or decision in respect of which such member votes validly, although such member does not vote or votes informally for other office's proposals or decisions;

(d) if it contains any identifying marks."

The voluntary nature of the scheme of preferential voting erected by these rules is also indicated as follows by rule 27(13)(e):

"If no candidate has an absolute majority of first preference votes the returning officer shall:

(1) treat the candidate who has obtained the fewest first preference votes as a defeated candidate and such of the ballot papers counted to such defeated candidate as indicate the voter's next preference shall be distributed amongst the non-defeated candidates next in order of the voter's preference.  After such distribution the number of votes given to each non-defeated candidate shall again be counted."

There is evidence that some voters were compelled by the returning officer's direction to record more preferences than they otherwise would have and that other voters would not have voted for some offices at all, had they not been led to believe that it was necessary to record a vote in all contested elections in order to cast an effective vote for the election of one or some of the offices.  As well, the evidence discloses that rank and file members at a special general meeting on 7 June 1994 voted overwhelmingly to express the concern of the meeting about the irregularities alleged in these inquiries, which were described in the resolution as:

"Obvious anomalies that have taken place in the running of the current UFU Victorian Branch elections."

Another alleged irregularity is that no candidate was required at the time of nominating to give an undertaking in accordance with rule 72(3) of the rules of the Union.  That sub-rule as far as is relevant provides:

"In order to become a candidate for election to any Branch Officer position, a person shall be nominated for the office in writing signed by two financial members of the Branch.  Each candidate shall provide a signed undertaking stating that such candidate will accept the office if elected."

No candidate gave any signed undertaking as required by that sub-rule. The requirement for a signed undertaking has been deleted from rule 72(3) by an amendment lodged with the Industrial Registrar on 27 April 1995 but not yet certified. Because of the clear view to which I have come that the directions on each ballot paper erecting a system of compulsory preferential voting constitutes an irregularity, it is not necessary for me to consider further this separate and distinct alleged irregularity in relation to nominations. I am satisfied that the irregularities to which I have referred and which I have found may have affected the result of each election as required by s 223(4) of the Act in the sense explained, for example, by Keely J in Re Noack; Re Vehicle Builders Employees' Federation of Australia, South Australian Branch (1987) 18 IR 101. I therefore declare void each of the elections which are the subject of these inquiries.

I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment of his Honour Justice Ryan    

Associate:

Date:

Counsel for Mr P Marshall:       Mr M Bromberg

Solicitors for Mr P Marshall:     Maurice Blackburn

Counsel for the United
Firefighters Union:              Mr B Murphy

Solicitors for the United
Firefighters Union:              Slater & Gordon

Counsel for Mr T Murray:         Mr R Hinkley

Solicitors for Mr T Murray:      Alfred L Abrahams & Co

Counsel for the Returning
Officer:  Mr A O'Donoghue

Solicitors for the Returning
Officer:  Australian Government

Solicitor

Hearing date:              1 May 1995