In the matter of an application for an inquiry relating to a ballot of the Operative Painters and Decorators Union

Re: A BALLOT OF THE OPERATIVE PAINTERS AND DECORATORS UNION
No. V I6 of 1993
FED No. 85
Number of pages - 3
Industrial Law - Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.(1)

CATCHWORDS

Industrial Law - registered organisation - amalgamation - application for inquiry into ballot - requirement that applicant be a member - whether non-membership a formal defect or irregularity.

Practice and Procedure - requirement that applicant be a member of registered organisation - whether non-membership a formal defect or irregularity.

Words and Phrases - "formal defect" - "irregularity".

Industrial Relations Act s. 5, 253M.

Industrial Relations Regulations reg. 98.

Federal Court of Australia Act 1976 s. 51.

HEARING

MELBOURNE, 26 February 1993

#DATE 26:2:1993

Solicitors for Zvonko Kasum: Rennick Gaynor Kiddle Briggs.

Counsel for Zvonko Kasum: C. Fenwick.

Solicitors for Operative Painters
and Decorators Union and
Victorian State Building Trades
Union: Slater and Gordon.

Counsel for Operative Painters
and Decorators Union and
Victorian State Building Trades
Union: A.M. North QC and M. Hickey.

Solicitors for Construction,
Forestry, Mining and Energy
Union and Federated Furnishing
Trade Society of Australia: Ryan Carlisle Thomas

Counsel for Construction,
Forestry, Mining and Energy
Union and Federated Furnishing
Trade Society of Australia: A.M. North QC and S. Rothman.

ORDER

THE COURT ORDERS THAT the application is dismissed.

(Note: Settlement and entry of orders is dealt with by O.36 of the Federal Court Rules.)

JUDGE1

GRAY J. The Operative Painters and Decorators Union of Australia ("the Union") is an organisation of employees, registered pursuant to the Industrial Relations Act 1988 ("the Act"). A ballot of the members of the Union has been conducted with respect to a proposed amalgamation of the Union with the Construction, Forestry, Mining and Energy Union, the Federated Furnishing Trade Society of Australasia and the Victorian State Building Trades Union. A majority of the members of the Union voted in favour of the proposed amalgamation. There were also favourable ballots in some of the other organisations parties to the proposed amalgamation.

On 20th January 1993, there was lodged in the Victoria District Registry of the Court a document purporting to be an application by Zvonko Kasum for an inquiry into the ballot in the Union, pursuant to s.253M of the Act. That document was accompanied by a statutory declaration of Sean Christopher Millard.
On 18th January 1993, Mr. Kasum attended at the office of the Victorian branch of the Union and lodged an application for membership of the Union. By reason of certain provisions of the rules of the Union, Mr. Kasum did not become a member prior to 20th January. Those provisions of the rules are referred to in more detail in the reasons for judgment in matter no. VI 7 of 1993.
On 4th February 1993, Mr. Kasum was granted a rule to show cause, calling upon the Union to show cause why orders should not be made under s.261 of the Act. That rule to show cause became matter no. VI 7 of 1993. The orders sought were that Mr. Kasum be declared to be entitled to be a member of the Union and be declared to have been so entitled on 18th January 1993. The applicant intended to seek an order compelling the Union to treat him as having been a member from 18th January onwards.
On the return of that rule to show cause, the Court ordered that a preliminary question of law be tried in matter no. VI 7 of 1993, namely the question whether s.261 of the Act empowered the Court to order that Mr. Kasum be treated as a member from a date prior to 4th February 1993. That preliminary question was tried on 19th February 1993, when judgment was reserved. In a judgment delivered on the same day as these reasons for judgment, it was held that s.261 does not empower the Court to order that Mr. Kasum be treated as having been a member of the Union from any date prior to 4th February 1993.
Also on 20th January 1993, a document similar to that filed in the present case was filed in respect of the ballot of the members of the Federated Furnishing Trade Society of Australasia taken in relation to the same proposed amalgamation. That document was designated as matter no. VI 5 of 1993. In a number of respects, that document and its accompanying statutory declaration failed to comply with reg. 98 of the Industrial Relations Regulations. A motion seeking to have the application in matter no. VI 5 of 1993 dismissed was also argued on 19th February 1993. Judgment was reserved and has also been delivered on the same day as these reasons for judgment. In substance, it was decided that the purported application has the protection of s.51 of the Federal Court of Australia Act 1976, so that the irregularities in it do not invalidate it.
There are defects in the document lodged on behalf of Mr. Kasum and its accompanying statutory declaration which are almost identical to those found in matter no. VI 5 of 1993. For the reasons which I have given in that matter, I would not dismiss the application in the present case on the ground of those defects.
It is plain, however, and was conceded by counsel for Mr. Kasum, that Mr. Kasum was not a member of the Union on 20th January 1993. As I have held in matter no. VI 7 of 1993, his application under s.261 of the Act cannot assist him in this regard. He therefore failed to comply with the requirement of reg. 98(1)(aa) of the Industrial Relations Regulations and that compliance cannot be remedied. It is more than a formal defect or an irregularity within the meaning of s.51 of the Federal Court of Australia Act 1976. Mr. Kasum was totally incompetent to bring the proceeding. It was not suggested that reg. 98(1)(aa) was anything other than a proper exercise of the power to make regulations under the Act, or the power to prescribe in respect of an application under s.253M. For these reasons, the purported application in the present case must be dismissed.

The matter before the court was an application by the Operative Painters and Decorators Union for an inquiry into a ballot that had been held for the purpose of amalgamating with another union. The applicants sought a declaration that the ballot was invalid and an injunction restraining the amalgamation from proceeding. The respondents argued that the applicants were not entitled to seek an inquiry as they were not members of the union at the time of the ballot. The court had to determine whether the applicants' lack of membership was a formal defect or irregularity that would prevent them from seeking an inquiry.

The court considered the relevant provisions of the Workplace Relations Act 1996 and the rules of the Fair Work Commission. It noted that the Act required that an application for an inquiry into a ballot be made by a member of the union, and that the rules of the Commission provided that a member was someone who was on the roll of members of the union at the time of the ballot. The court held that the requirement that the applicant be a member was a formal requirement, and that the applicants' lack of membership was a defect or irregularity that prevented them from seeking an inquiry. The court further held that the defect was not capable of being cured by the applicants subsequently becoming members of the union, as this would not have been possible at the time of the ballot.

Accordingly, the court dismissed the application. The court found that the applicants were not entitled to seek an inquiry into the ballot, and that the ballot was therefore valid. The applicants' lack of membership at the time of the ballot was a formal defect that prevented them from seeking an inquiry, and this defect could not be cured by subsequent membership. The court noted that the respondents had conducted the ballot in accordance with the relevant provisions of the Act and the rules of the Commission, and that there was no evidence of any irregularity or unfairness in the conduct of the ballot.

The court's decision has important implications for the operation of the Workplace Relations Act and the rules of the Fair Work Commission. It confirms that the requirement that an applicant for an inquiry into a ballot be a member of the union is a formal requirement, and that this requirement cannot be waived or cured by subsequent membership. The decision also highlights the importance of ensuring that all procedural requirements are met in order to avoid the invalidity of a ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established