In the Matter of an Election of Offices in the Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union ("The AMWU") In the Matter of an Application for an Inquiry Under Division 5 of Part Ix of...

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 194 of 1998

IN THE MATTER OF AN ELECTION OF OFFICES IN THE
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING
AND KINDRED INDUSTRIES UNION (“THE AMWU”)

IN THE MATTER OF AN APPLICATION FOR AN INQUIRY
UNDER DIVISION 5 OF PART IX OF THE WORKPLACE
RELATIONS ACT 1996 (CTH) BY WILLIAM MORTON

JUDGE:

RYAN J

DATE:

11 MAY 1998

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

Section 219 of the Workplace Relations Act 1996 (“the Act”) speaks of the Court being satisfied that there is reasonable ground for the application. In my view that requires only the prospect of making out an irregularity as defined in s 4(1) of the Act, not the establishment of grounds which would support the formation of the opinion contemplated by s 223(2) of the Act as a prerequisite to declaring an election void. I shall therefore make an order in terms of paragraph 1 of the proposed minutes.

However, I am not persuaded to grant interim relief in terms of paragraph 7 of those minutes. The orders proposed by that paragraph are not interim orders of the kind indicated by s 221 of the Act as being within the power of the Court to make after an inquiry has been instituted. Nor do I consider them to be orders of the kind contemplated by s 223(2) as those which the Court may make in the course of conducting an inquiry. Moreover, the conduct imputed to the four persons named in paragraph 7 of the proposed minutes would constitute the commission of an offence or the procuring of an offence in contravention of s 315 of the Act. This Court traditionally does not grant injunctions requiring persons to obey the law, especially where the law has already provided its own sanctions against disobedience. As well, the proposed paragraph 7 does not embody the exception recognised in s 315 by the words “without lawful authority or excuse”. It also introduces in sub-paragraph (2) the elusive concept of purpose or mixed purpose which is not mirrored in the legislation.

For these reasons I shall make orders in terms of paragraphs 1 to 6 only of the proposed minutes. I shall insert in paragraph 2 the date “29 May 1998 at 10.15 am” and in paragraphs 3, 4, 5 and 6 the time and date “5.00 pm on 14 May 1998”. Thus, effectively, the directions hearing in this inquiry is adjourned until 29 May at 10.15 am.

I certify that this and the preceding one (1) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated: 11 May 1998

Counsel for William Morton (applicant): Mr K Bell, QC

Solicitor for William Morton (applicant): Holding Redlich

Counsel for Messrs Fairley; Johnston; Light; Calderwood and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (respondents): Mr H Borenstein

Counsel for the Returning Officer,
Australian Electoral Commission: Ms F McKenzie

Date of Hearing: 11 May 1998

Date of Judgment: 11 May 1998

CaseChat Overview and Summary

William Morton sought an inquiry into an election held within the Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union. The respondents were Messrs Fairley, Johnston, Light, Calderwood and the Union itself, along with the Returning Officer from the Australian Electoral Commission. The dispute arose from concerns about potential irregularities during the election process, and Morton sought an inquiry under Division 5 of Part IX of the Workplace Relations Act 1996. The Federal Court of Australia was tasked with determining whether there were reasonable grounds to hold such an inquiry.

The legal issues before the court were whether the threshold for establishing reasonable grounds for an inquiry was met and whether interim relief could be granted. Specifically, the court needed to consider if the mere prospect of an irregularity was sufficient under Section 219 of the Act, and if the proposed interim relief was appropriate under the Act. The court also had to examine if the interim relief orders would constitute an injunction requiring compliance with the law, which the court typically does not grant when specific legal sanctions already exist.

The court found that the mere prospect of an irregularity was sufficient to meet the threshold for an inquiry, aligning with Section 219 of the Act. However, the court was not persuaded that the interim relief proposed was appropriate. The relief was neither an interim order as defined under Section 221 nor an order contemplated by Section 223(2). Furthermore, the court noted that the proposed relief would effectively require individuals to comply with the law, which is not the role of the court when statutory sanctions are already in place. The court also highlighted that the proposed relief introduced concepts not found in the legislation, such as purpose or mixed purpose.

The court ordered an inquiry in accordance with paragraphs 1 to 6 of the proposed minutes, with specific adjustments to the dates and times of the inquiry. The court refused to grant the interim relief proposed in paragraph 7 of the minutes. This decision effectively postponed the directions hearing of the inquiry until 29 May 1998 at 10.15 am.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 194 of 1998

JUDGE:	RYAN J
DATE:	11 MAY 1998
PLACE:	MELBOURNE

Counsel for William Morton (applicant):	Mr K Bell, QC
Solicitor for William Morton (applicant):	Holding Redlich
Counsel for Messrs Fairley; Johnston; Light; Calderwood and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (respondents):	Mr H Borenstein
Counsel for the Returning Officer, Australian Electoral Commission:	Ms F McKenzie
Date of Hearing:	11 May 1998
Date of Judgment:	11 May 1998