In the matter of applications by Neil Raymond Morris for inquiries into elections for offices in the Construction, Forestry, Mining and Energy Union, Building Unions Division, Victorian Divisional Branch
[1994] IRCA 106
•14 Nov 1994
C A T C H W O R D S
ELECTION INQUIRIES - irregularities - members of former union excluded from voting for certain offices - whether irregularity in that the election was not conducted by a "direct voting system" - whether irregularity in that the exclusion from voting imposed on members conditions, obligations or restrictions which are oppressive, unreasonable or unjust under s.196(c) of the Act - whether the office of organiser under the rules of the union is an "office" within s.4 of the Act
Industrial Relations Act 1988 (Cth) ss. 4, 196(c), 197(1), 223(4)
R. v. The Commonwealth Industrial Court and Anor; Ex parte The Amalgamated Engineering Union, Australian Section (1960) 103 CLR 368
IN THE MATTER OF applications by Neil Raymond Morris for inquiries into elections for offices in the Construction, Forestry, Mining and Energy Union, Building Unions Division, Victorian Divisional Branch.
No. VI 1030 of 1994 and
No. VI 1038 of 1994
KEELY J.
MELBOURNE
14 November 1994
IN THE INDUSTRIAL RELATIONS COURT )
) No. VI 1030 of 1994
OF AUSTRALIA ) No. VI 1038 of 1994
)
VICTORIA DISTRICT REGISTRY )
IN THE MATTER OF applications by Neil Raymond Morris for inquiries into elections for offices in the Construction, Forestry, Mining and Energy Union, Building Unions Division, Victorian Divisional Branch.
CORAM: Keely J.
PLACE: Melbourne
DATE: 14 November 1994
MINUTES OF ORDERS
THE COURT DECLARES THAT:
In the elections for the various offices referred to in the applications, other than the offices of organisers, in the Building Unions Division, Victorian Divisional Branch of the Construction, Forestry, Mining and Energy Union, in which elections nominations opened on 1 March 1993 and the results of the elections were declared on 10 June 1993, irregularities have happened, being the exclusion from nominating and from voting of those members who had formerly been members of the Operative Painters and Decorators Union.
THE COURT ORDERS THAT:
The inquiry to the extent that it relates to the elections for the offices of organisers be terminated.
The elections for all other offices be declared void.
Each person purporting to have been elected (other than the organisers) be declared not to have been elected.
The Industrial Registrar be directed to make arrangements for new elections to be held, including the calling for nominations.
The operation of the rules of the union be modified to the extent necessary to enable the new elections to be held.
Whatever persons are declared by the returning officer to have been elected in the new elections commence to hold the respective offices immediately upon being declared elected.
Liberty be reserved to all parties to apply in relation to the terms of these orders, provided that any such application is filed and served within 7 days from today, that it states specifically each order or direction sought, and is supported by an affidavit which sets out the reasons to be advanced in support of the application, together with references to all relevant transcript pages and other documents.
Subject to the rights of the parties to apply, reserved under order 7 above, the inquiry be terminated.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT )
) No. VI 1030 of 1994
OF AUSTRALIA ) No. VI 1038 of 1994
)
VICTORIA DISTRICT REGISTRY )
IN THE MATTER OF applications by Neil Raymond Morris for inquiries into elections for offices in the Construction, Forestry, Mining and Energy Union, Building Unions Division, Victorian Divisional Branch.
CORAM: Keely J.
PLACE: Melbourne
DATE: 14 November 1994
REASONS FOR JUDGMENT
The course of the inquiries
In matter no. VI 1030 of 1994 (the first application), which was earlier numbered VI 48 of 1993 in the Federal Court, Neil Raymond Morris (the applicant) applied on 5 August 1993 for an inquiry into irregularities which he claimed had occurred in relation to elections in respect of offices in the Building Unions Division (the Division) Victorian Divisional Branch (the Divisional Branch) of the Construction, Forestry, Mining and Energy Union (the union). The offices included those of President, Secretary, 2 Assistant Secretaries, 11 Organisers, 16 State Management Committee Members, 22 Council Delegates, a large number of zone delegates to the Divisional Branch Council and 8 Branch delegates to Divisional Conference. Nominations opened on 1 March 1993 and closed on 26 March 1993. The results of the elections were declared on 10 June 1993.
In matter No. VI 1038 of 1994 (the second application), which was earlier numbered VI 62 of 1993 in the Federal Court, the applicant lodged a further application for an inquiry into the same elections in respect of the same offices. That application claimed that a number of irregularities, additional to those alleged in the first application, had occurred, including the following:
"2.(a) Further or alternatively, members of the Divisional Branch who were eligible for membership of the Union by virtue of Sub-rule 2(A)(b) of the National Rules of the Union were not permitted to nominate or vote in the election for the offices.
(b)Rule 38(ee) of the Building Unions Division Rules as it was for the period 26 March 1993 to 10 June 1993 purported to exclude members of the Divisional Branch referred to in (a) hereof from nominating or voting in the election for the offices.
(c)Rule 38(ee) of the Building Unions Division Rules as it was for the period 26 March 1993 to 10 June 1993 was contrary to Section 196 of the Industrial Relations Act 1988 ("the Act") in that it imposed on members of the organisation conditions, obligations or restrictions that, having regard to the objects of the Act and the purposes of registration of organisations under the Act were oppressive, unreasonable or unjust.
(d)Further or alternatively, the Rules of the Union were contrary to or failed to make a provision required by the Act 1988 in particular respects being that they did not provide for the control of committees of the Divisional Branch by members of the Divisional Branch and that they did not provide for the election of the holder of each office in the Divisional Branch in accordance with s.197(1)(a) of the Act.
PARTICULARS
The effect of the rules and Rule 38(ee) in particular for the period 26 March 1993 to 10 June 1993 was to exclude a substantial proportion of the membership of the Divisional Branch from participating in the election of the various committees of the Divisional Branch.
(e)In the premises, members of the Divisional Branch eligible for membership of the Union by virtue of Sub-rule 2(A)(b) of the National Rules of the Union were wrongly excluded from nominating and voting in the disputed election."
On 10 December 1993 Gray J. recorded that he was "satisfied that there is reasonable ground for the application" and directed that notice of the hearing be given to the returning officer, the Construction, Forestry, Mining and Energy Union (the union) the secretary of the Victorian Divisional Branch of the Building Unions Division of the union and every candidate (successful and unsuccessful) for every one of the offices referred to in the application.
Between October 1993 and September 1994 a number of directions hearings were held in the two matters. Orders were made concerning a request for further and better particulars and answers there to, contentions of fact and law and affidavit material. In addition orders were made by Gray J. on 11 October 1993 and 21 March 1994 requiring the respondent to make discovery of specified classes of documents and allow inspection and photocopies to be made of certain classes of documents by the applicant. On 7 July 1994 the Union filed a notice of motion seeking the termination of the inquiry; it was dismissed on 10 August 1994.
Questions posed by the parties
On 10 August the parties agreed that by 17 August the union would file questions proposed by it for determination by the court, together with its outline of argument. That time table was not adhered to and the court vacated the hearing dates, which had been fixed to commence on 24 August.
On 27 September 1994 the applicant filed a notice of motion seeking the determination by the court of seven questions, the notice being accompanied by a supporting affidavit and an outline of argument. On 28 September 1994 the respondent union filed a notice of motion seeking the determination of 11 questions - some of which were virtually identical with the questions of the applicant. The motions were fixed for hearing on 9, 10 and 11 October 1994 (see order made on 4 July 1994).
After hearing counsel the court decided to hear the parties as to some of the applicant's questions, commencing on 10 October 1994. On October 10, 11, 17 and 25 counsel appeared for all the respondents in both matters (transcript 2) and the court heard argument on the applicant's questions (a) and (b). These reasons for judgment are confined to those questions - the terms of which are as follows:
Question (a)
"whether or not by reason of the exclusion of persons who became members of the Secondnamed Respondent on 26 March 1993 who had formerly been members of the Operative Painters and Decorators Union of Australia ("the OPDU") from eligibility to vote for any of the offices in the elections called on 1 March 1993 ("the elections") in the Victorian Divisional Branch of the Building Unions Division of the Secondnamed Respondent ("the Divisional Branch") any of those elections was not conducted by a direct voting system."
Question (b)
"whether or not the qualification for nomination and voting at any of the elections, which qualification excluded the former OPDU members from eligibility to nominate and vote, was a qualification which imposed upon the members of the Divisional Branch conditions, obligations or restrictions that, having regard to the objects of the Industrial Relations Act 1988 ("the Act"), and the purposes of the registration of organisations under the Act, are oppressive, unreasonable or unjust."
The respondents' counsel accepted that those questions were in substance the same as questions 3 and 4 in their notice of motion filed 28 September 1994.
Uncontroversial factual matters
The affidavit in support of the applicant's motion, sworn by his solicitor, stated that the questions proceeded:
" . . . on the basis of facts which are uncontroversial as between the parties. Neither question involves the construction of any rule of the Union. The construction of the rules relevant to the disposition of those questions is not an issue. The only matter in issue between the parties is whether the rules of the Union as they were at the relevant period of time in relation to the exclusion of former OPDU members from eligibility to nominate and vote in the elections the subject of the inquiry were contrary to the Act. If these questions were answered in the way for which the Applicant contends further proceedings in the election inquiry would be unnecessary."
The following statements in the applicant's contentions of fact were admitted by the union:
"1.The Applicant is and was at all material times a member of the Construction, Forestry, Mining & Energy Union ("the Union") or ("the CFMEU").
2.The CFMEU is a Union formed as a result of a number of amalgamations between registered organisations since 23 September 1991. . . .
3.As at 22 September 1991 there existed a registered organisation known as the Building Worker's Industrial Union ("the BWIU"). That organisation had a Victorian Branch.
4.On 23 September 1991 an amalgamation took effect between the BWIU and the Australian Timber & Allied Industry Union ("the ATAIU"). The BWIU was the "host" organisation for that amalgamation, that is, the BWIU continued to be registered albeit with a changed name and rules and the ATAIU was deregistered. On the coming into effect of that amalgamation, the BWIU's name was changed to the ATAIU and BWIU Amalgamated Union.
5.The rules of the ATAIU and BWIU Amalgamated Union provided for a BWIU Division and, within that Division, a Victorian Divisional Branch.
. . .
7.The rules of the Construction, Forestry & Mining Employees Union provided for a BWIU Division and, within that Division, a Victorian Divisional Branch.
8.On 23 September 1992, the Construction, Forestry & Mining Employees Union amalgamated with the Federated Engine Drivers & Firemans Association of Australasia ("the FEDFA") and the Operative Plasterers and Plaster Workers Federation of Australia ("the OPPWF"). The Construction, Forestry & Mining Employees Union was the host organisation for this amalgamation. After the coming into effect of this amalgamation the name of the organisation became the Construction, Forestry, Mining & Energy Union.
9.For the period 23 September 1992 to 26 March 1993 the rules of the Union provided for a BWIU/Plasterers Division ("the former Division") and, within the former Division, a Victorian Divisional Branch ("the former Divisional Branch").
. . .
11.Rule 42(i) of the National Rules between 23 September 1992 and 26 March 1993 provided so far as is relevant:
" . . . . . .
The BWIU/Plasterers Division shall consist of those person eligible and continuing to be eligible for membership of the union under Rule 2(A) and (B), . . . ".
12.Sub-rule 2(A) and (B) of the National Rules between 23 September 1992 and 26 March 1993, in substance, comprised the eligibility rules of the former BWIU and the former OPPWF.
13.On 26 March 1993 the CFMEU amalgamated with the Operative Painters and Decorators Union ("the OPDU") and the Federated Furnishing Trades Society of Australia ("the FFTS"). The CFMEU was the host organisation for this amalgamation.
14.On and after 26 March 1993, the rules of the Union provided for a Building Unions Division ("the Division") and, within the Division, a Victorian Divisional Branch ("the Divisional Branch").
. . .
16.Rule 42(i) of the National Rules on and after 26 March 1993 provided, so far as is relevant:
" . . . . . .
The Building Unions Division shall consist of those persons eligible and continuing to be eligible for membership of the union under Rule 2(A) and (B), . . . ".
17.Sub-rule 2(A) and (B) of the National Rules on and after 26 March 1993, in substance, comprised the eligibility rules of the former BWIU, the former OPPWF and the former OPDU.
. . .
33.Sub-rule 2(A)(b) of the National rules of the Union on and after 26 March 1993 was in substance to the same effect as the eligibility rule of the former OPDU.
. . .
39.Members of the Divisional Branch rendered eligible for membership of the Divisional Branch by virtue of sub-rule 2(A)(b) were in fact excluded from nominating or voting in the disputed election.
. . .
69.At all material times, rule 5(iv) of the former Divisional Rules and rule 4(iv) of the Divisional rules provided as follows:-
" . . .
(iv)A member shall be deemed to be attached to the Divisional Branch covering the locality in which he resides, or, in the case of members employed in an industry for which a Divisional Branch has been established, then to such Divisional Branch . . . "
. . .
91.As at 26 March 1993 rule 42(a)(vi) of the Divisional rules provided as follows:
"In Victoria, the Divisional Branch Management Committee shall consist of the Divisional Branch President, three (3) Divisional Branch Vice Presidents, the Divisional Branch Secretary, four (4) Divisional Branch Assistant Secretaries and twenty two others, at least 12 non full-time officers and up to 4 of whom shall be Divisional Branch Organisers, consisting of seven (7) Carpenters, seven (7) Builders Labourers, six (6) Painters, one (1) Stone Mason and one (1) Wall and Floor Tiler. The positions on the Divisional Branch Management Committee and/or Divisional Branch Council representing Painters shall be Painters and/or OPDU designated positions and shall, until 2 January 1997 be filled by the persons designated as such in the Schedule to the National Rules and in relation to all other positions shall be the subject of election in accordance with these Rules. All positions shall be subject to election by the membership in accordance with the Rules herein in 1996 to take up office on 2 January 1997."
92.As at 26 March 1993 rule 37(ix) provided that one of the Assistant Secretaries and one of the Vice Presidents of the Victorian Divisional Branch would until 1997, be a Painter designated position."
The parties' submissions as to the rules
The respondents' outline of argument contained the following paragraphs:
"9.The scheme of the amalgamation provided a transitional period between 1993 and 1997 during which time formerly elected officers of the OPDU became, without election, officers of the CFMEU but that the election that, by the time the amalgamation would take effect either would have been held, was being held or will be held in 1993 would continue unaltered.
10.The rules established a scheme on amalgamation whereby the former OPDU members would be represented in the management of the Divisional Branch by an Assistant Secretary (the former Branch Secretary of the OPDU, Victorian Branch), a Vice-President, six members of the Committee of Management and a further eight members of the Divisional Branch Council out of a total number of seven executive officers, twenty two non executive officer committee members and twenty one ordinary council members. That is, OPDU members were represented by two out of seven Executive Officers, six out of twenty two ordinary executive members and eight out of twenty one non executive Council Members - just under or just over one third of each category of officer described above). Their respective memberships were OPDU: 2,605 and others: 12,269 (ie OPDU members represented approximately 17.5% of the Building Unions Division, Victorian Divisional Branch of the Second Respondent). The imbalance to "non painter" members in the above representation was redressed at least at Divisional Branch Council level which meets no less frequently than every two years and has not met since 26 March 1993, by the fact that there were also a further sixty council members elected from zones which had no OPDU representation. Further, there were two out of six trustees who were former OPDU trustees.
11.Thus, on every level of management the OPDU members are represented in greater numbers than their percentage of members would require on a proportional basis, except at Divisional Branch Council level where they have sixteen members out of a total membership of one hundred and ten (ie 14.5% of the Council members compared with 17.5% of the totality of membership)."
Counsel for the applicant and counsel for the respondents both made very detailed submissions as to the structure and the terms of the rules. The respondents' counsel in final address handed to the court a thirty-page written submission. In paragraphs 5 and 6 of it they said, amongst other things, that the applicant's counsel had sought "to paint the picture of a complicated set of rules intertwined beyond understanding. In reality the rules emanate from a number of simple, fundamental premises [which] are:
There are divisions covering the industries described in the Constitution which divisions are, in respect of matters relating only to members of one division totally autonomous.
Each division is governed by one set of rules and each division operates nationally. The rules of that division govern the operation of the division on a national basis and, to the extent that they exist, for each divisional branch.
The divisions are co-ordinated at a national level, and at a State and Federal level by the National Rules which govern both the operations of the Union at a national and State/Territory level when dealing with matters that do not affect only the member[s] of one Division.
The BWIU and its proposed amalgamation partners prior to 1991 sought to amalgamate certain disparate groups and organisations and in doing so created a phase-in or integration period during which each of the separate organisations would be separately represented and elected and over the period ending 31 December 1996 would integrate and rationalise.
The rationalisation process occurred both within divisions and between divisions.
The rationalisation required agreement between the disparate interests but would result in, finally, 2, 3 or 4 Divisions covering all those in . . .
The process by which that occurs is that the organisations rules embody the principle that during that integration process each disparate group is entitled to continue to elect its own officers who, by operation of the rules, manage the organisations together at the end of the integration period the members (ie all of them) decide who will hold all offices.
The integration period differs depending on which amalgamation and/or integration process is concerned. All of the processes, coincide initially at the first general elections in 1996 with persons taking up office on 2 January 1997. But for the FFTS Division, the BLF in SA, Qld and WA and FEDFA, Vic Divisional Branch all integration should have been completed by 2 January 1997. Those three areas must have been integrated fully by the next elections after 1996, ie to take office on 2 January 2001."
The Divisional rules included the following provisions:
"38(o)All financial members as defined in this rule shall be entitled to vote for all positions. Provided that in respect of voting for councillors members shall only be entitled to vote to elect the Councillor or Councillors within their Trade District or if they are not a member of a trade district, for the councillors within the zone district that they are attached to.
The zone that a member is attached to for the purpose of this rule shall be the zone that the member resides in according to the Divisional Branch records which shall be based upon the last address supplied to the Divisional Branch by the member up to and including the last working day of September in the year of the election.
. . .
38(ee)
Provided that in 1993 there shall occur a Divisional Branch election in relation to all offices . . . Provided that the election herein mentioned for 1993 shall be an election of officers not covered by the provisos in paragraph (dd) . . . nor officers (sic) designated to be filled by former officers of the Operative Painters and Decorators Union of Australia and the election in 1993 shall be by and from all members of the Divisional Branch except those members rendered eligible for membership of the Divisional Branch by virtue of sub-rules 2(A)(b) and (c) of the National Rules of the Union."
It is convenient to refer in these reasons to the words at the end of sub-rule 38(ee), commencing "except those members", as "the exception provision".
The statutory provisions re question (a)
Section 197(1)(a)(i) of the Act provided as follows:
"197(1)The rules of an organisation:
(a)shall provide for the election of the holder of each office in the organisation by:
(i)a direct voting system,"
Section 4 of the Act provided as follows:
" "direct voting system", in relation to an election for an office in an organisation, means a method of election at which:
(a)all financial members; or
(b)all financial members included in the branch, section, class or other division of the members of the organisation that is appropriate having regard to the nature of the office;
are, subject to reasonable provisions in relation to enrolment, eligible to vote;"
Putting to one side the question whether the organisers held "office" as defined in s.4 of the Act (which is dealt with later in these reasons), each of the offices the subject of the elections was an office the nature of which was such that the Building Unions Division was the relevant "division" within the meaning of paragraph (b) of the definition of "direct voting system" in s.4 of the Act. The 2,605 former OPDU members were all members in that division and, if financial, were "entitled to vote for all positions" within the meaning of Divisional sub-rule 38(o), but for the exception provision in sub-rule 38(ee). (Both sub-rules are set out earlier; see also the words "eligible to vote" in the definition of "direct voting system" in s.4.)
In my opinion those former OPDU members did not constitute under the rules a separate "branch, section, class or other division of the members of the organisation that [was] appropriate having regard to the nature of the [respective offices]" within the meaning of the definition of "direct voting system" in s.4 of the Act. As the rules, and in particular Divisional sub-rule 38(ee), deprived them of their eligibility to vote, the rules were "contrary to, or [failed] to make a provision" [s.196(a)] which was required by s.197(1)(a)(i) in that they failed to "provide for the election of the holder of each office in the [division] by a direct voting system".
The submissions as to Shearer's case
The respondents' counsel in their written submission (para 62) said that the applicant's submission was that "either the rules as a whole . . . or that the exception in rule 38(ee)" did not provide for a direct voting system and accordingly are contrary to s.196 of the Act; further, that if the court upheld that submission, "in so doing (whether in form or in substance) [it] would be making a declaration that the Rules are contrary to s.196 (See s.208(1) and (2))". I am unable to uphold that submission. In my opinion the court, in conducting an inquiry into an election, can uphold a submission by an applicant that the rules do not provide for a "direct voting system" and are contrary to s.196 of the Act; and it can do so without "making a declaration" as submitted by the respondents - see R v. Commonwealth Industrial Court; Ex parte the A.E.U. (Shearer's Case) (1960) 103 CLR 368 at 377 and 378 per Fullagar J.; Leveridge's Case (1977) 31 FLR 385 at 392-394 per Smithers J.; Allen v. Townsend (1977) 31 FLR 431 at 481 per Evatt and Northrop JJ; Bucknall v. Printing and Kindred Industries Union (1981) 52 FLR 258 at 261 per Toohey J.; Re Post; Re T.W.U. (1992) 40 IR 162 at 167 per French J.
In my opinion, contrary to the submission by the respondents' counsel (paragraph 75), the respondent union was "seeking to enforce" the rules and in particular Divisional rule 38(ee) by relying on the exception provision i.e. the words "except those members rendered eligible for membership of the Divisional Branch by virtue of sub-rules 2(A)(b) and (c)". That exception provision in sub-rule 38(ee) was contrary to s.197(1)(a)(i) of the Act, which required that the rules provide for the election of the holder of each office by a direct voting system i.e. a system in which "all financial members . . . in the division . . . are . . . eligible to vote". The exception provision was contrary to the sub-section in that it excluded the former OPDU members from nominating or voting in "the election of the holder of each office".
Whether the organisers held "office" (s.4 definition)
It is necessary to consider the position of the 11 organisers. In relation to question (a) the applicant's contention is based upon s.197(1)(a)(i) of the Act and the definition of "direct voting system" in s.4 of the Act. Those provisions relate to the election of the holder of each "office" in the organisation and "office" is defined in s.4 of the Act. In Fraser v. Martin Kingham and Others (matter No. VI 1070 of 1994 - judgment delivered in Melbourne on 28 October 1994) the court held that the holders of the offices of elected organiser in the union are not the holders of "office" within the meaning of the definition in s.4 of the Act. The submissions advanced in the present case were the same as those advanced in that case and the court holds that the provisions of s.197(1)(a)(i) and the definition of "direct voting system" in s.4 of the Act did not apply to the election of the eleven organisers referred to in the two applications for an inquiry. It follows that the offices of the eleven organisers are not offices within the meaning of s.218 of the Act and cannot be the subject of an inquiry under Part IX of the Act into the elections. Accordingly the court terminates the inquiry to the extent that it relates to the elections of the eleven organisers.
As to the offices in the elections other than those of the organisers (the other offices) it was not contended by the respondents that the offices did not come within the definition of "office" in s.4 of the Act. For the reasons already given there was an "irregularity" in the elections for those offices in that the exclusion of the former OPDU members from the right to vote and to nominate, made pursuant to sub-rule 38(ee), was contrary to the provision in s.197(1)(a)(i) of the Act.
It follows from the foregoing reasons that in my opinion the answer to question (a), the terms of which are set out earlier in these reasons, is that, in the elections called on 1 March 1993 in the Victorian Divisional Branch of the Building Unions Division, the election for each of the other offices was not by "a direct voting system" (s.4 and s.197(1)(a)(i) of the Act).
Question (b)
In my opinion the exception provision in sub-rule 38(ee) was also contrary to s.196(c) of the Act in that it imposed on members conditions and restrictions that were unreasonable and unjust, by excluding the former OPDU members from the right to vote and to nominate; those members constituted 17.5% of the Building Unions Division, Victorian Divisional Branch i.e. 2,605 out of 12,269 members (see para. 10 of the respondents' outline). I am unable to uphold the respondents' argument, based upon the contention that the former OPDU members were "represented in the management of the Divisional Branch". I accept the submission by the applicant's counsel that the excluding of former OPDU members from nominating and voting hindered the democratic control of the organisation and prevented some members from participating in its affairs.
In my opinion the answer to question (b) is that in the elections the rules, in excluding the former OPDU members from eligibility to nominate and to vote, imposed upon the members of the union who were former members of the OPDU conditions, obligations and restrictions that were unreasonable and unjust.
In addition s.4 of the Act provided that:
"Irregularity" in relation to an election or ballot, includes:
(a)a breach of the rules of an organisation . . .; and
(b)an act or omission by means of which :
(i)the full and free recording of votes by all persons entitled to record votes . . . ;
is, or is attempted to be, prevented or hindered."
The "act of the secretary in providing [to the returning officer] a list of voters which excluded the OPDU members" (words quoted from the respondents' written submission, para. 60) was in my opinion "an act . . . by means of which . . . the full and free recording of votes by all persons entitled to record votes . . . [was] prevented or hindered".
It follows from the answers to questions (a) and (b) that irregularities occurred in relation to the election for each office other than the offices of the eleven organisers. The method of conducting the election for the offices of the eleven organisers did not constitute an irregularity because those offices were not offices within the meaning of s.218 of the Act and cannot be the subject of an inquiry.
Whether the result of the elections may have been affected
In my opinion, having regard to the irregularities found, the voting figures shown in the declaration of the results and the fact, as agreed by the parties, that the former OPDU members constituted 17.5% of the Victorian Divisional Branch, the result of the elections may have been affected by irregularities (s.223(4) of the Act).
The respondents' application for validation (s.253ZG)
The respondents' written submission, handed up on 25 October 1994, included an application for validation under s.253ZG of the Act. It appeared at the end of paragraph 37, which was in the following terms:
"37.Given the agreed facts for the purpose of this preliminary proceeding, your Honour, will see that as a matter of fact, albeit that it was not a matter countenanced by the rules of the Organisation, the OPDU office continued to operate in relation to OPDU members and integration of office records at the office that was the office of the Building Unions Division decided upon by the Divisional Branch Council in accordance with divisional rule 39, did not occur until 3 November, 1993. For all intents and purposes, between 26 March 1993 and 3 November, 1993 in accordance with the agreed facts, the OPDU branch operated as a "separate division or branch" in the same way as did the WA Painters Divisional Branch for a period of 3 months under the Rules. At the very least, given the factual situation that was to exist, the CFMEU Rules could have, had they so desired, implemented a separate painters divisional branch for a period of 9 months during which the election would continue unaltered. The election would then have been by and from all members of the Divisional Branch being the continuing BWIU/Plasterers Divisional Branch which would not have, on that hypothetical, included any OPDU members. At the end of the 9 month period, i.e. on or about 3 November, 1993, (when in fact the integration occurred) the offices and officers could have been integrated and restructured with the secretary of the hypothetical continuing "BWIU/Plasterers Victorian Divisional Branch" becoming the Divisional Branch Secretary of the Building Unions Divisional Branch in the State of Victoria. In other words, that which was achieved by the rule change effected on 26 March, 1993 in the case of Victoria, could have been achieved by another rule change which, beyond doubt, would have fulfilled all of the requirements of the definition of "direct voting system" without the necessity to analyse "the nature of the position" and "the appropriateness" of the section. In those circumstances and given that the separateness of the bodies for the purpose of the election was the clear intention of both unions, the process and rules ought properly be validated under s.253ZG and application is now made by the CFMEU for such validation." (emphasis added)
The applicant's counsel submitted that the respondents' written submission accepted that the rules could have been drafted in such a way so as to avoid the problem but had not done so, saying that that course was readily available to the respondents because "the rules are quite explicit about those painters in Western Australia". In that connexion, it will be noted the respondents, in that paragraph 37 (above), expressly said that "the [Union] rules could have, had they so desired, implemented a separate painters divisional branch for a period of nine months during which the election would continue unaltered. The election would then have been by and from all members of the Divisional Branch . . . [it] could have been achieved by another rule change which, beyond doubt would have fulfilled all the requirements of the definition of "direct voting system".
Assuming that the last sentence of paragraph 37 of the written submission constitutes an "application" under s.253ZG(1) of the Act for "a determination whether an invalidity has occurred in a . . . completed amalgamation . . . ", I am not prepared to find that the matters relied on in paragraph 37 constitute an "invalidity" within the meaning of the sub-section. Further, if, contrary to that opinion, an invalidity has occurred, in my opinion it would not be "proper" for the court to make any such "declaration" (s.253ZG(2)). Nor would it be "appropriate" for the court to make any of the orders contemplated by s.253ZG(3)(a), (b) or (c). It may be added that those conclusions have been reached without considering the possibility of "substantial injustice" to the persons or bodies referred to in s.253ZG(5).
Accordingly, the court terminates the inquiries to the extent that they relate to the elections for the offices of organiser, declares the elections (other than the elections of the eleven organisers) to be void, declares the persons purporting to have been elected not to have been elected, directs the Industrial Registrar to make arrangements for new elections to be held, including the calling for nominations, and orders that the operation of the rules of the union be modified to the extent necessary to enable the new elections to be held. There will be an order that the persons elected in the new elections commence to hold their offices immediately upon being declared elected and an order that the inquiry be terminated, subject to the right reserved to all parties to apply in relation to the terms of the orders.
I certify that this and the preceding eighteen (18) pages are a true copy herein of the reasons for judgment of the Honourable Justice Keely.
Associate:
Dated: 14 November 1994
Solicitors for the applicant : Gill, Kane & Brophy
Counsel for the applicant : Mr R. W. Hinkley
and Mr A. J. Watson
Solicitors for Mr M. Kingham,
Mr S. Sharkey, Mr W. Groome and
Mr A. Nbulsi : Holding Redlich
Solicitors for the C.F.M.E.U. : Messrs Taylor & Scott
Counsel for all respondents : Mr S. Rothman
and Mr R. Reitano
Dates of hearing : 10, 11, 17 and 25 October 1994
Date of judgment : 14 November 1994
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