In the matter of applications by Neil Raymond Morris for inquiries into the elections for offices in the Construction, Forestry, Mining and Energy Union, Building Unions Division, Victorian Divisional Branch
[1994] IRCA 137
•1 Dec 1994
C A T C H W O R D S
Election inquiries - orders made declaring election void and ordering new election - application for a stay pending application to High Court of Australia - orders sought that officers, declared by court not to have been elected, may continue to act in the offices pending the new election - construction of s.221(1)(c) - whether "holds" means holds de facto or de jure.
Industrial Relations Act 1988 (Cth) s. 221(1)(c) and (d)
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
KEELY J.
MELBOURNE
1 December 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: 1 December 1994
MINUTES OF ORDERS
(re notices of motion)
THE COURT ORDERS THAT:
The election for offices in the Victorian Divisional Branch of the Building Unions Division of the Construction, Forestry, Mining & Energy Union be held in accordance with the following orders and directions:-
(a)an election be held for the following offices ("the offices") in the Victorian Divisional Branch:
President; Vice-President; Secretary; Assistant Secretaries (2); Divisional Conference Delegates (8); Divisional Branch Council Delegates (22); comprising Carpenters (9), Stonemasons (2), Labourers (9), Tilelayers (2); Divisional Branch Management Committee (16) comprising Carpenters (7), Stonemasons (1), Labourers (7), Wall and Floor Tiler (1); Zone Delegates (number to be determined in accordance with Divisional Branch Rule 40(2)(vi)).
(b)the entitlement of persons to vote in the election shall be determined in accordance with Branch Rule 38(p) of the Divisional Branch Rules except that, for the purposes of this election, each reference to 30 September in that Rule shall read as 31 March 1995;
That until the declaration of the results of the election ordered by the Court the following persons act in the offices of the Victorian Divisional Branch of the Building Union's Division of the Construction, Forestry, Mining and Energy Union ("CFMEU") under which their names appear:
(a)OFFICES ON THE BRANCH COMMITTEE OF MANAGEMENT
President Vice President
F. O'Grady B. Oliver
Secretary Assistant Secretary
V. Raffa M. Kingham
Carpenters Builders Labourers Tilelayer
R. Williams R. Sinclair Z. Prazac
R. Carter R. Ryan
G. Lavery J. Nicol Stonemason
D. Van Dam P. Lennon M. Newham
M. Santana M. Bingham
W. Torpey M. Ratel
D. Noonan
B. Giagnacovo
(b)OFFICES ON THE BRANCH COUNCIL
Carpenters Builders Labourers Stonemasons
V. Nicoli T. Bockting A. Patience
K. Green G. Young G. Slack
D. Black G. Miles
A. Moore D. Noonan Tilelayers
W. Oliver K. Hughes O. Kypta
H. Kotsabis J. Bruce Z. Prazac
D. Jacobson J. McPartlin
G. Preddy C. Leatham
D. Shacklock
ZONE DELEGATES
Ballarat Bendigo Brunswick
V. Broes T. Coleman M. Kingham
L. Brown N. Pyle W. McConnel
N. Davidson L. Worme F. Stradijot
Camberwell Clifton Hill Essendon
J. Baysinger F. Amarante D. Deprisco
R. Bentley R. Collins T. Hancy
S. Mitchell S. West V. Raffa
Footscray Geelong Goulburn Valley
P. Leckie J. Cody C. Craig
F. Lopez J. O'Mara A. Kerris
R. Storey B. Roche P. O'Flaherty
Latrobe Valley Melbourne Mordialloc
V. Beaton R. Carter G. Burleigh
M. Smith M. Santana I. Nichol
A. Nabulsi G. Tsotsos P. Sullivan
Murray Valley Oakleigh Preston
L. Fahey L. Bacolas M. Collingburn
S. Masterson J. Medlyn R. Lucas
J. Salinger B. Smith N. Porter
Prahran Richmond South Western
B. Giagnacovo D. Blake K. O'Connor
A. Medina C. Commons A. Sargent
S. Delaney R. Hakainsson G. Sullivan
Sunraysia Wimmera
A. Boldock R. Nesibit
D. Costa G. Scott
M. Dawes A. Patterson
(c)OFFICES OF BRANCH DELEGATE TO DIVISIONAL CONFERENCE
F. O'Grady R. Williams M. Kingham
J. Saddington V. Raffa M. Bingham
Order 2 above shall not affect the entitlement to hold any of the offices referred to therein conferred by the second to fifth paragraphs inclusive of National Rule 42(ix)(a)(i) of those CFMEU Rules on the persons identified in those paragraphs.
The respondents' application for a stay of the orders made by the court on 14 November 1994 be refused.
Liberty to apply be reserved to all parties, including the Australian Electoral Commission.
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: 1 December 1994
REASONS FOR JUDGMENT
(re notices of motion)
On 14 November 1994 the court gave judgment under the Industrial Relations Act 1988 (Cth) in this matter and published its reasons. Matters in those reasons relevant to these reasons for judgment will not be repeated here. The orders made by the court on 14 November 1994 were as follows:
"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:
1.The inquiry to the extent that it relates to the elections for the offices of organisers be terminated.
2.The elections for all other offices be declared void.
3.Each person purporting to have been elected (other than the organisers) be declared not to have been elected.
4.The Industrial Registrar be directed to make arrangements for new elections to be held, including the calling for nominations.
5.The operation of the rules of the union be modified to the extent necessary to enable the new elections to be held.
6.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.
7.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.
8.Subject to the rights of the parties to apply, reserved under order 7 above, the inquiry be terminated."
The respondents' application for a stay
The court was informed on Friday last, 25 November 1994, by the solicitors for the respondent Kingham and the Construction, Forestry, Mining and Energy Union (the union), that they had lodged on that day in the High Court of Australia a draft order nisi and supporting affidavit, seeking prerogative writs in respect of the judgment. The court was informed, on the return of the notices of motion on 28 November 1994, that that matter had been fixed for hearing before a single Justice of the High Court on Friday, 9 December 1994.
At the hearing on 28 November 1994 counsel for all the respondents in the present matter submitted that the court should stay the judgment until further order; alternatively that the court should stay orders 4, 5 and 6 (the orders relating to the holding of new elections). His primary submission, expressed several times, was that if an election is held prior to the determination as to prerogative writs "the prerogative writ will be nugatory". Having considered carefully all of his address on the question of a stay (occupying more than 20 pages of the transcript) I am quite unable to uphold the submission that, in the absence of a stay of the election, the prosecutors will be denied the relief they seek in the High Court - see Re Moore; ex parte Pillar (1991) 65 ALJR 683 at 685 (column 1), an authority cited by counsel. I accept that, if the election is held before judgment is given on the application for prerogative writs, then, if this court's judgment be reversed, inconvenience and expense may have been incurred by the union and its members; on the other hand if the prosecutors fail in the High Court then a stay of the election would have adverse effects on the former O.P.D.U. members, who were excluded from nominating for and from voting in the election which has been declared void.
The respondents' application for a stay of any of the orders made on 14 November 1994 will be refused.
The orders sought by the applicant
By motion, notice of which was filed on 18 November 1994, as amended on 28 November 1994, the applicant sought orders which will now be set out, together with the court's decision on each proposed order.
Applicant's proposed order 1
"1.The election for offices in the Victorian Divisional Branch of the Building Unions Division of the Construction, Forestry, Mining & Energy Union be held in accordance with the following orders and directions:-
(a)an election be held for the following offices ("the offices") in the Victorian Divisional Branch:
President; Vice-President; Secretary; Assistant Secretaries (2); Divisional Conference Delegates (8); Divisional Branch Council Delegates (22) comprising Carpenters (9), Stonemasons (2), Labourers (9), Tilelayers (2); Divisional Branch Management Committee (16) comprising Carpenters (7), Stonemasons (1), Labourers (7), Wall and Floor Tiler (1); Zone Delegates (number to be determined in accordance with Divisional Branch Rule 40(2)(vi)).
(b)on or before 16 December 1994, nominations for each of the offices be called for by the Industrial Registrar by notification forwarded to the home address of each member of the Victorian Divisional Branch of the Building Unions Division and be published in a newspaper circulating in Victoria;
(c)nominations will close at 4.00 p.m. on Monday 30 January 1995;
(d)the entitlement of persons to vote in the election shall be determined in accordance with Branch Rule 38(p) of the Divisional Branch Rules except that, for the purposes of this election, each reference to 30 September in that Rule shall read as Monday 30 January 1995;
(e)the ballot in the election shall be conducted between Monday 20 February 1995 and noon on Monday 13 March 1995."
Having heard counsel for the parties, and also counsel for the Australian Electoral Commission (the normal practice of which is to appoint one of its officers to act as Returning Officer in any election ordered by the court), in my opinion the court should make order 1(a) but should refuse to make orders 1(b), (c) and (e). Those matters are best left to the Returning Officer. Order 1(d) will be made but it will be renumbered as order 1(b) and the words "31 March 1995" will be substituted for the words "Monday 30 January 1995" appearing in the proposed order. I accept the submissions, advanced by both the Australian Electoral Commission and the respondents, that 31 March is a preferable date although it necessarily involves further delay in the holding of the election and the applicant's counsel advanced a very strong submission that the new elections should be conducted expeditiously.
Applicant's proposed orders 2 and 3
"2.The number of financial members of the Victorian Divisional Branch of the Building Unions Division in each Zone referred to in Victorian Divisional Branch Rule 40(2)(vi)D and E for the purpose of determining the number of Zone delegates to the Victorian Divisional Branch Council at this election shall be the number of financial members attached to the relevant Zone as at 5.00 p.m. on Monday 31 October 1994.
3.The Secretary advise the Industrial Registrar in writing on or before 2 December 1994 of the number of financial members of the Victorian Divisional Branch of the Building Unions Division in each of the Zones referred to in Divisional Branch Rule 40(2)(vi)E as at Monday 31 October 1994."
As to the date 31 October 1994 appearing in proposed orders 2 and 3, there appear to be good reasons to change it to 31 January 1995, as was suggested by counsel for the Australian Electoral Commission and counsel for the respondents, but in my opinion they are matters for the returning officer. The proposed orders 2 and 3 will not be made.
Applicant's proposed order 4
"4.The Secretary forward the notice calling for nominations referred to in Order 1(a) above or cause it to be forwarded to the home address of each member of the Victorian Divisional Branch of the Building Unions Division upon receipt of that notice from the Industrial Registrar."
Proposed order 4 will not be made. It will be open to the returning officer to take action to that effect if the applicant's concerns, as to the likely date of publication and distribution of the union journal, are realised. Those concerns were expressed by his counsel (transcript 293-294), and by counsel's instructing solicitor, Ms Andrea Lester, in her affidavit, sworn 18 November 1994. It was submitted by counsel for the Australian Electoral Commission that there is some doubt as to the court's power to make that order under s.223(3)(d) but I express no opinion on that question as it is not necessary to decide it and it has not been fully argued.
Applicant's proposed order 5
"5.Rule 42(a)(vi) of the Divisional Branch Rules shall be read as though it provided for three Assistant Secretaries (including one Assistant Secretary (Painter)) in the Victorian Divisional Branch." (and see applicant's proposed order 1(a), line 4)
The court heard very little argument on this proposed order. The applicant's counsel said (transcript 267) that it was sought "because there is an argument about the number of assistant secretaries for the purposes of this election" and the applicant's solicitor, in her affidavit, said that the "current Divisional Branch Rules are inconsistent in relation to the number of Assistant Secretaries". The proposed order will not be made; it is a matter for the returning officer.
Applicant's proposed order 6
"6.The Applicant file and serve any Notice of Motion and Affidavit in Support seeking a declaration under Section 226(1)(b) of the Industrial Relations Act 1988 before 12 December 1994."
This proposed order was apparently inserted because of the reference, in order 7 of the court's orders on 14 November 1994, to "within 7 days from today". That order was not intended to affect in any way any right of any party to make an application under s.226 of the Act. In my opinion it is not necessary and it will not be made.
Orders sought under s.221(1)(c) and (d) of the Act
By motion, notice of which was filed on 21 November 1994, the respondent Martin Kingham and others sought orders that certain named persons hold certain offices "in the Victorian Divisional Branch of the Building Unions' Division of the Construction, Forestry, Mining and Energy Union until the declaration of elections conducted in accordance with orders made by the Court [on 14 November 1994]".
The court heard submissions at considerable length from the parties (other than the Australian Electoral Commission) on that question.
Section 221(1)(b), (c) and (d) provide as follows:
"Where an inquiry into an election has been instituted, the Court may make one or more of the following orders:
. . .
(b)an order that a person who has assumed an office, has continued to act in an office, or claims to occupy an office, to which the inquiry relates shall not act in the office;
(c)an order that a person who holds, or last held before the election, an office to which the inquiry relates may act or continue to act in the office;
(d)where it considers that an order under paragraph (c) would not be practicable, would be prejudicial to the efficient conduct of the affairs of the organisation or would be inappropriate having regard to the nature of the inquiry, an order that a member of the organisation or another person specified in the order may act in an office to which the inquiry relates;"
The respondents' counsel submitted that each of the persons who were declared elected in June 1993, in the election which was "declared void" by the court on 14 November 1994 (order 3), being persons whom the court then "declared not to have been elected" (order 4), was "a person who holds . . . an office to which the inquiry relates" within the meaning of those words in s.221(1)(c). In response to questions counsel said the word "holds" means "de facto, not de jure". I reject that argument.
In the alternative he submitted that the court should make an order under s.221(1)(d) that those persons "may act" in the relevant offices, submitting that the court should consider "that an order under paragraph (c) . . . would be inappropriate having regard to the nature of the inquiry". That alternative submission is also rejected because, on all the material before the court, I do not consider "that an order under paragraph (c) [as proposed by the applicant's counsel] would be inappropriate having regard to the nature of the inquiry . . . ".
Even if, contrary to the opinion already expressed, there is power under s.221(1)(c) to make the order sought by the respondents, I would not make that order.
During the submissions by the parties' counsel on this question, reference was made to the advantages which might be gained by persons standing for election by reason of an order by the court that they "may act . . . in the offices" pending the election. I do not know whether such an order by the court is likely to be an advantage, a disadvantage or an irrelevant factor in the opinion of some or all of the members voting in the election. In my opinion the possibility of advantage or disadvantage to individual candidates, or groups of candidates, is not a matter which should influence the court in deciding what orders should be made.
In my opinion the orders sought by the applicant should be made in preference to those sought by the respondents. I have come to that conclusion substantially for the reasons advanced by the applicant's counsel. Those orders will be in the terms of the applicant's proposed order, as amended on 29 November 1994. Because the order set out earlier, relating to the holding of the election, will be the first order, the orders will be renumbered. There will also be an order giving liberty to apply. The orders will be as follows:
That until the declaration of the results of the election ordered by the Court the following persons act in the offices of the Victorian Divisional Branch of the Building Union's Division of the Construction, Forestry, Mining and Energy Union ("CFMEU") under which their names appear:
(a)OFFICES ON THE BRANCH COMMITTEE OF MANAGEMENT
President Vice President
F. O'Grady B. Oliver
Secretary Assistant Secretary
V. Raffa M. Kingham
Carpenters Builders Labourers Tilelayer
R. Williams R. Sinclair Z. Prazac
R. Carter R. Ryan
G. Lavery J. Nicol Stonemason
D. Van Dam P. Lennon M. Newham
M. Santana M. Bingham
W. Torpey M. Ratel
D. Noonan
B. Giagnacovo
(b)OFFICES ON THE BRANCH COUNCIL
Carpenters Builders Labourers Stonemasons
V. Nicoli T. Bockting A. Patience
K. Green G. Young G. Slack
D. Black G. Miles
A. Moore D. Noonan Tilelayers
W. Oliver K. Hughes O. Kypta
H. Kotsabis J. Bruce Z. Prazac
D. Jacobson J. McPartlin
G. Preddy C. Leatham
D. Shacklock
ZONE DELEGATES
Ballarat Bendigo Brunswick
V. Broes T. Coleman M. Kingham
L. Brown N. Pyle W. McConnel
N. Davidson L. Worme F. Stradijot
Camberwell Clifton Hill Essendon
J. Baysinger F. Amarante D. Deprisco
R. Bentley R. Collins T. Hancy
S. Mitchell S. West V. Raffa
Footscray Geelong Goulburn Valley
P. Leckie J. Cody C. Craig
F. Lopez J. O'Mara A. Kerris
R. Storey B. Roche P. O'Flaherty
Latrobe Valley Melbourne Mordialloc
V. Beaton R. Carter G. Burleigh
M. Smith M. Santana I. Nichol
A. Nabulsi G. Tsotsos P. Sullivan
Murray Valley Oakleigh Preston
L. Fahey L. Bacolas M. Collingburn
S. Masterson J. Medlyn R. Lucas
J. Salinger B. Smith N. Porter
Prahran Richmond South Western
B. Giagnacovo D. Blake K. O'Connor
A. Medina C. Commons A. Sargent
S. Delaney R. Hakainsson G. Sullivan
Sunraysia Wimmera
A. Boldock R. Nesibit
D. Costa G. Scott
M. Dawes A. Patterson
(c)OFFICES OF BRANCH DELEGATE TO DIVISIONAL CONFERENCE
F. O'Grady R. Williams M. Kingham
J. Saddington V. Raffa M. Bingham
Order 2 above shall not affect the entitlement to hold any of the offices referred to therein conferred by the second to fifth paragraphs inclusive of National Rule 42(ix)(a)(i) of those CFMEU Rules on the persons identified in those paragraphs.
The respondents' application for a stay of the orders made by the court on 14 November 1994 be refused.
Liberty to apply be reserved to all parties, including the Australian Electoral Commission.
I certify that this and the preceding nine (9) pages are a true copy of the reasons for judgment herein of the Honourable Justice Keely.
Associate:
Dated: 1 December 1994
Solicitors for the applicant : Gill, Kane & Brophy
Counsel for the applicant : Mr R. W. Hinkley
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
Solicitors for the Australian
Electoral Commission : Australian Government Solicitor
Counsel for the Australian
Electoral Commission : Mr G. Moore
Date of hearing : 28 November 1994
Date of judgment : 1 December 1994
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