In the Matter of Section 218 of the Industrial Relations Act 1988 and In the Matter of an application by Ken John Randall for an inquiry into an election for an office in the Federated Municipal and Shire Council..
[1993] FCA 580
•27 AUGUST 1993
SECTION 218 OF THE INDUSTRIAL RELATIONS ACT 1988 and AN APPLICATION BY KEN
JOHN RANDALL FOR AN INQUIRY INTO AN ELECTION FOR AN OFFICE IN THE FEDERATED
MUNICIPAL AND SHIRE COUNCIL EMPLOYEES UNION OF AUSTRALIA
No. WAI3 of 1993
FED No. 580
Number of pages- 7
Industrial Law
(1993) 44 FCR 324
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
French J(1)
CATCHWORDS
Industrial Law - registered organisations - elections - casual vacancies - whether can be filled by resolution of conference - amalgamation of unions - whether pending proceedings for an inquiry into a pre-amalgamation election survived amalgamation.
Industrial Relations Act 1988 (Cth) s.218
Re Post: Re TWU (1992) 40 IR 162
HEARING
PERTH, 20 August 1993
#DATE 27:8:1993
Mr K.J. Randall appeared in person.
Counsel for the Respondents: Mr D.W. Chantler and
Mr A. Drake-Brockman
Solicitors for the Respondents: Dwyer Durack
ORDER
The Court orders that:
The application is dismissed.
Note: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
REASONS FOR JUDGMENT ON QUESTION WHETHER THERE ARE REASONABLE GROUNDS FOR AN ELECTION INQUIRY
Introduction
FRENCH J On 29 June 1993, Ken John Randall filed an application under s.218 of the Industrial Relations Act 1988 (Cth) for an inquiry into alleged irregularities in elections for certain offices in the Federated Municipal and Shire Council Employees Union of Australia (the MEU). On 6 July 1993, directions were given that the application be served on the following parties:
1. The General Secretary of the Western Australian Division of the MEU.
2. The Returning Officer, Mr Jim Brown.
3. Certain persons said to have been declared elected at the election namely Mr Angus Hutchings, Mr Clarrie Cole, Mr Andrew Johnson and Mr Douglas White.
4. The MEU.
On 1 July 1993, however, the MEU had been amalgamated with other unions to form the Australian Municipal, Administrative, Clerical and Services Union (AMASU).
On 2 August 1993, a directions hearing was held at which counsel, Mr D.W. Chantler, appeared on instructions from the AMASU and others for the persons named in the directions given on 6 July 1993. Orders were then made that Mr Randall file and serve any affidavits on which he wished to rely on or before 12 August 1993 and that affidavits in reply were to be filed by 18 August 1993. The directions hearing was relisted for 20 August 1993 at 9am and it was indicated that, at that time, the Court would consider whether it was satisfied that there was reasonable ground for the application and whether it should fix a time and place for conducting the inquiry. The hearing of that question proceeded on 20 August and judgment was reserved until today.
The Threshold Questions
3. Section 219 of the Industrial Relations Act 1988 (Cth) provides that:
"219. Where:
(a) an application for an inquiry has been lodged with the Court under s.218; and
(b) the Court is satisfied that there is reasonable ground for the application; the Court shall fix a time and place for conducting the inquiry, and may give such directions as it considers necessary to ensure that all persons who are or may be justly entitled to appear at the inquiry are notified of the time and place fixed and, where the Court fixes a time and place, the inquiry shall be taken to have been instituted."
In Re Post; Re TWU (1992) 40 IR 162 at 166 I referred to the nature of the question to be resolved by the Court before proceeding to fix a date for an inquiry under s.219(b) of the Act:
"The question for the Court mandated by s.219(b) of the Industrial Relations Act 1988 is whether it is satisfied that there is reasonable ground for the application. It will not be so satisfied if the grounds relied upon could not, even if made out, constitute "an irregularity in relation to an election for an office in the organisation." The question whether there is such an irregularity lies at the heart of this jurisdiction. Nor will it be so satisfied if the allegations of fact relied upon in the application do not at least offer good grounds for suspicion that there has been such an irregularity. The Court will not entertain an application of a speculative nature based upon the applicant's opinion that there has been irregularity unless that opinion rests upon some substantial factual foundation. Necessary conditions to establish the requisite state of satisfaction can be multiplied. It is harder to state what is sufficient to satisfy the Court beyond the words of the section itself which require an evaluative judgment at this preliminary stage."
Counsel for the respondents submitted that the application should be dismissed in limine for three reasons:
1. The Union the subject of the application no longer exists.
2. There was no election within the meaning of s.218.
3. No election was required by the relevant Union rules.
Before turning to the merits of the submissions it is necessary to refer to the nature of the complaint and the evidence which relates to these threshold issues.
The Nature of the Complaint
5. By his application filed on 29 June 1993, Mr Randall complains of an election for the positions of Committee Member for the MEU (WA Division) and Federal Councillor from that Division which, he says, was conducted and declared on 12 June 1993. According to the statement of facts relied upon in the application, a Mr Jeffrey Capper had been elected to both positions in 1990. In 1992 he had informed the General Secretary of the Division in writing of his intention to resign from the positions with effect from 24 December 1992. Mr Randall alleges that on 12 June 1993 at the State Conference of the Division, the returning officer of the Division, Mr Jim Brown, conducted a ballot of delegates to the conference to elect persons to fill these positions and other offices which had become vacant. Mr Angus Hutchings and Mr Clarrie Cole were declared to have been elected to the office of Committee Member pursuant to this process and Mr Andrew Johnson and Mr Douglas White were declared to be elected to the office of Federal Councillor. In the ordinary course, Mr Capper's term of office would have ended upon the election required to be held by the Rules of the Division between 1 January 1994 and 31 July 1994. Mr Randall asserts that r.26 of the Rules of the Division provides that in the event of an extraordinary vacancy occurring in an office of the Division Executive, the vacancy is to be filled by secret postal vote of the financial members of the Division in the same manner as is prescribed in r.24 of the Rules of the Division where the remainder of the term of the vacant office is more than 12 months. Rule 24 provides, inter alia, for a secret postal ballot of the financial members of the Division. Mr Randall further contends that r.25(4) of the Rules of the Division provides that in the event of an extraordinary vacancy occurring in the office of Federal Councillor representing the Division, an election shall be held to fill such vacancy in the same manner as is prescribed in r.24 of the Rules of the Division.
The length of the term remaining for the positions vacated by Mr Capper as at 24 December 1992 was greater than 12 months. By reason of these facts, according to Mr Randall, the returning officer of the Division had failed to conduct an election for the positions in accordance with the Rules of the Division. The facts so asserted were supported by a statutory declaration filed at the same time as the application.
Factual Circumstances
7. In support of his contention that there were reasonable grounds for an inquiry, Mr Randall relied upon affidavits sworn by himself, the former office holder, Mr Jeffrey Capper, and a member of the Union, Jane Katherine Chitty. Mr Capper deposed that on 30 March 1990 he had been declared elected to the position of Federal Councillor and to the position of Committee Member of the MEU (WA). In October 1992, he said, he had personally handed to the General Secretary of the Division his written resignation from the position of Federal Councillor and the position of Committee Member to take effect from 24 December 1992.
Ms Chitty says she is a financial member of the Division and its successor union. She was elected to the position of Committee Member of the Division Executive in 1992 as a result of an extraordinary vacancy. In her capacity as a Committee Member she attended State Conference on 12 June 1993. At the State Conference, she said, discussions took place in relation to the procedure for election of persons to fill extraordinary vacancies that had occurred in the Division. The discussion turned on whether the position should be filled by vote of conference only or whether all financial members should vote. The returning officer for the Division, Mr Jim Brown, was said to have been involved in those discussions. According to Ms Chitty, while there was still debate about the procedure, the General Secretary of the Division moved that Mr Cole and Mr Hutchings should fill the Committee Member positions and also moved that Mr Johnson and Mr White should fill the Federal Councillor positions. A vote was taken at the Conference and they were declared to hold the positions. She was not able to ascertain which of those persons actually hold the positions previously held by Mr Capper. Mr Randall was evidently not present at the State Conference. His affidavit in substance repeats the contentions about the operation of the Rules and the requirement for a ballot of all members of the Division which are set out in his application.
The respondents rely upon the affidavit of Douglas Robert James White who, prior to the amalgamation which took effect on 1 July 1993, was President of the MEU (WA). He is now President of the Local Government Community Services, Public Authority and Racing (MEU) WA branch of the AMASU. The respondents also rely upon an affidavit sworn by James McMillan Brown who was returning officer of the MEU (WA Division) from 1980. Mr White says that on 30 March 1990 the MEU (WA Division) held an election in which Jeffrey Capper was declared elected as Division Committee Person and Division Federal Councillor and John Morris was declared elected as Divisional Vice-President and Divisional Federal Councillor. A copy of the declaration of the election is exhibited. At a meeting of the Executive of the MEU (WA Division) held on 2 November 1992, a letter from Mr Capper was read out which indicated that he would stand down from his position on the Federal Executive and the MEU (WA Division) Executive with effect from 24 December 1992. The extract from the minutes of the Executive meeting, which are exhibited to Mr White's affidavit, contains no reference to an election to fill the vacancies which would arise from Mr Capper's resignation. On 27 May 1993, Mr John Morris died. According to Mr White, Mr Capper's resignation and Mr Morris' death resulted in the Division Executive having insufficient numbers to form a quorum. No valid Executive meetings could be held after 2 June 1993.
The State Conference of the MEU (WA Division) was held on 12 June 1993. Mr White presided as Chairman of the Conference. The minutes of the meeting, exhibited to his affidavit, indicate that some debate ensued about the proper means of filling the vacancies caused by Mr Morris' death and Mr Capper's resignation. In the event, Mr Brown advised the Conference that the positions could be filled by Conference without recourse to an election. Resolutions were subsequently passed for the filling of the vacancies.
Mr James Brown, in his affidavit, indicates that he was asked at the Conference to comment on the filling of the casual vacancies. He confirmed that he had advised, inter alia, that the Conference as the supreme decision making body of the Union could fill the vacancies. It acted on that advice. The results of the resolution were declared by Mr White. Mr Brown was not called upon to conduct the election for these positions nor did he have any power to do so.
The Effect of the Amalgamation
12. On 23 December 1992, the Industrial Relations Commission approved the submission to ballot of a proposed amalgamation of the Federated Clerks Union of Australia, the Australian Municipal, Transport, Energy, Water, Ports, Community and Information Services Union (ASU) and the MEU. The ballot approved the amalgamation and, pursuant to s.253Q of the Industrial Relations Act 1988 (Cth), the Commission fixed 1 July 1993 as the day on which the amalgamation was to take effect.
The present proceedings were instituted two days before the amalgamation took effect. The effect of an amalgamation on pending proceedings is provided for in s.253V of the Industrial Relations Act 1988 (Cth):
"253V Where, immediately before the amalgamation day, a proceeding to which this Division applies was pending in a court or before the Commission:
(a) the amalgamated organisation is, on that day, substituted for each de-registered organisation as a party; and
(b) the proceeding is to continue as if the amalgamated organisation were, and had always been, the de-registered organisation."
Section 234 defines "proceeding to which this Division applies" in relation to a completed amalgamation as "a proceeding to which a de-registered organisation was a party immediately before the amalgamation day."
It was contended for the respondents that s.253V only operates to save proceedings arising under Division 7 relating to amalgamation. That submission would require acceptance of a legislative intention to permit the extinction of all other causes of action against a union upon its amalgamation with another. Such a consequence would require clear language in the Act. The words of s.253V, read with the definition in s.234, are quite general in their application to all proceedings pending against a union prior to the amalgamation day. Section 253V operates to preserve all subsisting causes of action so that they become causes of action against the amalgamated organisation. The threshold objection that this application should be dismissed because the amalgamation of the MEU, has taken effect since it was commenced, cannot succeed.
It is necessary also to refer to the effect of amalgamation upon the offices in issue in this application. Rule 59 of the Registered Rules of the amalgamated body, the Australian Municipal, Administrative, Clerical and Services Union, provides, inter alia, that:
"On Amalgamation day the office holders shall be as set out in the corresponding schedules of this Part.
(a) Officer Holder Schedule .
.
.
xiv. Branch Offices of the
MEU Division 26, 27, 28, 29"
Schedule 29, being one of a number of Transitional Schedules to the Rules, provides in respect of the Local Government, Community Services, Public Authorities and Racing (MEU) Western Australian Branch that the offices in the Union of Branch Committee members shall be held by Division Committee members. The office of Branch Councillor shall be held by Federal Councillor. The transitional provisions therefore maintain existing officers of the MEU (WA Division) in their like positions in the Committee and Council of the Western Australian Branch of the new organisation.
Whether an Election was Required?
16. The question whether a ballot of members was required to fill the vacancies on the MEU Divisional Executive and the Federal Council depends upon the construction of the relevant rules of the MEU and the MEU (WA Division) as they stood at the time of the State conference held on 12 June 1993. The registered Rules of the MEU (the Federal Rules) provided, inter alia, for the administration of divisions of the union. Rule 61 vested "the supreme government of a Division" in the Conference. The Conference was to have the general management and control of the affairs of the Division and, absent specific provisions to the contrary, had the powers conferred by the Rules on the Division Executive (r.61(3)(a)). Rule 64 provided for four yearly elections to the Division Executive by secret postal ballot of the financial members of the Division. According to Rule 66 an extraordinary vacancy occurring in a Division Executive was to be filled in the manner prescribed in r.25A of the Division Rules and r.15 of the Federation Rules. In relation to Federal Councillors, r.65 provided for their election at the same time and in the same manner as Divisional Executive members. The Rule contemplated a four year term for the holders of that office. Rule 65(3) provided for extraordinary vacancies in the office of Federal Councillor to be filled in the same manner as extraordinary vacancies on the Divisional Executive.
Rule 15 of the MEU Federal Rules provided for extraordinary vacancies to be filled by appointment of any eligible member by the Executive of the Division (r.15(1)). Rule 15(2) provided:
"15(2) The person so appointed shall hold office for so much of the unexpired part of the term of the office as is specified by the Executive but so as not to exceed:
(a) Twelve months; or
(b) Three quarters of the term of the office, whichever is the greater."
If an extraordinary vacancy were filled by appointment for less than the unexpired part of the term of the office, an ordinary election was to be held for the remainder of the unexpired part of the term of office (r.15(3)). Although the Federal Rules referred to a r.25A of the Divisional Rules there was none such rule in the Western Australian Division Rules. It is to be noted that the provisions of r.15 were consistent with s.200 of the Industrial Relations Act 1988 (Cth) which authorises the making of rules for the filling of casual vacancies. In particular, s.200(2) provides:
"Rules made under subsection (1) shall not permit a casual vacancy, or a further casual vacancy, occurring within the term of an office to be filled, otherwise than by an ordinary election, for so much of the unexpired part of the term as exceeds:
(a) 12 months; or
(b) three-quarters of the term of the office; whichever is the greater."
The section contemplates the filling of the vacancy for a period running from the date of the appointment or election, as the case may be. The question whether the unexpired part of the term exceeds 12 months or three-quarters of the term of office is to be answered by calculation from the date upon which it is sought to fill the vacancy, not the date upon which the vacancy occurred. In this case the period from the date of the appointment by the Conference to the expiry of the term did not exceed 12 months or three-quarters of the term of office. Mr Capper's term would ordinarily have expired in April 1994. The appointments were made by conference in June 1993.
Mr Randall invoked rr.25 and 26 of the Divisional Rules of the MEU (WA). Rule 26 provided for an extraordinary vacancy occurring on a Division Executive to be filled by secret postal ballot of the financial members of the Division. However, the Rule went on to say that where the remainder of the term was less than 12 months, the Divisional Executive might appoint a member to fill such vacancy. A similar provision was found in r.25(4) in relation to extraordinary vacancies in the office of Federal Councillors. In their application to the present case, neither Rule is inconsistent with r.15 of the Federal Rules. And if there were an inconsistency in the sense of a limitation by the Divisional Rules of a wide power of appointment afforded by the Federal Rules, then it seems the Federal Rules would prevail by virtue of r.87 of the Federal Rules and r.40 of the Divisional Rules.
In the circumstances, the Divisional Executive would have been empowered to make the contested appointments. By virtue of r.61, the Conference was authorised to exercise the power of the Executive. Mr Capper's term had less than 12 months to run at the time that the vacancies created by his resignation were filled. Thus the attack upon the validity of the Conference resolution fails. And on that basis the entire application must fail. For at the heart of the application is the contention that a ballot of members of the Division ought to have been held.
Having regard to the preceding, it is not necessary to consider whether the process of appointment was an election susceptible of an inquiry under s.218 of the Act. In my opinion the application must be dismissed.
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