In the matter of the Conciliation and Arbitration Act 1904 and in the matter of an application by Ernest Albert Boatswain for an Inquiry into an Election for Officers in the Western Australia Carpenters & Joiners,

[1983] FCA 302

Re: IN THE MATTER OF THE CONCILIATION AND ARBITRATION ACT 1904
And: IN THE MATTER OF AN APPLICATION BY ERNEST ALBERT BOATSWAIN FOR AN
INQUIRY
INTO AN ELECTION FOR OFFICERS IN THE WESTERN AUSTRALIAN CARPENTERS AND
JOINERS, BRICKLAYERS AND STONEWORKERS INDUSTRIAL UNION OF WORKERS, A BRANCH OF
THE
BUILDING WORKERS' INDUSTRIAL UNION OF AUSTRALIA
And: IN THE MATTER OF A REFERENCE BY SUCH APPLICATION BY THE INDUSTRIAL
REGISTRAR TO THE FEDERAL COURT OF AUSTRALIA
WA No. 19 of 1983
Conciliation and arbitration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Toohey J.

CATCHWORDS

Conciliation and arbitration - irregularity in conduct of elections - application for interlocutory relief - proposed contemporaneous election to offices of state branch of federal organisation and state registered union - whether state union and state branch have identical names - whether state union and state branch are one and the same - possible confusion due to differences in voting procedures - whether risk of confusion sufficient to grant interlocutory relief

Conciliation and Arbitration Act 1904 (Cth) ss.4, 159(4), 170, 170(5)

Industrial Arbitration Act 1979 (WA) ss.60, 71

HEARING

PERTH

#DATE 25:10:1983

ORDER

THE COURT ORDERS THAT the application for interlocutory relief is denied.

JUDGE1

The Industrial Registrar has referred to the court, pursuant to s.159(4) of the Conciliation and Arbitration Act 1904 ("the Act"), an inquiry into an election being conducted by the Building Workers' Industrial Union of Australia. That election is being conducted under s.170 of the Act.

The election concerns the Western Australian branch of the federal organisation, the name of which is The Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers, a State Branch of the Building Workers Industrial Union of Australia.

The election relates to the positions of president, vice-presidents, secretary, assistant secretary, organisers, committee of management members and trustees.

A state registered union, the name of which is The Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers, is also conducting an election for a number of offices in that union.

Mr. Scapin, the Industrial Registrar of the Western Australian Industrial Commission referred to the Chief Electoral Officer under the state Electoral Act the conduct of the election for the state union, the union having requested that the election be held concurrently with the federal election. That course is proposed and it appears that Mr. Tomlinson, Assistant Elections Officer (Industrial) of the State Electoral Department will be the officer concerned with the elections for the state union.

The applicant seeks, by way of interim order, to restrain Mr. Scapin and Mr. Tomlinson "from engaging in conduct which will interfere with the election, including any purported election of the Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers, until further order of the Court".

The applicant will argue, on the hearing of the application, that in law the Western Australian branch of the federal organisation and the state registered union are one and the same body, that there can therefore be only one election to office, and that to the extent there is any difference between the relevant rules of the federal organisation and of the state union, those of the former must prevail.

The basis of the claim to interim relief is that the action proposed in respect to the election to office of the state union constitutes an irregularity which should be avoided by interlocutory orders. In effect the interim relief sought is that any state union election should be deferred until the election has been completed for the Western Australian branch of the federal organisation.

Section 4 of the Act defines "irregularity" to include "a breach of the rules of an organization or of a branch of an organization, and any act, omission or other means whereby the full and free recording of votes by all persons entitled to record votes, and by no other persons, or a correct ascertainment or declaration of the results of the voting is, or is attempted to be, prevented or hindered".

The applicant claims that the full recording of votes and the correct ascertainment of the results of voting will be hindered by the presence of an election for the state union contemporaneously with an election for the branch of the federal organisation.

The applicant's complaint is that each person entitled to vote in the federal election will, at the same time, receive different ballot papers, "each of which will purport to be for an election in the Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers, a branch of the Building Workers' Industrial Union of Australia". It is said that each set of ballot papers will be accompanied by a different set of instructions, that the method of returning the ballot papers will be different as will the return address, and that the instructions for completing the ballot papers will in each case vary. In consequence, it is said, a voter may confuse the two elections and fail to comply with the relevant directions.

The expression "at the same time" is inaccurate except in the loosest sense. The Commonwealth Electoral Office will be responsible for sending out ballot papers for the branch election and the State Electoral Office will be responsible for sending out ballot papers for the union election. In the case of the state election, each voter is required to sign a separate counterfoil envelope in which is placed the ballot paper within its own envelope. It appears that in the case of the federal election the ballot paper, in its own envelope, will be placed in a counterfoil envelope, which will not be signed by the voter. There was a statement from the bar table that the ballot papers will be differently coloured.

Union members do not have to appreciate all the complexities of federal and state registration to understand that there are two bodies and that for certain purposes the distinction is important.

Although an attempt was made by the applicant to suggest that the name of the Western Australian branch of the federal organisation and that of the state union were the same, I do not accept this submission. The name of the state union is "The Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers" and, as appears from the affidavit of Mr. Scapin, ballot papers will be so marked and will not purport to be for an election to a branch of the Building Workers' Industrial Union of Australia.

The name of the branch is "The Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers, a branch of the Building Workers' Industrial Union of Australia".

Despite what was said by counsel for the applicant, the reference to "a branch of the Building Workers Industrial Union of Australia" is not merely descriptive. It is an integral part of the name.

Presumably ballot papers and instructions relating to the branch election will indicate with precision the name of the body to which the election relates. And the same may be said of the state election. Certainly, in the case of both the branch and the union elections, every effort should be made to indicate to the prospective voter that the election is under the Conciliation and Arbitration Act of the Commonwealth or under the Industrial Arbitration Act of the State, as the case may be.

Indeed, if this is not done, the dangers to which the applicant points are just as real if the federal election is conducted first and the state election conducted later. This, I think, is recognised by the applicant who then relies upon his submission that in law there is only one body and there can only be one election.

A further irregularity alleged is that Mr. Tomlinson "is purporting to act as the Returning Officer of the Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers, a branch of the Building Workers Industrial Union of Australia without the authority of the person conducting the election in pursuance of sub-section (5) of section 170 and not at this direction and in so acting or purporting to act is also purporting to conduct the election".

The point of this submission is that if there can be only one election, Mr. Tomlinson must act under the Commonwealth Act and he has not been authorised to do so.

This submission is inextricably bound up with the principal submission to be made on the hearing of the substantive application. The applicant does not deny that the state union has a corporate existence and, having regard to s.60 of the Industrial Arbitration Act 1979 (W.A.), he could hardly do so. But he does argue that the corporate body established by s.60 is the Western Australian branch of the federal organisation, that they are one and the same.

Counsel referred to Williams v. Hursey (1959) 103 CLR 30 and Costello v. Gietzelt (1960) 1 FLR 446. Those decisions were concerned with the relationship between a federal organisation and its branch, the latter being held to have no legal existence separate from that of the former. Counsel sought to derive from a passage in the judgment of Fullagar J. in Williams v. Hursey at p.81 a recognition of the possibility that a branch is capable of being "a separate body having an independent existence from that of the federation". But, read in context, I doubt that Fullagar J. was doing more than hypothesizing for the purpose of identifying the civil liability of the organisation in question.

In Egan v. Shop Distributive and Allied Employees' Federation of Australia, N.S.W. (1979) 143 CLR 325 at p.340 Barwick C.J. commented:

"It was assumed in argument that a registered trade union could not be a branch of a federally organized organization. For my part, I do not readily perceive why this should be so".

His Honour found it unnecessary to form a definitive view upon the conclusions expressed in Australian Workers' Union, N.S.W. Branch v. Australian Workers' Union (unreported decision of Roper J., 11 September 1944) and in Moore v. Doyle (1969) 15 FLR 59 or to attempt to resolve any inconsistency between them.

On the information presently available to the court there was prior to September 1963 a state registered union known as the Western Australian Amalgamated Society of Carpenters and Joiners Industrial Union of Workers. On 24 September 1963 that union entered into an agreement with the Building Workers Industrial Union of Australia, a federal organisation, whereby it was agreed that the organisation would establish a branch in Western Australia and constitute the union as its branch. The state union amended its rules to describe itself as a branch of the Building Workers' Industrial Union of Australia. Those rules were in turn registered with the Federal Industrial Registrar as the rules of the Western Australian Branch of the Building Workers Industrial Union. Until May 1982 the rules of the state union and of the Western Australian branch of the federal organisation were identical. On 11 May 1982 amended rules of the Western Australian Branch were registered by the Federal Industrial Registrar. The rules of the state union remain unaltered. Counsel did not direct attention to any particular differences in the current rules of the state union and those of the Western Australian branch. However one difference is that the branch rules now describe the body as The Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers, a Branch of the Building Workers Industrial Union of Australia. Actually, r.2 speaks of "state branch" rather than "a branch" but I was told that this is in error.

I am not satisfied that the state union which obtained its corporate identity from the provisions of the Industrial Arbitration Act has lost that identity or that, by force of an agreement made with the Building Workers Industrial Union of Australia and the amendment of its rules to speak of "the Branch", that identity is in law the same as the Western Australian branch of the federal organisation. Indeed if the rules of the union and of the branch relating to the qualifications of persons for membership and prescribing the offices which shall exist were substantially the same, s.71 of the Industrial Arbitration Act provides machinery by which the state union ceases to be bound to comply with the provisions of that Act relating to elections for office; and office bearers would be determined by the rules of the branch of the federal organisation. No attempt has been made to take advantage of s.71.

Although I am not satisfied that the state union and the Western Australian branch of the federal organisation are one and the same, I shall assume that there is "a serious question to be tried" (Gibbs C.J. in The Australian Coarse Grain Pool Pty. Ltd. v. The Barley Marketing Board of Queensland (1983) 57 ALJR 425 at p.426). It does not follow that the provisions of the Industrial Arbitration Act regulating that union are ineffective. The Industrial Registrar Mr. Scapin and the Assistant Elections Officer (Industrial) Mr. Tomlinson are acting in accordance with the provisions of the state legislation. Assuming this court has power to restrain them from taking any further step in the elections for office of the state union (and this matter was not fully argued), I would be reluctant to exercise that power unless there were compelling reasons for doing so.

In my view there are not compelling reasons. The risk of confusion, of which the applicant complains, may be avoided by proper identification of ballot papers and other material relating to the two elections. It appears from Mr. Scapin's affidavit that the number of offices to be filled in each election is the same save that there are three positions of organiser in the state union and only two such positions to be filled in the Western Australian branch. Having regard to the manner in which the affairs of the union and of the branch have been organised over the years, members will no doubt treat the elections as much the same but they can make the distinctions required by federal and state legislation.

Whatever the outcome of the substantive hearing of this application, I am not persuaded that the interim relief sought should be granted. The motion for interlocutory relief is denied.