In the matter of: The Industrial Relations Act 1988 and in The Matter of: An Application By William Ludwig for An Inquiry Into An Election in The Australian Workers' Union
[1995] IRCA 689
•21 December 1995
INDUSTRIAL LAW - Registered organisations - Elections - Interpretation of rules - Whether transitional rule providing for election of first holders of offices in a Branch applies to elections to fill casual vacancies in those offices - Rule providing for non-filling of one of two joint positions of Branch President, if it becomes vacant - Whether this precludes replacement of resigning joint President as a delegate to National Executive.
Industrial Relations Act 1988, ss.218 and 223.
IN THE MATTER OF: THE INDUSTRIAL RELATIONS ACT 1988
AND IN THE MATTER OF: AN APPLICATION BY WILLIAM LUDWIG FOR AN INQUIRY INTO AN ELECTION IN THE AUSTRALIAN WORKERS' UNION
No. QI.1374 OF 1995
CORAM: WILCOX CJ
PLACE: SYDNEY
DATE: 21 DECEMBER 1995
IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA ) No. QI.1374 OF 1995
NEW SOUTH WALES DISTRICT REGISTRY)
IN THE MATTER OF:
THE INDUSTRIAL RELATIONS ACT 1988
AND
IN THE MATTER OF:
AN APPLICATION BY WILLIAM LUDWIG FOR AN INQUIRY INTO AN ELECTION IN THE AUSTRALIAN WORKERS' UNION
CORAM: WILCOX CJ
PLACE: SYDNEY
DATE: 21 DECEMBER 1995
MINUTES OF ORDER
THE COURT ORDERS THAT:
That it be declared that rule 73B of the rules of the Australian Workers' Union has no application to the elections to fill the casual vacancies now existing in the following positions in the National Construction Branch of the Australian Workers' Union:
(a)Branch Secretary (full-time)/Delegate to the National Executive;
(b)Branch Assistant Secretary (honorary); and
(c)Delegates to National Conference (2);
and that elections to the said positions should be conducted in accordance with the provisions of rule 66 of the said Rules.
That it be declared that the Greater New South Wales Branch of the said organisation was entitled to elect a replacement for Dennis Radcliff, as delegate to the National Executive of the said organisation, to hold office as such until 30 June 1997.
Note:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA ) No. QI.1374 OF 1995
NEW SOUTH WALES DISTRICT REGISTRY)
IN THE MATTER OF:
THE INDUSTRIAL RELATIONS ACT 1988
AND
IN THE MATTER OF:
AN APPLICATION BY WILLIAM LUDWIG FOR AN INQUIRY INTO AN ELECTION IN THE AUSTRALIAN WORKERS' UNION
CORAM: WILCOX CJ
PLACE: SYDNEY
DATE: 21 DECEMBER 1995
REASONS FOR JUDGMENT
WILCOX CJ: William Patrick Ludwig, a member of the Australian Workers' Union ("AWU"), has applied under s.218 of the Industrial Relations Act 1988 for an inquiry into elections currently being conducted for offices within the National Construction Branch ("NCB") of the organisation. The only question that arises in connection with those elections concerns the people eligible to participate in the ballot. This question depends on the proper construction of the rules. There is also a subsidiary question as to whether one Colin Bosworth is validly appointed as a delegate to the National Executive of the organisation.
NCB positions
It seems that NCB was established by virtue of rule amendments adopted by the National Executive of the organisation on 11 November 1994. The amendments included a new rule 73B:
"73BTRANSITIONAL RULE FOR NATIONAL
CONSTRUCTION BRANCH
(1)Notwithstanding any provision of these Rules until 30 June 1997 the following interim arrangements shall be made for the holding of offices within the Branch
(a)The offices of the Branch Executive shall be as follows:
-One Branch Secretary (full time)
- One Branch President (honorary)
-One Branch Vice-President (honorary)
-One Branch Assistant Secretary (honorary)
(b)Three delegates to National Conference.
Two delegates to National Executive.
(c)As soon as possible after the certification of this sub-rule an election shall be conducted for the offices of the Branch Executive set out in Rule 73B(1)(a) and (b). These offices shall be elected by and from the National Executive using the method of balloting provided for in Rule 66A with the necessary changes. The term of office of the officers so elected shall expire on 30 June 1997.
(2)Notwithstanding any provision of these Rules:
(a)The National Construction Branch shall be fully autonomous in all matters relating to its operations. The Branch shall not be dissolved, its autonomy reduced or its capacity to operate diminished without the consent of the Branch Executive of the National Construction Branch prior June 1997.
(b)National Executive shall ensure the financial viability of the National Construction Branch and shall provide funding per member to such Branch at no less than the average of funds expended per member in the previous financial year by the following Branches, or by the Union on behalf of the following Branches:
- Queensland Branch
- Greater New South Wales Branch
-Victoria Branch (FIME) and West Australian Branch (AWU) to the date of certification of this sub-rule
-Victoria Branch and West Australian Branch after the date of certification of this sub-rule.
Such expenditure shall be verified from the audited Balance Sheet of those Branches for the preceding year.
(c)Until 30 June 1997 the National Executive shall provide funding for the National Construction Branch (in excess of that to be provided in (b) above) sufficient to meet costs associated with the establishment of the Branch. Such costs shall include but not be limited to expenditure on the following items:
.publicity as to the existence of the Branch
.recruitment of members
.office and related equipment
.vehicles
.training of employees including employed Organisers attached to the Branch and Officers of the Branch
(d)Until 30 June 1995 if the Office of National Vice-President held by Stephen Booth is vacated by him, a casual vacancy for that office is created notwithstanding the provisions of Rule 80(4) which shall be filled by Ralph Blewitt."
Pursuant to para.(c) of sub-rule (1), an election was held for the offices listed in paras. (a) and (b). The elections were conducted by a Returning Officer employed by the Australian Electoral Commission, Lee Jones. The number of nominations did not exceed the number of candidates to be elected, in relation to any position. Accordingly, no ballot was necessary. Mr Jones declared the results of the election on 6 March 1995.
The person declared elected as Branch Secretary (full-time)/Delegate to National Executive was Bruce Wilson. No nomination was received for the office of Branch Assistant Secretary, so this was left unfilled. Only two nominations were received for the three positions of delegates to National Conference, so one position was left unfilled. One of the persons declared elected to this position was Mr Wilson.
On or about 18 August 1995, Mr Wilson resigned as Secretary (full-time)/Delegate to National Executive and as a delegate to National Conference. On 15 September, Arthur Harper, Branch Vice-President made a statutory declaration stating:
"2.I advise that an election is required in respect to the following Offices of the National Construction Branch:
(a)Secretary (full-time)/Delegate to National Executive
(b)Assistant Secretary (honorary)
(c)Three Delegates to National Conference
3.The reason for the election in the case of the Office of Secretary/Delegate to National Executive is that a casual vacancy currently exists in that Office. The reason for the election in the case of the Offices of Assistant Secretary and Delegates to National Conference is that the Offices have not been filled.
4.The electorate for the elections consists of the National Executive of the organisation."
It is not clear to me why Mr Harper stated that an election was required for three delegates to National Conference. One delegate (Mark C Busby) retains office; I think only two positions need to be filled. No doubt this will be checked.
More problematical is Mr Harper's statement that the electorate consists of the National Executive. Mr Ludwig contends this is not correct, and that is the primary reason for his application for an election inquiry. The matter is not academic. This time, there are more nominations than vacancies. Ballots will be necessary. Mr Jones accepted the view that the persons entitled to participate in the ballots for the vacant positions are the members of the National Executive and decided to proceed with a postal ballot of National Executive members, each member to have one vote. This decision gave rise to the present application.
Mr Ludwig's case is that it is incorrect to think that the persons entitled to vote are the members of the National Executive; the appropriate voters are the members of the Branch. He also says that, if the members of the National Executive are the voters, the ballots should not be conducted on the basis of a single vote for each position by each member but on the "card vote" system provided by rule 32(3) of the organisation's rules. Under this system, each Branch is allocated one vote for each 1,000 members, or part thereof, the delegates of the Branch dividing its voting power between them.
Counsel for Mr Ludwig argue that rule 73B is concerned only with the first election to the offices it lists; it is not relevant to an election to fill a casual vacancy, even during the period until 30 June 1997. [30 June 1997 is the date of expiry of office of former FIME officers appointed to their positions consequentially upon the merger of AWU and FIME in 1993. The people who hold office after that day will be elected in union-wide elections to be held in March-May 1997.]
Counsel call attention to the words "an election" in rule 73B(1)(c). They say that the rule makes no provision for casual vacancies, except for the specific case of Stephen Booth's National Vice-Presidency, covered by rule 73B(2)(d). Because rule 73B is spent and inapplicable, counsel say, it is necessary to apply rule 67. That rule deals with casual vacancies. It distinguishes between vacancies that involve a replacement officer serving for twelve months, or three quarters of the term of the elected office (whichever is the greater), and those that do not. In the case of those that do not, replacements are to be appointed by the National Executive, in the case of a National office, or the Branch Executive, in the case of a Branch Office. Where the period exceeds twelve months or three-quarters of the term - as in the present case:
"the National Executive or Branch Executive as the case may be, shall within one month of the vacancy occurring direct the Returning Officer to conduct an election in accordance with these Rules to fill the vacancy."
The sub-rule goes on:
"(d)The provisions of these Rules relating to ordinary periodic elections including the provisions as to pledge and qualification for Office, shall apply, insofar as they are capable of application, to any election held to fill a vacancy under this Rule.
(e)Any person elected or appointed to fill a vacancy under this Rule shall hold Office for the balance of the term of Office during which the vacancy occurred."
The reference to "ordinary periodic elections" takes the reader to rule 66 which provides a method of balloting members. Counsel say this course must be followed in relation to these vacancies. Counsel point to evidence showing that there are now about 5,500 members of the Branch and say there would be no difficulty in polling those members to fill the vacancies.
Three candidates in the elections, Vernon Falconer, Stephen Booth and Terry Muscat appeared at the inquiry to support the course proposed to be adopted by Mr Jones. I will call them the respondents. Their counsel argue that rule 73B is not spent; its purpose is to govern any elections required to be conducted during the transitional period up to 30 June 1997. Counsel emphasise the opening words of the sub-rule "until 30 June 1997 the following interim arrangements shall be made for the holding of offices within the Branch". They say that the apparent purpose of the rule was to allow the National Executive to control appointments during the transitional period; this is understandable given the time it will take to build up the Branch membership and the fact that the National Executive is required to fund the Branch until 30 June 1997: see rule 73B(2)(c).
The issue is one of impression. There is little that can be said either way. In policy terms, there would be nothing odd about a decision to allow the National Executive to control appointments to the offices listed in rule 73B(1)(a) and (b) until 30 June 1997, including replacements. During this period, the National Executive has financial responsibility for the Branch and membership is likely to be relatively small. On the other hand, a decision to allow members to choose replacements also makes sense. The members could not choose the original panel of office bearers; at the time there were no members. But once the Branch got into operation, and members were attached to it, it is a sensible solution to allow them to fill any casual vacancies.
The critical matter is the wording of the rule. Although sub-rule (1) refers to 30 June 1997, this is done only for the purpose of specifying a cut-off date for the rule's operation. The positions referred to in paras. (a) and (b) are the only Branch positions that may exist in the period up to 30 June 1997, notwithstanding anything else in the rules. Only within that period may the National Executive exercise the power contained in para. (c).
There is only one operative provision in rule 73B(1). That is the command in para. (c): "As soon as possible after the certification of this sub-rule an election shall be conducted for the offices ... set out in Rule 73B(1)(a) and (b)." This is a reference to a single election, at a particular point of time, for particular offices. There is nothing in para. (c), or elsewhere in rule 73B, dealing with casual vacancies. However sensible it might have been to include such a provision, the drafters of the rule did not do so.
I accept the submission that rule 73B is now spent. Initial elections for the positions listed in paras. (a) and (b) having been held, the rule has no application to the filling of casual vacancies in those positions; even vacancies that exist because there were previously insufficient nominations. It follows that rule 67 applies. There being no dispute that the remaining term of office exceeds three quarters of the total term, rule 67(1)(c) and (d) apply. They pick up rule 66. In applying that rule, the Returning Officer will need to select a day other than 31 March as the date at which the voting roll is to be compiled. This should present no difficulty. Given the increasing membership, it will no doubt be desirable for the date to be as late as possible, consistently with accuracy and avoiding delay in sending out ballot papers.
I do not think it is necessary to give any direction to the Returning Officer. A declaration will suffice. I will dispose of this aspect of the case by declaring that the relevant ballots must be ballots of members, as at a date to be selected by the Returning Officer, not ballots of members of the National Executive. In the circumstances, it is not necessary to deal with the question whether the "card vote" system applies to a ballot of National Executive members.
Position of delegate to National Executive
The second issue that arises is the correctness of a decision by the Returning Officer to recognise the election of Colin Bosworth, Greater New South Wales Branch Assistant Secretary, as a delegate to the National Executive of the union. The question as to the validity of Mr Bosworth's election would be particularly important if the members of the National Executive were the people entitled to vote for candidates to fill the vacant rule 73B(1)(a) and (b) positions. I have held this is not the case; nonetheless the parties wish to have a ruling on Mr Bosworth's position. As the issue has been fully argued - it is a very short point - I will state my view.
Rule 80 was inserted in the rules at the time of the amalgamation between AWU and FIME. Its purpose was to enable particular officer bearers in each amalgamating union to hold office in the amalgamated union without the necessity of immediately submitting to a ballot. Sub-rule (5) relevantly reads:
"(5)The holders of Office in the AWU and the FIME shall, on amalgamation day, assume an Office in the Union in accordance with the following schedule:
(a)The organisation in which the Office is held as at the day before amalgamation day is set out in Column 1.
(b)The Office existing as at the day before amalgamation day is set out in Column 2.
(c)The Office in the Union that will be occupied on and from the amalgamation day is set out in Column 3.
...
(d)The term of Office of the Office set out in Column 3 shall expire on the date set out in Column 4."
In the Schedule to the rule, reference is made to a number of offices in the Greater New South Wales Branch. Along one line appear the notations and words:
"FIME Branch Presidents (2) Branch Presidents (2)
30/6/1997"
As is common ground, this means that, at the time of the amalgamation there were two Branch Presidents of the Greater New South Wales Branch of FIME (this fact arising from an earlier amalgamation in which the Branch Presidents of each of two amalgamating unions retained their offices), and each of those Branch Presidents was to retain office as a Branch President of the amalgamated union (that is, AWU-FIME) until 30 June 1997.
Further down the schedule appear the notations and words:
"FIME Joint Branch Presidents Delegates to National Executive (2) 30/6/1997"
The parties agree that this means that the two persons who held office in FIME, as Presidents of the Greater New South Wales Branch, at amalgamation day were to become delegates to the National Executive until 30 June 1997. However, there is a dispute between them concerning the application of sub-rule (4) of rule 80:
"(4)For the purposes of this Rule where the National Office or a Branch has multiple Presidents, multiple Secretaries or multiple Assistant Secretaries, or multiple National Vice-Presidents, any casual vacancy arising in any such Office shall not be filled, except insofar as it is necessary to maintain one Officeholder in the case of the Offices of National President and National Secretary, and except insofar as it is necessary to maintain at least one Office holder in the case of other multiple office.
Should it be necessary to fill any such Office to maintain one Officeholder in any such Office, then such casual vacancy shall be filled in accordance with the provisions of Rule 67 - Filling Vacant Offices."
One of the two FIME Branch Presidents whose office was preserved until 30 June 1997, as Greater New South Wales Branch President and delegate to National Executive, was Dennis Radcliff. However, Mr Radcliff recently resigned. The parties agree that, as this was a case of "multiple Presidents" and there is a surviving Branch President, rule 80(4) dictates that Mr Radcliff's office as Branch President not be filled. But they disagree as to whether his office as delegate to National Executive may be filled. Counsel for Mr Ludwig argue that it cannot. They say that Mr Radcliff held this position in his capacity as Branch President; so there is no warrant for electing someone else as a delegate. Counsel for the respondents say that the offices are separate and that sub-rule (4) is not relevant.
In respect of this matter, I adopt the respondents' submission. The effect of the Schedule, read with rule 80(5), is that the people who are Joint Presidents of the Greater New South Wales Branch of FIME at amalgamation day became delegates to National Executive until 30 June 1997. No doubt they were selected for appointment because they were Branch Presidents. But they were not delegates ex officio; as were the Branch Secretaries, shown by the words "ex officio" after the name of the office in Column 3. They held office as delegates in their own right. The office of delegate was separate from that of Branch President. It would have been possible for the Branch Presidents to resign one office but not the other.
Sub-rule (4) speaks only of "any casual vacancy arising in any such office". This means relevantly, "multiple Presidents"; but not multiple delegates. Sub-rule (4) has nothing to do with Mr Radcliff's office as delegate.
The Returning Officer was correct in determining that, although Mr Radcliff could not be replaced (for the balance of the period to 30 June 1997) as a Branch President, he could be replaced as a delegate. Mr Bosworth having been elected to that office by the Branch, he is entitled to be recognised as such.
I certify that this and the preceding thirteen (13) pages
are a true copy of the Reasons for Judgment of
his Honour Chief Justice Wilcox.
Associate:
Dated: 21 December 1995
APPEARANCES
Counsel for the Applicant: C Hampson QC and A Herbert
Solicitor for the Applicant: C A Sciacca & Associates
Counsel for the Respondent: L Wright QC and B Hodgkinson
Solicitor for the Respondent: McClellands Solicitors
Counsel for the Australian
Electoral Commission: L Plater
Solicitor for the Australian
Electoral Commission: Australian Government Solicitor
Date of hearing: 19 December 1995
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