Inquiry into the election in the Australian Postal & Telecommunications Union v Wilson, E.K

[1979] FCA 162

Re: IN THE MATTER OF THE CONCILIATION AND ARBITRATION ACT, 1904
And: IN THE MATTER OF AN INQUIRY INTO AN ELECTION IN THE AUSTRALIAN POSTAL AND
TELECOMMUNICATIONS UNION (APPLICANT - EDWARD KEITH WILSON)
No. 38 of 1979
Industrial law
28 ALR 330

COURT

IN THE FEDERAL COURT OF AUSTRALIA

INDUSTRIAL DIVISION
NEW SOUTH WALES DISTRICT REGISTRY
Sheppard, J.

CATCHWORDS

Industrial law - election for offices in trade union (registered organisation) - election material circulated to members of union paid for from union funds - breach of implied rule - whether irregularity within ss.4 and 165 of Conciliation and Arbitration Act 1904 - held not such an irregularity.

Ballot papers not distributed to all members due to computer malfunction - held an irregularity within the meaning of the Act but, by reason of number of possible votes involved, not one which had or might have affected the result - Conciliation and Arbitration Act 1904, ss.4, 159, 165(1) and (4).

HEARING

SYDNEY

#DATE 20:12:1979

ORDER

The application be dismissed.

JUDGE1

This is an application by Edward Keith Wilson pursuant to s.159 of the Conciliation and Arbitration Act 1904. The applicant is a member of the Australian Postal and Telecommunications Union ("the A.P.T.U." or "the union"). An election for a number of offices in the union began on 3 September 1979 and concluded on 2 October 1979. It was conducted pursuant to s.170 of the Act by an officer of the Australian Electoral Office in Sydney.

The irregularities claimed to have been present were stated in the application as follows:

1. Use of the organization's property and resources by the general secretary-treasurer so as to support, promote or defeat various candidates for office.

2. The unauthorised collection of ballot papers by a candidate in the election.

At the hearing the second matter relied upon was abandoned. The first was pressed and in addition it was claimed that a number of persons entitled to vote had been disfranchised because no ballot papers had been sent to them. It is open to the applicant to rely on that matter, notwithstanding it was not referred to in his application. Once an inquiry is put in train, the court is empowered to examine any breach of the Act or relevant union rules or conduct by officials, parties or individuals, which is disclosed by the evidence and through which an irregularity within the meaning of the Act may have occurred; Re Elections for Offices in Australasian Meat Industry Employees Union, 5 FLR 260 at p.265, Jutte v. Amalgamated Engineering Union, 10 FLR 195 at p.201.

The basis for the first matter of complaint is the sending by the general secretary-treasurer of the union, Mr. Slater, on 29 August 1979 of an open letter to some members of the New South Wales branch of the union. The letter was sent on the letterhead of the federal executive of the union. It was printed at a cost of $998.55. It was enclosed in envelopes belonging to the union. With it was also enclosed a union newsletter, about which no complaint is made.

The envelopes were addressed by a commercial mailing firm, which also placed the letter and the newsletter in the envelopes. Its charges amounted to $474. Postage amounted to $1,261. Each of the amounts incurred was paid out of union funds.

The open letter was headed with the words, "Come Off It, Mr. Hawkins". These were printed in large bold type. The letter began by referring to a circular which had been sent by Mr. Hawkins on 9 August 1979 and was numbered 79/77.

Before saying more of the terms of Mr. Slater's open letter, I should say something of Mr. Hawkins circular and of Mr. Hawkins himself. Mr. Hawkins is another member of the union. He holds office as secretary-treasurer of the New South Wales branch of it. That was not an office for which there was an election in September 1979, but Mr. Hawkins was a candidate in that election for the position of branch councillor. Had he been elected, he would not have had to relinquish his position as secretary-treasurer. He would have been entitled to hold both offices. In the result, however, he was not elected branch councillor.

For some time there has been antipathy between Mr. Hawkins and Mr. Slater. The most recent evidence of this, prior to the sending of the open letter by Mr. Slater on 29 August 1979, was the circular sent by Mr. Hawkins on 9 August 1979. It was typed on the letterhead of the New South Wales branch of the union and addressed to A.P.T.U. representatives. I gather that those were all the persons holding office in the union.

The circular was the subject of a decision of Sweeney J in a matter decided by him on 14 September 1979. The matter was an application by a Mr. Kanan pursuant to s.141 of the Act. The respondents to the application were Mr. Hawkins and a Mr. Battese, who was the general president of the New South Wales branch of the union. Sweeney J held that the sending of the circular was a breach of the rules of the union because there had been a use of union resources, including funds, to produce a circular the terms of which advantaged certain candidates in the election and sought the defeat of their opponents. The basis for saying that what was done amounted to a breach of the rules of the union was that, although there was no express rule against the use of the resources and funds of the union for the support of particular candidates, there was to be implied in the rules a provision to that effect. Reference was made to Short v Wellings, 72 CAR 84 and to the judgment of this court in Lyons v. Deegan (27 June 1978 unreported).

His Honour analysed the circular in detail. I do not refer to his analysis, other than to say that in my respectful opinion his conclusion that it was designed to advantage particular candidates in the election and to disadvantage others was unquestionably correct.

With that background I can now return to the terms of the open letter in question entitled "Come Off It, Mr. Hawkins". In my opinion it, like Mr. Hawkins circular of 9 August 1979, was also a document designed to advantage some candidates in the election and disadvantage others. I do not quote from it in detail. It is sufficient to refer to the following paragraphs:

"ADVICE TO MR. HAWKINS

It is my considered opinion and, I believe, the opinion of officials and rank and file union members throughout Australia also, that the New South Wales Branch is at the lowest ebb ever in the history of the union - even at a "far worse level than when the New South Wales Branch was controlled by the notorious DLP Industrial Groupers twenty years ago.

Yes, Mr. Hawkins, under your leadership the New South Wales Branch is in an awful mess and you and your fellow officials must accept the responsibility for this.

COMPLAINTS FROM NEW SOUTH WALES MEMBERS

New South Wales members complain to the Federal Office regularly about a whole range of problems, including the following:

. Correspondence from Branch members remains unanswered by you or your office

. Country members do not get a fair say in the affairs of the New South Wales Branch (e.g. Wagga Wagga sub-Branch)

. You are unable to answer the genuine day-to-day enquiries of members satisfactorily

. The abuse and smears you level at others who do not go along with your antics

. . . . . . . . . . . . . . .

I think you signed Circular No. 79/77 on 9th August 1979 because you are worried, Mr. Hawkins, about the opposition in your own State and, moreover, opposition from your former friends.

. . . . . . . . . . . . . . .

IT'S UP TO YOU - THE MEMBERS

The APTU Federal Office has received a constant flow of complaints from APTU New South Wales members against the New South Wales Branch Office.

If there is any 'disruptive election propaganda' being distributed we believe it probably originated in the office of Mr. Hawkins.

NOW IT IS UP TO YOU - THE MEMBERS - TO MAKE THE UNION STRONG ONCE AGAIN IN NEW SOUTH WALES.

Ignore Mr. Hawkins' slander sheets."

It was the strong submission of counsel for the organization that the open letter was no more than a reply to an attack on the union itself made by Mr. Hawkins in his circular. Such a reply, if it were designed to protect the union as a whole from an unwarranted attack, would not have been a breach of any rule express or implied, Holmes v. Riordan 86 CAR 180 at p.197. But in my opinion Mr. Slater's letter went beyond a mere reply to any attack on the union itself. In reaching that conclusion, I have taken into account the whole of its terms and the fact it was despatched on 29 August 1979, just before the commencement of the conduct of the election.

Counsel for the organization pressed upon me the point that I had to make allowances for the cut and thrust of union politics. I agree that what to some may seem a counter attack, may, to people engaged in the tough infighting of union affairs, be no more than a reply. Indeed, in the wider sphere of politics itself, there is an increasing and regrettable tendency for questions not to be answered, but rather for the so called reply to consist of a blistering attack on the interrogator himself. All I say about this is that this community is bound by the one set of rules. The actions of people, whether they be politicians, union officials, company directors or the office bearers of a local sporting club, must be looked at objectively and in accordance with ordinary standards. So judged what Mr. Slater wrote in his open letter was designed positively to disadvantage some of the candidates in the election and thus inferentially to advantage others. I should add that the fact that it was enclosed with a newsletter which urged a fair vote, makes no difference to my conclusion in that regard.

The open letter was produced with money provided from union funds. That is so, at least to the extent of $998, which was the cost of printing it. There may be a question as to the amounts incurred for mailing and postage, bearing in mind that the offending document was despatched with a union newsletter. I do not need to decide that question, although I am inclined to the view that the whole of the expenditure was improperly incurred.

It follows that there was an irregularity. The sending of the circular was a breach of an implied provision of the union rules. But it is necessary to determine whether the irregularity was an irregularity within the meaning of the Act. Unless it was, the jurisdiction vested in this court by s.165 of the Act does not arise. The expression "irregularity" is defined in s.4 of the Act as follows:

"'Irregularity', in relation to an election or ballot, includes 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 definition, by reason of the use of the word "includes", may not be an exhaustive one, but it is difficult to think of any other type of irregularity that would not be within the definition. The words "any act, omission or other means" are very wide, notwithstanding they are qualified by the words that follow them. No submission was made based on the fact that the definition was an inclusive one and I put that matter aside.

There is then the question of whether the words commencing with the word "whereby" qualify not only the words "any act, omission or other means", but also the earlier words "a breach of the rules of an organization or of a branch of an organization".

In my opinion, the better view is that the words commencing with the word "whereby" do qualify the reference to a breach of rules, as well as the words "any act, omission or other means". In reaching that conclusion, I have taken into account the presence of the comma after the words "branch of an organization". But the irregularity which is being defined is an irregularity "in relation to an election or ballot". It seems unlikely that the legislature would have intended that any breach of the rules of an organization whatsoever would have been sufficient to warrant the court exercising jurisdiction under s.165. The position may have been different if the definition had defined an irregularity as a breach of a rule in relation to the holding of an election or ballot, but that is not the way it reads.

It follows that for a breach of the rules of the organization to be an irregularity for the purposes of s.165, the breach must have been one which prevented or hindered the full and free recording of votes by all persons entitled to record votes and by no other persons. The balance of the words of the definition can have no relevance. In my opinion, the breach of the rules which has here occurred is not of that kind.

It was submitted by counsel for the applicant that the terms of Slater's letter were such as to be capable of having overborne the ability of electors to make a free and independent choice, particularly as it was written on the letterhead of the union. I have given that submission consideration, but I do not accept it. I think members of the community at all levels are used to propaganda of this type, similar as it is to that of Hawkins in his circular of 9 August 1979.

I therefore conclude that although there has been a breach of the rules and thus an irregularity, it is not an irregularity for the purposes of s 165 of the Act. The first ground of the application is not, therefore, made out.

That does not mean that I do not view the breach which has here occurred any less seriously that did Sweeney J view the breach committed by Hawkins in relation to the circular of 9 August. Union funds have been misapplied. Mr Slater, and perhaps others, are in breach of the fiduciary duty which at law they owe the union to see that its funds and resources are applied for the purposes and objects of the union as a whole. In effect, two factions of the union have applied union funds for their own purposes in an attempt to secure the return of the persons they supported in an election.

I should emphasize that the gravamen of what was done was not the sending of election material such as that which was sent, but the sending of it at the cost and expense of the union itself.

I turn to the second ground. The evidence of Mr. Johnston, who conducted the election, establishes that the fact that some members of the union did not receive ballot papers was due to a malfunction of the computer used by a firm engaged by the electoral office to prepare addresses to be affixed to the envelopes containing some of the ballot papers. What happened was that in some cases the computer transposed on to the envelope the address of the person whose name followed next on the roll, rather than the correct address. According to Mr. Johnston's evidence, which I accept, this happened in 40 cases.

There was evidence from 25 persons, some of whom were cross-examined, that they did not receive ballot papers but nine of them were amongst the 40 affected by the computer malfunction. The possible number of electors affected was, therefore, 56. Without going into detail, I am not satisfied that each of the six who were cross-examined took adequate steps to notify changes of address, nor am I satisfied that each of the 56 persons, if he or she had received a ballot paper, would have voted. In round terms, 6,000 persons out of a total electorate of 15,000 cast votes.

In my opinion the computer malfunction was an irregularity within the meaning of s.165. I am not persuaded by the evidence there was any other irregularity. Even if there were, no more than about 50 votes in all could possibly be involved.

Section 165(4) of the Act, so far as it is relevant provides that:

"The Court shall not declare an election, or any step taken in or in connexion with an election, to be void, or declare that a person was not elected, unless the Court is of opinion that, having regard to the irregularity found, and any circumstances giving rise to a like-lihood that similar irregularities may have occurred or may occur, the result of the election may have been affected, or may be affected, by irregularities."

In my opinion, there is no evidence of circumstances giving rise to a likelihood that similar irregularities may have occurred.

The question then is whether I should be of opinion that the result of the election may have been affected by the computer malfunction. In a few cases the vote was very close; otherwise the margin between candidates was very wide.

Having reflected on the matter, I have decided that the evidence is not such as to persuade me to form the opinion that the result of the election might have been affected by the irregularity. I would add that that would remain my view if the number of voters who did not receive ballot papers was of the order of 50 rather than 40. In those circumstances the second ground relied upon also fails with the result that the application is dismissed.

My conclusion makes it unnecessary to consider to what extent there would have had to be further elections if my view had been otherwise. In the submission of the applicant there would have had to be elections for all offices. In the submission of the other parties only that of branch councillor should have been regarded as affected. As I say, I express no view on that matter.

HIS HONOUR: Do you wish the exhibits returned?

MR. HART: I would seek an order for the return of the exhibits, your Honour.

HIS HONOUR: The exhibits may be returned. Is there any other matter?

MR. SOLOMON: The applicant would ask for a certificate under s.168(2) of the Act. Mr. Wilson acted reasonably.

HIS HONOUR: The difficulty, I feel, is that the whole matter has to be viewed and one has to take into account the sending of the circular of 9 August to which that of 29 August was a risposte. Does anybody else wish to say anything about this application?

MR. HART: Your Honour, I am not in a position where I have any instructions on this point and I would seek to have the matter reserved if it is pursued by Mr. Solomon so that it can be debated at a future time.

HIS HONOUR: I think that is reasonable, really.

MR. SOLOMON: If your Honour pleases.

HIS HONOUR: Is it convenient if the matter stands over until February?

MR. HART: Yes, from my point of view.

MR. SOLOMON: Yes, your Honour, quite satisfactory.

HIS HONOUR: The application for a certificate under s.168(2) of the Act is stood over to a date to be fixed and notified by my associate in February.

MR. HODGKINSON: In respect of that application, would your Honour give leave to any other party at that time to make a similar application under the Act?

HIS HONOUR: Yes, I will give that leave.

MR. HODGKINSON: Thank you, your Honour.

HIS HONOUR: Is there any other matter? If not, I will adjourn.