Kanan, Joseph v Hawkins, M.A

IN E i E f3DERAL COURT OF AUSTRALIA )

IKD?JSTRIAL DIVISION	)	NO. 30 of 1979
1
-	ImiY S0UTI-I WALES DISTRICT REGISTRY )

IN THE MATTER of the conciliation and

~rbitratlon

Act, 1904

AND IN TIIE

~ T T E R

of an applicat- on

under s.141 of the sald Act

BETVmEN

JOSEPH KANAN

Applicant

M.A. HAWKINS and NOEL BATT'TESE

Respondents

DATS OF'ORDER: 14 September, 1979

WIlERE MADE:

Sydney

rules of the Australian Postal and ~e~econ~munications union by refraining from using the property, includjng the building owned by that Union and including any other

JUDGE MAKING ORDER: J.B. SWeeney J.

THE COURT ORIjERS THAT:

resources and mach~nery

and staff of the New South Males

branch of the Union to support, promote or defedt candidates

or influence voters in the current electlon belng conducted

in the New south Wales branch of the Union.

IN THE FEDERAL COURT OF AUSTRALIA )

INDUSTRIAL DIVISION	)	NO. 30 of 1979
1
NEW SOUTH WALES DISTRICT REGISTRY )

IN THE MATTER of the Conciliation and	V
Arbitration Act, 1904	I
:
AND IN THE MATTER of an application	I
under s.141 of the said Act

BETWEEN

JOSEPH KANAN

~pplicant

AND M.A. HAWKINS and NOEL BATTESE

Respondents

14 September, 1979

J.B. SWEENEY J.

JUDGMENT

I propose to deliver my oral judgment in this matter.

I would have preferred more time.

I would have preferred

to wait until the transcript is available, but neither more

time nor the transcript would have altered the views I have

formed.

They will show their effect, I suppose, in the

completeness of my reasons, perhaps in the lack of elegance

of some of the phraseology, but since the election is in

progress I have thought it proper to give judgment as soon

as possible.

The application I have before me is one under s.141 of the

Conciliation and Arbitration ~ c t , 1904. It is brought by

Mr. Kanan, who is a member and indeed an organizer of the

New South Wales Branch of the ~ustralian

Postal and

Telecommunications union ("the union").

The respondents

members of that organization and are the secretary and

are Mr. M.A. Hawkins and Mr. Noel Battese, who are also the union.

There is an election pending in at least the New South

Wales branch of the union and that appears to be contested

by at least three, possibly four, groups.

One of the groups

seems to be known as the Kanan group, one as the ~attese/~awkins

group, one as the Rondell group and it is possible, though

not clear, that there is a fourth set of candidates supported

. .

by Mr. Slater, the General Secretary of the Union.

The dispute concerns the rules of the union and the order sought is in the following terms:

1. That the respondents perform and observe the rules of

the ~ustralian

Postal and ~elecommunications

Union

and refrain from using the property and resources of

the Nelv South Wales branch of the unlon so 5s to support,

promote or defeat varlous candidates for office as a

group of nominees or persons who choose or are chosen

for office.

2. That the respondents perform and observe the rules by reimbursing the amount of $255 personally to the funds of the New South Wales branch of the Union.

The matter concerns primarily the issue of a circular of 9 August, 1979, bearing that date and issued on or about l thzt date.

Before I proceed to discuss the circular, I think I should set out the position of the rules as I see them.

I accept the decision stated in Short v. Wellings 72 C.A.R. 84

in a particular passage at page 87 where it was there stated

by the then court of Conciliation and Arbitration:

"The branch rules provide for the election of officers and members of its Committee of Management. Although there is no speclflc rule against the use of the

resources and funds of the organlzatlon for the

support of particular candidates at any such election,

to use the property and resources of the branch for

such a purpose would deny the rlght of such candidates

as were not to be supported by the organlzatlon, its

committee of Management, its several authorities, its

resources or funds, to the freedom and equallty in

their candidature to which the election rules imply

they are entitled. The funds and resources of the

organization belong as much to them and then supporters

as to their opponents and thelrs."

A not dissimilar statement appears in a recent judgment of this Court in Lyons v. Deegan, delivered on 22 June, 1978. The Court was there dealing with a referendum c~nducted

indeed within this same union. Mr. Hawkins was one of the

respondents to that application. In that referendum there

was an allegation that an advice on how to vote in the refer-

endum, urglng a yes vote, had been included in envelopes wlth

ballot papers.

The court then stated, looking at this question

by reference to considerations of principle:

"We consider it plain that there is a duty on the part

of the returning officer pursuant to rules such as

rule 21 and indeed in all cases in which a free vote

of members is sought for the purpose of ascertaining

the opinion of members, that the returning offlcer

should conslder himself as an offlcial at arms length

from Ynose members of the organization having any

interest in the vote going one way or the other, so

that in all aspects of the machinery for the taking

of the vote, the taking of a free vote is achieved

uninfluenced by any propaganda in the machinery."

Reference was also made to a judgment of Mr. Justice Dunphy in H0lmeS v. Riordan (86 C.A.R. 180). In that case his

Honour, among other things, was dealing with a publication issued by the union during the course of an election. A

direct attack on the financial standing of the union had been

made inipropaganda issued by one of the candidates. The alle-

gation appears to have been made in terms that the union was

bankrupt.

The union replied to that by a circular to all

members, the bulk of which dealt with the finances of the

union and a small portion of which, I think his Honour said

two inches out of 24 column inches, urged a vote for the

respondent Riordan.

His Honour refused to make an order,

but as I read the judgment he regarded the issue of the leaflet

as contrary to rules, but refused to make an order because of

the time which had elapsed.

That view is supported by the

fact that his Honour ordered the successful respondent to pay

a portion of the applicant's costs.

I do not regard the

judgment of his Honour as an authority in any way in confllct

with Short v. Wellings.

The position then, as I see it, is that although there is no express rule in the rules of the unlon forbidding the Issue

by a secretary of a pamphlet, such as the one in this case,

or prohibiti-ng the use of the machinery, funds and resources

of the union in an election campaign, that such a prohibition

is to be implied.

The fact that a free vote of members is important is to my mind emphasised by the changes made to the Act, particularly that setting out the need to encourage the democratic partici- pation of members in the affairs of an organization.

Looking at the circular to which objection is taken, it deals

with matters under a number of sub headings.

The first is

termed Disruptive Election Propaganda and consists of an

attack on what are claimed to be four groups of people who

benefit by the removal of the existing officials of the New

South Wales branch.

The second portion, under the heading Tie-ups, contains an

allegation that these groups are allied in some way and

declares that the fourth group which would profit by the

removal of the New South Wales executive are t5e two commissions,

presumably the Postal commission and the Telecommunications

Commission.

The next part is headed Anti Union Slant and deals with

briefly certain industrial disputes

it claims +he bra~ch

was involved in and the fourth portion is headed The Never Dead

and is a criticism of unnamed people who were said to beneflt

by various smear sheets which had been issued.

The clrcular is, to my mind, clearly electioneering material, the effect of which would be to lead to a belief that the groups headed by Kanan, Rondell and possibly Slater, should not receive votes, but the existing leadership should be returned in the ballot.

Attempts were made to justlfy the circular and Mr. Halvkins in his affidavit said that it was the posltion that a number

of documents attacking the union had been issued. He said

they led to doubts being possibly raised as to the financial

position of the branch and the part it had played in certain

dispute's.

However, it must be said that there is no mention at all in

the circular of the financial position of the branch.

Indeed

some examples which were said to be the smear sheets were tendered before me and none of them contain any attack on

the financial position of the branch.

While it may be the

position that a secretary is entitled or perhaps obliged to reply to an attack on the financial posltion of his branch, that was clearly not the case here and I regard-the efforts made to justify the circulars as failing completely and not being an honest account of the reasons why it was issued.

The evidence is that the clrcular was produced, having been written by Mr. Hawkins, by the union employees, presumably the clercial staff who typed it and used offlce machinery to reproduce it and used offlce envelopes to enclose copies

addressed to the representatives and that union money was

used to pay for the stamps when it was sent out.

The

circular was despatched to all members of the union and I

have not the remotest doubt that those representatives were

intended to and in the main will bring the circular to the

notice of the members.

The questjon that arises is whether that is an actlon in breach of the rules.

I think one need only conslder the posltion in a general

election to find the answer.

if in a general electlon a

matter of days before the elec~ion

commenced, a government

used public moneys and public civil servants to produce a

propaganda leaflet and despatched it, using public moneys,

through the post to all electors, then there would be not

the remotest doubt that that action would be completely

condemned. Such an election would not be regarded as a

democratic election.

I regard the issue of the leaflet in these circumstances

as a breach of the rules and that in itself would, in my

view, be sufficient to make it proper to make an appropriate

order so far as Mr. Hawkins is concerned.

There are some other matters to whlch I wish to refer. When the matter was before me on 3 September last, undertakings were given on behalf of the respondents in these terms that

they would not use then positions within the union or the

funds or machinery or employees of the union for the purpose

of distributing any material which directly or indirectly

urges voting for a particular person or group or against a

particular person or group.

The fact is that on that same day a group of some fifteen persons, including it appears five organizers or officers of the union, were engaged in placing in envelopes material

dealing wlth, particularly I think Mr. Battese, which could

only be regarded as assisting indirectly at least hls election.

The e-lanation glven is that on 27 August or thereabouts it was found that a room which had previously been used at

the Trades Hall was not available at weekends, except on

payment of overtime to the cleaner, and it was then decided

to rent the fifth floor of the union building for use at

least for this task on this day.

An affidavit by Mr. Wilson was filed, I think on 10 September,

and his affidavit was that by mistake he went to that fifth

floor and saw there a temporary organizer engaged in the work

of placing leaflets in envelopes. When the matter came on

for hearing after Mr. wils&nl s evidence, evidence was called

for the respondents in reply to that by a Mr. James.	Some	j
question arose whether his evidence was hearsay or not.	i

In any event, this is a question which is difficult to settle without access to the transcript, but whether hearsay or not

I think ,it proper to take it into account.	This Court has
already held in Gordon v. carroll 27 F.L.R.	129 that in

matters of this nature it should not be bound by the strict

rules of evidence and when one considers the question of the	I I
I
availability of evidence, regard must be had to the decision	i

of the High court in Walker v. Walker 57 C.L.R.	630 particularly	!
the passage at page 637.

In those circumstances I turn to Mr. James' account.

This

was that a lease, the lease to which I referred earlier, was arranged between a Miss Gordon and Mr. Battese. is further evidence was that he, and presumably the other organizers

and officers, had taken days off their work with leave, but

without pay, on this day.

It seems a little improbable that

any organization would be able to do without five officers

during the whole of the day. Be that as it may, the fact is

that pay was not deducted from him on the particular Monday,

3 September which was pay day, nor was it deducted on the

subsequent pay day.

His evidence is that the cashier drew

his attention to the fact that she failed to deduct the pay - and said she would do it on the next occasion. Mr. Battese was not called nor was Mr. McKenzie nor was the cashier.

In those circumstances I can only say that the story is one which is inherently improbable and I am unable to accept it.

I am satisfled then that Mr. ~awlcins dld issue a leaflet in breach of the rules and in breach of his duty as secretary.

So far as Mr. Battese is concerned, he played his part.

appeared by counsel appearing for both him and Mr. Hawkins

and an attempt has been made to justify the circular.

The circular was not only produced, as I have said by unlon labour and use of union machinery, but the stamping of it,

the cost of $255 was paid for

by the union. Mr. Hawkins'

evidence was that Mr. Battese was counter-signatory on most

cheques and probably he was the counter-signatory on this

cheque. The document was not produced and, as I have said, Mr. Battese gave no evidence.

There has been then a use of union staff, a use of union funds,	i
a use of union machinery and a use of union property to
advantage certain candidates, who include the two principal	4
i

officers and to seek the defeat of their opponents.

It is

obvious that any governing body in a union, as indeed any government anywhere, regards itself as best calculated to manage the affairs of the union or government and regards others as less competent; but it is clearly not entitled to	I
*use its position* and to use the resources in the manner in
which they have been used in this case.
I am satisfied then tbat in the case of each respondent I should make an order pursuant to sectlon 141 and I propose
I

to make it in these terms:

that the respondents and each of

them perform and observe the rules of che Australian Postal

and Telecommunications union by refraining from using the

property, including the building owned by that union and

including any other resources and machinery and staff of	i
the New South Wales branch of the union, to support, promote
or defeat candidates or influence voters in the current
election being conducted in the New South Wales branch of the	i
union.	I

That leaves the question of the repayment of the $255.

undertaking was given on the directions hearing that if I

found against the two respondents that money would be repaid.

I am prepared to allow an opportunity for that to be done

and in addition to making the order I have indicated, I will	i
stand the matter over generally, reserve leave to the clalmant to have the matter restored to the list on seven days notlce to the court and the other parties. If the repayment is not
\
made that step may be taken and I will consider the questlon

of further orders then.	Thls matter stands adjourned on
those terms.

[1979] FCA 98

14 Sep 1979