Lillywhite, in the matter of an application for an inquiry in relation to elections for offices in the CPSU, Community and Public Sector Union, SPSF Group Victorian Branch
[2016] FCA 700
•31 May 2016
FEDERAL COURT OF AUSTRALIA
Lillywhite, in the matter of an application for an inquiry in relation to elections for offices in the CPSU, Community and Public Sector Union, SPSF Group Victorian Branch [2016] FCA 700
File number: VID 424 of 2016 Judge: JESSUP J Date of judgment: 31 May 2016 Catchwords: INDUSTRIAL LAW – where inquiry under Fair Work (Registered Organisations) Act 2009 (Cth) into elections for union positions – where impugned candidates eligibility determined with regard to union rules – whether first impugned candidate validly admitted to union, irregularity upheld – whether second impugned candidate satisfied membership requirement in circumstances of alleged inconsistency between rules, irregularity denied. Legislation: Fair Work (Registered Organisations) Act 2009 (Cth) s 206 Date of hearing: 26 and 31 May 2016 Registry: Victoria Division: General Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 20 Counsel for the Applicant: Mr M Harding Solicitor for the Applicant: Rigby Cooke Lawyers Counsel for the First and Third Respondents: Mr C Rawson Solicitor for the First and Third Respondents: Australian Government Solicitor Counsel for the Second Respondent: Mr H Borenstein QC Solicitor for the Second Respondent: Maurice Blackburn Solicitors Counsel for the Fourth Respondent: The Fourth respondent appeared in person Counsel for the Fifth Respondent: The Fifth respondent did not appear ORDERS
VID 424 of 2016 BETWEEN: PETER KEITH LILLYWHITE
Applicant
AND: AUSTRALIAN ELECTORAL COMMISSION
First Respondent
CPSU, COMMUNITY AND PUBLIC SECTOR UNION
Second Respondent
JEFFREY WEBB (and others named in the Schedule)
Third Respondent
JUDGE:
JESSUP J
DATE OF ORDER:
31 MAY 2016
THE COURT FINDS:
1.THAT:
(a)an irregularity has happened in relation to the election for the office of Branch Secretary in the Victorian Branch of the SPSF Group of the CPSU, the Community and Public Sector Union, in that the Returning Officer accepted the nomination of James Main Reid for the said office when he was not eligible to be nominated for that office.
(b)an irregularity has not happened in relation to the election for the office of Branch Council Delegate - Electorate 1 in the Victorian Branch of the SPSF Group of the CPSU, the Community and Public Sector Union when the Returning Officer accepted the nomination of Mark Dowling for the said office.
AND, BEING OF THE OPINION THAT, having regard to the irregularity referred to in Finding 1(a) above, the result of the said election may be affected by that irregularity, THE COURT DECLARES:
2.Pursuant to s 206(4)(a) of the Fair Work (Registered Organisations) Act 2009 (Cth) THAT the Returning Officer's acceptance of the nomination of James Main Reid for the office of Branch Secretary is void.
AND THE COURT ORDERS THAT:
3.By the making of the said findings and declaration, the Inquiry be terminated.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
JESSUP J:
The matter before the court is an inquiry, pursuant to Pt 3 of Ch 7 of the Fair Work (Registered Organisations) Act 2009 (Cth) (“the RO Act”), in relation to the current elections for two of the offices in the Victorian Branch (“the Branch”) of the SPSF Group within CPSU, the Community and Public Sector Union (“the Union”), an organisation registered under the RO Act. The offices are (1) Branch Secretary, and (2) delegate to Branch Council representing members in “Electorate 1”, namely, “members whose work location is within the Melbourne metropolitan area and who are employed by an Employer which the Branch Council declares to be Health and Community Services”.
The inquiry was instituted on the application of Peter Lillywhite, a member of the Branch and the Union. He alleges irregularities as follows:
ŸThe acceptance by the Returning Officer of the nomination of James Reid for the office of Branch Secretary of the CPSU, Community and Public Sector Union SPSF Group Victorian Branch in the above election when he was not eligible to nominate for that office.
ŸThe acceptance by the Returning Officer of the nomination of Mark Dowling for the office of Branch Council Delegate - Electorate 1 of the CPSU, Community and Public Sector Union SPSF Group Victorian Branch in the above election when he was not eligible to nominate for that office.
The Rules of the Union (“the Rules”) are divided into “chapters”. Chapter A applies to the Union generally, Chapter B applies to the PSU Group and Chapter C applies to the SPSF Group. Relevantly to the present matter, rule 10 of Chapter A of the Rules provides as follows:
(a)The Union shall consist of two Groups, namely the PSU Group and the SPSF Group.
(b) The PSU Group shall consist of:
(i) …;
(ii)All persons who are eligible to join the Union under Part I of Rule 3; and
(iii)All members allocated to the Group by decision of the National Officers Committee.
(c) The SPSF Group shall consist of:
(i) …;
(ii)All persons who are eligible to join the Union under Part II of Rule 3; and
(iii)All members allocated to the Group by decision of the National Officers Committee.
(d) The Branches of the SPSF Group shall be as follows:
i.CPSU, the Community and Public Sector Union SPSF Group Victoria Branch ;…
It is uncontroversial that the reference to rule 3 in each of subrules (b)(ii) and (c)(ii) of rule 10 is a typographical error, and should be treated as a reference to rule 2.
Rule 2 commences as follows:
Persons shall be eligible for membership of the Union under either Part I, Part II or Part III of this Rule.
Part III is not presently material. Each of Parts I and II consists of a series of categories by reference to which employees are eligible for membership of the Union. Those who are eligible under Part I constitute the PSU Group (see rule 10(b)(ii) of Chapter A, set out above) and those who are eligible under Part II constitute the SPSF Group (see rule 10(c)(ii) of Chapter A, set out above).
In the case of Mr Reid, the present issue relates to the validity of his ostensible admission to membership of the Union. On 16 November 2009, he commenced employment with the Branch itself. On 21 January 2010, he completed a pro-forma membership application form, issued by the Branch, which contained the following pre-printed passage:
I, the undersigned, hereby apply to join the Community and Public Sector Union/State Public Services Federation Group (CPSU/SPSF) Victorian Branch … and agree to comply with the rules and bylaws of the Union.
Ostensibly at least, that application was accepted and, until recent events which have become controversial, Mr Reid has been treated as a member since then.
However, rule 8 of Chapter A of the Rules provides as follows:
Applicants for membership of the Union shall be admitted to membership in accordance with the relevant Group Rules set out in Chapter B or Chapter C of these Rules as the case may be. In the event of any dispute or disagreement concerning the appropriate Group of the Union to which the applicant for membership should be admitted, the National Officers Committee shall determine the appropriate Group.
The second sentence in this rule appears to be a reflex of subrules (b)(iii) and (c)(iii) of rule 10 of Chapter A, set out above.
Under Chapter C of the Rules, which applies to the SPSF Group, the following provisions of rule 54, headed “Applications for Membership”, are, or may be, relevant to Mr Reid’s circumstances:
54.1A candidate for membership shall make application to the Branch (or Branches) established in the State in which the candidate’s employer is located.
(a)The application shall be made in the manner and subject to any conditions specified by the rules of the relevant Branch.
(b)The Branch shall have power to accept or reject any such application subject to the provisions of the Act and Chapter A of these rules.
….
54.5A person's application for or admission to membership shall not be invalidated due to error, omission or want of form.
54.6Every person shall be deemed to be a member who has been acknowledged to be a member by the Group or by a Branch and who has previously made application for membership or otherwise acknowledged membership. Provided that:
(a)Federal Executive may remove from the register the name of any person who has gained admission as the result of any irregularity.
(b) Any person removed shall have a right of appeal to Federal Council.
….
54.10Every member shall be deemed to be attached to a Branch of the Group established in the State where the member’s employer is located.
The matter of eligibility for nomination for the office of Branch Secretary is the subject of rule 20.2 of Chapter C of the Rules. To the extent presently relevant, that rule provides as follows:
Persons eligible to accept nomination for Branch Secretary are:
(a) All financial members of the Branch;
(b) …;
(c) Employees of the Union if the Branch rules so provide; and
(d) ….
The Branch rules make no provision for an employee of the Union to be eligible for nomination for the office of Branch Secretary.
Technically, a person would never be a member “of” the Branch: he or she would, by r 54.10, be a member of the Union deemed to be attached to the branch of the Group established in the State where his or her employer is located. In the case of Mr Reid, he is required under r 20.2(a) to be a member of the Union whose employer is located in Victoria. His employer is so located. As mentioned above, however, the issue in the inquiry is whether he was ever validly admitted as a member of the Union.
The present difficulty arises because, as an employee of the Union, Mr Reid would have been eligible for membership under Part I of rule 2. He was not, however, eligible for membership under Part II. He did not apply for membership in the PSU Group. It is clear from Chapter A rule 10 that the Union “consists” of two groups only: there is no concept of membership of the Union other than in one or other of the two groups there mentioned. The Branch was not empowered to admit Mr Reid to membership of the PSU Group (and did not purport to do so). On the other hand, the nature of his employment made him ineligible for membership of the SPSF Group.
The Returning Officer drew the court’s attention to the second sentence in rule 8 of Chapter A of the Rules, to which I have already referred. It was submitted that, it being accepted that Mr Reid might, by his eligibility for membership under Part I of rule 2, have become a member of the PSU Group, it should not, in the absence of evidence, be presumed that there had been no determination by the National Officers Committee that Mr Reid be admitted to membership of the SPSF Group. When this submission was made, the proceeding was adjourned to allow the factual circumstances to be investigated. Upon the resumption, counsel for the Union read the affidavits of five members of this committee, each of whom had been a member since the time of Mr Reid’s ostensible admission to membership of the Union, or in one case shortly thereafter. Each deposed that he or she was unaware of the making of any such determination. Although this evidence came from five only of the eight members of the committee, I accept that it would be quite improbable for none of the five to be aware of a determination of this nature, if one had indeed been made. In the circumstances, I find that Mr Reid’s membership, such as it was, was never the subject of a determination under Chapter A rule 8.
During the adjournment to which I referred, my associate raised with the parties the potential relevance of Chapter C rule 54.6 to the circumstances of Mr Reid’s ostensible membership of the Union. Brief submissions were made on this subject, it being sufficient to state that I accept the arguments of counsel for the Union that this rule was intended to operate wholly within the SPSF Group (the PSU Group not having branches) and that, in the context of the subject-matter of rule 54 generally, it makes no contribution to the resolution of a membership eligibility problem of the kind which attends Mr Reid’s situation.
In Mr Reid’s case, the conclusion is inescapable that he was never validly admitted to membership of the Union, and is not, therefore, a member of the Branch within the meaning of Chapter C rule 20.2(a) of the Rules. The acceptance of his nomination for the office of Branch Secretary was an irregularity within the meaning of Pt 3 of Ch 7 of the RO Act.
Taking the view that the result of the election to the office of Branch Secretary may be affected by the irregularity referred to, I propose to determine under s 206(1) of the RO Act that the acceptance of Mr Reid’s nomination to the office of Branch Secretary was void.
In the case of Mr Dowling, the issue is whether the Rules required him, as a condition of eligibility for nomination for the office of Branch Council Delegate, to have 12 months’ financial membership as at the date of his nomination. The applicant and the Union submit so, basing their argument on rule 14.4 of the Branch rules, which provides, so far as presently relevant, as follows:
In addition to the requirements of the federal rules in relation to eligibility to be candidates nominated for election to an office or offices, a member shall be eligible to be nominated for election as a Branch Officer or as a Branch Councillor if the member:
(a)has been a financial member for a continuous period of not less than twelve (12) months, and ….
It is uncontroversial that, when Mr Dowling was purportedly nominated for the office of Branch Council delegate, he was a financial member of the union, but had not been so for the previous 12 months.
There is, however, a rule in Chapter C of the Rules which bears upon the present question. It is rule 20.5, headed “Branch Council”, which relevantly provides as follows:
Persons eligible to accept nomination to Branch Council shall be:
(a) all financial members of the Branch; and ….
The relationship between Chapter C of the Rules and Branch rules is the subject of certain provisions of rules 6 and 7 of the former. Those provisions are:
6. BRANCHES
6.1 Branches
(a) The Federal Council may form a Branch or Branches in any State.
(b) Each Branch shall at all times conform to the rules of the Union.
(c)Each Branch shall have full autonomy in matters affecting members of the Branch.
(d) ….
(e)Branch rules are void to the extent of any inconsistency with a rule under Chapter C.
….
7. BRANCH COUNCIL
….
7.2 Powers of Branch Council
….
(c) Branch Council shall have power to:
…
(iii)Make, amend, and rescind rules for the regulation and government of the Branch ….
The Returning Officer took the view that Branch rule 14.4(a) was inconsistent with Chapter C rule 20.5(a), and thus void under Chapter C rule 6.1(e). He accepted Mr Dowling’s nomination on the basis of his eligibility under Chapter C rule 20.5(a). It was submitted on behalf of the applicant and the Union that there was no such inconsistency. They stressed the autonomy given to branches under Chapter C rule 6.1(c), and the specific power given to the Branch Council to make its own rules under Chapter C rule 7.2(c)(iii). They submitted that the scheme of the Rules, as so understood, was such that a Branch was entitled to supplement the basic eligibility provision under Chapter C rule 20.5 with any additional requirement considered beneficial for its own governance. It was said that a Branch was entitled to take the view that the additional commitment to the Union necessarily implied by a longer term of financial membership would improve the quality of Branch Council members, and to give effect to such a view in a provision such as rule 14.4.
I take the view that the Returning Officer was correct in accepting Mr Dowling’s nomination. The general empowering provisions of Chapter C of the Rules, specifically rules 6.1(c) and 7.2(c)(iii), must yield to the specific requirement of rule 6.1(e). In short, the Branch Council may make rules for the regulation and government of the Branch, but, if it makes a rule which is inconsistent with a rule under Chapter C, the former will be void. In my view, Branch rule 14.4(a) is inconsistent with Chapter C rule 20.5, in the sense that it purports fundamentally to alter the stated basis of eligibility for nomination to the office concerned. Rule 20.5 is not to be understood as a minimum, or base-line, requirement: it states the requirement for eligibility. To the extent that a Branch rule renders ineligible someone who is eligible under r 20.5, the former must, in my view, be regarded as inconsistent with the latter.
I propose to determine, under s 206(1) of the RO Act that an irregularity has not happened in relation to the nomination of Mr Dowling for the position of Branch Council delegate.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate:
Dated: 15 June 2016
SCHEDULE OF PARTIES
VID 424 of 2016 Respondents
Fourth Respondent:
JAMES REID
Fifth Respondent:
MARK DOWLING
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