Matter of an application by Walshe, J. for an inquiry into an election in Australia Railways Union

[1987] FCA 256

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IN THE FED- COURT OF AUSTRALIA )

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NEW SOUTH MALES DISTRICT REGISTRY ) No. 32 of 1984

)

INDUSTRIAL DIVISION )

IN THE MA'ITER of an

application bv JAMES - -

WAGSHE for an inquiry

into an election for an

off ice in the AUSTRALIAN

RAILWAYS UNION

25 HAY, 1987

REASONS FOR JUDGMENT

FEDERAL COCST OF

AUSTRALIA

PRINCIPAL

REGISTRY ,

James Walshe (the applicant) is a

Australian Railways Union (the union) which is an

organization of employees registered under the Conciliation -S

Arbitration Act 1904 (the Act). He applied for an inquiry

under Part CX of the Act into alleged irregularities in or in

connection with an election for the office of Assistant

National Secretary of the union. The application was

referred to the Court by the Industrial Registrar under

sub-section 159(4)ta) of the Act, which sub-section provided

that "thereupon an	inquiry shall be deemed to have been
instituted".

The election was conducted under S . 170 of the Act

by Mr. N. P. Kean. an officer of the Australian Electoral

Commission. Sydney, who called for nominations in August

1984. Three candidates were nominated for the office of

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Assistant National Secretary, including Mr. Roger Gavin

Jowett who was not a member	of the union. The irregularity
alleged in the application	in its oriqinal form was, in

essence, that Mr. Jowett was not eligible to stand as a

candidate in the election by	reason of the fact that he was
not a member of the union.

The application was amended on 10 February 1985 so as

to raise two additional alleged irregularities. One was that Mr. Jowett’s nomination was not valid because an amendment to rule 39 was not valid; it was said that this was by reason

of a failure to comply with the existing rules as to the

procedure for making amendments to the rules.

The second additional alleged irregularity was, in

substance, that his nomination was not valid because the

rule, as amended, contravened S . 140 of the Act in that it permitted non-members of the union to stand for election for a full-time office, including, in the present case, that of Assistant National Secretary.

However, although the amended application was filed

more than two years ago Mr. J. P. Phillips, of counsel, on

behalf of the applicant, has today informed the court that

the applicant does not wish to call any evidence in support

of those alleged additional irregularities. In the absence

of any evidence, the Court can not find that either of those

two additional alleged irregularities occurred.

. 3 .

It remains to consider the irregularity alleged in the

application in its initial form, as referred to this court by

the Industrial Registrar on 30 October 1984.

At the material time rule 75 of the rules of the union

provided as follows :-

"Eligibility to Hold Office

75. No person shall be eligible for election or

appointment to any office, other than for a

full-time office, unless he is a financial member

of the Union and is either actually employed at the

time of his election in or in connection with

Railway and Tramway working, or is an officer of

the Union or a Branch of the Union.

Any person shall be eligible for election to a

full-time office unless he is an unfinancial member

of the Union. I'

It was common ground that the position of Assistant National

Secretary was "a full-time office" within the meaning of that

rule. Having regard to that fact and to the terms of rule 75

and in particular to the last sentence of that rule, it is

obviously very difficult for the applicant to sustain his

original contention that Mr. Jowett was not eligible to stand

as a candidate in the election by reason of the fact that he

was not a member of the union. Today his counsel has

informed the court that he does not now wish to advance any

argument in support of that contention.

The submissions advanced by Mr. Shaw Q.C. today on

behalf of both Mr. Jowett and the union, must be upheld. On

its face the last sentence of rule 75 in its then form

. 4.

appeared to intend that any person, whether a member of the

union or not, might stand for election to that office “unless

he is an unfinancial member of the Union”; it has not been

suggested that Mr. Jarrett was an unfinancial member.

Rule 39 of the rules included the following

provision : -

“The National President, Vice President, National

Secretary and Assistant National Secretary shall be

elected by secret	ballot by all financial members
of the Union.“

It will be seen that those words required that the electors

be “financial members of the Union” but did not say that a

candidate must be a member of the union. In my opinion, on

the proper construction of rules 39 and 75, there was, in

August 1984, no requirement under the rules that a candidate

for the office of Assistant National Secretary be a member of

the union. Accordingly, the returning officer did not err in

accepting the nomination of Mr. Jarrett.

It may be added that, if there were any ambiguity

in the matter, it would be permissible to refer to the

history of the rules. However that history does not support the applicant’s contention as to the construction of the

rules; on the contrary, it supports the view that the rules,

in the form in which they appeared at the time of nominations being received in late 1984. did not require that a candidate for that office be a member of the union.

..

4. 5.

In those circumstances. on the material before the

court and having heard what has been said today, including

Mr. Shaw's submissions as to S. 159(4)(b). I am. in the words

of that sub-section, "not satisfied that there is reasonable

ground for the application" for an inquiry. The subsection

provides that, in those circumstances "the court is not

required to proceed with the inquiry" ( S . 159(4)(b)) and I do

not intend to proceed with it.	The inquiry accordingly is
terminated.

I certify this and the four preceding pages to be a true copy

of the Reasons for Judgment of his Honour Mr. Justice Keely

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