FEDERAL COURT OF AUSTRALIA
Mcjannett v Bulloch [2012] FCA 1233
Citation: Mcjannett v Bulloch [2012] FCA 1233 Parties: ROBERT PAUL MCJANNETT v SIMON BULLOCH and CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION File number: WAD 282 of 2012 Judge: BARKER J Date of judgment: 8 November 2012 Corrigendum: 8 November 2012 Catchwords: INDUSTRIAL LAW – application for an inquiry into an election – application for interim orders to halt proposed election – reasonable grounds for the application – alleged refusal of payment – alleged irregularity – discrepancies in evidence Legislation: Commonwealth Electoral Act 1918 (Cth) s 329(1)
Evidence Act 1995 (Cth) s 75
Fair Work (Registered Organisations) Act 2009 (Cth) s 5, s 5(2), s 5(3), s 6, s 190 s 200(1), s 201, s 201(b), s 204, s 204(1), Pt 2, Pt 3, Ch 7
Federal Court Rules 2011 (Cth) R 34.07(5), R 34.08(1)Cases cited: Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57
Becker, in the matter of an application for an inquiry in relation to an election for offices in the Australian Education Union, Queensland Branch [2004] FCA 1534
Gray, in the matter of an application for an inquiry relating to an election for an office in the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia, Electrical, Energy and Services Division [2012] FCA 1165
Re Bailey; Re Transport Workers’ Union of Australia (Victorian Branch) (1997) 79 IR 1
Re Jarman; Ex parte Cook (No 2) [1996] HCA 7; (1996) 136 ALR 233
Re Killesteyn (application for an inquiry in relation to an election for offices in the Australian Salaried Medical Officers’ Federation (Qld)) [2009] FCA 1311; (2010) 261 ALR 730
Re Mcjannett [2009] FCA 996; (2009) 178 FCR 448
Re McJannett; Re Construction, Forestry, Mining and Energy Union, Western Australian Branch (No 2) [2009] FCA 1015; (2009) 188 IR 156
Re Post; Re Election for Offices in Transport Workers Union of Australia, Western Australian Branch (1992) 40 IR 162Date of hearing: 1 November 2012 and Determined on the papers Date of last submissions: 7 November 2012 Place: Perth Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 263 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Ms W Endebrock-Brown Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Mr RC Kenzie QC with Mr TJ Dixon Solicitor for the Second Respondent: Mr J Nicholas, Construction, Forestry, Mining and Energy Union Mcjannett v Bulloch [2012] FCA 1233
CORRIGENDUM
1.Date of hearing be amended to read: 1 November 2012 and Determined on the papers.
2.Counsel for the second respondent be amended to read: Mr RC Kenzie QC with Mr TJ Dixon.
I certify that the preceding two (2) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Barker. Associate:
Dated: 8 November 2012
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
FAIR WORK…
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Details
- Case
- [2012] FCA 1233
- Decision Date
CaseChat Overview and Summary
In the Federal Court of Australia, Mcjannett sought an inquiry into an election held by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) Western Australia Branch, and interim orders to halt the proposed election. The applicant alleged that his nomination for various positions in the 2012 election ballot was defective due to a failure to pay membership dues. He claimed that the union had refused to accept his payment attempts and manipulated membership records to prevent his nomination. The union argued that the applicant had not been a financial member for the required period, and the returning officer had acted appropriately.
The legal issues before the court were whether the applicant had established reasonable grounds for an inquiry into the election and interim orders to halt it. The court had to determine if the applicant's allegations were sufficient to warrant an inquiry and whether the returning officer had acted improperly in rejecting the applicant's nomination.
The court found that the applicant had not demonstrated reasonable grounds for an inquiry into the election or interim orders to halt it. The court considered the applicant's allegations of union misconduct and record manipulation, but found that they were not substantiated by sufficient evidence. The court also found that the returning officer had acted within his authority in rejecting the applicant's nomination based on the union's membership records. The court held that the applicant had not shown a likelihood of success on the merits of his case, nor had he demonstrated that the balance of convenience favoured granting interim relief.
The court dismissed the substituted originating application for inquiry and the originating application for interim orders. The court found that the applicant had not made out a case for an inquiry into the election or for interim orders to halt it. The court held that the returning officer had acted appropriately in rejecting the applicant's nomination, and that the applicant had not shown that the union's actions were improper or unlawful.
The legal issues before the court were whether the applicant had established reasonable grounds for an inquiry into the election and interim orders to halt it. The court had to determine if the applicant's allegations were sufficient to warrant an inquiry and whether the returning officer had acted improperly in rejecting the applicant's nomination.
The court found that the applicant had not demonstrated reasonable grounds for an inquiry into the election or interim orders to halt it. The court considered the applicant's allegations of union misconduct and record manipulation, but found that they were not substantiated by sufficient evidence. The court also found that the returning officer had acted within his authority in rejecting the applicant's nomination based on the union's membership records. The court held that the applicant had not shown a likelihood of success on the merits of his case, nor had he demonstrated that the balance of convenience favoured granting interim relief.
The court dismissed the substituted originating application for inquiry and the originating application for interim orders. The court found that the applicant had not made out a case for an inquiry into the election or for interim orders to halt it. The court held that the returning officer had acted appropriately in rejecting the applicant's nomination, and that the applicant had not shown that the union's actions were improper or unlawful.
Orders
Orders of the court
1. The substituted originating application for inquiry filed 2 November 2012 be dismissed.
2. The originating application for interim orders filed 2 November 2012 be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
By [3]‑[31] of his affidavit, the applicant states as follows:Background to nominations.3.I nominated for the positions of Secretary and Assistant Secretary in the 2012 election ballot for the CFMEU WA branch. I subsequently received a letter from the returning officer dated 25 September 2012 which had attached to it copies of the union ledger relating to my financial membership. The letter notified me that my nominations had been deemed defective due to a new rule amendment which is rule 38(a)(i)(B). Attached to this affidavit and marked annexure RM1 is a copy of the letter and union ledger.4.In the letter at RM1 it is claimed by the returning officer that I did not pay the March 2010 subscription until 17 August 2010. This assertion is not correct.5.Rule 38(a)(i)(B) was inserted into the rules on 16 February 2010 but I was not aware of this until I read the letter at RM1. The news of this rule immediately shed light on why the union had been refusing to accept my membership payments for an extended period.6.I am aware that several candidates in the 2008 CFMEU election had made late payments of subscriptions immediately prior to the election but were deemed to be continuously financial by the returning officer due to his interpretation of a paragraph in rule 6.7.Following the letter from Simon Bulloch at RM1 I advised him over the phone that I had proof the union actively refused to accept payment of my subscriptions and that the union ledger was fudged after which I provided Mr. Bulloch with argument and material evidence supporting why I thought the nominations should be allowed. I provided by email an unsworn copy of an affidavit sworn on 7 April 2011 which I had previously filed in the WAIRC in another matter. Paragraph 7 of that affidavit states – On or about the 1st. December 2010 l was employed at the construction of the Collgar Wind Farm near Merredin in the wheatbelt when CFMEU official Mark Hudston refused to accept payment of my union dues. When I contacted the union office by phone later that same day, after a lengthy delay I was told I had to apply to the executive to retain my membership. I then deposited the funds directly into the union's bank account and contacted the office via email and requested a receipt. No response was received initially from this request.8.Amongst the material I supplied the returning officer in response to his rejection of my nomination were 2 Statutory declarations which are attached to my original affidavit in this matter at annexure ‘D’. Attached to this affidavit and marked annexure RM2 is the statutory declaration sworn by Joshua Daley describing how the union refused to accept payment of my subscriptions from him in the second week of March 2010.Background to union activity relating to the Applicant.9.I was detained in Bali Indonesia by authorities between 28 December 2009 and 30 May 2010 during which time my step son took control of my financial affairs. During the second week of March 2010 I telephoned my Step Son and requested he locate the bill from the union and pay my subscription. Joshua contacted me a short time later and disclosed that there appeared to be no bill amongst my mail. I then instructed Joshua to telephone the union office and pay the bill via credit card. Joshua told me the following day that when he contacted the union office they refused to allow him to pay the account.10.During or about the first week of June 2010 I telephoned the union office myself from my home in Perth and attempted to pay the March subscription but was told I have to apply to the executive to keep my membership. When I asked the receptionist to supply details or grounds for the refusal the call was terminated from the other end.11.In August 2010 I again did not receive a bill from the union. I was hired by Southern Cross Crane Hire in August 2010 and on 10 August 2010 I was inducted to work at the Collgar Wind Farm construction site where my employer was contracted to Catcon Pty Ltd.12.During or about the last week of August 2010 I was accused by an industrial relations consultant named Ross smith of attempting to bring the CFMEU on site. Mr. Smith told me that the CFMEU had used my name on a right of entry application to get on site. I rebutted Ross Smith's allegations and explained to him that the union were in fact refusing payment of my subscriptions so his allegations were preposterous. I verily believe Smith repeated the allegations to my employer Craig Lawson around that time.13.Attached to this affidavit and marked annexure RM3 is a letter from the returning officer which claims I was unfinancial until 11 November 2010 which is a change from his earlier claim of 17 August 2010. No details explaining the changed position was supplied in the letter.14.On the union ledger at RM1 there is an unusual entry on 17 august 2010 where the union have brought my account up to date despite them not accepting any payments from me. This is the date the returning officer initially claimed I had paid the arrears from march in his letter at RM1. I pointed this anomaly out to the returning officer in my correspondence to him and after making inquiries he later claimed in a letter dated 10 October 2012 that the union had expelled me on that date and adjusted the ledger so as to no longer show a debit. If this is true then the union expelled me without notification and in contravention to the rules and statute legislation in their desperation to do whatever they could to prevent my nomination in the 2012 ballot.15.On 24 November 2010 I encountered Mark Hudston from the CFMEU at the Collgar Wind Farm and attempted to hand him $650.00 in cash in front of Joshua Daley and other witnesses. Mr. Hudston refused to take the money and claimed all union officials had been instructed by Kevin Reynolds not to accept payment of my dues and that the executive wanted to meet with me about some issues.16.On 25 November 2010 I sent an email to Ian Frazer of the Australian Building Construction Commission who was handling a complaint of mine about other matters. In the email to Mr. Frazer I mention the encounter with Mark Hudston the previous day. Attached to this affidavit and marked Annexure RM4 is a copy of the email described here. The email is partly obliterated due to unrelated confidential information.17.During the week following 24 November 2010 I telephoned the union office and without disclosing my name told the receptionist I was wishing to set up weekly deductions and requested the union bank account details. The receptionist did disclose the bank account details and gave instructions what to put in the reference box when I set up the direct debit. I was compelled to do this due to the extensive efforts the union was engaging in to refuse payment of my subscriptions.18.On 6 December 2010 I drove to a bank in Merredin near the Collgar Wind farm and deposited $650.00 directly into the union bank account. Shortly after this I sent the union an email from their website requesting they offer up a receipt and current ticket or a written explanation why they were repeatedly refusing to accept my money and not sending me any accounts.19.On the union ledger at RM1 there are two entries dated 6 December 2010. The first entry creates an amount outstanding of $650.00 which effectively reverses the earlier credit on 17 August 2010 of $325.00, the second entry on 6 December 2010 shows the $650.00 cash deposit I made at a bank in Merredin.20.There is a further anomaly with the union ledger shown at RM1 in that there is no debit shown for the subscription due on 1 October 2010 which corroborates that the union were not sending me any accounts in their quest to have me run afoul of rule 38(a)(i(B).21.When I returned home to Perth from the Collgar Wind Farm on or about 20 December 2010 there were 3 letters from the union all dated 6 December 2010. One letter was a tax invoice from the union containing the ticket for the period 1 October 2010 to 31 March 2011 however there were no entries next to the 3 headings at the bottom of the invoice titled- 'Receipt Date, Receipt No. & Total paid which is not consistent with any other invoices received previously.22.The second document dated 6 December 2010 was a letter from the CFMEUW signed by the President threatening to expel me from the union for alleged ‘gross ongoing misconduct’ and quoting rule 35(2)(d) of the State union rules.23.The third letter dated 6 December was an identical letter only this time on a Federal union letterhead signed by the President and quoting the same State union rule.24.I sent a request to the union for further and better particulars to their vexatious allegations via fax, email and registered post on 20 December 2010. At the time of swearing this affidavit no response has ever been received from the union to the request and no appointment to front the executive or answer to any charges has ever been made.25.There was no lawful basis for the President to threaten me with State union rules on a federal union letterhead at 6 December 2010 and this again shows the unions utter desperation to invoke anything that would prevent me from nominating in the 2012 ballot because to invoke the Federal union rule 53 disciplinary action must be taken within 1 month of the alleged offence. The vexatious allegations dredged up in the letters dated 6 December 2010 were almost a year old and even if they were carried on to a hearing would have been proved to be false allegations.26.Attached to this affidavit and marked RM5 are the 3 letters received from the union dated 6 December 2010. And my response to the union dated 20 December 2010.27.There is a further anomaly in the union ledger at RM1 where the subscription paid by myself on 31 March 2011 was not processed until 4 April 2011. It is open to suggest the union were again stalling my payment in order to fall down on rule 38(a)(i)(B) until I sent an email to the union lawyer Simon Millman copied to the National Secretary Dave Noonan on 3 Apri1 2011. After the email to Mr. Millman on 3 April 2011 the union apparently abandoned their attempt to stall the payment. Attached to this affidavit and marked RM6 is a copy of the email dated 3 April 2011.Returning officer relying on hearsay, fudged records, not investigating late payments.28.Attached to this affidavit and marked annexure RM7 is a letter from Simon Bulloch dated 10 October 2012. The second dot point in the letter claims that the union received an EFT payment from me on 12 November 2010 and almost a month later adjusted the ledger to accommodate a payment of $650.00. This claim is not consistent with any record produced to date or my own records and recollection of the events. The $650.00 was paid by branch deposit at Merredin on 6 December 2010 with the same bundle of cash Mark Hudston refused to accept a week or two earlier.29.The letter at RM7 goes on to quote a part of rule 6 but fails to quote the part of rule 6 which was applied in the 2008 election to get several candidates qualified. The letter also avoids any mention of rule 38(a)(i)(A) which also calls up rule 6 and only mentions rule 39(a)(i)(B). The letter also corroborates that no precedence had been applied to this election by the AEC which is a failure on their part because rule 6 has not been amended since the 2008 election.30.Attached to this affidavit and marked Annexure RM8 is an email exchange between the Applicant and the returning officer regarding the fudged union ledger and changing dates of the alleged 2010 payment. In the closing email on 11 October 2012 the Returning officer states ‘I do not intend to seek the records you request.’ Apart from the fact I requested the record the Returning officer had a duty to obtain it and discover the true date upon which my payment was received by the union. Up to this point the Returning officer had only supplied what are obviously fictitious accounts in the union ledger and a verbal statement from the union claiming an EFT transaction took place on 12 November 2010.Further witness testimonies.31.After leaving court on 1 November 2012 I contacted my former employee to see if he had any recollection of the events at Collgar Wind Farm involving Mark Hudston. As it turns out he does and attached to this affidavit and marked Annexure RM9 is a copy of the relevant email exchange between myself and Craig Lawson yesterday. Mr. Lawson is willing to go on affidavit along with two other witnesses I have contacted who are Paul H. and David L. both of whom have good recollections of me disclosing to them in 2010 that the union were refusing my payments.
Evidence
Evidence Before The Court
The Union submits that, if contrary to this submission, an inquiry is instituted and the Court is disposed to grant a form of interim relief, then the position of the Union is that, on balance, it would be preferable (if necessary) to have a separate election for the offices involving the applicant only without disturbing the current timetable.THE RETURNING OFFICER’S EVIDENCE The returning officer, Mr Bulloch, has appeared by counsel and has put on an affidavit. He has held his position as Manager, Election Services Section for Western Australia since February 2008. Since commencing employment with AEC in 2006 he has been involved with or conducted as a returning officer at least 223 industrial and commercial elections for Western Australia and the Northern Territory. Mr Bulloch confirms that the AEC is currently conducting the election for the offices in the Union in a number of divisional branches in Australia. He was appointed the Divisional Branch Returning Officer for the Union election in Western Australia on 17 July 2012. He then commenced taking the necessary steps for the conduct of the election in accordance with, amongst other things, the FWRO Act and the Rules of the Union. Mr Bulloch states that on 15 August 2012 he was told by the AEC receptionist that a gentleman who identified himself as “Neil” was at reception requesting information regarding the Union election. When he attended at reception he saw the man who had identified himself as “Neil” standing near the elevators about to leave. He knew the man to be the applicant, Mr Mcjannett. He spoke with him at the elevator. The applicant asked me to email him an election notice for the Union election, which he did soon afterwards. The following day he received an email from the applicant requesting nomination forms for the Union election and on 21 August 2012 he sent an email with the election notice and nomination form. Nominations opened on 31 August 2012. Mr Bulloch’s says that on 21 September 2012 nominations were received from the applicant for the offices of Divisional Branch President, Divisional Branch Secretary, Delegate to Divisional Conference and Divisional Branch Assistant Secretary. Nominations closed at 4.00pm that day. He received these at 3.46pm. On 24 September 2012, Mr Bulloch says he attended at the office of the Union to inspect the financial status records of all nominees and nominators. The membership records provided to him for the applicant included a “Cumulative Statement” which indicated the membership dues issued on 24 February 2010 for the period 1 April to 30 September 2010 were not paid by the due date, being 1 April 2010. Mr Bulloch says that Rule 38(a) of the Rules provides, amongst other things, in respect of the three positions the applicant nominated himself for that any member of the Branch who is a financial member as provided for in Rule 6, at the time nominations are called and who has had continuous membership of the Divisional Branch during the period immediately preceding the calling of nominations for (3 years) and has not been unfinancial at any time during that period (irrespective of whether any outstanding contributions are subsequently repaid to render the member financial), may nominate.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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