Menon v O'Connor
[2021] FCA 598
•12 May 2021
FEDERAL COURT OF AUSTRALIA
Menon v O’Connor [2021] FCA 598
File number: QUD 131 of 2021 Judgment of: LOGAN J Date of judgment: 12 May 2021 Catchwords: INDUSTRIAL LAW – application for judicial relief under the Fair Work (Registered Organisations) Act 2009 (Cth) (Fair Wok Registered Organisations Act) and Federal Court of Australia Act 1976 (Cth) – where dispute concerned eligibility of applicant to participate in an election of the Construction, Forestry, Maritime, Mining and Energy Union’s (Union) conducted by the Australian Electoral Commission (Commission) – where parties raised at beginning of hearing that the returning officer of the Commission had accepted the applicant’s nomination in the election as valid – whether the hearing for the judicial relief sought should proceed – where capacity of the Court to make orders now restricted by s 164B of the Fair Work Registered Organisations Act – where appropriate to commence application pursuant to s 200 of the Fair Work Registered Organisations Act – matter adjourned until not earlier than the declaration of the ballot in respect of the Union election Legislation: Fair Work (Registered Organisations) Act 2009 (Cth) ss 164, 164B, 200 Cases cited: Moore v Doyle (1969) 15 FLR 59
Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Qld) (1995) 184 CLR 620
Division: Fair Work Division Registry: Queensland National Practice Area: Employment and Industrial Relations Number of paragraphs: 13 Date of hearing: 12 May 2021 Counsel for the Applicant: Mr W Friend QC with Mr H Clift Solicitor for the Applicant: Hall Payne Lawyers Counsel for the Respondents: Mr H Borenstein QC with Mr Y Bakri Solicitor for the Respondents: Slater & Gordon Counsel for the Intervener (Construction, Forestry, Maritime, Mining and Energy Union): Ms S Kelly Solicitor for the Intervener (Construction, Forestry, Maritime, Mining and Energy Union): Ms L Weber (Solicitor for Construction, Forestry, Mining, Maritime and Energy Union) ORDERS
QUD 131 of 2021 BETWEEN: ARTURO 'BLUEY' MENON
Applicant
AND: MICHAEL O'CONNOR
First Respondent
DENISE CAMPBELL-BURNS
Second Respondent
LEO SKOURDOUMBIS (and others named in the Schedule)
Third Respondent
AND BETWEEN: MICHAEL O'CONNOR (and others named in the Schedule)
First Cross-Claimant
AND: ARTURO 'BLUEY' MENON
Cross-Respondent
ORDER MADE BY:
LOGAN J
DATE OF ORDER:
12 MAY 2021
THE COURT ORDERS THAT:
1.That leave be granted to the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) to intervene on the question as to whether the proceeding should be adjourned, with the question as to whether to grant leave to intervene on other issues being reserved.
2.The proceeding be adjourned to a date to be fixed, not earlier than the declaration of the ballot in respect of the present election within the CFMEU’s Manufacturing Division.
3.Liberty to apply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)LOGAN J:
Mr Arturo Menon (Mr Menon) has instituted proceedings in this Court’s Fair Work division in which he claims the following relief:
1.pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth), a declaration that any resolution or action taken to remove the applicant from the membership register of the of the Manufacturing Division of the Construction, Forestry, Maritime, Mining and Energy Union on about 1 June 2020 is void and of no effect in law;
2.pursuant to s 164(1) of the Fair Work (Registered Organisations) Act 2009 (Cth), an order that the respondents perform and observe the rules by treating as null and void the purported removal of the applicant from the membership register of the Manufacturing Division of the Construction, Forestry, Maritime, Mining and Energy Union on about 1 June 2020;
3.pursuant to s 167 of the Registered Organisations Act, a declaration that the applicant is entitled to remain a member of the Manufacturing Division of the Construction, Forestry, Maritime, Mining and Energy Union on and from 1 June 2020;
4.pursuant to s 170 of the Registered Organisations Act, an order rectifying the roll of members of the Manufacturing Division of the Construction, Forestry, Maritime, Mining and Energy Union to include the applicant as having continued to be a member on and from his purported removal on about 1 June 2020; and
5.such further or other orders as the Court deems appropriate.
[sic – emphasis in original]
The respondents have for their part filed and served a cross-claim in which the following relief has been sought:
1.A declaration under section 321 of the Fair Work (Registered Organisations) Act 2009 (Cth) that the application of section 320 to the election of the Cross-respondent in November 2016 to the office of District President of the Queensland, Northern Territory, Western Australian District of the Manufacturing Division of the Construction, Forestry, Maritime, Mining and Energy Union and to the office District Delegate of the Queensland, Northern Territory, Western Australian District of the Manufacturing Division of the Construction, Forestry, Maritime, Mining and Energy Union to the Divisional Conference of the Manufacturing Division, would do substantial injustice having regard to the interests of the members of the Construction, Forestry, Maritime, Mining and Energy Union who are attached to the Manufacturing Division.
2. A declaration pursuant to section 21 of the Federal Court of Australia Act 1976 (Cth) that the Cross-respondent is not now, and has not at any time since 6 February 2014 been, a member of the Construction, Forestry, Maritime, Mining and Energy Union attached to the Manufacturing Division of that Union (the Manufacturing Division).
3.A declaration pursuant to section 21 of the Federal Court of Australia Act 1976 (Cth) that the Cross-respondent is not eligible to stand as a candidate for any office in the Manufacturing Division in the current elections in the Manufacturing Division.
4. Such further and other orders as the Court considers appropriate.
[emphasis in original]
What prompted Mr Menon’s application, and inferentially the cross-claim, is a controversy as to his continued membership of, and entry in the membership register of, the Manufacturing Division of the Construction, Forestry, Maritime, Mining and Energy Union (Union) in the context of a forthcoming union election. The ballot for that election is due to open on 18 May 2021. That consideration saw the Court give singular priority to the hearing together of both the originating application and the cross-claim. The parties are to be commended for the diligence and cooperation which each has displayed in preparing for a hearing to commence today.
As the law ordains, the election is being conducted on behalf of the Union by the Australian Electoral Commission (Commission). A development occurred overnight which intrudes upon the question as to whether the Court should now to proceed to hear and then determine both the originating application and the cross-claim. That development, so I was informed without objection from the Bar table, was that the Commission’s returning officer has determined that Mr Menon’s nomination is valid. At the time when the proceedings were initiated, that was an open question in terms of any decision by the returning officer.
I had made it clear at an earlier case management stage that the Court expected the returning officer to do her duty in terms of deciding the question of eligibility. This she has done. That decision removes the immediate occasion for Mr Menon’s concern, but not altogether, because as was put on his behalf by counsel, there does remain at least for the moment a controversy underlying the eligibility to nominate, which is one of membership and attachment to a particular division in the Union. That said, and as was pointed out on behalf of the respondents, there are aspects of that particular controversy which would be taken up in the event that there were an application to the Court for an inquiry into the election under s 200 of the Fair Work (Registered Organisations) Act 2009 (Cth) (Fair Work Registered Organisations Act).
Any such inquiry might also see raised for consideration issues which are presently at large in the cross-claim.
The Court had the benefit this morning of an application for intervention on behalf of the Union. It needs to be remembered that, as a matter of law there is but one federal legal entity – one registered organisation: see Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Qld) (1995) 184 CLR 620 and Moore v Doyle (1969) 15 FLR 59. The evidence discloses that there are arrangements, or at least have been, as between the Federal union entity and what is in law, having regard to the cases just mentioned, a separate legal entity, registered under state industrial law in Queensland.
Mr Menon was desirous of pressing for the hearing today of his application. The respondents took a different position, taking into account their interests as exposed in the cross-claim, and submitted that the better course to follow was to adjourn the hearing and determination of the present application to a date to be fixed. The occasion for that submission was that there existed a possibility of embarrassment, both of the ordained process for an election inquiry and perhaps also in terms of s 164B of the Fair Work Registered Organisations Act which prohibits the making of an order under s 164 which might have the effect of invalidating an election.
Section 164B, in my view, evinces a particular policy, which is that in the ordinary course validity of election controversies ought to be resolved in the context of the particular election inquiry jurisdiction separately given to the Court under s 200.
Another consideration which flows from the submissions made on behalf of the respondents is a more pragmatic union – political one. If it were to transpire that Mr Menon did not enjoy success in the election, one might question the continued utility, at a practical level, of his application, although of course he may nonetheless wish to persist in membership of the Union.
In my view, there are discretionary aspects which intrude in relation to whether or not to grant any of the relief which Mr Menon claims. I accept unreservedly that he has invoked a jurisdiction and that there is a controversy which would ground an exercise of judicial power subject to discretionary considerations. At present, my view is that the development which has occurred does not just rob the proceeding of its urgency, but also counsels, as a matter of prudence, the course of adjourning the hearing of the originating application and cross-claim to a date to be fixed not earlier than the declaration of the ballot in respect of the present election.
I am comforted in that view by the submission made on behalf of the Union, which was brief but nonetheless helpful. That submission was that the Union was content for the election to proceed. The submission was made in the full knowledge of the controversy which has emerged between Mr Menon and the respondents.
For the present, I should grant the Union leave to intervene in respect of the question as to whether or not the proceeding should be adjourned and reserve generally the question as to whether there should be any wider grant of leave to intervene.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan. Associate:
Dated: 3 June 2021
SCHEDULE OF PARTIES
QUD 131 of 2021 Respondents
Fourth Respondent:
JENNY KRUSCHEL
Fifth Respondent:
BETH MACPHERSON
Sixth Respondent:
CRAIG SMITH
Seventh Respondent:
DAVID KIRNER
Eighth Respondent:
SCOTT MCLEAN
Ninth Respondent:
MICHAEL AIRD
Tenth Respondent:
BRADLEY COATES
Eleventh Respondent:
NATHAN MILNER
Twelfth Respondent:
WIREMU KAIWAI
Thirteenth Respondent:
TERRY BENNIER
Fourteenth Respondent:
GEOFF GASPEROTTI
Fifteenth Respondent:
ANTHONY PAVEY
Cross-Claimants
Second Cross-Claimant:
GEOFF GASPEROTTI
Third Cross-Claimant:
LEO SKOURDOUMBIS
Fourth Cross-Claimant:
SCOTT MCLEAN
Fifth Cross-Claimant:
ANTHONY PAVEY
Sixth Cross-Claimant:
JENNY KRUSCHEL
Seventh Cross-Claimant:
CRAIG SMITH
Eighth Cross-Claimant:
BETH MACPHERSON
Ninth Cross-Claimant:
NATHAN MILNER
Tenth Cross-Claimant:
TERRY BENNIER
Eleventh Cross-Claimant:
DAVID KIRNER
Twelfth Cross-Claimant:
DENISE CAMPBELL-BURNS
Thirteenth Cross-Claimant:
MICHAEL AIRD
Fourteenth Cross-Claimant:
BRADLEY COATES
Fifteenth Cross-Claimant:
WIREMU KAIWAI
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