Nicholson v Mighell and Marshall v Nicholson
[1995] IRCA 526
•18 September 1995
CATCHWORDS
INDUSTRIAL LAW - Registered organisations - Union rules - Performance and observance - Election - Election inquiries - Irregularities - Doctrine of incompatibility of offices
REGISTERED ORGANISATIONS - Election - Nominations for election - Invalidity - Whether a validating order would do substantial injustice
PRACTICE AND PROCEDURE - Registered organisations - Union rules - Performance and observance
Industrial Relations Act 1988 ss 4, 209, 218, 222, 258
Fraser v Kingham (1994) 57 IR 190, 194 - 196
Ex parte Morris; Re CFMEU (1994) 57 IR 204, 212
Morris v Kingham (1994) 57 IR 216.
Egan v Maher (No 2) (1978) 35 FLR 252
Sherrif v Townsend (1979) 48 FLR 20, 54
Mellor v Horn & Ors (1988) 25 IR 157, 159-160, 161
Johnson v Beitseen & Ors (1988) 41 IR 395, at 412-413
Price v Hodgson and Ors (1992) 41 IR 178
Allen and Ford v Laragy and Others (1975) 7 ALR 261 at 266, 267
Re Transport Workers Union of Australia(“TWU”) (1992) 37 FCR 16
Nos. VI 4764, 4765 & 4610 of 1995
DEREK GRAHAM NICHOLSON v D.J. MIGHELL AND OTHERS
No. VI 4719 of 1995
GAVIN MARK MARSHALL v D.G. NICHOLSON AND OTHERS
Marshall J
Melbourne
18 September 1995
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) No. VI 4610 of 1995
BETWEEN: DEREK GRAHAM NICHOLSON
Applicant
AND: D.J. MIGHELL AND OTHERS
Respondents
JUDGE: Marshall J
PLACE: Melbourne
DATE: 18 September 1995
ORDER
THE COURT ORDERS THAT:
1. The rule to show cause dated 1 September 1995 is discharged.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY )
No. VI 4719 of 1995
BETWEEN GAVIN MARK MARSHALL
Applicant
AND D.G. NICHOLSON AND OTHERS
Respondents
JUDGE: Marshall J
PLACE: Melbourne
DATE: 18 September 1995
ORDER
THE COURT ORDERS THAT:
1.An invalidity has occurred in the election of Dean Jonathan Mighell to the offices of Branch Secretary/National Councillor and Branch Organiser on 29 and 30 August 1995 respectively.
2.An invalidity has occurred in the election of Gavin Mark Marshall to the offices of Branch Assistant Secretary and Branch Organiser on 29 and 30 August 1995 respectively.
3.The Court declares that any order which would have the effect of rectifying such invalidities would do substantial injustice to the membership of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia attached to the Victorian Branch of the Electrical Division.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) Nos. VI 4764 of 1995
BETWEEN: DEREK GRAHAM NICHOLSON
Applicant
AND: D.J. MIGHELL AND OTHERS
Respondents
JUDGE: Marshall J
PLACE: Melbourne
DATE: 18 September 1995
ORDER
THE COURT ORDERS THAT:
1.The Respondents perform and observe the rules of the Electrical Division of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia by treating as null and void the election on 30 August 1995 of 12 Branch Organisers in the Victorian Branch of the Electrical Division of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.
2.The Respondents perform and observe the rules of the Electrical Division of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia by taking steps as soon as is practicable to conduct or facilitate the conduct of new elections for the offices of 12 Branch Organisers.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) No. VI 4765 of 1995
BETWEEN: DEREK GRAHAM NICHOLSON
Applicant
AND: D.J. MIGHELL AND OTHERS
Parties
JUDGE: Marshall J
PLACE: Melbourne
DATE: 18 September 1995
ORDER
THE COURT ORDERS THAT:
1.An irregularity has occurred in relation to the election for the office of Branch Secretary of the Victorian Branch of the Electrical Division of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia by the failure of the Returning Officer to reject the nomination of Dean Jonathan Mighell for that office.
2.An irregularity has occurred in relation to the election for the office of Branch Assistant Secretary of the Victorian Branch of the Electrical Division of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia by the failure of the Returning Officer to reject the nomination of Gavin Mark Marshall for that office.
3.The Court declares that election for the office of:
(a)Branch Secretary; and
(b)Branch Assistant Secretary
of the Electrical Division of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, the result of which was declared on 29 August 1995, is void.
4.The Industrial Registrar shall make arrangements for new elections to be held for the offices of Victorian Branch Secretary and Victorian Branch Assistant Secretary of the Electrical Division of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia as soon as is reasonably practicable with the time allowed for the taking of all relevant steps in such elections to be as near as possible to the times allowed in the rules of the Division with the necessary changes.
5.It is noted that the Court will hear evidence and submissions today regarding the issue of holding over.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) Nos. VI 4764, 4765 & 4610 of 1995
BETWEEN: DEREK GRAHAM NICHOLSON
Applicant
AND: D.J. MIGHELL AND OTHERS
Respondents/Parties
No. VI 4719 of 1995
BETWEEN GAVIN MARK MARSHALL
Applicant
AND D.G. NICHOLSON AND OTHERS
Respondents
JUDGE: Marshall J
PLACE: Melbourne
DATE: 18 September 1995
EX-TEMPORE REASONS FOR JUDGMENT
AS REVISED FROM THE TRANSCRIPT
THE PROCEEDINGS
The Court has before it the following proceedings:-
(a)An application by Derek Graham Nicholson pursuant to s209 Industrial Relations Act 1988 (“the Act”) (VI 4610 of 1995), where on 1 September 1995 the Court granted a rule to show cause calling upon the respondents to it to show why the following orders should not be made:-
“1.The Respondents perform and observe the rules of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the Union”) by taking all reasonable steps to cause to be conducted elections to fill the vacancies in the following offices in the Victorian Divisional Branch of the Electrical Division of the Union:
(a)Branch Secretary/National Councillor;
(b)Branch Assistant Secretary;
(c)Branch Organisers (2);
(d)Divisional State Councillors (2);
2.The Respondents perform and observe the Rules of the Union by ceasing to recognise the Respondent, Dean Jonathan Mighell, as the Branch Secretary/National Councillor, Branch Organiser and Divisional State Councillor of the Victorian Divisional Branch of the Electrical Division of the Union (“the offices”) and that the Respondent Dean Jonathan Mighell cease to hold himself out as the holder of the offices.
3.The Respondents perform and observe the Rules of the Union by ceasing to recognise the Respondent, Gavin Mark Marshall, as the Branch Assistant Secretary, Branch Organiser and Divisional State Councillor of the Victorian Divisional Branch of the Electrical Division of the Union (“the offices”) and that the Respondent Gavin Mark Marshall cease to hold himself out as the holder of the offices.”
(b)An application pursuant to s258 of the Act (VI 4719 of 1995) where the applicant, Gavin Mark Marshall, seeks the following relief:-
“1.A determination under Section 258 of the Industrial Relations Act 1988 (Cth) (“the Act”) of the question whether an invalidity has occurred in the management or administration of the Electrical Division, Victorian Branch (“the Branch”) of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the Union”) since 30 August, 1995 in relation to:
(a)Dean Jonathan Mighell holding or assuming one of more of the offices of -
(i)Branch Secretary/National Councillor;
(ii)Branch Organiser; or
(iii)Divisional State Councillor - Electrical Contracting Section.
(b)Dean Jonathan Mighell holding himself out as, and acting as if he was one or more of the following officers of the Branch -
(i)Branch Secretary/National Councillor;
(ii)Branch Organiser; or
(iii)Divisional State Councillor - Electrical Contracting Section.
(c)Gavin Mark Marshall, the Applicant, holding or assuming one of more of the offices of -
(I)Branch Assistant Secretary;
(ii)Branch Organiser; or
(iii)Divisional State Councillor - Electrical Contracting Section.
(d)Gavin Mark Marshall, the Applicant, holding himself out as, and acting as if he was one or more of the following officers of the Branch -
(i)Branch Assistant Secretary;
(ii)Branch Organiser; or
(iii)Divisional State Councillor - Electrical Contracting Section.
2.A determination under Section 258 of the Industrial Relations Act 1988 (Cth) (“the Act”) of the question whether an invalidity has occurred in the election or appointment on 29 and/or 30 August, 1995 of Dean Jonathan Mighell to one or more of the following offices of the Branch -
(i)Branch Secretary/National Councillor;
(ii)Branch Organiser; or
(iii)Divisional State Councillor - Electrical Contracting Section.
3.A determination under Section 258 of the Industrial Relations Act 1988 (Cth) (“the Act”) of the question whether an invalidity has occurred in the election or appointment on 29 and/or 30 August, 1995 of Gavin Mark Marshall, the Applicant, to one or more of the following offices of the Branch -
(i)Branch Assistant Secretary;
(ii)Branch Organiser; or
(iii)Divisional State Councillor - Electrical Contracting Section.
4.A declaration under Section 258 of the Act that no invalidity has occurred in the management or administration of the Branch in relation to the matters referred to in paragraph 1 above.
5.A declaration under Section 258 of the Act that no invalidity has occurred in the elections or appointments referred to in paragraphs 2 and 3 above.
6.In the alternative paragraphs 4 and 5 above and/or to the extent that there is found to any invalidity of the kind referred to in paragraphs 1, 2 and/or 3 above, an order that:
(a)any such invalidity be rectified, negatived and/or modified and that the consequences in law of any such invalidity be negatived and/or modified so that the election to and/or assumption and holding of any or all of the offices referred to in paragraph 2 and/or 3 above, by Dean Jonathan Mighell and Gavin Mark Marshall, the Applicant, respectively, is effective;
(b)any act, matter or thing rendered invalid by or because of the invalidity be validated.”
(c)Another application under s209 of the Act by Derek Graham Nicholson (VI 4764 of 1995) where the Court granted a rule to show cause on 12 September 1995 calling upon the respondents to it to show why the following order ought not be made:-
“1.The Respondents perform and observe the rules of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the Union”) by treating as null and void the election on 30 August 1995 of 12 Branch Organisers in the Victorian Divisional Branch of the Electrical Division of the Union and by taking steps to conduct fresh elections for the positions of 12 Branch Organisers.”
(d)An application by Derek Graham Nicholson pursuant to s218 of the Act, dated 11 September 1995 (VI 4764 of 1995) in which it is alleged the following irregularities have occurred:
“1In breach of the Rules of the Electrical Division of the Union, the acceptance by the Returning Officer of the nominations of Dean Jonathan Mighell (“Mighell”) for the following offices:-
(a)Branch Secretary; and
(b)Divisional State Councillor.
2.In breach of the Rules of the Electrical Division of the Union, the acceptance by the Returning Officer of the nominations of Gavin Mark Marshall (“Marshall”) for the following offices:-
(a)Branch Assistant Secretary; and
(b)Divisional State Councillor.”
BACKGROUND
The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the Union”) is an organisation of employees registered under the Act. There are three national divisions of the Union. One of them is the Electrical Division, (“the Division”). The Division is in turn constituted by Divisional Branches, including the Victorian Branch (“the Branch”).
Elections for various offices in the Branch were conducted in July and August 1995. Those offices include the following:-
Branch Secretary/National Councillor (“Branch Secretary”);
Branch Assistant Secretary;
Branch Organisers (12);
Divisional State Councillors.
The elections were conducted by the Australian Electoral Commission (“AEC”) through its Industrial Elections Branch. Mr Michael Small of the AEC was the Returning Officer. Nominations opened on 3 July 1995 and closed on 10 July 1995. On 6 July 1995, the Returning Officer received nomination forms revealing that Mr Dean Mighell and Mr Gavin Marshall had been nominated by other members of the Union for the offices of Branch Organiser and Divisional State Councillor. Further such nominations in respect of Messrs Mighell and Marshall were received by the Returning Officer on 10 July 1995 for the offices of Branch Secretary and Branch Assistant Secretary respectively.
Rule 15.17.5 of the rules of the Division provides as follows:
“All nominations shall be in writing and endorsed by two financial members, other than the candidate, who have been at least three months in this Division of the Union. Before going to a ballot, candidates shall signify in writing their willingness to accept Office if elected.”
Rule 15.17.6 of the rules of the Division provides that:
“Provided that if the Returning Officer finds a nomination defective he/she shall, before rejecting the nomination, notify the person concerned of the defect and, where it is practicable to do so, give such person the opportunity to remedy the defect within seven days after being so notified.”
On 14 July 1995, Mr Mighell made three separate declarations of his willingness to accept office if elected to the following offices:-
(a) Branch Secretary;
(b) Branch Organiser; and
(c) Divisional State Councillor.
On 18 July 1995, Mr Marshall made three separate declarations of his willingness to accept office if elected to the following offices:-
(a) Branch Assistant Secretary;
(b) Branch Organiser; and
(c) Divisional State Councillor.
Each of the six declarations referred to above was lodged with the Returning Officer on 20 July 1995. The Returning Officer had earlier advised persons who had been nominated of the necessity to indicate their preparedness to hold office, if elected, no later than 12 noon on 24 July 1995 with a view to his drawing by lot at 2.00 p.m. on 24 July 1995 the order of names to appear on the ballot papers. It is common ground that each candidate in the elections for the offices contested by Messrs Mighell and Marshall submitted her or his declaration in accordance with Rule 15.17.5 after 10 July 1995.
A ballot was conducted for each of the abovementioned offices. It opened on 7 August 1995 and closed on 28 August 1995. Messrs Mighell and Marshall were candidates for each of the offices referred to in their respective declarations.
Rule 15.19.14 of the Division’s rules provides that:-
“At the close of the ballot, the Returning Officer in the presence of the scrutineers and all candidates (if available) shall count all ballot papers and shall within fourteen (14) days of the close of the ballot declare the result of the elections and the person declared elected shall occupy the respective positions forthwith, or otherwise in accordance with these rules.”
In the election for the office of Branch Secretary Mr Mighell polled 2,484 votes. His opponent, Mr Gary Main, polled 2,442 votes. In the election for the office of Branch Assistant Secretary, Mr Marshall polled 2,503 votes and his opponent, Mr Dick Gray, polled 2,415 votes. On 29 August 1995 the Returning Officer declared Messrs Mighell and Marshall elected to the offices of Branch Secretary and Branch Assistant Secretary, respectively.
In the election for the offices of 12 Organisers, each of Mr Marshall and Mr Mighell was successful. In the election for the offices of 7 Divisional State Councillors - Electrical Contracting Section, Mr Marshall and Mr Mighell were again successful. On 30 August 1995, the Returning Officer declared Messrs Mighell and Marshall elected to those respective offices.
ELECTION INQUIRY
In the election inquiry Mr Nicholson contended that the Returning Officer should not have accepted the nominations of Mr Mighell for the offices of Branch Secretary and Divisional State councillor. He also contended that the Returning Officer should not have accepted the nominations of Mr Marshall for the offices of Branch Assistant Secretary and Divisional State Councillor.
The office of Branch Organiser is not an office which is the subject of the inquiry. This is because the Organisers in the Branch are not officers within the meaning of the words “officer” or “office” in s4 of the Act. They do not as a result of holding such positions become “voting member(s) of a collective body of the ... branch”. See Fraser v Kingham (1994) 57 IR 190, 194 - 196; Ex parte Morris; Re CFMEU (1994) 57 IR 204, 212 and Morris v Kingham (1994) 57 IR 216. That is why Mr Nicholson sought the rule to show cause which I granted on 12 September 1995 in relation to the election of the 12 Branch Organisers.
Although the Court cannot make an order in the inquiry which affects the election of the Branch Organisers, it is open to the Court to consider the circumstances of such election to determine whether or not an irregularity has occurred in relation to an election for an office the subject of the inquiry.
The initial question the Court has to determine in the inquiry is whether or not an implication is to be drawn from the rules of the Division that no person may nominate for the following offices in an election in the Branch:-
1.Branch Secretary and Branch Organiser;
2.Branch Secretary and Divisional State Councillor (other than in an ex-officio capacity whilst holding the office of Branch Secretary); and
3.Branch Assistant Secretary and Organiser.
There is no express provision in the rules of the Division that prohibits the multiple nominations set out in the three instances referred to above. In Egan v Maher (No 2) (1978) 35 FLR 252, a Full Court of the Federal Court of Australia, Industrial Division, held by a 2-1 majority that a person who had purported to assume the office of National Secretary-Treasurer of an organisation had impliedly resigned from his office as National Secretary. In that case, there was a specific rule which prevented the holding of the two offices at the same time. It was not necessary for the Court to seek to draw implications from the rules to determine whether the rules intended that different people hold those offices.
In Sherrif v Townsend (1979) 48 FLR 20, 54, Northrop J referred to Egan v Maher (No 2) in the context of rules which did not prevent nominations for certain multiple offices but which His Honour said required a person elected to both such offices to elect the position he or she would hold. This was because adverse consequences may have arisen for a Branch’s voting strength on a federal management committee.
In Mellor v Horn & Ors (1988) 25 IR 157, Gray J dealt with a rule to show cause which sought the holding of elections to fill casual vacancies on a Branch committee of management which were said to have arisen as a result of the election of two members of the committee to the positions of Secretary-Treasurer and Assistant Secretary. His Honour said at 159-160 that whether the new Secretary-Treasurer and Assistant Secretary had “impliedly resigned their earlier offices depends upon whether the earlier and later offices are incompatible, in the sense that one person cannot hold both simultaneously”. Gray J said at 161 that:-
“The most important factor in construing the rules on the question of incompatible offices is the express provision in r 3 for the creation of a dual position of secretary-treasurer. By implication, this express provision carries the suggestion that no other dual position can be created, except under r 34(b), in the limited circumstances therein referred to. It follows that the holding by one person of one of the offices on the committee of management would be incompatible with the holding by the same person of another of those offices in ordinary circumstances. The plain intention is that, except as otherwise provided by the rules, each office should be held by a different person.”
In Johnson v Beitseen & Ors (1988) 41 IR 395, at 412-413, Gray J referred to Sherrif v Townsend and Egan v Maher (No 2) in the context of a submission before the Court that a person was ineligible to be appointed to the office of Assistant Secretary until he had resigned from the office of Vice-President. His Honour said:-
“The doctrine of incompatible offices applies to a registered organisation by way of implication arising from the rules. It is an implication which arises by operation of law, where incompatible offices exist. Like all implications, it may be excluded by the express terms of the rules. It is not, however, to be regarded as an implied term, arising from the presumed intention of all parties to the rules. A party asserting that the branch rules contain an implication that more than one office cannot be held validly may find that such an implication is only to be found together with an implication that the assumption of a second office vacates the first. In accordance with the doctrine of incompatible offices, this must be so, unless it is excluded by clear words.”
In Price v Hodgson and Ors (1992) 41 IR 178, Gray J was again faced with a submission that a casual vacancy had arisen on a policy making body of an organisation. His Honour said, at 179, that:-
“... For the purposes of this application for interim orders, I am prepared to assume that a casual vacancy occurred. There would be a strong presumption that one person could not hold more than one position on the federal council. See Mellor v Horn (1988) 25 IR 157 at 160-161. In those circumstances, it is likely that the doctrine of incompatible offices would apply when Mr Keily moved from one office entitling him to sit on the federal council to another. That doctrine was applied in Egan v Maher (No 2) (1978) 35 FLR 252; Mellor v Horn at 159-161 and Johnson v Beitseen (Federal Court of Australia, Gray J, 21 March 1989, unreported) at 41-44.”
An issue for determination in the inquiry is whether or not the Returning Officer should have rejected the nominations of Mr Mighell for the offices of Branch Secretary, Branch Organiser and Divisional State Councillor. It must first be determined whether or not the rules contemplate that one person is entitled to hold all such offices. Rule 12.5.4 of the Division’s rules provides that:-
“Subject to the direction of the Divisional Branch Executive, the Divisional Branch Secretary shall be responsible for the administration of the Divisional Branch and shall exercise control over all employees of the Divisional Branch.”
Rule 12.5.7 provides that:-
“If the Divisional Branch Secretary is unable to attend to his/her duties through any temporary cause or temporary absence, the Divisional Branch Executive may appoint a Deputy Secretary to act during any such temporary absence who shall assume all of the duties, powers, responsibilities, rights and entitlements of the Divisional Branch Secretary.”
Rule 12.4 provides that:-
“Divisional Branch Treasurer
It shall be at the option of any divisional branch to combine the offices of Divisional Branch Secretary and Divisional Branch Treasurer; but where a Divisional Branch has a Divisional Branch Treasurer he/she shall attend all meetings, examine accounts rendered by the Divisional Branch Secretary, and shall be entitled to sign cheques as provided by sub-rule 20.5.2.”
Rules 12.6 and 12.7 respectively provide for the Divisional Branch Assistant Secretary and Organisers to “carry out such duties as the Divisional Branch Secretary may direct”.
Rule 12.1 provides that:-
“Divisional Branch Officers
The officers of a Divisional Branch shall be President, Vice President, Treasurer, Secretary, Assistant Secretaries (except in the case of Tasmania), Organisers and Trustees (where so required by the Branch or State law).”
Rule 24.1 is in the following terms:-
“Salaries for Full Time Officers
All full-time Officers of this Division, including Divisional Secretary, Assistant Divisional Secretary, Divisional Branch Secretaries, Divisional Assistant Branch Secretaries and Organisers; and Divisional Research/Industrial Officers and Industrial Officers, shall be paid such sum for their services as may be determined by the Divisional Council with the right reserved to all full-time Officers, including Divisional Secretary, Assistant Divisional Secretary, Divisional Branch Secretaries, Divisional Assistant Branch Secretaries, and Organisers; and Divisional Research/Industrial Officer and Industrial Officers, to appeal to a private arbitrator. The private arbitrator to be an Australian Industrial Relations Commissioner if one were willing to act, or an arbitrator appointed by Divisional Council.”
In my view, the rules do not intend that the offices of Secretary and Organiser be held by one person. Both are full time offices as is made clear by rule 24.1. Additionally, as in Mellor v Horn the rules make specific provision for a circumstance in which they intend that the office of Secretary be combined with another office. (See rule 12.4.). Apart from those rules, the Court is of the view that given the nature of the duties of the Secretary as referred to in rule 12.5 and elsewhere, the rules do not intend that the person occupying that office should occupy any other full time office. It was submitted by Mr Borenstein, who appeared for Messrs Mighell and Marshall, that as an Organiser may be allocated such duties as the Secretary directs, it is possible for the Secretary to allocate very few duties to an Organiser and thus the Secretary is able to occupy both positions. I do not accept that submission. The Court, as presently constituted having regard to s222(3)(b) of the Act, is aware of the role of Organisers within the Union. The Court knows that Organisers are engaged full time in servicing the membership of the Union and in assisting in the recruitment to the Union of persons eligible for membership. The Court is aware of the tasks involved in the work of an Organiser and of the practice of the Secretary from time to time in allocating particular establishments and/or areas to certain Organisers in which to service the membership of the Union. Organisers in the field are the on-the-job face of the Union in combination with rank and file shop stewards. It is inconceivable, and especially so having regard to the rules of the Union, that a person elected as Secretary is intended to carry out the duties that accompany the full time elected office of Organiser.
Mr Borenstein further submitted that rule 24.1 related to the payment of salaries and did not of itself make certain offices full time offices. Rule 24.1 recognises, as Mr Kenzie QC (who appeared with Mr Bromberg for the applicant) submitted, the special position of full time officers and the fact that they are entitled to a salary is indicative of the holding of a full time office. I accept that submission. I also accept Mr Kenzie QC’s submission that rule 24.1 is not determinative of the issue but as he put it “icing on the cake” in the context of his contentions.
In my view the Returning Officer is not able to validly accept nominations for election for office by one person to the offices of Branch Secretary and Branch Organiser. I do not believe that the decision of Northrop J in Sherrif v Townsend supports the proposition that in this case the multiple nominations are allowed to go on to ballot with a successful candidate having the right to elect which office she or he will hold. In Sherrif v Townsend the two offices concerned were not necessarily incompatible, i.e. a Branch Secretary and a delegate to Federal Council. The vice to which His Honour’s judgment was directed was the question of the intention of the rules as to the exercise of voting power. If His Honour’s basis for holding that the offices concerned may be both contested but not both held by the one person is not materially distinguishable in the current circumstances, it is a view which, with the greatest respect, I would not concur in. There is much to be said for the proposition that a problem which is created by dual nominations for incompatible offices should be dealt with prior to the conducting of a ballot which may prove to be irregular.
In the circumstances, I find that an irregularity occurred in relation to the election for the office of Branch Secretary as a result of the nomination of Mr Mighell for that office and the office of Branch Organiser.
Rule 15.17.5 (above) provides a mechanism to aid the Returning Officer in ensuring that no multiple nominations for incompatible offices are permitted to result in a person being a candidate in the ballot for incompatible offices. In my view, once Mr Mighell confirmed his willingness to accept office for incompatible offices, the Returning Officer in accordance with rule 15.17.6 should have given him 7 days to remedy the defective nominations. Mr Mighell would then have been able to indicate which of the two incompatible offices he wished to contest in the ballot.
I now turn to consider whether the rules intend that one person hold the offices of Branch Assistant Secretary and Branch Organiser. In my view the rules contemplate a separate full time position of Branch Assistant Secretary. (See rules 24.1 and 12.6). If the rules contemplated that one person could hold both offices there would be no need for a Branch Assistant Secretary’s position especially in light of rule 12.5.7 which shows that the Branch Assistant Secretary need not be the Deputy Secretary.
Consistently with my findings in respect of Mr Mighell, I find that an irregularity occurred in relation to the election for the office of Assistant Branch Secretary by the failure of the Returning Officer to reject the nominations of Mr Marshall for Branch Assistant Secretary and Branch Organiser.
I now consider the issue as to whether the rules intend that one person hold the office of Branch Secretary and the office of Divisional State Councillor elected from a section of the Union’s membership attached to the Branch. On this issue, Mr Borenstein contended that the rules contemplated that one person may exercise more than one vote on a policy making committee of the Branch. He referred the Court to rule 11.6.5 which provides:-
“Members of Divisional State Council shall also be delegates to Conference, but if elected as a divisional sub-branch delegate, shall not be entitled to more than one vote at Conference.”
Mr Kenzie QC, in reply, submitted that rule 11.6.5 was an express exception to the otherwise prevailing situation under the rules that there be no multiple voting on such bodies.
Mr Borenstein also referred to rule 11.7.6 which provides that:-
“Permanent and/or full-time officials employed by the Division shall have the right to be members of the State Council if elected by any section.”
Mr Kenzie QC submitted that whilst that rule showed that certain full time offices may be elected by a section of the Branch membership, such offices did not include those referred to in rule 11.3.2, such officers being on State Council in any event by virtue of that rule which provides that:-
“The Divisional Branch President, Divisional Branch Vice President, Divisional Branch Secretary and Divisional Branch Treasurer shall also be President, Vice President, Secretary and Treasurer of Divisional Branch Conference, Divisional State Council, and the Divisional Branch Executive.”
In my view rule 11.3.2 demonstrates that the named officials including Branch Secretary are ex-officio members of State Council. Other full time offices not therein referred to, such as Branch Assistant Secretary and Organisers may also be on Divisional State Council if elected from a section (as was Mr Marshall). However, the initial question to be determined is the issue as to whether there is anything incompatible about being Branch Secretary and being a Divisional State Councillor. Clearly there is not. Rule 11.3.2 illustrates the point. If the Branch Secretary, apart from being ex-officio on Divisional State Council, also is elected to Divisional State Council from a section, it does not mean that she or he is holding incompatible offices. The question then becomes one of how much voting power does such a person hold. This is not an issue which is necessary for the Court to determine in these proceedings. However, as it may become an issue in the short to medium term in the Branch, the Court should express a view on the matter. In my opinion while the matter is not free from doubt the better view is that it is the intention of the rules that such a person will only have one vote on State Council. There is nothing in the rules to indicate an intention to provide extra voting power for any individual on State Council. Rule 11.6.5 is an indication of a contrary intention which need not necessarily be confined to that rule.
In the circumstances I find that no irregularity occurred in or in connection with the election for the offices of Divisional State Councillors from the Electrical Contracting Section by the failure of the Returning Officer to reject the nomination of Mr Mighell for that office.
Rule to Show Cause - Organisers - VI 4764 of 1995
Having regard to the findings of the Court in the election inquiry it follows that the Court should make the orders sought in the rule to show cause. I do so as will be set out later in these reasons but not in identical terms to the orders sought.
Section 258 application
Mr Marshall’s application pursuant to s258 of the Act as re-formulated by Mr Borenstein during the course of his submissions, given my findings in the inquiry, now materially seeks the following validation orders:-
1.The nomination of Dean Jonathan Mighell for the offices of Divisional Branch Secretary and Organiser be validated for all purposes in the elections held in the Victorian Branch of the Electrical Division of the Union commencing in July 1995.
2.The nomination of Gavin Mark Marshall for the offices of Divisional Branch Assistant Secretary and Organiser be validated for all purposes in the elections held in the Victorian Branch of the Electrical Division of the Union commencing in July 1995.
In support of the s258 application, Mr Borenstein referred the Court to Allen and Ford v Laragy and Others (1975) 7 ALR 261 at 266 where a Full Court of the Australian Industrial Court said:-
“One purpose of the new Pt IXA of the Act is to give the court a wide jurisdiction to do what justice and common sense require to remedy the situation which arises when an invalidity occurs in union management, elections or rule changes.”
I concur wholeheartedly with that statement, however, the Court immediately went on to say at 267(.1) that:-
“One of the express limitations on this power is that the court must satisfy itself that any order it is contemplating ‘would not do substantial injustice’ to any member of the organization.”
The Court would ordinarily make the orders which have been sought by Mr Borenstein if no substantial injustice arises in the context of s258(5), which provides that:-
“The Court shall not make an order under subsection (3) without satisfying itself that such an order would not do substantial injustice to:
(a) the organisation;
(b) any member or creditor of the organisation; or
(c) any person having dealings with the organisation.”
Mr Borenstein referred the Court to the decision of Gray J in Re Transport Workers Union of Australia (“TWU”) (1992) 37 FCR 16. In that case His Honour validated two defective nominations in an election in an organisation. His Honour held that the validations concerned would not do substantial injustice when the interests of the membership of the Union as a whole were taken into account. In that case failure to make a validation order would have meant that no ballot would have occurred and other candidates would have been elected without a contest. In this case a ballot has taken place. It has taken place in circumstances where members voted for persons seeking election to certain offices where two of such persons were incapable of validly facing the electors for certain positions. In my view it is in the interests of the membership of the Branch as a whole that such membership have the opportunity to vote for candidates in the full knowledge that those candidates can actually take up the offices which they seek in such election. Accordingly it is my view an order under s258 of the Act would do substantial injustice to the membership of the Branch.
Rule to Show Cause - VI 4764 of 1995
This rule was granted upon the presumption of the applicant that the Returning Officer validly accepted the nominations of Messrs Mighell and Marshall for the offices which they contested in the ballot. I have found in the election inquiry that the only office validly contested by each of them was that of Divisional State Councillor. The orders sought in respect of that latter office in this matter are pre-conditioned upon a presumption that nominations for other offices were regular. The Court has found them to be irregular. The basis upon which this rule to show cause was granted has evaporated. The rule in this matter will be discharged.
Orders
A. Rule to Show Cause - VI 4610 of 1995
In this matter the Court orders as follows:
1. The rule to show cause dated 1 September 1995 is discharged.
B. Section 258 application - VI 4719 of 1995
In this matter the Court orders as follows:
1.An invalidity has occurred in the election of Dean Jonathan Mighell to the offices of Branch Secretary/National Councillor and Branch Organiser on 29 and 30 August 1995 respectively.
2.An invalidity has occurred in the election of Gavin Mark Marshall to the offices of Branch Assistant Secretary and Branch Organiser on 29 and 30 August 1995 respectively.
3.The Court declares that any order which would have the effect of rectifying such invalidities would do substantial injustice to the membership of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia attached to the Victorian Branch of the Electrical Division.
C. Rule to Show Cause - VI 4764 of 1995
In this matter the Court orders that:-
1.The Respondents perform and observe the rules of the Electrical Division of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia by treating as null and void the election on 30 August 1995 of 12 Branch Organisers in the Victorian Branch of the Electrical Division of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.
2.The Respondents perform and observe the rules of the Electrical Division of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia by taking steps as soon as is practicable to conduct or facilitate the conduct of new elections for the offices of 12 Branch Organisers.
D. Election Inquiry - VI 4765 of 1995
In the inquiry the Court makes the following orders:
1.An irregularity has occurred in relation to the election for the office of Branch Secretary of the Victorian Branch of the Electrical Division of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia by the failure of the Returning Officer to reject the nomination of Dean Jonathan Mighell for that office.
2.An irregularity has occurred in relation to the election for the office of Branch Assistant Secretary of the Victorian Branch of the Electrical Division of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia by the failure of the Returning Officer to reject the nomination of Gavin Mark Marshall for that office.
3.The Court declares that election for the office of:
(a)Branch Secretary; and
(b)Branch Assistant Secretary
of the Electrical Division of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, the result of which was declared on 29 August 1995, is void.
4.The Industrial Registrar shall make arrangements for new elections to be held for the offices of Victorian Branch Secretary and Victorian Branch Assistant Secretary of the Electrical Division of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia as soon as is reasonably practicable with the time allowed for the taking of all relevant steps in such elections to be as near as possible to the times allowed in the rules of the Division with the necessary changes.
It is noted that the Court will hear evidence and submissions today regarding the issue of holding over.
I certify that this and the preceding 25 pages are a true copy of the Reasons for Judgment herein of his Honour Justice Marshall.
Associate:
Date: 18th September 1995
A. Rule to Show Cause - VI 4610 of 1995
Counsel for the Applicant: Mr R Kenzie QC & Mr M Bromberg
Solicitor for the Applicant: J N Zigouras & Co.
Counsel for various Respondents: Mr H Borenstein
Solicitor for various Respondents: Howie & Maher
Solicitor for various other Respondents Mr R Lamplugh of Dwyer & Co
Date of hearing: 14, 15, 18 September 1995
Date of judgment: 18 September 1995
B. Section 258 application - VI 4719 of 1995
Counsel for the Applicant: Mr H Borenstein
Solicitor for the Applicant: Howie & Maher
Counsel for First Respondent : Mr R Kenzie QC & Mr M Bromberg
Solicitor for First Respondent: J N Zigouras & Co.
Solicitor for various other Respondents Mr R Lamplugh of Dwyer & Co
Date of hearing: 14, 15, 18 September 1995
Date of judgment: 18 September 1995
C. Rule to Show Cause - VI 4764 of 1995
Counsel for the Applicant: Mr R Kenzie QC & Mr M Bromberg
Solicitor for the Applicant: J N Zigouras & Co.
Counsel for various Respondents: Mr H Borenstein
Advocate for various other Respondents Mr R Lamplugh
Solicitor for various other Respondents Mr R Lamplugh of Dwyer & Co
Date of hearing: 14, 15, 18 September 1995
Date of judgment: 18 September 1995
D. Election Inquiry - VI 4765 of 1995
Counsel for the Applicant: Mr R Kenzie QC & Mr M Bromberg
Solicitor for the Applicant: J N Zigouras & Co.
Solicitor for the Australian
Electoral Commission and the
Returning Officer: Mr R Hallowell of the Australian Government Solicitor
Counsel for various Parties: Mr H Borenstein
Solicitor for various Parties: Howie & Maher
Solicitor for various other Parties: Mr R Lamplugh of Dwyer & Co
Date of hearing: 14, 15, 18 September 1995
Date of judgment: 18 September 1995
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