Penhallurick, John Charles & Ors Application for an Inquiry into an Election in the Transport Workers Union

[1983] FCA 299

Re: IN THE MATTER OF THE CONCILIATION AND ARBITRATION ACT
And: IN THE MATTER OF APPLICATION BY JOHN CHARLES PENHALLURICK; GREGORY JOHN
RAY ; TREVOR RODNEY NEWTON, LEONARD EDWARD WARD AND RONALD JAMES POTTER, FOR
AN
INQUIRY INTO AN ELECTION IN THE TRANSPORT WORKERS UNION OF AUSTRALIA
And: IN THE MATTER OF A REFERENCE OF SUCH APPLICATIONS BY THE INDUSTRIAL
REGISTRAR TO THE FEDERAL COURT OF AUSTRALIA (1983) 78 FLR 159
QLD Q2 of 1983
Industrial Law - Conciliation and Arbitration
5 IR 470

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
INDUSTRIAL DIVISION
Fitzgerald J.(1)

CATCHWORDS

Industrial Law - orders consequent upon certain elections being declared

void - balancing of relevant considerations.

Conciliation and Arbitration Act, ss. 4, 165

Conciliation and Arbitration - Registered organisation - Branch - Sub-branch - Elections - Irregularities - Use of misleading circulars - Use of union resources in production and distribution of circulars - Meaning of irregularity - Elections declared void - Consequential orders - Conciliation and Arbitration Act 1904 (Cth), ss 4, 159, 165.

HEADNOTE

Elections for the various offices of the Queensland Branch of the Transport Workers' Union of Australia and various sub-branches of the Branch had been conducted under s. 170 of the Conciliation and Arbitration Act 1904. The positions were contested by candidates from two groups or teams. A number of candidates from each team occupied Branch positions prior to the election and a number from each team were full-time salaried officers of the Branch. However, one team, the Williams/ McPaul team, had de facto control of, or at least considerably greater access to, the secretarial staff and facilities of the Branch office. Five applicants sought an inquiry into the election claiming that irregularities had occurred in that the Williams/McPaul team utilised misleading circulars and that union resources were used in connection with their production and distribution.

Held: (1) One of the relevant documents was blatant electioneering directed to advancing the Williams/McPaul team and involving an attack on the Ward/Potter team. Its contents were misleading.

(2) In respect of another document, a statement of fifty-two life members of the Branch in support of the team, the court was satisfied that not all the persons named in the documents acquiesced in the use of their names in connection with such a document.

(3) Even in the absence of an express provision in the organisation's rules, there is an implicit prohibition upon the use of an organisation's resources or funds to support one candidate in an election in circumstances where those resources or funds have been denied or will be denied to another candidate.

Re Australian Workers' Union; Ex parte Ferris (Fitzgerald J., Federal Court of Australia, 25 October 1982, unreported), applied.

(4) A breach of the rules will only be an irregularity if it may be or may have been of significance in connection with the election. The irregularity must be such that having regard to any circumstances giving rise to a likelihood that similar irregularities may have occurred or may occur, the result of the election may have been affected, or may be affected.

Re Federated Liquor and Allied Industries Employees' Union of Australia; Ex parte Huxtable (1979) 40 FLR 418; Re Federated Clerks Union of Australia Taxation Officers' Branch; Ex parte Bath (Northrop J., Federal Court of Australia, 4 March 1982, unreported) and Re Federated Clerks Union of Australia Victorian Branch; Ex parte Rayner (Northrop J., Federal Court of Australia, 24 May 1983, unreported), applied.

Re Australian Postal and Telecommunications Union; Ex parte Wilson (1979) 28 ALR 330, not followed.

(5) Conduct that does not fall within the statutory definition of irregularity may nonetheless constitute an irregularity for the purposes of s. 165 of the Conciliation and Arbitration Act 1904.

(6) There was a practical risk, which was more than mere fanciful speculation, that the relevant documentation did or might have affected the result of the e election.

(7) The elections, with one exception, declared void. Consideration of how the relevant offices should be filled pending re-election.

HEARING

Brisbane, 1983, October 4-7, 14, 20-21. #DATE 21:10:1983

ELECTION INQUIRY.

The applicant sought an inquiry into elections for various offices in a branch and sub-branches of a registered organisation held under the Conciliation and Arbitration Act 1904 (Cth). The applications were referred to the court.

D. F. Jackson Q.C. and J. E. Murdoch, for the applicants.

M. P. Moynihan Q.C. and P. A. Keane, for the respondents other than the organisation.

M. Swan, for the returning officer.

M. B. Grove Q.C. and I. Hodgson, for the organisation.

Cur. adv. vult.

Solicitors for the applicants: W. H. Tutt & Co.

Solicitors for the respondents other than the organisation: Macrossan Douglas.

Solicitor for the returning officer: B. J. O'Donovan, Commonwealth Crown Solicitor.

T.J.G.

ORDER

1. The Court declares that the persons declared elected in March 1983 to the offices of Branch Vice-President, Branch Secretary/Treasurer, Branch Trustees, Additional Federal Councillors, Branch Industrial Research Officer, Branch Organizer (Ipswich sub-branch), Branch Organizers (Brisbane sub-branch), Branch Committeemen, Brisbane Sub-branch Chairman, Brisbane Sub-branch Vice-Chairman, Brisbane Sub-branch Secretary and Brisbane Sub-branch Committeemen to the Queensland Branch of the Transport Workers' Union of Australia were not validly elected to such offices.

2. The Court orders that the Industrial Registrar make arrangements for new elections to such offices to be held in accordance with s.165A of the Conciliation and Arbitration Act 1904 and the rules of the Queensland Branch of the Transport Workers' Union of Australia, including the timetable provided for in such rules, subject to the following orders.

3. The Court orders that the election in respect of Branch Organizers be conducted as an election for seven branch organizers who are resident within the geographical area of the Brisbane Sub-Branch to carry out organizational duties within that Sub-Branch or as directed by the Branch Secretary and an election for one branch organizer resident within a reasonable distance from Ipswich to carry out organizational duties within the geographical area of the Ipswich Sub-Branch or as directed by the Branch Secretary.

4. The Court orders that until the new election is concluded or further order:

(a) the persons declared elected in March 1983 to the offices referred to in paragraph 1 hereof hold and be deemed to have held at all times since then the respective offices to which they were declared elected;

(b) John Charles Penhallurick hold office as a Branch Organizer to carry out organizational duties within the Brisbane Sub-Branch or the Ipswich Sub-Branch as reasonably directed by the Branch Secretary provided that within 7 days from the date hereof he notify the Branch Secretary in writing that he desires to occupy such office and undertakes to nominate as a candidate for the office of Branch Organizer in the new election;

(c) Each of Gregory John Ray, Trevor Rodney Newton, and George Allan Goold hold office as a Branch Organizer and carry out organizational duties within the Brisbane Sub-Branch as reasonably directed by the Branch Secretary provided that within 7 days from the date hereof he notify the Branch Secretary in writing that he desires to occupy such office and undertakes to nominate as a candidate for the office of Branch Organizer in the new election;

(d) Gregory John Ray hold the office of a Branch Committeeman representing the Brisbane Sub-Branch provided that within 7 days from the date hereof he notify the Branch Secretary in writing that he desires to occupy such office and undertakes to nominate as a candidate for the office of Branch Committeeman representing the Brisbane Sub-Branch in the new election;

(e) Each of John Victor Floyd and Lawrence John Turner hold the office of a Brisbane Sub-Branch Committeeman provided that within 7 days from the date hereof he notifies the Branch Secretary in writing that he desires to occupy such office and undertake to nominate as a candidate for the office of Brisbane Sub-Branch committeemen in the new election.

1. The Court Orders that upon completion of the elections hereby ordered to be held, the persons declared elected to each of the offices the subject of such elections hold office for the period for which he or she would have held office if validly declared elected in March 1983.

1. The Court Orders that the rules of the Queensland Branch of the Transport Workers' Union of Australia be modified for the purposes of the new elections to the extent made necessary by these orders.

1. The Court orders that a copy of this Order be served on the Industrial Registrar.

1. The Court orders that all exhibits herein be returned to the Solicitors for the respective parties by whom they were tendered but not until after declaration of the new elections to be held in accordance with these orders.

1. The Court orders that all costs of and incidental to the proceedings herein be reserved.

1. Liberty to apply.

Orders accordingly.

JUDGE1

The background to these proceedings appears in reasons for judgment which I delivered on 14 October 1983 on which date the Court declared void elections completed in March 1983 to certain offices in the Queensland Branch of the Transport Workers' Union of Australia. Further argument took place before me yesterday concerning orders sought by the applicant pursuant to sub-s. 165(3) of the Conciliation and Arbitration Act 1904 ("the Act"). Stated briefly, the present contest concerns substantially whether persons who held office prior to the void elections completed in March 1983 or persons declared elected in those void elections should hold office pending the fresh elections, which are likely to be completed in March next year.

Whatever course I follow it is plain that the result will not be satisfactory to everyone. It is necessary for me to try to have regard for the interest of the Branch members, at least as much as the interests of the rival candidates, and to seek for a course which balances some at least of the competing considerations, avoiding insofar as possible any discontinuity or instability of the Branch, weighing the practicalities and impracticalities of various courses available, and also searchig to avoid any unnecessary disruption to the employment of individuals who are involved. It is also necessary not to encourage misconduct in Union elections in the expectation that a win even by improper means will place the victors in a superior position for any re-election ordered: no doubt there are advantages in the possession of office in such contests. Finally, I think it is important in the context of elections such as these, in which the rival candidates formed competing teams, to create so far as is feasible a situation in which each can, to an extent, control and supervise the other, particularly perhaps against any potential misuse of Union resources. An additional benefit of such a course may be to decrease the possibility that there will be another miscarriage of the electoral process leading to further applications in respect of the elections which remain to be conducted.

I was satisfied that the result of the elections completed in March 1983 may have been affected by irregularity and that in all the circumstances, it was appropriate to declare the elections in question void. I made no finding that the result of the elections was affected by irregularity and the material available to me would not have permitted such a finding except by way of speculation. Accordingly, it is, in my opinion, appropriate not to ignore the views of the general body of the members of the Branch of the Union as reflected by their voting, while remembering that their voting may have been improperly swayed, at least where as here the margins between successful and unsuccessful candidates were in all cases, in the context of the numbers of votes cast, quite substantial.

Again, the successful applicants in these proceedings were aware of the particular matter of complaint which was at least the principal reason for the declaration that the elections were void during the course of the elections, but they did nothing until after the elections had taken place and they had been defeated and indeed did nothing then for a considerable period.

Further, despite the terms of Branch Sub-rule 33(q) which on one view provides for incumbent office bearers to continue in office until their successors are declared elected, there seems little reason to reinstate at this point a prior incumbent who did not recontest a particular office. That occurred in respect of a majority of the offices. The nominations which are received in respect of the elections now to be held could cast a quite different complexion on this aspect of the matter, which I regard as of very considerable significance.

In the attempted application of the above notions, the outcome in respect of many of the offices is largely a matter of course because often incumbents did not stand. I will deal only with the exceptions.

So far as concerns the election of three additional federal councillors, the only incumbent who stood but was not elected was one Roy Leslie Lincoln. I have decided that he should not be appointed to hold office until the next election is declared for a number of reasons. He was defeated by a very substantial margin by the third of the successful candidates and, of course, by an even greater margin by each of the other two. The position is not an office within the Branch so much as an office to represent the Branch federally. And, it does not seem to me appropriate, in the circumstances of this case at least, to take any step which might involve interference with the operation of the Union itself, and not merely the Branch, or any modification of the Union's rules.

Gregory John Ray was the only incumbent Branch committeeman representing the Brisbane Sub-Branch who stood for election and was not elected. I consider that he should be added as a Branch committeeman representing the Brisbane Sub-Branch until the declaration of the next election. The margin by which he was defeated was significant but not enormous and the position in question is important, not least because his presence as a Branch committeeman representing the Brisbane Sub-Branch will assist to balance the Branch Committee of Management which, prior to the void elections completed in March 1983, was controlled by the team which was unsuccessful in those elections.

Although the reasons are perhaps not quite so strong, on balance I am also of the opinion that John Victor Floyd and Laurence John Turner, the only incumbent Brisbane Sub-Branch Committeemen prior to the void elections completed in March 1983 who unsuccessfully contested those elections for such office should be added as Brisbane Sub-Branch committeemen until the completion of the elections now to be held.

The position in relation to Branch organizers is more difficult. The Branch organizer (Ipswich Sub-Branch) prior to the void election completed in March 1983 was John Charles Penhallurick. Mr Penhallurick did not contest that position. Rather Donald Lynald Barden, who was not an incumbent organizer contested that position on behalf of the Ward/Potter team. Mr Barden was defeated by a significant but not a great margin by the candidate for the other team. Mr Penhallurick stood for election as one of the 7 Branch organizers (Brisbane Sub-Branch). Three other members of the Ward/Potter team, Gregory John Ray, Trevor Rodney Newton and George Allan Goold who also stood for election as Branch Organizers (Brisbane Sub-Branch) had been Branch organizers (Brisbane Sub-Branch) prior to the void elections. The margin by which all four were defeated by the seventh of the successful candidates was similar and, although significant, was not great. These are vitally important positions. All else aside, Branch organizers are paid employees of the Union. Further, there is no doubt but that, in the course of their duties, Branch organizers necessarily come in contact with the rank and file members of the Branch. If Messrs Penhallurick, Ray, Newton and Goold are not Branch organizers in the period leading up to the next election, they are likely to be disadvantaged. Further, some at least of Messrs Penhallurick, Ray, Newton and Goold are presently either unemployed or in temporary employment. On the other hand, I was told that it is an expensive business to employ a Branch organizer and that to add Branch organizers would strain the funds of the Branch.

On balance, although not without some hesitation, I have decided that Messrs Penhallurick, Ray, Newton and Goold should hold positions as Branch organizers until the completion of the next election, but subject to certain conditions. They will be under the control of one of the leaders of the rival team, Mr Hughie John Williams, who must however act reasonably towards them in his role as Branch Secretary. Each should only be given the position if he wishes it; for example one or more of them may wish not to terminate any existing employment. Further, each should only be given the position if it is clear that he intends to contest the position in the election which must now be held.

The form of the orders which I propose to make in respect of all who are to hold office at this time will only be that each holds office until the next election or earlier order. If at any time it is thought appropriate, application can be made for the variation of the orders. It may be that after nominations have closed some differences in the situation will make such an application appropriate or it may well be that a different conclusion would be appropriate if the material upon which the Court was yesturday asked to act contained detailed information by way of proper evidence rather than, as matters presently stand, somewhat broad assertions from the Bar table.