Queensland District Branch of the Mining and Energy Division of the Construction, Forestry, Mining and Energy Union

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DECISION

Fair Work (Registered Organisations) Act 2009

s.186(2)(b) – Revocation of AEC Exemption

Queensland District Branch of the Mining and Energy Division of the

Construction, Forestry, Mining and Energy Union

(R2014/186)

MR ENRIGHT	MELBOURNE, 30 OCTOBER 2015
Revocation of AEC Exemption

[1]        This decision concerns the proposed revocation of an exemption that enables a branch

of a registered organisation to conduct its own elections internally without the participation of

the Australian Electoral Commission (AEC). The relevant revocation provisions are set out in

s 186(2)(b) of the Fair Work (Registered Organisations) Act 2009 (RO Act) and regulation

137(2) of the Fair Work (Registered Organisations) Regulations 2009 (RO Regulations).

[2]         The exemption was granted to the Queensland District Branch (the Branch) of the

Mining and Energy Division (the Division) of the Construction, Forestry, Mining and Energy

Union (CFMEU) on 2 May 1996 (the AEC exemption).

[3]        While this decision concerns the proposed revocation of an AEC exemption issued to

the Branch, because of the operation of the Division’s rules with respect to elections in the

Branch, as well as the making of detailed submissions by the Division, it will also be

necessary to refer in significant detail to various relevant matters relating to the Division.

[4]        Notwithstanding the detailed references to a range of matters relating to the Division,

the revocation proceedings were commenced for reasons related to the conduct of elections in

the Branch (including actions by the Branch’s Board of Management (the Board)) which

gave rise to concerns about whether future elections for the Branch will be conducted under

the rules and the RO Act.

[5]        The issue for determination is whether the AEC exemption issued to the Branch on 2

May 1996 should be revoked in accordance with s 186(2)(b) of the RO Act.

Background

[6]        Organisations registered under the RO Act must have rules that provide for, among

other things, the election of the holder of each office (refer s 143). The requirement that every

office in an organisation and branch of an organisation is elected is an important element in

ensuring democratic control.
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[7]        All elections for offices are to be conducted by the AEC unless an exemption has been

issued to an organisation or branch (refer ss 182(1), (2) and s 186). The RO Act also requires

all elections for offices by a direct voting system to be conducted by a secret postal ballot

unless an exemption has been issued to the relevant organisation or branch (refer s 144).

[8]        On 2 May 1996 the Division was issued with an exemption from the requirement that

elections be conducted by secret postal ballot under s 198 of the Industrial Relations Act 1988

(IR Act) in R20016/1996 (secret postal ballot exemption). As a result, elections for the

Division and most of its branches are conducted by attendance ballot under Divisional Rule

17.

[9]        On the same day the Branch was issued with an exemption under s 213 of the IR Act

from the requirement that the AEC conduct its elections in matter R20021/1996 while the

Division and most of its other branches were also granted AEC exemptions. As a result, the

Division and the relevant branches (including the Queensland District Branch) were entitled

to conduct their own elections.

[10]      Subsequently, quadrennial elections were conducted pursuant to the exemptions in

1996, 2000, 2004, 2008, and 2012 as most offices in the Division and branches have four year

terms. By-elections have also been conducted by the Branch in other years such as 2011 and

2013.

[11]      The relevant provisions regarding AEC exemptions and postal ballot exemptions are

now set out in ss 183 to 186 and 144 of the RO Act respectively.

[12]      Elections conducted by organisations or branches with AEC exemptions are not

subject to review by any external body. Essentially, the only review mechanism for AEC

exemptions is the power to revoke in s 186(2) of the RO Act to which I now turn.

[13] In accordance with s 186(2)(b), the General Manager (the General Manager) of the

Fair Work Commission (the Commission) is empowered to revoke an election exemption as

follows:

(2)	The General Manager may revoke an exemption granted to an organisation or branch
under subsection (1):…
(b) if the General Manager:

(i)          is no longer satisfied as mentioned in subsection (1); and

(ii)         has given the committee of management of the organisation or branch

an opportunity, as prescribed, to show cause why the exemption

should not be revoked.

[14]      Given that the revocation provisions refer to s 186(1) I include that section below:

(1)	Where an application in relation to an organisation or branch has been lodged under
subsection 183(1) and, after any objections duly made have been heard, the General
Manager is satisfied:

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(a) that the rules of the organisation or branch comply with the requirements of

this Act relating to the conduct of elections for office; and

(b) that, if the organisation or branch is exempted from subsection 182(1), the

elections for the organisation or branch, or the election for the particular

office, as the case may be, will be conducted:

(i) under the rules of the organisation or branch, as the case may be, and

this Act; and

(ii)         in a manner that will afford members entitled to vote at such elections

or election an adequate opportunity of voting without intimidation;

the General Manager may exempt the organisation or branch from subsection 182(1)

in relation to elections for the organisation or branch, or the election for the particular

office, as the case may be.

[15]      In accordance with s 343A, the General Manager had delegated powers under s 186 to

me as the Director of the Regulatory Compliance Branch, including the power to revoke

exemptions under s 186(2).

[16]      References in this decision to the duties and powers of the General Manager with

respect to s 186(2) and other provisions relating to AEC exemptions, will be references to the

duties and powers of the General Manager as delegated to the Director of the Regulatory

Compliance Branch under s 343A of the RO Act.

[17] On 20 August 2015, pursuant to section 186(2)(b) and regulation 137(2) in performing

my role as the delegate of the General Manager in accordance with s 343A, I issued a Notice

to Show Cause (Show Cause Notice) to the Committee of Management of the Branch with a

Statement of Reasons which are discussed in more detail below.

[18]      The Statement of Reasons included six reasons. In summary the six reasons were as

follows:

i.       Postal voting has occurred in Branch elections for many years contrary to Rule 17.

ii.       The Branch has not always appointed Returning Officers in accordance with Rule

17(a).

iii.       The relevant Returning Officer for the Branch has not appointed a Local Returning

Officer at each lodge or locality to conduct attendance ballots for every election under

Rule 17(a).

iv.       The Branch President issued a direction to the Returning Officer in a by-election for

the Branch Executive Vice President in 2011 (the 2011 election) regarding when the

ballot should close at a particular lodge and subsequently determined that irregularities

had occurred in the election (where both such actions by the Branch President

appeared to have been done without relevant authority under the rules or the RO Act).

v.       The Branch’s Board passed a resolution to deem the 2011 election invalid without

relevant authority under the rules or the RO Act.

vi.       The effect of the Board’s resolution in the 2011 election was to declare, in effect, that

a person who had been purportedly elected in that election had not been elected.

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[19]      The Show Cause Notice invited the Committee of Management of the Branch to show

cause as to why the exemption issued to it in matter R20021/1996 should not be revoked and

listed a hearing of the matter on 17 September 2015.

[20]      Written submissions and other materials were lodged prior to the hearing and the

hearing proceeded on 17 September 2015. Further details of the hearing are provided below.

Legislative history

[21]      The legislative history of AEC exemptions is relevant to the present matter.

[22]      The Parliament first empowered Commonwealth officials to conduct elections for

registered organisations in 1949. At the time this was an option that organisations could

utilise but it was not mandatory. The Commonwealth then moved from an optional

arrangement to, in most cases, a mandatory arrangement. There were a number of reasons for

this which included: to reduce irregularities in elections of organisations; to facilitate a

consistent approach in the conduct of such elections; and to enhance the confidence of the

public and members of organisations in the conduct of such elections.

[23]      The history of these changes is summarised in the 1997 report of the Joint Standing

Committee on Electoral Matters regarding the role of the AEC in conducting industrial

elections (the JSCEM Report). For example, the JSCEM Report noted that in 1949 the

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Parliament not only introduced the option for officially conducted elections but also

introduced provisions regarding election inquiries for the following reasons (emphasis added):

1.23	The preamble to the 1949 Act [Commonwealth Conciliation and Arbitration Act
1949] stated that it was:

An Act to make provision for the prevention of irregularities in connexion

with elections for offices in organisations registered under the Conciliation

and Arbitration Act 1904-1948 and to vest in the Commonwealth Court of

Conciliation and Arbitration additional powers for the prevention of such

irregularities, and for these purposes to amend that Act.

1.24 In the Second Reading Speech to the 1949 bill, Senator McKenna said:

For some considerable time the Government has been investigating the need

for statutory provision of this kind. Evidence of malpractices and irregularities

in the elections of officials of some registered organisations has accumulated

and has been confirmed by responsible industrial bodies and other bodies

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closely associated with industrial activities.

[24]      In 1989 it became mandatory for registered organisation elections to be conducted by

Commonwealth officials unless an exemption had been granted. This was a result of the

recommendations in the Report of the Committee of Review into Australian Industrial

Relations Law and Systems (the Hancock Report) of 1985 as follows (emphasis added):

1.39 In 1985 the Hancock Report noted the increasing use made of the facility for officially

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conducted elections between 1949 and 1983.	…[the] Hancock Report considered
that:

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The conduct of elections by Commonwealth officials facilitates a consistency

of approach, leading to fewer invalidities and disputed elections. It should

enhance the confidence of the community and the members of organisations in

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the conduct of ballots.

1.40	The Hancock Report recommended that the CA Act be amended to, amongst other
things, require that all elections for office holders within registered organisations be

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officially conducted unless an exemption had been granted. This recommendation

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was adopted in the Industrial Relations Act 1988 ('the IR Act') which replaced the

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CA Act and which commenced operation on 1 March 1989.

[25]      In 1989 it also became mandatory for all elections by a direct voting system to be

conducted by secret postal ballot unless an exemption had been granted.

[26]      More than 150 exemptions have been granted under the IR Act and subsequent

legislation including the RO Act although most were granted soon after 1988. Many of the

exemptions no longer operate in circumstances that some organisations have since been

deregistered and/or the relevant branch of an organisation has been abolished.

Divisional History

[27]      In 1990, the ‘United Mineworkers Federation of Australia’ (UMW) was established as

a result of the amalgamation of three mining unions including the ‘Australasian Coal and

Shale Employees’ Federation’ (ACSEF) which had been federally registered in some form

th

since 1913 and had predecessors dating back to the 19 century.

[28]      On 10 February 1992 a further amalgamation occurred between the UMW and the

‘The ATAIU & BWIU Amalgamated Union’ to form the federally registered organisation

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known as the CFMEU.

[29]      Of relevance to this matter, the practical effect of the amalgamation on 10 February

1992 to form the CFMEU was that the UMW became the Mining and Energy Division of the

CFMEU.

[30]      Subsequent to the amalgamation forming the CFMEU, elections for office holders of

the Division were conducted by the AEC later in 1992 by secret postal ballot.

Governance of the Division

[31]      The Division consists of three main levels. The first level is the lodge (Lodge). A

lodge is a workplace sub-branch of the Division that seeks to bring together all members

within a particular workplace, locality or company and the rules of the Division and the

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branches mandate the establishment of Lodges wherever practical.

[32]      The next level is the District Branch. District Branches are approximately co-

extensive with State borders (although there are currently two separate branches in NSW).

Each branch typically has a Branch Board of Management and Branch Executive.

[33]      The next level is the National level, consisting of the Central Council, the Central

Executive and the full time executive officers. Central Council is the supreme governing

body of the Division and is comprised of the General President, the General Vice President/s,
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three Vice Presidents, the General Secretary and representatives of the District Branches

(refer Divisional Rule 8).

[34]      As part of this governance structure the Division and each branch have rules. An

important element of the governance of the Division is that decisions made by a Branch Board

of Management or the Division’s Central Council must be endorsed by a majority of members

at the Lodges in order to become binding (for example, refer Branch Rule 8(iv) and

Divisional Rule 8(iv)).

Applications for exemptions in 1996

[35] On 19 February 1996 the Division lodged an application under s 198 of the IR Act for

a secret postal ballot exemption. At the same time, the Division and seven of its branches

(including the Queensland District Branch) lodged applications for AEC exemptions under s

211 of the IR Act.

[36]      On 2 May 1996 a hearing was conducted by the Industrial Registrar of the Australian

Industrial Registry to consider the applications as well as an application to amend the rules of

the Division. The Division was represented by Mr P Tyson of Counsel accompanied by

Divisional officials including the General President Mr J Maitland and General Secretary, Mr

B Watson.

[37]      It was asserted in the applications and related materials that the Division and seven of

its branches were endeavouring to return to what was described as the ‘traditional method of

election within the Division and its predecessors, the Australasian Coal & Shale Employees

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Federation and the United Mine Workers Federation of Australia’ which was stated to be the

internal conduct of elections by attendance ballot rather than the AEC conducting secret

postal ballots.

[38]      As part of the Division’s application for a secret postal ballot exemption the Division’s

Rules were amended to remove the provision for postal ballots and to provide only for

attendance ballots at each ‘lodge’ or ‘locality’. In particular, Divisional Rule 17(a) was

amended to state (emphasis added):

The Central Council and each District Branch Board of Management shall appoint a Returning

Officer to conduct elections within the Division and each District Branch respectively…(called in

this Rule the Returning Officer).

Such Returning Officer shall for the purpose of each election appoint Local Returning Officers

who shall be responsible for the conduct of elections at each lodge or locality in such a way as to

ensure, as far as practicable that no irregularities can occur in relation to an election.

Such Returning Officer or Local Returning Officer shall not be the holder of any office in or be an

employee of the Union, a Division or a District Branch or lodge of the Division.

[39]      I also note that the rules of the Branch require branch elections to be conducted in

accordance with Divisional Rule 17 (refer Rules 7(i)(d), 8(i)(d), 9(i)(b), 9(i)(e) and 10(b)).

[40]      On 2 May 1996 the Industrial Registrar granted the exemptions and approved the rule

alterations.

Complaint

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[41]      On 22 May 2013 correspondence was provided to the General Manager of the

Commission which contained an anonymous complaint about the conduct of elections by the

Division and the Branch in 2011 and 2012.

The elections referred to in the complaint were as follows:

	the by-election for the Branch Executive Vice President that was conducted from
October to December 2011 by the Branch Returning Officer, Mr Dennis Hansell (the
2011 election); and
	the quadrennial election for most offices in the Division and its branches that was
conducted from about March to May 2012 by the Division’s National Returning
Officer, Mr Kenneth Hawkins (the 2012 election).

[42]      The Regulatory Compliance Branch of the Commission conducted a range of inquiries

to assist the General Manager in relation to the complaint.

[43]      On 31 May 2013 the General Manager wrote to the Branch Secretary, Mr Timothy

Whyte advising that a complaint had been received regarding the conduct of the 2011 election

and the 2012 election and sought responses to a range of questions which would assist the

General Manager in dealing with the complaint.

[44]      On 6 June 2013, the current General Secretary of the Division, Mr Andrew Vickers,

provided a written response regarding the 2012 election for the Division, together with copies

of relevant documents. On 8 July 2013 Mr Whyte provided a detailed written response

regarding the 2011 election in the Branch, together with copies of relevant documents.

Inquiries by the Commission

[45]      Subsequent to receipt of the initial complaint on 22 May 2013, the Regulatory

Compliance Branch conducted a comprehensive range of inquiries to assist the General

Manager in addressing the complaint.

[46]      The comprehensive inquiries included:

i. Obtaining and reviewing the Division’s Returning Officers Manual (the

Election Manual).

ii.          Reviewing the transcript of proceedings of 2 May 1996 regarding the granting

of the exemptions.

iii.         Conducting a number of interviews with members of the Division regarding

the election practices in the Division.

iv.         Reviewing the electoral history of the Division under the RO Act and prior

legislation.

v.          Reviewing relevant authorities in relation to irregularities in industrial

elections generally.

vi.         Reviewing the use of postal voting within the Division by gathering data

regarding the prevalence of postal voting in the Division and assessing whether

the provisions in the Election Manual regarding postal voting were consistent

with the Division’s rules.

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vii.  Reviewing the ‘participation’ rate of members in the Division’s elections by:

gathering data regarding the voting rates for elections within the Division and

its branches that are conducted by attendance ballot and comparing it to: the

voting rates in the Victorian District Branch of the Division which does not

have an AEC exemption (and its elections are conducted by secret postal ballot

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by the AEC).

[47]      During the conduct of these and associated inquiries, three other matters of interest

emerged.

First Matter of Interest – complaint by former officer

[48]      The first matter of interest was that The Australian newspaper published two articles

on 28 and 29 January 2014 regarding the conduct of elections in the Division. In particular,

the articles quoted a Mr Stuart Vaccaneo, the former Executive Vice President of the Branch,

as claiming ‘there have been elections [in the Division] … that have been run corruptly’ and

that the Division should not be able to run its own elections because it could not be trusted.

[49]      Officers of the Regulatory Compliance Branch subsequently engaged with and

interviewed Mr Vaccaneo. It was established during that process that it had been the

resignation by Mr Vaccaneo from his former office as Branch Executive Vice President which

triggered the 2011 election. Mr Vaccaneo subsequently provided a range of relevant

documents and a formal statement for the purposes of assisting the Regulatory Compliance

Branch with its inquiries.

[50]      Among other things, Mr Vaccaneo’s statement included his extensive experience as an

elected officer in the Division and his observations of election practices in general and a range

of issues emerging from the 2011 election in particular.

[51]      Mr Vaccaneo also later made written submissions to the Trade Union Royal

Commission (the TURC) in relation to Issues Paper No 3 (Funding of Trade Union Elections)

regarding the conduct of elections in the Division pursuant to the relevant AEC exemptions

which were published on its web site.

Second Matter of Interest - Submission to the Trade Union Royal Commission (TURC)

[52]      The second matter of interest was that the CFMEU lodged a public submission with

the TURC in August 2014 entitled ‘Submission by the Construction, Forestry, Mining and

Energy Union in response to Issues Paper No 3 ‘Funding of Trade Union Elections’’ (the

TURC Submission).

[53]      The contents of the TURC submission were identified as relevant to the inquiries

being conducted by the Regulatory Compliance Branch for a number of reasons including that

the submission provided direct confirmation that postal voting was regularly occurring within

the Division, contrary to its rules, and that the rate of postal voting was increasing.

[54]      The central focus of the TURC Submission was the conduct of elections by the

Division under exemptions issued to it in 1996 under the IR Act. The aim of the submission

was:

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…to show that far from promoting a deficit of democratic control and transparency, the

operation of the statutory exemption in respect of the Union is an exemplar of democratic

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control by the membership

[55]      The submission included that the Division’s ‘National Returning Officer is also

responsible for ensuring a postal vote component for the union elections for those members

who are not organised into lodges. The postal vote component of the General elections

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conducted by the Union … represent a small minority of the votes cast.’

14

[56] The submission also refers to the Election Manual and sets out the following quote

from that manual:

Our union demands the highest standards of our officer (sic) bearers, from the grass roots

Lodge and Branch level, to District Officers and up to the National leadership. We pride

ourselves on the quality and character of our officials and we have always set a high

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benchmark for the processes we engage in, especially the election of our office-bearers.

[57]      The submission concludes with the following:

There is no valid reason from the perspective of the Union and the members it represents, to

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alter a system that is working effectively

[58]      For the removal of doubt, the references to the ‘Union’ in the TURC Submission refer

to the Mining and Energy Division as page 1 of the submission refers to ‘ … the CFMEU

Mining & Energy Division (‘the Union’)’.

Third matter of interest – prescribed envelopes for postal ballots

[59]      In 2003 a range of amendments were introduced into the federal industrial legislation

regarding the use of prescribed envelopes for postal votes.

[60]      The amendments came into operation on 12 May 2003 with the commencement of

Schedule 1B (Registration and Accountability of Organisations Schedule (RAO Schedule))

of the Workplace Relations Act 1996 (WR Act). The legislative changes made in 2003 have

generally continued under the RO Act which came into general operation on 1 July 2009.

[61] Section 188 of the legislative regime that commenced in 2003 introduced a

requirement that postal ballots ‘cannot be counted’ unless the vote is returned in prescribed

envelopes as follows:

If the rules of an organisation provide for elections for office by postal ballot, a vote in the

election cannot be counted unless the ballot paper on which it is recorded is returned as

follows:

(a) the ballot paper must be in the declaration envelope provided to the voter with the

ballot paper;

(b) the declaration envelope must be in another envelope that is in the form prescribed by

the regulations.

[62] The relevant envelopes (being a declaration envelope and another envelope) are

currently provided for in regulations 5 and 6 of the RO Regulations.
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[63]      It is relevant to note that the Branch and Division appear to have been using postal

votes from 1996 (without this being allowed under the rules) and, in addition, using postal

votes since 2003 without the use of the envelopes referred to in s 188 and regulations 5 and 6.

The potential implications of this will be discussed later in this decision.

Outcome of the Commission’s inquiries

[64]      At the conclusion of the comprehensive inquiries conducted by staff of the Regulatory

Compliance Branch, all of the available materials were presented to me as the Delegate of the

General Manager to consider appropriate action.

[65]      The materials raised two issues for consideration. First, whether a notice should be

issued and a hearing conducted for the Division to show cause why the Division’s secret

postal ballot exemption (that allows the Division to conduct attendance ballots) should not be

revoked under s 144. Second, whether to issue a notice and conduct a hearing for the Branch

to show cause why the AEC exemption issued to it should not be revoked under s 186(2)(b).

[66]      As to the first issue, I concluded that it was appropriate in all the circumstances to

formally write to the Division and identify a broad range of concerns regarding the conduct of

elections in the Division as a whole. On 20 August 2015 I formally wrote to Mr Vickers in

his capacity as the General Secretary of the Division and I identified a range of specific

concerns regarding the conduct of elections in the Division. I advised Mr Vickers that some

instances had been identified in which the conduct of elections in the Division appeared to be

inconsistent with the rules of the Division, including the use of postal ballots in elections.

[67]      As to the second issue, it appeared to me that I could no longer be satisfied that

elections for the Branch would be conducted under the rules of the organisation or Branch,

and the RO Act as required by s 186(1)(b)(i) and I concluded that it was appropriate in all the

circumstances to issue a Show Cause Notice to the Branch to which I now turn.

Show Cause Notice to Branch (R2014/186)

[68]      On 20 August 2015 I formally advised the Branch Secretary Mr Whyte that on the

basis of the available materials, it appeared to me that I could no longer be satisfied of the

matters in s 186(1)(b)(i) of the RO Act and that I proposed to revoke the exemption issued in

matter R20021/1996.

[69]      I enclosed a Show Cause Notice to the Committee of Management of the Branch

issued in accordance with s 186(2)(b) and regulation 137(2) of the RO Regulations. I invited

the Committee of Management to show cause as to why the exemption issued to the Branch

should not be revoked and listed the matter for hearing on 17 September 2015.

Statement of reasons

[70]      Attached to the Show Cause Notice was a Statement of Reasons which outlined six

reasons and their associated particulars upon which I relied to reach a preliminary view that it

appeared to me that I could no longer be satisfied of the matters in s 186(1)(b)(i). The notice

and statement contained detailed references to a range of documents, copies of which were

sent to the Branch with the notice, including Mr Vaccaneo’s statement and its annexures, and
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the original exemption certificate and decision in transcript of 2 May 1996.	The six reasons
and their associated particulars were as follows:
Reason Number One

[71]      Contrary to Rule 17 of the CFMEU, Mining and Energy Division rules (Divisional

Rules) which provides that attendance ballots are to be conducted at each lodge or locality in

the Division, postal voting has purportedly been permitted by the Queensland Branch.

Particulars of Reason Number One

[72]      An email sent on 11 December 2011, from the President of the Queensland Branch,

Mr Stephen Smyth to a Vice President of the Queensland Branch, Mr Glenn Power and

others, makes reference to postal voting in the 2011 election, as well as earlier elections.

[73]      The Notice to Members of the 2011 election for the office of Executive Vice President

of the Queensland Branch makes provision for postal voting.

[74]      The Division’s Returning Officers Manual: a Guide to District and National Election

Processes of the CFMEU, Mining and Energy Division provides that a postal ballot is to be

conducted for: eligible members who do not belong to a lodge; members who received

approval to cast a postal vote from the national Returning Officer; or where a Local Returning

officer is not available to conduct a site vote.

Reason Number Two

[75]      Contrary to Divisional Rule 17(a), which provides that each District Branch Board of

Management shall appoint a Returning Officer to conduct elections within each District

Branch, Returning Officers have not been appointed by the Queensland Branch Board of

Management.

Particulars of Reason Number Two

[76]      In respect of three elections for the Queensland Branch held in 2010, no minute of a

Board determination to appoint Mr Dennis Hansell as the Returning Officer for those

elections can be located.

[77]      In respect of the 2011 Queensland Branch election for the office of Executive Vice

President, no minute of a Board determination to appoint Mr Hansell as the Returning Officer

can be located.

[78]      It appears that the former Queensland Branch Secretary, Mr Jim Valery, “arranged”

for Mr Hansell to be the Returning Officer for the 2011 Queensland Branch election for the

office of Executive Vice President, without reference to the Board.

Reason Number Three

[79]      Contrary to Divisional Rule 17(a), Returning Officers for Queensland Branch

elections have not appointed Local Returning Officers who are responsible for the conduct of

elections at each lodge or locality in such a way as to ensure as far as practicable that no

irregularities can occur in relation to an election.
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Particulars of Reason Number Three

[80]      In the Queensland Branch, it appears that the practice is for Local Returning Officers

to be elected by lodge members, rather than appointed by the Returning Officer, and that not

every lodge and locality has a Local Returning Officer.

[81]      Irregularities purportedly occurred in the 2011 election for the office of Executive

Vice President of the Queensland Branch. These include:

i.           Ballots issued to two Local Returning Officers are alleged to have gone

missing;

ii.          Ballot papers were allegedly returned to the Returning officer other than in a

manner provided by the Rules;

iii.         The ballot may not have been conducted in all places as a secret ballot.

Reason Number Four

[82]      Contrary to Divisional Rule 17 and the RO Act, an officer of the Queensland Branch

directed the Returning Officer as to the conduct of the 2011 election for the office of

Executive Vice President and subsequently determined that there were irregularities in the

election process.

Particulars of Reason Number Four

[83]      On 3 October 2011, the Returning Officer for the 2011 election for the office of

Executive Vice President, Mr Denis Hansell issued an election notice which stated that the

ballot would close on 9 December 2011, ‘unless granted extension by the Returning Officer.’

[84]      In or about mid-November 2011, ballot papers sent by Mr Hansell to the Local

Returning Officer of the Peak Downs lodge ‘disappeared’.

[85]      On 1 December 2011, Mr Hansell sent new ballot papers to the Local Returning

Officer of the Peak Downs lodge and granted the lodge an extension to 16 December 2011. It

appears that Mr Hansell subsequently advised the Local Returning Officer at the Peak Downs

Lodge that he would accept any ballots that were returned and postmarked on or before 16

December 2011.

[86]      On 15 December 2011, the President of the Queensland Branch, Mr Stephen Smyth

expressed concern about Mr Hansell’s decision to extend the ballot period and directed Mr

Hansell that, in order for the ballots from the Peak Downs lodge to be counted, they had to be

received by the Returning Officer in Brisbane by 16 December 2011 and not merely posted by

that date. Mr Smyth further advised Mr Hansell that the failure to clarify the date for return of

ballots may ‘lead to the members at Peak Downs Lodge being inadvertently disenfranchised.

Such disenfranchisement may constitute an irregularity and cause the election result to be

declared a nullity.’

[87]      Mr Smyth’s direction to Mr Hansell was contrary to Divisional Rule 17(a) and ss

143(1)(b) of the RO Act, which provide for the conduct of an election by a returning officer,

who is not the holder of any office in, or an employee of the organisation or branch. This is

designed to ensure the independence of the election process.

[2015] FWCD 7109

[88]      The effect of Mr Smyth’s direction, if complied with, would have reduced voting at

the Peak Downs lodge by at least two days, which is the time it would be expected ballots

posted from Peak Downs to be received in Brisbane.

[89]      It appears that Mr Smyth had an interest in the outcome of the election contested by

two Vice Presidents of the Queensland Branch (Mr Shane Brunker and Mr Glenn Power). On

11 December 2011, Mr Smyth wrote to Mr Power and others regarding Mr Brunker’s chances

of success in the election. It appears that Mr Power, and not Mr Brunker, was Mr Smyth’s

preferred candidate in the election. Mr Smyth stated [in an email to Mr Power and others] that

in order for Mr Brunker to be successful he would:

… need to get all the votes from Peak Downs, Tarong, Burton, New Acland and West

Moreton to even draw level!!! I don’t believe this would occur and have to have everyone

vote!!

[90]      Mr Hansell did not accord with Mr Smyth’s direction and accepted Peak Downs votes

received after 16 December 2011 and included these in the final ballot count on 20 December

2011. Mr Smyth subsequently determined that: Mr Hansell’s decision to extend the ballot

period and the Peak Downs lodge’s alleged failure ‘to comply with the District Returning

Officer’s written directions to return their ballots by the closing date of 16th December’ were

‘irregularities’ in the election process.

[91]      The Divisional Rules or the RO Act do not empower an officer of an organisation to

determine the question of whether an irregularity has happened in relation to an election. This

is a power that is reserved for the Federal Court under s 206 of the RO Act, which provides

that the Federal Court may inquire into and determine the question of whether an irregularity

has happened in relation to an election.

[92]      Further, in the Division’s general election held in 2012, a decision of the Division’s

National Returning Officer, Mr Ken Hawkins, to vary the ballot period was not treated as an

irregularity. The Division’s Special Central Council endorsed the election report of the

Returning officer, which noted that there had been a variation to the ballot time at Norwich

Park Mine. The minutes of this meeting indicate that Mr Smyth, who is a member of the

Special Central Council, seconded this motion.

[93]      The actions of Mr Smyth in issuing directions to the Returning Officer as to the

conduct of the election, and subsequently determining that there were irregularities in the

election process, were contrary to the RO Act and the Rules of the Division.

Reason Number Five

[94]      Contrary to the RO Act and the Rules of the Division and the Queensland Branch, in

the 2011 election for the office of Executive Vice President, the Board declared the election

ballot and its result “invalid” in response to alleged irregularities.

Particulars of Reason Number Five

[95] On 21 December 2011, a Special Board of Management meeting was held and it

appears that the Board resolved that the ballot for the Executive Vice President would be
[2015] FWCD 7109

declared “invalid” as a result of identified irregularities and the position held over until the

2012 general election.

[96]      The vote for the resolution was initially tied at five votes for and five votes against.

Mr Stephen Smyth used his casting vote as Queensland Branch President to pass this

resolution.

[97]      On 23 December 2011 Mr Smyth wrote to all members stating that the Board had

proposed and accepted that:

The ballot and its result would be deemed as invalid due to a number of irregularities within

the election process and it was more appropriate to leave the position unfilled until the general

18

election to be held in 2012

[98]      It appears that the Queensland Branch considers that the Board was empowered to

take such action by Queensland Rule 8(v)(h), which provides that the Board has power to

‘reverse any decision of any Lodge, subject to sub-rule 8(iv), and generally to do all acts,

business or things which the District Branch Board of Management decides are proper for the

achievement of the objects established in Rule 3 of these Rules.’

[99]      However, Queensland Rule 8(v)(h) does not empower the board to:

i. determine the question of whether an irregularity has happened in relation to

an election; or

ii.          declare an election, or any step in relation to an election, to be ‘invalid’.

[100]    The Board does not have this power under the Divisional or Queensland Branch Rules

19

or under the RO Act.

[101]    This is a power that is reserved for the Federal Court. Pursuant to s 206 of the RO

Act, the Federal Court may:

i.           inquire into and determine the question of whether an irregularity has

happened in relation to an election; and

ii.          where an irregularity has occurred, make certain orders including an order

declaring the election, or any step in relation to the election, to be void.

[102] Further, even if the Board was empowered to take such action by Queensland Rule

8(v)(h), it appears that the Board subsequently failed to act in accordance with sub-rule 8(iv),

which provides that:

i.           all business transacted by the Board, shell be confirmed before the meeting

concludes and copies of the confirmed minutes shall be posted to the lodges;

ii.          each lodge ‘shall submit the confirmed resolutions of the Board to a [vote at a]

meeting of the Lodge membership’ and send the results back to the Branch

Secretary within six weeks; and

iii.         board resolutions ‘shall become the binding policy’ of the Queensland Branch

if an aggregate majority of members vote in favour of the resolution.

[2015] FWCD 7109

[103]    Contrary to sub-rule 8(iv), it does not appear that the minutes of the Special Board of

Management meeting were properly minuted and the resulting resolution confirmed nor was

the Board’s resolution sent to the lodges and endorsed by the lodge membership.

[104] The actions of the Board in determining that irregularities had occurred and

consequently deeming the ballot and its result invalid were beyond the power of the RO Act

and the Rules of the Division and the Queensland Branch.

[105]    Further, one of the most senior members of the Queensland Branch, the Queensland

Branch President, Mr Stephen Smyth, played a central role in authorising these actions and

remains in a position of authority. It also appears that five other members of the Board, who

voted to declare the ballot and its result invalid remain in office.

Reason Number Six

[106]    Contrary to the RO Act and the Rules, the Board, in effect, declared that a person who

had purportedly been elected to the office of Executive Vice President of the Queensland

Branch had not been elected.

Particulars of Reason Number Six

[107]    On 20 December 2011:

i. a written declaration of the result of the election for the office of Executive

Vice President of the Queensland Branch was purportedly issued by the

Returning Officer;

ii.          at 11.39 hrs’, Mr Brunker received a phone call from the Returning Officer, Mr

Denis Hansell, notifying him that he was the winner of the ballot by 50 votes.

[108] On the same day Mr Hansell wrote to the Board of Management tendering his

resignation.

[109] The Queensland Branch President, Mr Smyth, in conjunction with the Queensland

Branch Secretary, then convened a Special Board of Management meeting to determine

‘whether to uphold or reject the Ex-Queensland Returning Officers… declaration of the

recently run and currently vacant Executive (Senior) Vice President of the Queensland

District.’

[110] On 21 December 2011, the Board appears to have passed a resolution declaring the

ballot and its result invalid due to a number of irregularities, with the effect that a person who

had been purportedly elected (Mr Brunker) did not take up the position of Executive Vice

President.

[111]    On 24 December 2011, Mr Brunker emailed Mr Smyth and Mr Valery referring to ‘the

BOM’s decision to overturn the Returning Officer’s declaration of myself for the Senior Vice

President’.s (sic) position.’

[112] The RO Act does not grant power to a committee or officer of an organisation to

declare a person purporting to have been elected not to have been elected.
[2015] FWCD 7109

[113]    This is a power reserved for the Federal Court under ss 206(4) and (5). Pursuant to

ss.206(4) of the RO Act, the Federal Court may, where it has determined that an irregularity

has occurred, make certain orders including an order declaring a person purporting to have

been elected not to have been elected. The Federal Court must not declare that a person was

not elected, unless the Federal Court is of the opinion that, having regard to the irregularity

found, and any circumstances giving rise to a likelihood that similar irregularities may have

happened or may happen, the result of the election may have been affected, or may be

affected, by irregularities (ss 206(5).

[114]    It appears that Mr Smyth formed the view that Mr Hansell did not declare the election

result before he resigned, and consequently, that Mr Hansell had no power to complete the

election.

[115]    However, it is unclear on the materials what time the resignation occurred and when it

took effect and it does not appear there was any agreement by the Board about this. The draft

minutes of the Special Board of Management meeting state that “there was never any

agreement as to whether the declaration was official or should be seen as outside the rules of

the union.”

[116] Further, if Mr Hansell had resigned before declaring the result, the Board failed to

20

appoint a new Returning officer to complete the election	instead deeming the ballot and its
result “invalid.”

[117] The actions of the Board in determining that irregularities had occurred and

consequently deeming the ballot and its result invalid, with the result that the person who was

purportedly elected was apparently not elected and did not take up office, was beyond the

power of the RO Act and the Rules of the Division and the Queensland Branch.

Submissions and materials lodged prior to hearing

[118] On 11 September 2015 the following submissions and materials were filed with the

Commission:

i.       Written submission of Mr S. Crawshaw SC on behalf of both the Branch and Division

dated 11 September 2015 which also relied on:

a. an Affidavit of Mr Vickers dated 10 September 2015 (the affidavit) with two

annexures which contained:

i.   statistics regarding the number ofpersons engaged in the coal mining

industry in Australia

ii.    the CFMEU’s TURC Submission (as referred to above which includes

within it a copy of the Division’s Election Manual).

ii.       Letter from Mr Vickers of 11 September 2015 which responded to the concerns raised

in my letter to him of 20 August 2015 regarding the conduct of elections in the

Division. Mr Vickers’ letter also confirmed that the Division and Branch had prepared

a joint submission in response to the Show Cause Notice. It also indicated that he had

prepared his affidavit in support of the joint submission with the intention of being

present at the hearing in order to answer any questions that might arise from his

affidavit or in relation to the operation of the Division and/or District Branches. The
[2015] FWCD 7109

letter also contained two schedules that were stated to be a ‘concrete solution’ to the

issues raised in the present matter as follows:

a.	Draft amendments to the election provisions in Rule 17 (the Draft Rules);
b.	Draft amendments to Rule 8 (regarding the Division’s National Convention).

[119]    In addition, on 15 September 2015 the Division provided a copy of redacted Central

Council Minutes of March 2012 that considered issues arising out of the 2011 election which:

	stated that the Branch’s Board declared the 2011 ballot ‘null and void’;
	passed three resolutions that purported to address problems arising from that election:

o	the Central Council adopted changes to the Election Manual (although details
of the changes were not included in the redacted minutes) and directed that the
revised manual be distributed within the Division and training provided
pursuant to it;
o	that in future all national elections for the Division be conducted by a National
Returning Officer;
o	that, if possible, all future elections for the branches covered by the exemptions
be conducted by the National Returning Officer.

The Hearing

[120]    In accordance with regulation 137(2) of the RO Regulations, I conducted a hearing on

17 September 2015 to provide the Committee of Management of the Branch with an

opportunity to show cause as to why the exemption should not be revoked.

[121]    Mr S Crawshaw SC appeared on behalf of the Branch and Division accompanied by

the Branch Secretary, Mr Timothy Whyte, the General Secretary of the Division, Mr Vickers

and the National Legal Director of the Division Mr Alex Bukarica.

[122]    The hearing was recorded and a transcription was subsequently prepared.

[123] During the hearing, I again referred individually to the six reasons in the written

Statement of Reasons and I summarised my concerns with respect to each of those reasons. I

provided the participants an opportunity to respond to the six respective reasons.

[124]    During the hearing, Mr Crawshaw SC submitted that the way the Branch and Division

had dealt with the Statement of Reasons was essentially to act on the basis that there have

been breaches of the rules and the RO Act set out in the Statement of Reasons. Mr Crawshaw

SC indicated that the basis of the submissions made in response to the Statement of Reasons

was not to provide a separate response in relation to each separate reason, but to accept there

had been breaches of the rules and the RO Act and to say:

…we take that on board. Indeed we take on board what’s happened with that 2011 mine

21

election as a wake-up call to try and improve the situation in the future.

[125] Mr Crawshaw SC further referred to matters which were said to support how both the

Branch and Division had responded to remedy the matters of concern.
[2015] FWCD 7109

[126] Mr Vickers also responded to a number of issues during the hearing as did Mr

Bukarica and Mr Whyte.

[127]    During the hearing I undertook to consider and take into account the materials lodged

by the Branch on 11 September 2015 including the letter from Mr Vickers, the submission by

Mr Crawshaw SC, the Affidavit of Mr Vickers and the supporting documents and materials.

[128] Prior to the hearing I had conducted a preliminary examination of the Draft Rules

lodged by Mr Vickers (which he described in his affidavit as being a ‘concrete solution’ to the

issues raised in the present matter). The Draft Rules indicated that the Division seeks to

supplement its existing attendance voting regime with the use of postal ballots where

necessary. However, on my examination of the Draft Rules, it was clear that they were

deficient because they did not provide for the mandatory envelopes for postal ballots

prescribed by s 188 of the RO Act and regulations 5 and 6 of the RO Regulations (as

previously referred to above).

[129]    During the hearing I made specific reference to this deficiency in the Draft Rules. Mr

Crawshaw SC responded to that reference by indicating that the Division would not have any

problem in making sure that the proposed new Rule 17 would comply with s 188 and

regulations 5 and 6.

[130] Finally I note that during the hearing Mr Crawshaw SC inquired whether the

determination of the present matter could be deferred until the Draft Rules referred to by Mr

Vickers (that seek to address the issues arising in the conduct of the Branch’s elections) have

been passed and certified.

[131] In considering all of the relevant circumstances of this matter, I have had particular

regard to the Draft Rules and I have also considered the submission concerning deferring the

making of this decision while the Draft Rules are formalised. While I took into account the

Draft Rules, I determined not to defer this decision and on 16 October 2015 I wrote to Mr

Vickers advising of that determination.

Concessions by Branch and Division

[132] In his formal submission of 11 September 2015, Mr Crawshaw SC made general

concessions that irregularities, as well as contraventions of the rules and the RO Act, had

occurred in the 2011 election. He also submitted that these irregularities and other issues, in

large part, were a result of defects in relation to the appointment and actions of Returning

Officers.

[133] Mr Crawshaw SC’s submission generally accepted the ‘irregularities … [had]

22

occurred in the 2011 by-election … [as] set out in the Statement of Reasons’. In other

words, the submission by Counsel for the Branch and Division appeared to be accepting each

of the irregularities and contraventions which had been set out in the Statement of Reasons.

Alternatively and at the least, the submissions did not appear to challenge any of the reasons

in any material way.

[134]    During the hearing conducted in Brisbane on 17 September 2015, Mr Crawshaw SC

made the following significant concession:

[2015] FWCD 7109

…you will see from our written submissions that the way we dealt with the statement of

reasons is essentially to act on the basis that there have been breaches of the rules or Act as set

23

out therein for the purposes of this hearing.

[135]    Accordingly, I consider that notwithstanding having the opportunity to challenge the

six reasons and their associated particulars as set out in the Statement of Reasons, the Branch

has conceded those reasons as having been made out and unchallenged.

[136]    I also note that the Branch and the Division have not challenged the veracity of the

information in Mr Vaccaneo’s statement or the documents he provided.

Approach to submissions and other materials

[137] Notwithstanding the concessions by the Branch and the Division, extensive

submissions were made in relation to this matter (primarily in the written submissions made

by Mr Crawshaw SC but also in the other lodged materials). In order to ensure that I have

taken into account all of the relevant materials, I intend to deal with these submissions as

follows.

[138]    First I will consider the jurisdictional submission that asserted that the revocation of an

AEC exemption requires the General Manager to be no longer satisfied of every element in s

186(1) (the every element in s 186(1) submission).

[139]    Then I will consider the submissions that have asserted that the General Manager can

be satisfied that contraventions will not occur in future Branch elections. These submissions

may be described as falling under three main headings as follows:

 The remedial action submissions which set out that the Branch and Division are

taking remedial action to ensure the issues identified do not continue as follows:

o The Division has proposed Draft Rules to avoid such issues in future;

o The Division will appoint a National Returning Officer to conduct all

elections;

o The training of returning officers will be improved.

	The inexperience in 2011 submission which set out that the issues in the 2011 election
were due to the inexperience of the Returning Officer and other officers.
	The complete history submissions which set out that the complete history of Branch
elections indicates the Branch will comply with the rules and the RO Act as follows:

o Elections generally have been conducted correctly for a long period of time;

o The Branch and Division have knowledge and experience regarding elections;

o There have been no legal challenges or complaints regarding elections.

[140]    Then I will consider a number of additional submissions made by Mr Crawshaw SC

that were described as relating to the exercise of discretion under s 186(2) although some of

these submissions appear to extend beyond discretionary issues to other issues such as

jurisdiction.

Every element in s 186(1) submission
[2015] FWCD 7109

[141]    The written submissions of Mr Crawshaw SC included excerpts from s 186(1) and (2)

and asserted that the effect of s 186 is that the General Manager is only entitled to exercise the

discretion to revoke an exemption if no longer satisfied (underlining added):

(a) that the rules of the organisation or branch comply with the requirements of [the

RO] …Act relating to the conduct of elections for office; and

(b) that, if the organisation or branch is exempted from subsection 182(1), the

elections for the organisation or branch, or the election for the particular office, as

the case may be, will be conducted:

(i)          under the rules of the organisation or branch, as the case may be, and

this Act; and

(ii)         in a manner that will afford members entitled to vote at such elections

or election an adequate opportunity of voting without intimidation;

[142]    Accordingly, this submission appears to assert that an exemption can only be revoked

if the decision maker is no longer satisfied of every element in s 186(1).

[143]    In my view the submission is misconceived for the following reasons:

	an exemption may be granted if the decision maker is satisfied of every element in s
186(1);

 an exemption may be revoked if the decision maker is ‘no longer satisfied as

mentioned in subsection [186](1)’ and has given the prescribed notice;

	being no longer satisfied under s 186(1) would mean no longer being satisfied in
relation to every element in s 186(1); therefore
	if the General Manager was no longer satisfied of only one element under s 186(1)
then he/she would ‘no longer [be] satisfied as mentioned in subsection s 186(1)’ and
thus would have jurisdiction to revoke the exemption.

[144] In light of the above I reject this submission. Indeed, the notice and statement of

reasons that were issued in the present matter only concern satisfaction regarding the conduct

of elections under the rules and the RO Act (under s 186(1)(b)(i)) and do not purport to deal

with intimidation (under s 186(1)(b)(ii)) or the contents of election rules (under s 186(1)(a)) -

although comments may be included in this decision regarding the Draft Rules that seek to

remedy problems identified in the conduct of the Branch’s elections.

Remedial action submission – Draft Rules

[145]    It was submitted that the Branch and Division have taken and are willing to take action

to prevent any repetition of the irregularities that occurred in the 2011 election.

[146]    Mr Vickers referred to what he described as a ‘concrete solution to the issue…raised’

as being his intention to submit the Draft Rules to a special meeting of Central Council in the

near future and to file an application for approval of the rule changes with sufficient time to

enable the Draft Rules to be operational prior to the scheduled general elections in 2016.

[2015] FWCD 7109

[147]    The Draft Rules propose a number of amendments to Divisional Rule 17 regarding the

following matters:

	that the attendance voting regime should be amended to allow for postal voting where
necessary;
	that the Returning Officer shall:

o	have access to independent legal advice;
o	be free from any influence or direction of any officer or employee;
o	provide a report to the General Secretary at the end of each election regarding
the election result (and the report may also make recommendations regarding
how to improve member participation in elections and other matters);
o	have regard to the experience and training of persons when appointing Local
Returning Officers to conduct attendance ballots at lodges or localities.

[148]    However, as indicated above, a preliminary examination of the Draft Rules purporting

to be a ‘concrete solution’ to the issues being raised revealed that they did not provide for the

mandatory envelopes for postal ballots referred to in s 188 and regulations 5 and 6.

[149]    I also note that the Draft Rules appear to be at a preliminary stage and do not appear to

be sufficiently crafted to remedy the electoral issues identified in the present matter. While I

note that Mr Vickers subsequently forwarded a revised version of the Draft Rules to the

Commission on 14 October 2015 (which refer to the postal voting envelopes prescribed by s

188 and regulations 5 and 6) in my view those revised alterations also appear to be at a

relatively preliminary stage (hereafter the two drafts will be referred to as the Draft Rules).

[150]    Section 143(1)(f) provides that the election rules of an organisation ‘must be such as to

ensure, as far as practicable, that no irregularities can occur in relation to an election’. I note

that this provision is stated in mandatory terms. The same provision applies to election rules

for branches (refer s 143(4).

[151]    Based on the information that has come to light in the present matter it appears that the

current rules and the Draft Rules may not ensure as far as practicable that no irregularities can

occur in elections. For example, in relation to the 2011 election a number of controversies

arose regarding the operation of Rule 17 – such as:

 whether the rules allow the Returning Officer to vary a ballot period; and

 whether the rules deal with the situation where the office of returning officer may

become vacant.

[152]    The current rules and the Draft Rules do not appear to address the above points.

[153]    The Draft Rules also require the National Returning Officer to provide a report at the

end of each election to the General Secretary. These reports would include the results of each

election and may make recommendations as to how to improve the participation of members

in the election process and other relevant matters.

[154]    During the hearing I asked Mr Vickers whether the reports would be provided to the

Commission. Mr Vickers responded as follows:

[2015] FWCD 7109

..I have no fundamental reason – there is no fundamental reason why a copy of that report

24

couldn’t be or wouldn’t be provided to the Fair Work if Fair Work wished it.

[155]    However the Draft Rules do not require the reports to be lodged with the Commission.

[156]    I note that there is detailed information on the AEC website regarding the conduct of

industrial elections including a ‘Model Rules Guide’. It is not clear from the material I have

seen that the Division has sought to inform itself about the best way of drafting election rules

by referring to specialised material of that kind.

[157] In all the circumstances, it appears to me that the Division would benefit from a

comprehensive review of Divisional Rule 17.

[158] Accordingly I am not persuaded that the passing or certification of the Draft Rules

would be sufficient to ensure that irregularities do not occur in future elections and that those

elections are conducted in accordance with the rules or the RO Act.

[159]    I note however the positive approach being taken by the Division in submitting Draft

Rules and requesting advice from the Regulatory Compliance Branch about the drafts to assist

the Division in addressing the election concerns which have emerged in this matter. The

Regulatory Compliance Branch will continue to assist the Division in this regard.

Remedial action submission – National Returning Officer

[160]    Mr Vickers included in his correspondence that the ‘central measure’ proposed by the

Division to remedy the issues arising in the 2011 election is the centralisation of the

Returning Officer function with a single National Returning Officer appointed by Central

Council as set out in the Draft Rules. Mr Vickers indicated that this would have the effect of

removing the option of District Branches appointing their own Returning Officer. He also

noted that the Draft Rules would have the effect of strengthening the independent status of the

National Returning Officer under the rules.

[161]    Mr Vickers also indicated the Division’s intention to appoint an experienced, impartial

25

and qualified person of integrity as the National Returning Officer.

[162] Mr Vickers added that the National Returning Officer would have access to

independent legal advice as to his or her obligations under the rules and the RO Act as an

important measure to insulate against election irregularities.

[163] In so far as centralising the Returning Officer function with a single National

Returning Officer is concerned, I note that this has apparently been the practice for all

elections in the Division and the branches covered by the exemptions since 2012 (in light of

the Central Council’s resolution of March 2012 to that effect) and that the Division currently

has access to internal and external legal advice.

[164]    The Division conceded that postal ballots have been in use for many years contrary to

the rules and Local Returning Officers have historically not been appointed in accordance

with the rules. While mandating an experienced single National Returning Officer appears to

be on its face a positive step, the use of a National Returning Officer for quadrennial elections

for the Division and most branches since 1996 did not seem to have any significant bearing on
[2015] FWCD 7109

avoiding those types of contraventions. Neither did the use of a National Returning Officer

appear to have any significant bearing on the failure by the Branch to identify or comply with

s 188 of the WR Act and the associated regulations when introduced in 2003.

[165] In all the circumstances, on balance I am not persuaded that the appointment of an

experienced single National Returning Officer, of itself or in combination with other actions

taken or to be taken, will ensure that elections for the Branch will be conducted under the

rules of the Division or Branch and the RO Act.

[166]    While I acknowledge that they are capable of mitigation, there are also additional and

demonstrable risks associated with reliance on a compliance strategy grounded upon a single

person such as a National Returning Officer in terms of the ongoing capacity of that person,

including that the person may, at any time, choose to resign or retire because of illness or

other reason.

[167]    Some of these types of risks are mitigated when the AEC conducts elections on behalf

of registered organisations. For example, s 193 provides a range of powers to AEC ‘electoral

officials’ regarding the conduct of elections, including how to deal with the inability of a

Returning Officer to complete an election. I also note that these provisions only appear to

apply to AEC officers as ‘electoral official’ is defined in s 6 to include AEC officials.

[168] Accordingly I am not persuaded that the conduct of elections by one National

Returning Officer will necessarily ensure that issues do not arise in future elections for the

Branch or that future elections for the Branch will be conducted in accordance with the rules

and the RO Act.

Remedial action submission – Training

[169] The relevance of submissions relating to training is that while delivered at the

Divisional level, it is submitted that remedial training will ensure that future Branch elections

will be conducted in accordance with the rules and the Act. Mr Vickers stated in his

correspondence that the move towards a single National Returning Officer ‘will be

26

accompanied by better training of all returning officers’.	It appears that the training is based
on the Election Manual. The TURC Submission states that:

The Union has produced a “Returning Officers Manual” that explains in detail the

responsibilities and obligations of National and Local Returning Officers in the conduct of the

elections of the Union … [and which] goes into specific detail as to how an election should be

27

conducted under the ballot rule of the Union

[170]    Mr Vaccaneo has also stated that it was his understanding that ‘the election manual

was first produced by the Division’s National Office a considerable time ago (possibly in the

28

1990’s) and that since then it has been periodically revised’.

[171]    It also appears that the current version of the Election Manual was approved by the

Central Council in March 2012 as the minutes of the relevant meeting state:

Council resolves to adopt the changes to the Returning Officers Manual as revised &

presented to Council & direct the National Executive to distribute the manual to lodges &

29

Districts & conduct appropriate training prior to the National Elections being conducted.

[2015] FWCD 7109

[172] Given that the National Office of the Division (generally) and the Central Council

(specifically since at least 2012) have had a practice of issuing an Election Manual it is

necessary to consider whether this would assist in the conduct of Branch elections under the

rules.

[173]    The Election Manual appears to encourage rule breaches regarding postal voting - as

the Statement of Reasons stated at reason one (emphasis added):

Contrary to Rule 17 … postal voting has purportedly been permitted by the … Branch

Particulars … The Division’s Returning Officers Manual … provides that a postal ballot is to

be conducted for: eligible members who do not belong to a lodge; members who receive

approval to cast a postal vote from the National Returning Officer; or where a Local Returning

Officer is not available to conduct a site vote.

[174] The fact that the supreme governing body of the Division has been responsible for

issuing an election manual that contains directions, instructions and/or guidance that would

lead to contraventions of the election rules raises concerns about the capacity of the Branch

and Division to comply with the election rules. I also note that the issues in the Election

Manual are not limited to postal voting.

[175] For example, the Election Manual states that a Local Returning Officer ‘must be a

financial member of the Union’ (refer page 9) although there is no such mandatory

requirement in the election rules.

[176]    In addition, the Election Manual states that the election roll ‘can only be viewed in the

presence of the National Returning Officer or his representative’ (refer page 11) and there is

no such mandatory requirement in the rules.

[177] Further, while acknowledging it is an issue for the Division and not specifically the

Branch, I have concerns about a committee of ‘officers’ issuing an election manual that

purports to guide returning officers. While this may appear to be a benevolent act it raises a

number of potential issues.

[178]    In the legislation there is a separation of powers between the making of election rules

and the conduct of elections. Officers of an organisation or branch make rules for elections

(this is normally done by committees of officers in accordance with the rule altering

procedures of the organisation or branch - refer s 143, 159). Thereafter ‘every such election’

must be conducted by an independent returning officer who is neither an officer nor employee

of the organisation (refer s 143(1)(b) and Rule 17(a)).

[179]    Given that the ‘conduct’ of an election would seem to require the relevant person to

exercise an independent judgment regarding how the rules are to be applied it would seem

that the issuing of an election manual by a committee of officers would tend to have the effect

of influencing how a returning officer would apply the election rules.

[180]    My concerns regarding the Election Manual are compounded by the fact that a large

number of persons appear to have received training based on the Election Manual and that it

is intended that the National Returning Officer also receive this training. For example, Mr

Vickers’ letter of 11 September 2015 stated (emphasis added):

[2015] FWCD 7109

The Divisional Council has instituted a training program for Local Returning Officers …The

training provided to Local Returning Officers includes a thorough analysis of the Returning

Officers’ Manual produced by the Divisional Office …… It is intended that the National

Returning officer … and all local returning officers will be required to complete this returning

30

officer training …

[181]    Mr Vickers also stated in his letter that since the 2011 election:

one hundred and twenty eight returning officers [have been ] trained … [including] fifty five

31

from the Queensland District …

[182]    My concerns relate to the fact that the current manual encourages those who have been

trained in positions (such as the National Returning Officer and Local Returning Officers) to

conduct elections which are contrary to the rules, including elections for the Branch.

[183]    While the Draft Rules state that the returning officer ‘shall be free from the direction

or influence of any officer or employee of the Division’ it appears to me that an election

manual (that is prepared or approved by any officer or employee) and any associated training

(that is conducted by any officer or employee) may lead to an unintended result.

[184] Accordingly I am not persuaded that training referred to by Mr Vickers will

necessarily ensure that issues do not arise in relation to future elections for the Branch or that

future elections for the Branch will be conducted in accordance with the rules and the RO Act.

Inexperience in 2011 submission

[185]    Mr Vickers accepted that the conduct of the 2011 election was clearly unsatisfactory.

He included that the processes associated with the 2011 election fell well short of the

standards the Division expect and to which, in his submission, the Division has generally

adhered to before and after the exemptions were granted.

[186] In what I acknowledge were difficult concessions for the General Secretary of the

Division (and a Vice President of the CFMEU) to make, Mr Vickers described the 2011

Queensland by-election as a ‘debacle’ and made the following comment during the hearing:

In truth elections were conducted for nearly a century within the branches in a way which was

done effectively by custom and practice and with a huge amount of commitment to the

processes of democracy within the union and membership control of the union, and it would

be dishonest of me not to concede and admit at least in these proceedings that some of that

including by the Board within the Queensland election, and particularly that by-election [the

2011 election] to the eternal shame and embarrassment of the organisation as a whole,

particularly someone like me who has been in the organisation and was present at the

32

Queensland district for the period that I was.

[187] It was apparent to me that Mr Vickers’ ‘eternal shame and embarrassment’ was

directly linked to the conduct of the Queensland District Board in the 2011 election.

[188]    In his letter of 11 September 2015 Mr Vickers also stated:

[2015] FWCD 7109

The principal reason that the process in Queensland had gone off the rails was the

inexperience of the returning officer and his inability to handle the pressure of a keenly

33

contested election.

[189]    During the hearing Mr Vickers also referred to the inexperience of elected officers in

relation to the 2011 election as follows:

…actions by the Board of Management [occurred] in excess of the rules and in breach of the

Registered Organisations Act. That comes about as a consequence of having relatively

34

inexperienced district officials as well, the officers of the union.

[190]    I have given careful consideration to the information provided and concessions made

by Mr Vickers on these points and make the following observations.

[191] First, regarding the purported inexperience of the Returning Officer in the 2011

election (Mr Hansell), I note that Mr Hansell, had conducted three previous elections in the

35

Branch in 2010 (according to Mr Whyte’s letter to the General Manager of 8 July 2013.

Apart from the rule contraventions regarding postal ballots and the election of Local

Returning Officers (which appear to have occurred generally in elections for the Division and

most branches since 1996), I have not been made aware of any other particular difficulty

encountered by Mr Hansell in the conduct of those elections.

[192]    I also note that the more considerable experience of the national returning officers who

have conducted general elections for the Branch and Division from 1996 to 2012 has not

prevented contraventions of the rules in relation to postal ballots and the election of Local

Returning Officers.

[193] Second, it is to Mr Vickers’ credit that he has been willing to make concessions

regarding contraventions of the RO Act and the rules by the Branch’s officers in the 2011

election.

[194] However, having regard to Mr Whyte’s letter of 8 July 2013, it appears that Mr

Vickers was in attendance at the Branch’s office in Brisbane on the day of the final count for

the 2011 election. On that day there was apparently a controversy between Mr Smyth and the

Returning Officer as to whether the Returning Officer should include the votes from the Peak

Downs Lodge in the final count. Mr Whyte’s letter then states that there was a discussion

between the Returning Officer and Mr Vickers on this point as follows:

Mr Vickers recalls that he told Mr Hansell that it was not his responsibility (as the

Divisional Secretary) to give advice to a Returning Officer but that if he had been the

36

Returning Officer he would not have counted or accepted the Peak Downs votes.

[195]    While there is nothing to indicate that Mr Vickers gave any direction to the Returning

Officer in relation to the 2011 election to that effect, the apparent fact that Mr Vickers

expressed a view, which if it had been put into effect may have led to a reduction in the

number of the members validly voting at the Peak Downs attendance ballot, is a matter of

some concern.

[196] I am not persuaded that the issues that arose in the 2011 election were due to the

inexperience of the Returning Officer or the relevant elected officers. In my view, the 2011
[2015] FWCD 7109

election issues I have referred to in the Statement of Reasons are more likely related to

intentional conduct by the Branch Board of Management and it is that conduct which gives

rise to serious concerns about whether future elections in the Branch will be conducted in

accordance with the rules and the RO Act.

Complete history submission – conduct of past elections

[197] This submission asserted that in order to assess satisfaction in relation to future

elections, that regard can be had to the experience with past elections in general. For example,

Mr Crawshaw SC stated that ‘[t]aken as a whole, despite the irregularities that occurred in the

2011 by-election set out in the statement of reasons, the … generally satisfactory past

37

experience’ regarding the conduct of Branch elections suggests that future elections would

be conducted in accordance with the rules and the RO Act.

[198]    I have no difficulty in acknowledging the potential merits of such a submission and I

took great care in considering the historical facts associated with this matter and all of the

material associated with the historical and contemporary conduct of elections within the

Branch and Division.

[199]    However, notwithstanding that the election rules are those of the Division, the history

of elections in the Branch appears to display, over a considerable period of time, the conduct

of postal votes contrary to the rules and other contraventions regarding the appointment of

Local Returning Officers at each lodge or locality in the Branch.

[200] In his letter of 11 September 2015 Mr Vickers sought to explain the ‘apparent

disjuncture between the actual practice of Returning Officers conducting elections under the

38

prevailing exemption and the effect of Rule 17’ in relation to postal voting and the

Rule 17 and whether it could or should have been apparent to the Branch or Division in 1996

that there would be contractors, or other members who would not be attached to a Lodge who

would inevitably require access to postal ballots. This was based on the uncontested view that

a locality would be a site where members are engaged that does not have a lodge structure.

[243]    Based on the material gathered in this matter it appears in retrospect that the Branch

may not have been able to ensure that an attendance ballot would be conducted by a Local

Returning Officer at ‘each … locality’ in the Branch as required by Divisional Rule 17(a)
[2015] FWCD 7109

from 1996 onwards. If the full information that is now available was known at the time of the

application in 1996, it is likely to have assisted the Industrial Registrar with the requisite

statutory decision making responsibility.

Fourth additional submission – content of election rules

[244] The fourth ground was that no question had arisen about whether the rules of the

Branch or Division comply with the requirements of the RO Act relating to the conduct of

elections.

[245]    This ground has two elements: first as a jurisdictional issue it is a repeat of the ‘every

element of s 186(1) submission.’ I have indicated above that it is not mandatory for the

revocation proceedings to consider the contents of the elections rules under s 186(1)(a).

Secondly, and as a discretionary issue, the submission did not provide any details regarding

how this issue should influence the exercise of my discretion in this matter. Further, as I have

already indicated above, to the extent that I have considered the current election rules or Draft

Rules that consideration would appear to favour revoking the exemption.

Fifth additional submission – intimidation

[246] The fifth ground was that no question had arisen about whether members have an

adequate opportunity of voting without intimidation. This ground also has two elements: first

as a jurisdictional issue it is a repeat of the ‘every element of s 186(1) submission’ and as I

have previously indicated, it is not mandatory for the revocation proceedings to consider

intimidation under s 186(1)(b)(ii). Secondly, as a discretionary issue, the submission did not

provide any details regarding how this issue should influence the exercise of my discretion in

this matter.

Sixth additional submission – general conduct of elections

[247] The sixth ground was that, apart from the 2011 election the past experience of

elections carried out under the exemption has been generally satisfactory. In my view this is a

repeat of the ‘complete history’ submissions I have previously considered above.

Seventh additional submission – action to remedy issues

[248]    The seventh ground is that the Division and the Branch have taken action to prevent

the repetition of irregularities. In my view this is a repeat of the remedial action submissions

that have been previously considered above.

Eighth additional submission – conduct of elections by AEC

[249]    The eighth ground is that the conduct of an election by the AEC does not necessarily

prevent irregularities and the submission referred me to an irregularity by the AEC Returning

Officer in an election conducted by the AEC in another division of the CFMEU in Re Election

for Office in the Construction, Forestry, Mining and Energy Union; Ex parte Sutton [2002]

FCA 971. I accept the submission that the conduct of an election by the AEC does not

necessarily prevent irregularities occurring in an election and therefore this submission

requires further analysis.

[2015] FWCD 7109

[250]    I accept that unforeseen problems can occur in elections conducted by the AEC and

other organisations and there are public examples capable of demonstrating this point.

However, in my view the key issue that arises in the present matter is that there are issues

emerging from the conduct of elections in the Branch that go beyond one or two unforeseen

problems in individual elections.

[251] For example, material available in this matter has identified the use of postal votes

contrary to the rules over many years and identified serious issues with the actions of the

Branch in relation to the 2011 election. These issues tend to suggest there has been a failure

of the responsible officers to ensure the integrity and credibility of the election system

operating under the Branch’s AEC exemption.

[252]    These issues raise questions about the ability of the Branch to conduct its elections in

accordance with its rules. Further and in my view, it is less likely that such on-going issues

could have continued to occur if the AEC was conducting the elections, given the experience

of AEC officers and the specific provisions in the RO Act that assist AEC officials in their

conduct of elections.

[253]    I include among those specific provisions, the following.

[254] Section 193 provides a range of powers to AEC ‘electoral officials’ regarding the

conduct of elections, including how to address problems in an organisation’s rules while an

election is on foot and how to deal with the inability of a Returning Officer to complete an

election (these provisions appear to only pertain to AEC officers as ‘electoral official’ is only

defined in s 6 to include AEC officials).

[255] Section 197 requires the AEC to prepare a post-election report that, among other

things, requires the AEC to discuss whether any of the election rules of an organisation are

difficult to interpret or apply.

[256]    As far as I am aware, these provisions do not apply, in a mandatory sense, to elections

conducted by organisations or branches that have AEC exemptions.

[257] In addition, while a member or former member of an organisation can apply to the

Federal Court for an inquiry regarding alleged election irregularities under s 200(1) the

Electoral Commissioner of the AEC has additional powers in relation to such matters as

follows.

[258] Subsection 200(2) provides that the Electoral Commissioner ‘must’ apply to the

Federal Court for an election inquiry if he/she believes that the result of an election has been

affected by an irregularity.

[259] Subsection 200(3) provides that the Electoral Commissioner ‘may’ apply to the

Federal Court for an election inquiry if he/she believes that there has been an irregularity in an

46

election.

[260] Accordingly, in my view, the AEC is less likely to make errors in the conduct of

elections than the Branch; and if a problem arose in the conduct of an election by the AEC, it

is more likely that the AEC would be better armed and equipped to deal with it.
[2015] FWCD 7109

[261]    This is also consistent with the view taken by the Hancock Report that the ‘conduct of

elections by Commonwealth officials facilitates a consistency of approach, leading to fewer

invalidities and disputed elections’ and ‘should enhance the confidence of the community and

47

the members of organisations in the conduct of ballots’.

[262]    As a result, I am not persuaded by the submission that I should exercise my discretion

to uphold the Branch’s exemption on the grounds that problems sometimes occur in elections

conducted by the AEC.

Consideration

[263] I have carefully considered and taken into account all of the circumstances and the

available materials of this matter in determining whether I am no longer satisfied of the

matters in subsection 186(1)(b)(i) of the RO Act and if I am not, whether I should exercise the

discretion to revoke the exemption held by the Branch.

[264] I have carefully considered and taken into account each of the written and verbal

submissions made by and on behalf of the Division and the Branch, including: the letter from

the General Secretary of the Division Mr Vickers dated 11 September 2015; the Schedules

attached to that letter; the written submission of Mr Crawshaw SC on behalf of the Division

and the Queensland District Branch dated 11 September 2015; the affidavit of Mr Vickers

dated 10 September 2015; and the annexures to that letter including statistics regarding

persons engaged in coal mining and the CFMEU’s TURC Submission dated 1 August 2014.

[265] Having regard to the knowledge and extensive mining industry experience of Mr

Vickers, I have carefully considered his correspondence and submissions about the history

and context of the coal mining industry and in particular, the conduct of elections in that

industry.

[266] To his credit, Mr Vickers made relevant and important concessions about the

contraventions of the RO Act and a range of rules which I had asserted in my Statement of

Reasons dated 20 August 2015.

[267] It was also apparent that Mr Vickers was prepared to make further difficult

concessions as the General Secretary of the Division (and as a Vice President of the CFMEU)

during the hearing by describing the 2011 Queensland election as a ‘debacle’ and referring to

his ‘eternal shame and embarrassment’ about the conduct of the Queensland Board in that

election.

[268] It is apparent that the Division and the Branch have taken, are taking and are

proposing to take, action to prevent any repetition of irregularities. That action includes:

submitting rule changes to the Division which would facilitate postal ballots; submitting rule

changes which centralise the Returning Officer function with a single National Returning

Officer appointed by Central Council while removing the option of District Branches

appointing their own Returning Officer; ensuring better training of all returning officers and

providing access to independent legal advice to the National Returning Officer; and ensuring

more explicit onus on the National Returning Officer to be satisfied that Local Returning

Officers are sufficiently trained or experienced to undertake their functions.

[2015] FWCD 7109

[269]    On the other hand, I have also taken into account that notwithstanding the purportedly

extensive experience, knowledge and training delivered in the Division focused on election

processes, it is likely that on-going contraventions of the rules including with respect to postal

voting and the appointment of Local Returning Officers have been occurring since

exemptions were granted to the Division and the Branch in 1996. I have also taken into

account the potential failure of the Division and the Branch to comply with the RO Act

requirements concerning declaration envelopes since the 2003 amendments referred to in this

decision.

[270]    While these are relevant matters it was the egregious conduct of the Queensland Board

of Management in the 2011 election which has caused me the greatest concern. I agree with

the manner in which Mr Vickers characterised the election as a ‘debacle’ although in my

view, the conduct of the Board is more likely to have been intentional rather than due to

inexperience.

[271] In particular, I am concerned about the beyond power actions of the Queensland

District President Mr Smyth and the Queensland Board of Management in resolving to

determine election irregularities, voiding an election outcome, declaring (in effect) that an

elected candidate had not been elected and then failing to comply with a rule with respect to

providing that resolution to rank and file members of the Branch for endorsement. That Mr

Smyth had a preferred candidate and a concomitant interest in the outcome of the election

exacerbated my concerns.

[272]    The available materials in general and the relevant rules in particular demonstrate that

District Branches have autonomy over matters that affect members of the District Branch

48

only. In all the circumstances, I continue to have serious concerns both about whether

senior officers in the Queensland Branch might seek, without appropriate power or authority,

to impinge upon future Branch elections and the capacity of the Division to prevent, or

adequately deal with such interference if or when it was to occur.

[273]    On balance, I am not persuaded that the measures taken, being taken or to be taken

either singularly or in aggregate, satisfy me that if the Queensland Branch is exempted from

having its elections conducted by the AEC under s 186(1), that elections for the Branch will

be conducted under the rules of the Division or Branch and the RO Act.

[274]    In the submission of Mr Crawshaw SC dated 11 September 2015, it was put that even

if the General Manager is, to use his words ‘no longer completely satisfied that elections for

the Queensland Branch will be conducted under the rules and the … RO Act, the word “may”

in s 186(2) of the … RO Act clearly provides that a discretion arises as to whether the General

49

Manager should revoke the exemption’.

[275]    I accept that the power to revoke the exemption is discretionary and I have taken each

of the relevant matters into account in considering whether to exercise the discretion.

[276]    I have again considered each of the relevant circumstances in this case including the

nature and extent of the irregularities and contraventions referred to in this decision such as

the contraventions of the Rules and of the RO Act which have been conceded.

[277] I have also carefully considered the submissions concerning consequences to the

Branch if the exemption were to be revoked and I have evaluated those submissions.
[2015] FWCD 7109

[278]    In considering whether to exercise the discretion, I have again considered each of the

actions taken, being taken and to be taken by the Division and the Branch, including

submitting rule changes which would facilitate postal ballots, submitting rule changes which

centralise the Returning Officer function with a single National Returning Officer, ensuring

better training of all Returning Officers and providing access to independent legal advice to

the National Returning Officer.

[279] Further, I considered the oral submissions made during the hearing of 17 September

2015, including that the Division and the Branch have taken on board what has occurred in

this case and used those circumstances as a wake-up call while trying to improve the situation

in the future.

[280]    I have also considered the willingness expressed by Mr Crawshaw SC on behalf of the

Division to include the requirements of s 188 of the RO Act and the relevant regulations,

including regulations 5 and 6 after I had brought those requirements to his attention.

[281] After carefully considering these additional and relevant matters, I continue to have

serious concerns both about whether senior officers in the Queensland Branch might seek,

without appropriate power or authority, to impinge upon future Branch elections and the

capacity of the Division to prevent, or adequately deal with such interference if or when it was

to occur.

[282]    As I have indicated above, I agree with the manner in which Mr Vickers characterised

the 2011 election as a ‘debacle.’ In my view, the conduct of the Board in that election is more

likely to have been intentional rather than due to inexperience and on balance, I am not

satisfied that if the Queensland Branch is exempted from having its elections conducted by

the AEC under s 186(1) of the RO Act, that elections for the Branch will be conducted under

the rules of the Division or Queensland Branch and the RO Act. Accordingly, I am satisfied

that I should exercise my discretion and revoke the AEC exemption issued in R20021/1996.

Conclusion

[283]    I am not satisfied that if the Queensland District Branch is exempted from having its

elections conducted by the AEC under s 186(1) of the RO Act, that elections for the Branch

will be conducted under the rules of the Division or Branch and the RO Act. Accordingly, I

revoke the AEC exemption issued in R20021/1996 as of the date of this decision.

[2015] FWCD 7109

DELEGATE OF THE GENERAL MANAGER

Appearances:

Mr S Crawshaw SC for the Branch and Division

Hearing details:

17 September 2015

Brisbane

Printed by authority of the Commonwealth Government Printer

<Price code A, PR572957>

17

While Industrial Registrar Kelly indicated on page 27 of the transcript that he would ‘publish reasons

at a later date’ it appears that no decision was subsequently issued or published.

18

Letter from Branch President Smyth to members of 23 December 2011.

19

See also: Hodgson v Wilkinson 12 FLR 191 at 208-9 in which a majority of the Commonwealth

Industrial Court held that a committee of management had no power to declare that a ballot that was

being conducted by a returning officer be declared null and void.

20

See, for example: Re Inquiry into elections for office in Amalgamated Society of Carpenters and

Joiners of Australia 4 FLR 247 at 251.

21

Transcript of hearing at page 3.

22

Submissions by Mr Crawshaw SC at [12].

23

Transcript of hearing at page 3.

24

Transcript of hearing at page 17.

25

Mr Vickers’ affidavit at [52] and [53].

26

Letter of Mr Vickers of 11 September 2015 at page 5.

27

TURC Submission at pages 31, 32.

28

Statement of Mr Vaccaneo at page 9.

29

Central Council Minutes of 12 to 15 March 2012 at page 11.

30

Mr Vickers’ letter of 11 September 2015 at pages 7 to 8.

31

Mr Vickers’ letter of 11 September 2015 at pages 7 to 8.

32

Transcript of hearing at page 9.

33

Mr Vickers’s affidavit at [42].

34

Transcript of hearing at page 9.

35 Letter from Mr Whyte to the General Manager of 8 July 2013 at pages 4, 5.

36

Letter from Mr Whyte to the General Manager of 8 July 2013 at page 15.

37

Submissions by Mr Crawshaw SC at [12].

38

Mr Vickers’ letter of 11 September 2015 at page 2.

39

While the recommendation in the JSCEM Report referred to the use of declaration envelopes in

relation to elections conducted by the AEC the legislation that was passed and commenced in 2003

required such envelopes to be used for all postal ballot elections relating to registered organisations

(refer JSCEM Report at page xiii).

40

AEC submission to the Joint Standing Committee on Electoral Matters, 21 January 1997 at page 13.

41

Submissions to the Senate Employment, Workplace Relations, Small Business and Education

Legislation Committee inquiry into the Workplace Relations (Registered Organisations) Bill 2001.

42

Transcript of hearing of 2 May 1996 at page 12.

43

The word ‘completely’ has been introduced in the submission by Mr Crawshaw SC and is not

included in the RO Act.

44 Fernwood Fitness Centres Pty Ltd [1995] VADT 7 at pages 9, 10.

45

TURC Submission at page 36.

46

While it is not beyond doubt, the power of the Electoral Commissioner to apply to the Federal Court

regarding irregularities in an ‘election’ appear to extend to an election conducted within an

organisation or branch that has an AEC exemption.

47

Hancock Report, Volume 2, Report p 493.

48

See Rule 12(ii).

49

Submissions by Mr Crawshaw SC at [16].

1

JSCEM Report at page 7. The relevant statutory amendments ‘provided that the Industrial Registrar

was to conduct elections at the request of an organisation, or a branch of an organisation, if he

considered it practical to do so’.

2

Australia, Senate, 1949, Debates, vol. 203, p. 1399.

3

Report of the Committee of Review into Australian Industrial Relations Law and Systems, April

1985, Vol. 2, para. 9.144.

4

Ibid. para. 9.146.

5

Ibid, para 9.145 and Vol. 1, Recommendations for Change, page 28 (Recommendation 80).

6

Act No. 86 of 1988, section 210.

7

JSCEM Report, page 10.

8

The amalgamated organisation was initially known as the ‘Construction, Forestry, Mining and

Energy Union’.

9

Mr Vickers’ affidavit at [24].

10

Statutory Declaration of Mr B Watson, General Secretary, of 18 April 1996.

11

Elections for the Victorian District Branch are conducted by secret postal ballot by the AEC

pursuant to Victorian District Branch Rule 14. This branch was established in the Division in 2001

(refer rules of 13 August 2001 in matter R2001/36) and thus it did not participate in the exemption

applications in 1996. In a letter dated 24 July 2001 in relation to R2001/36 Mr B Watson, the

Division’s General Secretary stated that the proposed Victorian District Branch Rules had been

adopted by Central Council and ‘the majority of members have endorsed the decision of Central

Council to adopt the Victorian District Branch Rules’ pursuant to Divisional Rule 8(iv). Mr P Tyson

of Turner Freeman also stated in a letter of 5 July 2001 ‘you will see … Rule 14 [‘Ballots’] has been

included. You will understand that it is proposed, once the [Victorian] District Branch is registered, to

apply for exemptions under Sections 198 and 210 of the [IR] Act (in line with the exemptions already

granted to the Division and the other Branches). As part of that exemption application it will be

proposed that Rule 14 of the Victorian District Branch Rules be deleted’. It subsequently appears that

no applications for exemptions were lodged by that branch and no rule alterations made to remove

Victorian District Branch Rule 14. While Divisional Rule 12(iii) provides for the election of

Committee of Management members of each branch pursuant to Divisional Rule 17 the above

materials indicate that Victorian District Branch Rule 14 was intended to apply in that branch as the

alterations to establish that branch with that ballot rule were adopted by Central Council and a

majority of members pursuant to Divisional Rule 8(iv).

12

TURC Submission, page 2.

13

TURC Submission, page 31.

14

TURC Submission, pages 31, 32.

15

TURC Submission, page 32.

16

TURC Submission, pages 39.