Re Churchill
[2001] FCA 608
•25 MAY 2001
FEDERAL COURT OF AUSTRALIA
Inquiry relating to elections for offices in the United Firefighters’ Union of Australia, Victorian Branch; Re Churchill
[2001] FCA 608
INDUSTRIAL LAW – election inquiry – irregularity found – whether new election should be held – modification of rules
Workplace Relations Act 1996 (Cth) – s 223(1)(c)
Kelly v Amalgamated Metal Workers’ and Shipwrights’ Union (1981) 56 FLR 124 not followed
IN THE MATTER OF AN INQUIRY RELATING TO ELECTIONS FOR OFFICES IN THE UNITED FIREFIGHERS’ UNION OF AUSTRALIA, VICTORIAN BRANCH
V 687 of 2000
FINKELSTEIN J
MELBOURNE
25 MAY 2001
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 687 of 2000
IN THE MATTER OF AN INQUIRY RELATING TO ELECTIONS FOR OFFICES IN THE UNITED FIREFIGHERS’ UNION OF AUSTRALIA, VICTORIAN BRANCH
JUDGE:
FINKELSTEIN J
DATE OF ORDER:
25 MAY 2001
WHERE MADE:
MELBOURNE
THE COURT FINDS that an irregularity has happened in relation to the election of:
(a)John Fowler to the position of “Branch Committee of Management/ Firefighter/MFESB” on the Victorian Branch Committee of Management of the United Firefighters’ Union of Australia;
(b)Dean Gould to the position of “Branch Committee of Management/Officer/ MFESB” on the Victorian Branch Committee of Management of the United Firefighters’ Union of Australia;
(c)Dave Hamilton, Graeme Kellett and Danny Ward to the respective positions of “Branch Trustees” of the Victorian Branch Committee of Management of the United Firefighters’ Union of Australia (“the said positions”).
THE COURT DECLARES that the election in respect of the said positions is void and of no effect.
THE COURT ORDERS THAT:
(a)Save for the requirement of calling for fresh nominations for the said positions, a new election be held in respect of the said positions.
(b)The present holders of the said positions continue to hold such office until a declaration of the results of the new election.
THE COURT DIRECTS the Industrial Registrar to make arrangements to conduct a fresh election in respect of the said positions, there being no requirement to call for fresh nominations therefor.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 687 of 2000
IN THE MATTER OF AN INQUIRY RELATING TO ELECTIONS FOR OFFICES IN THE UNITED FIREFIGHERS’ UNION OF AUSTRALIA, VICTORIAN BRANCH
JUDGE:
FINKELSTEIN J
DATE:
25 MAY 2001
PLACE:
MELBOURNE
SUPPLEMENTARY REASONS FOR JUDGMENT
On the application of Mr Churchill I held an inquiry under s 219 of the Workplace Relations Act 1996 (Cth) to determine whether irregularities had happened in relation to the election for a number of offices in the United Firefighters’ Union of Australia, Victorian Branch. I delivered judgment on 26 April 2001, holding that there had been an irregularity, namely that votes had been counted in accordance with a system of preferential voting chosen by the electoral official, who had no power to impose that system. I said that I would declare the elections void and order there be new elections. However, because it appeared to me that the precise orders to be made might have to take into account the requirements of the union’s rules and, perhaps, other matters, I requested the applicant to bring in short minutes within 14 days.
The members of the committee of the Victorian Branch of the union who were allowed to appear at the inquiry (Messrs Kellett, Fowler and Gould) now ask me to reconsider making the orders I had proposed. In particular they say that I should not order there be new elections. They point out that the rules of the union have recently been amended, and now make provision for a system of voting that is the same as the method chosen by the electoral official. Then they refer to what I said in my reasons as the basis for their submission that I should leave things as they are. In those reasons I said that, notwithstanding my finding of irregularity, I was tempted not to disturb the results of the elections because the voting system chosen by the electoral official was democratic and reasonable. In the end, however, I decided against that course as it was not appropriate to assume that the system chosen by the electoral official would have commended itself to the members had they been aware of the possible alternatives.
I should put those comments into their proper context. At the hearing I was told that steps were in train to amend the union’s rules to provide for a new voting system. Although I was not shown a draft of the proposed rules, I was told that the proposed system was modelled on that chosen by the electoral official.
I must also mention that my comments were made on the mistaken assumption that the rules would be amended by resolution of the members. The committee members have pointed out that this is not so. In the case of this union, the rules may be changed by the National Committee of Management.
After the inquiry had concluded, the solicitors for the committee members wrote to my associate advising that the new rules had been approved. A copy of the rules was enclosed with the letter. Neither the letter nor the rules were brought to my attention. I note that the solicitors did not ask for the rules to be treated as evidence in the inquiry. Be that as it may, the committee members now wish to reopen the inquiry, so that the new rules can be tendered and relied upon to support their present application.
Whether it is proper to reopen the inquiry is a difficult question. On one view the comments that I made in my reasons have resulted in the present application. On the other hand what the committee members really seek is to reargue their case. With some hesitation I propose to consider again what orders should be made. This course will not result in any prejudice to Mr Churchill, unless I were to rule in favour of the committee members.
I have given close consideration to whether I should accede to the committee members’ request. In the end, however, I am not disposed to change course. There are two reasons for this. First, if the court does have the discretion to withhold relief after finding there to be an irregularity that has affected the result of an election (and the cases show that such a discretion does exist), that discretion should rarely be exercised. It might be appropriate to withhold relief if it is clear that a new election would not produce a different result. That is not so in this case. Second, I do not think it proper to impose a system of voting that was not the system that members believed would be employed in the election. According to the evidence, the rule that I found to be in contravention of s 196(c) has caused trouble for many years. The union’s records show that since 1976 most elections that involved multiple member positions adopted the same preferential voting system as that chosen by the electoral official, although the rules provided otherwise. The position in respect of the elections held during the 1990s is not clear. No records exist to explain how votes were counted in the 1991 election. In the 1995 election the votes were counted as required by the rules. I assume that in the challenged election many members would have acted, and cast their votes, on the basis that the votes would be counted in accordance with the rules. If they had been told otherwise, they may have voted differently.
There is one final matter to consider. The committee members say that if there are to be new elections there should be an order shortening the duration of the term of the offices. The committee members wish to ensure that the term of office of those to be elected should expire at the same time as all other officeholders. If such an order is made it will maintain the election “cycles” provided for by the union’s rules. It is not necessary to spend time explaining why this proposal is sensible. It plainly is, and if I had power to make the order, I would do so without hesitation.
Turning to the question of power, I was referred to s 223(3)(d), which sets out one of the various types of order that might be made if the court finds that an irregularity has happened. The paragraph provides that the court may make:
“an order (including an order modifying the operation of the rules of the organisation to the extent necessary to enable a new election to be held, a step in relation to an election to be taken again or an uncompleted step in an election to be taken) incidental or supplementary to, or consequential on, any other order under this section.”
I will approach this provision on the basis that it should be given “a very liberal construction”: The King vCommonwealth Court of Conciliation and Arbitration; ex parte Grant (1950) 81 CLR 27 at 62. Despite this, I regret that I cannot treat the provision as authority to make the order sought. What s 223(3)(d) contemplates is the making of incidental or supplementary orders. But, to the extent that an incidental or supplementary order is made modifying the operation of the rules of a union, the power of the court is limited. The rules can be modified only to the extent necessary to enable a new election to be held, to permit a step in relation to an election to be taken again, or to permit an uncompleted step in an election to be taken. The order the committee seeks is of a different character altogether.
I have been referred to one case where an order similar to that which is now sought has been made. The case is Kelly v Amalgamated Metal Workers’ and Shipwrights’ Union (1981) 56 FLR 124. However a perusal of the reasons shows that the order was made without discussion as to whether it was within power. Regrettably, I cannot treat the case as an authority in point.
I will make the following findings, declarations and orders: 1. Finding that an irregularity has happened in relation to the election of John Fowler to the position of “Branch Committee of Management/ Firefighter/MFESB” on the Victorian Branch Committee of Management of the United Firefighters’ Union of Australia; Dean Gould to the position of “Branch Committee of Management/Officer/ MFESB” on the Victorian Branch Committee of Management of the United Firefighters’ Union of Australia; and Dave Hamilton, Graeme Kellett and Danny Ward to the respective positions of “Branch Trustees” of the Victorian Branch Committee of Management of the United Firefighters’ Union of Australia. 2. Declaration that the election in respect of these positions is void and of no effect. 3. Orders that (a) save for the requirement of calling for fresh nominations for the said positions, a new election be held in respect of the said positions; and (b) the present holders of the said positions continue to hold such office until a declaration of the results of the new election. 4. Finally, I direct that the Industrial Registrar make arrangements to conduct a fresh election in respect of the said positions, there being no requirement to call for fresh nominations.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein. Associate:
Dated: 25 May 2001
Counsel for Mr Churchill: Mr N Green QC
Mr C FairfieldSolicitor for Mr Churchill Mallesons Stephen Jaques Counsel for Mr Kellett, Mr Fowler and Mr Gould: Mr R Hinkley
Mr D LangmeadSolicitor for Mr Kellett, Mr Fowler and Mr Gould: Slater & Gordon Appearing for the electoral official: Ms S Pryde Solicitor for the electoral official: Australian Government Solicitor Date of Hearing: 22 May 2001 Date of Judgment: 25 May 2001
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