Re Communication Workers' Union
[1995] IRCA 230
•01 June 1995
CATCHWORDS
INDUSTRIAL LAW - organisations - inquiry - interlocutory orders - offices in respect of which order can be made.
Industrial Relations Act 1988 (Cth), s 221(1)(c)
Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980)
145 CLR 485
Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1960) 105
CLR 602
Shin Kobe Maru v Empire Shipping Co Inc (1994) 125 ALR 1
Gatoil International Inc v Arkwright-Boston Manufacturers
Mutual Insurance Co (1985) AC at 255
No. NI 594 of 1994
IN THE MATTER OF AN INQUIRY INTO ELECTIONS FOR OFFICES IN THE
COMMUNICATION WORKERS' UNION OF AUSTRALIA
MOORE J
BRISBANE (HEARD IN SYDNEY)
1 JUNE 1995
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. NI 594 of 1994
IN THE MATTER OF: AN INQUIRY INTO ELECTIONS FOR OFFICES IN THE COMMUNICATION WORKERS' UNION OF AUSTRALIA.
JUDGE: Moore J
PLACE: Brisbane (heard in Sydney)
DATE:1 June 1995
ORDER OF THE COURT
THE COURT ORDERS THAT:
The application made by notice of motion filed 8 May 1995 be dismissed.
NOTE:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. NI 594 of 1994
IN THE MATTER OF: AN INQUIRY INTO ELECTIONS FOR OFFICES IN THE COMMUNICATION WORKERS' UNION OF AUSTRALIA.
JUDGE: Moore J
PLACE: Brisbane (heard in Sydney)
DATE:1 June 1995
REASONS FOR JUDGMENT
On 27 July 1994, Mr Noel Battese lodged an application for an inquiry into alleged irregularities in elections in the Communication Workers' Union of Australia ("CWU"). The application was lodged under s218 of the Industrial Relations Act 1988 (Cth) ("the Act"). The elections to which the inquiry related were for federal offices and for offices in the Postal and Telecommunications Branch, New South Wales ("P & T (NSW) Branch"). The alleged irregularities were, in essence, that people had solicited from members of CWU their blank ballot papers and had then used them to cast a vote in the election.
The matter first came before the Court on 27 July 1994 and leave to appear was granted to two candidates, Mr Allan Jarman and Mr Jalal Natour who were jointly represented and the Australian Electoral Commission. The applicant indicated that he would be asking for interlocutory orders and sought and urgent hearing for that purpose. The matter was adjourned to Friday, 29 July 1994.
In the intervening period I gave consideration to the application and supporting statutory declaration and after hearing from the parties on 29 July 1994 I indicated that I was satisfied that there is a reasonable ground for the application: see s219(b). During that hearing leave to appear was given to another candidate, Mr Quentin Cook and the CWU. Ultimately interlocutory orders were made, in large measure, by consent.
In the latter part of 1994 and the early part of 1995 the matter has been before the Court for directions hearings on a number of occasions. Significant delays have been occasioned by the inability of the principal protagonists to have the handwriting and document expert each has retained, examine with any expedition the ballot papers and related material. The matter is not yet ready for hearing and no hearing date has been set.
An application has recently been made by Mr Cook for interlocutory orders. A notice of motion was filed on 8 May 1995, seeking orders though only two are presently relevant.
They are:
That the current office holders of the State Committee of Management in the Communications, Electricians & Plumbers Union ("CEPU") remain in office until a final determination has been made in this matter, or until further order of the court.
In the alternative to the above, that the ballot relating to the State Committee of Management in the CEPU be suspended until a final determination has been made in this matter, or until further order of the court."
The purpose of the order, as I understand it, is to ensure that Sectional Representatives presently on the Committee continue in that office.
The reference to CEPU is to an organisation resulting from the amalgamation of CWU with another organisation since the inquiry commenced.
An issue has been raised by some parties as to whether the Court had power to make the orders sought. This judgment deals with that issue. This inquiry concerns, in part, the election of persons to the offices of Branch Organiser, Branch President, Branch Secretary and Branch Assistant Secretary of what was the P & T (NSW) Branch of the CWU. That internal organisational unit has been retained notwithstanding the creation of CEPU. The P & T (NSW) Branch has, as its governing body, the Branch Committee of Management which is constituted by r77 of the rules of what is now called the Communications Division of CEPU. Rule 77 relevantly provides:
"(a)....
(b)Each Branch shall have for its management a Branch Committee of Management consisting of a President, two Vice Presidents, Secretary, Assistant Secretary, full-time Organisers as specified in this sub-rule and not fewer than eight nor more than eighteen Sectional Representatives who shall be elected for a period of two years. Provided that any person elected to an office which has been a (sic) declared a full-time office shall be elected for a term of office of four years. For the purposes of Branch administration the following Branch offices shall be declared full-time positions:
New South Wales: Branch President, Branch Secretary, Branch Assistant Secretary, twelve (12) Organisers;
(c)The Branch President, Vice President, Secretary, Assistant Secretary and full-time Organisers shall be elected by ballot of the financial members of the Branch.
(d)Sectional Representatives shall be elected from the members comprising the respective groups as provided in Rule 47 in accordance with the Branch needs as determined by the Branch Committee of Management provided that the number of Sectional Representatives from each Divisional Section shall be equal, with a minimum of four (4) and a maximum of nine (9) from each Divisional Section.
(e)....
(f)....
(g)...."
It can be seen that the Committee is made up of essentially two groups. Those constituting full-time offices referred to in r77(c) and Sectional Representatives referred to in r77(d). The intention of r77(b) is that, in the ordinary course, the former are elected to hold office for four years and the latter to hold office for two years. Offices in the first class were the subject of elections in July 1994 and this inquiry, in part, relates to those elections. By operation of r136 of the Communications Division rules, which is a transitional rule resulting from an earlier amalgamation, the Sectional Representatives are to be elected in elections to be held in June 1995. Mr Cook is a Sectional Representative.
The issue of power arises in this way. The possible source of power to make the orders sought is s221 which provides:
"(1) Where an inquiry into an election has been instituted, the Court may make one or more of the following orders:
(a)an order that no further steps shall be taken in the conduct of the election or in carrying into effect the result of the election;
(b)an order that a person who has assumed an office, has continued to act in an office, or claims to occupy an office, to which the inquiry relates shall not act in the office;
(c)an order that a person who holds, or last held before the election, an office to which the inquiry relates may act or continue to act in the office;
(d)where it considers that an order under paragraph (c) would not be practicable, would be prejudicial to the efficient conduct of the affairs of the organisation or would be inappropriate having regard to the nature of the inquiry, an order that a member of the organisation or another person specified in the order may act in an office to which the inquiry relates;
(e)an order incidental or supplementary to an order under this subsection;
(f)an order varying or discharging an order under this subsection.
(2)Where the Court orders that a person may act, or continue to act, in an office, the person shall, while the order remains in force and in spite of anything in the rules of the organisation or a branch of the organisation, be taken to hold the office.
(3) An order under this section shall continue in force, unless expressed to operate for a shorter period or sooner discharged, until the completion of:
(a)the proceeding concerned in the Court in relation to the election; and
(b)all matters ordered by the Court (otherwise than under this section) in the proceeding."
It is submitted by counsel for Mr Cook that the office Mr Cook presently occupies is "an office to which the inquiry relates..." as that expression appears in s221(1)(c). The argument, as I understood it, was that the offices in the P & T (NSW) Branch to which the inquiry directly relates, are offices the holders of which are members of the Branch Committee of Management. Other members of the Branch Committee of Management, including Mr Cook, are members of the Committee by virtue of being Sectional Representatives and because of that relationship, the office occupied by Mr Cook is one comprehended by the expression "an office to which the inquiry relates".
It may be accepted that those who were elected in June 1994 to the full-time Branch positions, such as Branch President, were elected to that office and thereby assumed another office, namely member of the Branch Committee of Management: see Re Airline Hostesses Association (1980) 37 ALR 110. Both offices are held concurrently. On one view of the rules of CEPU a person who is elected Sectional Representative is elected to both that office and the office of member of the Branch Committee of Management though on another view the rules may create only the one office. Sectional Representatives appear to have no powers, duties or functions other than those that arise from being a member of the Committee. This matter was not the subject of detailed submissions.
On either approach, both the Branch President, to continue with that example, and a Sectional Representative hold the same office, namely member of the Branch Committee of Management.
This leads to the question of whether the expression "office to which the inquiry relates" would enable an order to be made under s221 in relation to persons holding the office of Sectional Representative because of the relationship that office has with the offices to which the inquiry directly relates. Counsel for Mr Cook submitted that "relates" is a word capable of wide meaning: see Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485 at 498 and 505. However the word "relate" and derivatives of it do not have a fixed wide meaning as illustrated by the following passage from the judgment of Taylor J in Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1960) 105 CLR 602 at 620:
"There can be no doubt that the expression "relating to" is extremely wide but it is also vague and indefinite. Clearly enough it predicates the existence of some kind of relationship but it leaves unspecified the plane upon which the relationship is to be sought and identified. That being so all that a court can do is to endeavour to seek some precision in the context in which the expression is used."
See also Shin Kobe Maru v Empire Shipping Co Inc (1994) 125 ALR 1 at 8-9 and Gatoil International Inc v Arkwright-Boston Manufacturers Mutual Insurance Co (1985) AC 255 at 270-271. Ultimately the Court's task is to construe the expression "to which the inquiry relates" in the statutory context in which it appears. As Mason and Wilson JJ said in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320:
"The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction."
Division 5 of Part IX the Act concerns inquiries into elections. It is structured in a way that provides for an inquiry to be commenced: ss218 and 219, steps to be taken to preserve material for the inquiry: s220, interim orders to be made pending the conclusion of the inquiry: s221, the conduct of the inquiry: s222 and the steps the Court may take as a result of findings made in the inquiry: s223 including the validation of acts of a person assuming office in an election which is declared void: s226. The inquiry directly concerns an election and its purpose is to enable the Court to investigate and determine whether an irregularity has occurred in the election. The inquiry is directed to election processes and practices and not offices or the holding of offices. The word "relates" in the expression found in pars (b), (c) and (d) of s222(1), "an office to which the inquiry relates" is used, in my opinion, to link "an office" and "the inquiry" because the relationship between the inquiry and the office is an indirect one. It arises from the relationship between the inquiry and the election and the election and the office.
Section 221 is intended to invest the Court with power to make orders preserving or altering the status quo only in so far as the election, which is the subject of the inquiry, has resulted or might result in the occupation of an office. One can readily understand why Parliament invested the Court with this power given that it is exercised when the election is being impeached because of an alleged irregularity. The Court is able to regularise, on an interim basis, the occupation of an office which has been or is to be filled by an election the subject of the inquiry. The reach of s221(1)(b), (c) and (d) is limited to those offices. In the present case, the only offices in respect of which an order could be made are the offices referred to in the application which were the subject of the elections in July 1994. While the occupants of those offices hold them concurrently, upon election, with the office of member of the Committee of Management of the P & T (NSW) Branch, it does not follow that any occupant of the office of member of the Committee can be the beneficiary of an interim order under s221. The election that led to the holding of office by Mr Cook is not the subject of the inquiry. In my opinion, I do not have the power to make the order sought.
I dismiss the application.
I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore.
Associate:
Date:1 June 1995
Counsel for the Applicant: Mr S.C. Rothman
Solicitor for the Applicant: Maurice May & Co
Counsel for the
First Respondent: Mr W.R. Haylen QC
Solicitor for the
First Respondent: Geoffrey Edwards & Co.
Counsel for the
Second Respondent: Mr F.L. Wright QC
Solicitor for the
Second Respondent: McClellands
Counsel for the
Third Respondent: Mr G.T. Johnson
Solicitor for the
Third Respondent: Australian Government Solicitor
Counsel for the
Fourth Respondent: Mr P.E. King
Solicitor for the
Fourth Respondent: Paul Etherington
& Associates
Dates of hearing: 23 May 1995
Date of judgment: 1 June 1995
0
4
0