Re Keily; (No 2)
[1995] IRCA 290
•29 June 1995
CATCHWORDS
INDUSTRIAL LAW - UNION ELECTIONS - INQUIRY - alleged irregularities - Rules of Union - eligibility of nominated candidates - whether election inquiry relating to certain offices should be terminated where candidates alleged to be ineligible for Union membership - real question of eligibility to be investigated - termination of inquiry where no real possibility that election result would have been affected.
Re Ferguson; Re Australasian Meat Employees' Union (WA Branch) (1986) 17 IR 208
Re Noack; ex parte Vehicle Builders Employees' Federation of Australia (SA Branch) (1987) 18 IR 100
Industrial Relations Act, 1988 s 223(4)
RE KEILY; RE TRANSPORT WORKERS' UNION (VICTORIAN BRANCH)
VI 95/1297
CORAM:RYAN J
PLACE:MELBOURNE
DATE:29 JUNE 1995
IN THE INDUSTRIAL RELATIONS COURT )
)
OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) No VI 1291 of 1995
IN THE MATTER OF AN
APPLICATION BY
CHRISTOPHER KEILY FOR
AN INQUIRY IN RELATION
TO AN ELECTION FOR
OFFICES IN THE TRANSPORT WORKERS' UNION OF AUSTRALIA (VICTORIAN BRANCH)
CORAM: RYAN J
PLACE: MELBOURNE
DATE: 29 JUNE 1995
MINUTE OF ORDERS
THE COURT ORDERS:
That the inquiry be terminated in respect of the election for the following offices in the Transport Workers' Union of Australia (Victorian Branch):
.Branch Secretary/Treasurer
.Branch Trustee.
That the inquiry into the election for the following offices in the Transport Workers' Union of Australia (Victorian Branch) be adjourned for further directions before Ryan J on a date to be fixed:
.Branch Organizers
.Branch Committee Members.
NOTE:Settlement and entry of orders is dealt with in O 36 of the Rules of the Industrial Relations Court of Australia.
IN THE INDUSTRIAL RELATIONS COURT ) )
OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) No VI 1291 of 1995
IN THE MATTER OF AN
APPLICATION BY
CHRISTOPHER KEILY FOR
AN INQUIRY IN RELATION
TO AN ELECTION FOR
OFFICES IN THE TRANSPORT WORKERS' UNION OF AUSTRALIA (VICTORIAN BRANCH)
CORAM: RYAN J
PLACE: MELBOURNE
DATE: 29 JUNE 1995
REASONS FOR JUDGMENT
RYAN J: On 9 May 1995 I made orders terminating the inquiry in respect of elections to the offices of Branch President, Branch Vice-President, Federal Councillors and Branch Industrial Research Officer within the Victorian Branch of the Transport Workers' Union (the "Union"). On that day I pronounced reasons for those orders. I then indicated that I would consider my judgment in respect of the remaining offices which had been the subject of the inquiry instituted by Mr Keily on 25 January 1995.
1. OFFICE OF BRANCH SECRETARY/TREASURER
The first of the remaining offices was that of Secretary/Treasurer within the Victorian Branch of the Union. A challenge was made to the eligibility of Mr Noonan and Mr Driver to stand as candidates in the election for that office. The grounds relied on in support of the application suggest that Mr Noonan had been a full-time member of the Victorian WorkCare Appeals Board until November 1992 after which he had been appointed an organizer within the Victorian Branch of the Union. Mr Noonan does not dispute those allegations but contends in an affidavit sworn 7 February 1995 that in February 1994 he was appointed to fill a casual vacancy in the office of Secretary/Treasurer of the Victorian Branch of the Union and was acting in that office when nominations closed for the election. That assertion has not been disputed in subsequent affidavits filed in support of the application. However, it is common ground that for the first year of the period of three years before the close of nominations, Mr Noonan had been engaged in a full-time occupation which precluded him from eligibility for membership. On that basis, Mr Liversidge of Counsel for the applicant contended that Mr Noonan had been rendered ineligible to be a candidate by r 22 of the Rules of the Union which, so far as is relevant, provides:
"(a) (I)That subject to Rule 63(14) in respect of the New South Wales Branch a person shall not be eligible to nominate for any office in the Union or any Branch or Sub-Branch of the Union unless, at the date of close of nominations for election to such office he or she is:-
(i)a financial member of the Union, and
(ii)either is employed in the industry in connexion with which the Union is registered and in respect of such employment is entitled to membership of the Union pursuant to Rule 4, or is a person holding office as Federal Secretary, Federal Assistant Secretary, Branch Secretary, Branch Assistant Secretary (where existing) Branch Industrial Research Officer or Organiser (whether elected or appointed) or as organiser appointed by Federal Council or Federal Committee of Management.
(a)(II) That subject to Rule 63 (14) in respect of the New South Wales Branch a person shall not be eligible to hold or retain any office in the Union or any Branch or Sub-Branch of the Union unless at all times of holding the office, he or she is:
(i)a financial member of the Union, and
(ii)either is employed in the industry in connexion with which the Union is registered and in respect of such employment is entitled to membership of the Union pursuant to Rule 4, or is a person holding office as Federal Secretary, Federal Assistant Secretary, Branch Secretary, Branch Assistant Secretary (where existing) Branch Industrial Research Officer or Organiser (whether elected or appointed) or as organiser appointed by Federal Council or Federal Committee of Management.
(b)Subject to para (a) hereof a person is eligible to hold the office of -
(i)Federal President;
Federal Vice-President;
Federal Secretary;
Federal Assistant Secretary; or
(ii)Branch President;
Branch Secretary;
Branch Assistant Secretary (where existing)
Branch Industrial Research Officer; or
(iii)Organiser (whether elected or appointed);
if he is a financial member of the Union continuously for the previous three years and is financial at the time of his nomination for election (or appointment as the case may be) but not otherwise."
The application for an election inquiry alleges in respect of Mr Noonan that, as at the date of close of nominations, he was not a member of the Union as required by r 22(a) I(i) and was not employed in the industry or the valid holder of an office referred to in r 22(a) I(ii). It is further alleged that, at the date of his nomination, he had not been a financial member continuously for a period of three years. The facts relied on in respect of Mr Noonan as set out in the same application were:
"23.In 1989 Noonan (a member of the then "Davis Team") was defeated in an election (in which the then Keily Team was successful) and in the event lost his position as Industrial Officer in the Branch. In 1990 Noonan was appointed as a full-time ordinary member of the WorkCare Appeals Board established pursuant to the Accident Compensation Act 1985 (Vic). At that time and throughout the period of Noonan's appointment ss 71A(4) of the Accident Compensation Act provided that "Except with the consent of the Minister, a full-time member must not engage in paid employment outside the duties of the office". He remained a full-time member of the Board until November, 1992. During this time, Noonan was not eligible for membership of the organization.
In November, 1992, Noonan was purportedly appointed an organizer with the Branch following the elections in the Branch held in August 1992.
At a Branch General Meeting held in either December, 1992 or February, 1993, Noonan was asked what office he held. He replied that he was an organizer. Noonan was then asked where he was employed and he replied that he was on the books of an employer. He said he was not about to tell who the employer was."
Mr Noonan has, by affidavit sworn 7 February 1995, deposed, so far as is relevant, as follows:
I became a member of the Transport Workers' Union of Australia ("the Union") on 7 August 1964.
At the time of becoming a member, I was employed as a truck driver for Caltex Oil Co in Blackshaws Road, Spotswood.
I have been a financial member of the union ever since.
In 1971, I was elected to the position of Trustee in the Victorian Branch ("the Branch") of the Union. It was an honorary position, to which I was re-elected until 1989.
In 1974, I was appointed as Branch Organiser, which was a full time position. In 1976, when the position of Branch Industrial Research Officer was created as an elected position, I was elected to it.
...
In 1977, I was elected as Federal Trustee, a position which I held until 1989. I therefore held four positions: Branch Industrial Research Officer ...
In 1989, I stood for re-election as Branch Industrial Research Officer and was unsuccessful. From September to November 1989 I sought employment in the transport industry but was unsuccessful. In December 1989, I was appointed as a Senior Industrial Officer with the Victorian Public Service Association, a position I held until February of 1990, but I continued to seek employment in the transport industry.
In March 1990, I was appointed an ordinary member of the Workcare Appeals Board. I never resigned my Union membership, nor was it cancelled. In about late 1991, I became a senior member of the Board. From time to time while I was at the Workcare Appeals Board, I sought employment in the industry covered by the Union. This was for two reasons. First, I wished to maintain my links with the industry covered by my Union. Secondly, I was apprehensive that my position at the Workcare Appeals Board was not entirely secure, such a Tribunal being perceived by some as unnecessary.
...
However, in my time with the Workcare Appeals Board and since then, I have been employed from time to time by Mr Brian Palmer, a colleague who has a plasterboard carting business. Plasterboard is a fragile product and requires careful handling if it is not to break. Mr Palmer will occasionally call on me to give him assistance if he needs a driver who knows how to handle the product. My work for Mr Palmer involves carting and handling plasterboard and similar products.
In October 1992, the Liberal government was elected in Victoria, and the continued existence of the Workcare Appeals Board was publicly under threat. In November 1992, the Board was abolished. I continued to seek work in the industry covered by the union. I went to work full time for Mr Palmer, who happened to have work available at that time.
In this period, I was appointed as an organiser with the Victorian Branch of the Union.
In February 1994, I obtained the permission of the Branch to take leave and to work for a short time on a full time basis for Mr Palmer as a driver. While working with Mr Palmer, I was appointed to fill a casual vacancy in the office of Secretary/Treasurer of the Branch, a position which I currently hold and which I held when nominations closed for election to the office of Secretary/Treasurer in the current elections."
Nominations for the subject election opened on 8 November 1994. Mr Noonan at that time held the office of Secretary/Treasurer of the Victorian Branch to which he had been appointed in February 1994 to fill a casual vacancy. It is not suggested that he was not at all times a financial member of the Union. Accordingly, he satisfied the criteria for nomination stipulated in r 22(a)I. In my view, the requirement that a candidate be the holder of one of the offices specified in sub-paragraph (ii) of sub-rule (a)(I) is not confined to persons who have been elected to one of the specified offices (other than those of Branch Industrial Research Officer or Organizer to which the rule expressly contemplates appointment as well as election).
At the time of his appointment as an organizer after he ceased to be a member of the WorkCare Appeals Board, Mr Noonan had been working in employment which entitled him to membership of the Union pursuant to r 4 or at least had been seeking employment of that kind. His presumptively valid appointment as an organizer thus qualified him for appointment to fill the casual vacancy in the office of Secretary/Treasurer of the Victorian Branch. The holding of that office qualified him, n turn, for nomination for the election to that office which commenced in November 1994. It is true that r 14 of the Rules of the Union contemplates that a member leaving the industry represented by the Union is liable to have his or her membership terminated by clearance or cancellation. That rule so far as is relevant provides:
CESSATION OF MEMBERSHIP
(a)Should any member leave the industry represented by this Union through any cause the member may on written application receive a clearance certificate if the member has paid all fees due to the Union by the member on the date of application.
(b)Any member who leaves the industry and accepts employment for a period in excess of three months continuously in an industry not represented by this Union, or has not paid union contributions of any amount for 18 months the member may have their membership of the Union cancelled by a resolution carried at a meeting of:
(i)Federal Council, or
(ii)The Federal Committee of Management; or
(iii)The Committee of Management of the Branch of which they are a member; or
(iv)The sub-branch of which they are a member
(v)Any member whose membership is cancelled pursuant to (ii) or (iii) or (iv) of this Rule shall have a right of appeal to the Federal Council against such cancellation and the decision of the Federal Council shall be final."
That rule makes it clear that loss of membership did not automatically occur when Mr Noonan became a member of the WorkCare Board and thereby left the industry represented by the Union. Because Mr Noonan has been able to demonstrate a good root of title to membership dating back to 1964 and unbroken financiality from that date, his position is to be contrasted with that of Mr Grove who purported to acquire membership between 1989 and 1992 when he was prima facie not qualified to do so because of his employment as an industrial officer.
The other candidate for the office of Branch Secretary/Treasurer, who, it is suggested, was ineligible to stand, was Mr Driver. The allegations in respect of Mr Driver in the statement of facts relied on in support of the application are:
"26.In or about October, 1989 Driver commenced employment in the Branch as an industrial officer. He was not a member of the organization. In April, 1991, the Branch Committee of Management confirmed his employment with the Branch.
During 1990, Driver was seeking membership of the organization. Driver was ineligible for membership.
During 1991, Driver sought to be included in the Keily Team (known as The Keily Team - The Driving Force) for nomination for office but was excluded because he was ineligible to be a candidate for office. Driver did not nominate for election.
In September, 1992, (following elections in the Branch) Driver was dismissed from his employment with the Branch. Driver has not since that time been an employee in the industry of the organization.
Driver is not and was not at the date of close of nominations employed by Alinga Grove Pty Ltd."
Mr Driver on the other hand has deposed:
On the 6 February 1990 I joined the Transport Workers' Union of Australia (Victoria Branch) and I have been a financial member of the Branch continuously since that date. At the date of joining the union I was employed by Hayes Earth Moving as a tipper driver.
Since October 1992 I have worked as an owner driver in the transport industry delivering fruit in and around Melbourne. One of my principal suppliers since that date has been Alinga Grove Pty Ltd.
At the beginning of November 1994 I commenced as an employee driver of Alinga Grove Pty Ltd and as at the date of the close of nominations I was an employee driver of Alinga Grove Pty Ltd.
Since December 1994 I have continued as an owner driver in the transport industry delivering fruit in and around Melbourne."
Mr Driver's assertion in para 4 of that affidavit has been contradicted by the combined evidence subsequently filed of Mr Grove and Miss Stradijot, much of it hearsay, to the effect that a person related to a principal of Alinga Grove had said, in January 1995, that it did not employ drivers but used Kelly & Youngs in Buron for driving work.
The narrower question which remains in respect of Mr Driver is thus whether in November 1994 he was employed in the industry in connexion with which the Union is registered and in respect of such employment was entitled to membership of the Union as required by r 22(a)I. It is not possible to resolve that question in a summary way having regard to the contradictory assertions in the evidence as it stands. However, even assuming in favour of the applicant that Mr Driver's nomination should not have been accepted, I am not persuaded that the result of the election might have been affected by that presumptive irregularity. The formal votes cast in the election for Branch Secretary/Treasurer were distributed between the candidates as follows:
DRIVER, John 2127
NOONAN, Bill 4564
KEILY, Chris 959
WINCN, David B 113.
Thus had Mr Driver not appeared as a candidate, even in the unlikely event that all the members who voted for him had voted instead for Mr Keily, Mr Noonan would still have enjoyed a majority of 1478 votes. (By r 33(K)(i) the election was required to be conducted under the "first past the post" voting system). There remains the possibility that a large number of other members of the Branch who did not vote in the election would have voted had Mr Driver not been a candidate. However, as Toohey J observed in Re Ferguson; Re Australasian Meat Industry Employees Union (WA Branch) (1986) 17 IR 208 at 211, in speaking of the predecessor of s 223(4) of the Industrial Relations Act:
"Thus the question is whether the court is of opinion that, having regard to the irregularities found, the result of the election may have been affected. Unless the court is of that opinion, it may not declare the election void. Clearly the court is not required to make a positive finding but, equally, the court is looking at real not merely theoretical possibilities."
That passage was approved and applied by Keely J in Re Noack; ex parte Vehicle Builders Employees' Federation of Australia (SA Branch) (1987) 18 IR 100.
The possibility to which I have just adverted is manifestly merely theoretical and not real. Accordingly, I am not persuaded that there is a seriously arguable prospect of establishing an irregularity in the election for the office of Secretary/Treasurer which may have affected the result of that election. Therefore, in respect of that office, the inquiry will be terminated.
2. OFFICE OF BRANCH TRUSTEE
The next challenge is to the election for the office of Branch Trustee as to which two candidates, Mr Zerella and Mr Barrett, are asserted to be ineligible by virtue of not having been employed or engaged in a qualifying occupation at the time when nominations closed.
The declaration of the poll does not disclose Mr Barrett as a candidate so nothing more need be said about him. Mr Zerella received 1823 votes in the election in which he was unsuccessful. The facts relied on in support of the application allege in respect of him that in 1993 he was retrenched from his employment with TNT and has not worked since in a relevant industry. Those facts are not disputed by Mr Zerella but he has asserted through an affidavit sworn on his behalf by his solicitor that he has been seeking work in the industry since his retrenchment. If made out, that assertion would be sufficient to make him eligible for membership as "a person seeking to be employed in or in connexion with" a relevant industry within the meaning of the introductory words of s 4 of the Rules of the Union.
I consider that a real question remains, on the present state of the evidence, as to whether Mr Zerella was eligible to be a candidate in the election. However, even if Mr Zerella had been excluded as a candidate and all votes cast in favour of him had been directed to the candidate receiving the third highest number of votes, Mr Hore, that would not have procured Mr Hore's election.
Accordingly, for the reasons indicated above in respect of the election for Secretary/Treasurer, I am not satisfied that the presumptive irregularity constituted by acceptance of Mr Zerella's nomination might have affected the election for Branch Trustee. Thus in respect of the election for that office, the inquiry will also be terminated.
3. OFFICE OF BRANCH ORGANIZERS
There were 46 candidates for election to this office of whom 16 were declared elected. The successful candidates each obtained between 5272 and 4357 of the 7747 formal votes cast. The allegations made in the facts relied on in support of the application in respect of those successful candidates whose eligibility to nominate was challenged by the applicant were:
"MORRIE LESTER
Lester was elected as a Branch organizer in 1989. In 1990 he resigned that office and employment and was employed as an industrial officer with the Federal Office of the organisation. As a result he ceased to be eligible to nominate for or hold office. In or about 1991 that position was converted by the Federal Committee of Management to Federal Organizer. Following the 1992 election, Lester was employed by the Branch as an Industrial Officer.
...
DENNIS RYAN
In 1992 Ryan nominated for election as a Branch organizer in the Branch but was not elected. Following the election he was employed by the Branch as an Industrial Officer. Ryan was not validly appointed as a Branch organiser. Ryan is not and was not at the date of close of nominations employed in the industry of the organisation."
Mr Lester in an affidavit sworn 7 February 1995 deposed that he has continuously been a financial member of the Union since 1971 and, when nominations opened for the subject election, was holding the office of Branch Organizer to which he had been appointed to fill a casual vacancy. By an affidavit sworn on the same day, Mr Ryan deposed that he too has been continuously financial since he joined the Union. He was appointed a Branch Organizer in September 1992. He went on to depose:
In October 1994, I obtained permission from the Branch Committee of Management to work from time to time with Mannway Transport, in conjunction with my organising duties. I was working for Mannway Transport in November 1994, when nominations closed for the position of Branch organiser in the current elections."
The other successful candidate in the election who is claimed by the applicant to have been ineligible for nomination is Mr Ernest Fowler, as to whom it is recited in the facts relied on in support of the application:
"ERNEST FOWLER
Fowler is not and was not at the date of close of nominations employed by TDG Distribution Pty Ltd. Fowler's last payment for services to TDG Distribution Pty Ltd was made in October 1994 referable to services prior to that time."
Mr Fowler by his affidavit sworn 6 February 1995 does not seek to contradict that allegation but rather asserts:
"In October 1994 I commenced employment as a driver with M & D Tree Lopping and as at the date of the close of nominations I was employed by this business as a driver. I continue to be employed by this business."
Of the unsuccessful candidates in the election for Branch Organizers, the applicant has challenged the eligibility to nominate of Mr Agg who received 2120 votes, Mr Martin who received 2081 votes and Mr Zerella who received 2133 votes. The assertions and counter-assertions made in respect of Mr Zerella's eligibility are summarised above in relation to the election of Branch Trustees. The applicant has asserted of Mr Agg that he had not been a financial member of the Union continuously for three years before nomination because he failed to pay dues for 1993. Mr Agg's solicitor has deposed on his behalf that:
"The issue of Agg's dues for 1993 was queried by the Returning Officer and Agg provided him with proof of payment in consequence of which his nomination was accepted."
It appears to be common ground that Mr Martin in November 1994 was employed by Ridgeway Motors but I am unable to resolve, on the present state of the evidence, whether that employment was of a kind to entitle him to membership of the Union.
Since there remain real questions to be investigated in respect of the eligibility to nominate of at least Mr Zerella, Mr Agg and Mr Martin, it remains open to find that the nominations of at least two of them should have been rejected.
If that finding were made, it would not be a merely theoretical possibility that a single unsuccessful candidate might have attracted somewhat more than 2,000 votes from those who had voted for the excluded candidates so as to overtop the 4357 votes received by the sixteenth candidate declared elected as Branch Organizer. For these reasons I decline to terminate the inquiry into the election for that office.
4. OFFICE OF BRANCH COMMITTEE MEMBERS
Challenges have been made to the eligibility to nominate of four candidates in the election to fill ten positions as Branch Committee Members. The ten successful candidates received between 4500 and 4304 votes and the candidate placed eleventh in the poll received 2251 votes. The allegations made in the statement of facts relied on in the application in respect of the candidates whose eligibility is contested are:
"DARREN CRUMP
Crump resigned his office in the organization in November, 1994 prior to the close of nominations. He is not and was not at the date of close of nominations employed by Mannway Transport. Crump is not the owner of a truck.
LANCE KENNINGHAM
Between 1990 and 1992 Kenningham was employed by the Branch as a Health and Safety Officer. He was not a member of the organization during that time.
Kenningham is not and was not at the date of the close of nominations employed by Kirkman Transport. ....
... HELEN LAWRANCE
Lawrance is not and has never been an employee of TDG Distribution Pty Ltd.
WILLIAM (BILL) PRENDERGAST
Prendergast is not and was not at the date of close of nominations an employee of Blue Gem Transport Pty Ltd. Blue Gem Pty Ltd is not an employer in the industry of the organisation."
Mr Crump received 186 votes and his solicitor has deposed that he "has provided documentary proof of his employment as a truck driver with Mannway Transport since 23 November 1994". Nominations for the subject election closed on 29 November 1994. On the present state of the evidence there is a factual dispute as to whether Mr Crump was employed in a relevant industry on that date. That dispute, I consider, can only be resolved after the court has received further and better evidence and been afforded the opportunity to hear cross-examination of witnesses.
Mr Kenningham, who received 2117 votes, has asserted through his solicitor that he "has been a member of the Union since 1990 and that he was employed by Kirkham Transport Pty Ltd in November and December 1994". Mr Grove has deposed to a conversation with a representative of W & C Kirkman, a transport company in Campbellfield, in which the representative asserted that Mr Kenningham has never been employed by that company. It may be that there is some confusion about the identity of the company or firm claimed to have employed Mr Kenningham at the end of 1994 but I am not able, on the present state of the evidence, to find affirmatively that he was employed in a relevant industry on 29 November 1994.
There are contradictory assertions as to whether Ms Lawrence was employed by TDG Distribution Pty Ltd at the relevant time. Those contradictions should not be resolved by choosing between two affidavits, each based on information and belief, as to Ms Lawrance who received 2151 votes.
Mr Prendergast received only 161 votes. The reference to him in his solicitor's affidavit does not contradict the allegations against him in the application otherwise than by saying that they are "incorrect". Mr Grove has deposed to a conversation with a representative of Blue-Gem Transport which suggested that Mr Prendergast, at least in January 1995, did not work for that firm. As with the other candidates discussed above, the court is unable to resolve, at this stage of the inquiry, the dispute as to Mr Prendergast's eligibility.
For reasons essentially similar to those outlined in respect of the election of Branch Organizers, I refuse Mr Noonan's motion for summary termination of the inquiry into the election for Branch Committee Members.
I certify that this and the preceding fifteen (15) pages are a true copy of the reasons for judgment of his Honour Justice Ryan
Associate:
Date:
Counsel for Mr C Keily
and Mr D Grove: Mr K Liversidge
Solicitors for Mr C Keily
and Mr Grove: J N Zigouras & Co
Counsel for the TWU: Mr E White
Solicitors for the TWU: Ryan Carlisle Thomas
Solicitor appearing for
Mr J Driver, Mr W Prendergast
and others:Mr H Nowicki
Solicitors for Mr J Driver,
Mr W Prendergast & others: Harry Nowicki & Co
Counsel for Mr W Noonan
and others:Mr M Bromberg
Solicitors for Mr W Noonan
and others:Maurice Blackburn & Co
Solicitor appearing for
the Australian Electoral
Commission: Mr R McClure
Solicitor for
the Australian Electoral Australian
Commission: Government Solicitor
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