Re McGee

Re: STEVEN MCGEE
And: INQUIRY BY THE COURT INTO ELECTIONS FOR OFFICES WITHIN THE TRANSPORT
WORKERS' UNION OF AUSTRALIA AND WITHIN THE VICTORIAN BRANCH THEREOF
No. V I92 of 1991
FED No. 153
Registered Organisation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Keely J.(1)

CATCHWORDS

Registered Organisation - election inquiry - irregularity - construction of rule re eligibility for office - whether intention to create legal relations - whether member working part-time under separate contracts from time to time is "employed in the industry": - whether onus on applicant - whether shown that rule imposes "restrictions that are oppressive, unreasonable or unjust"

Industrial relations Act 1988

HEARING

MELBOURNE

#DATE 16:3:1992

Solicitors for Applicant: Holding Redlich

Appearing for Applicant: Miss M. Hickey with Mr A. Watson

Solicitors for Respondents: Harry Nowicki and Co.

Appearing for Respondents: Mr Gillard QC with Mr Harris

Solicitors for Transport Ryan Carlisle Thomas
Workers Union (the
organisation):

Appearing for the Transport Mr Shaw QC with Mr M. Carn
Workers Union

Solicitor for Returning Australian Government Solicitor
Officer:

Appearing for the Returning Mr S. Marshall and Mr M. Bromberg
Officer:

JUDGE1

Mr Steven McGee ("the applicant") has claimed under s. 218 of the Industrial Relations Act 1988 ("the Act") that irregularities have occurred in relation to an election for offices in the Transport Workers' Union of Australia ("the organisation") and in its Victorian Branch ("the branch"). The alleged irregularities are the acceptance by the returning officer of the nominations of Messrs C. Keily, J. Price, M. Lancaster, P. Power and J. White for various offices. It is convenient to refer to them as "the respondents", although both the organisation and the returning officer were also represented in the inquiry.

The following paragraphs from the applicant's contentions of fact and law were admitted by the respondents:

"1. The Applicant is a member of the Transport Workers' Union of Australia ("the organization"), an organization of employees registered under the Industrial Relations Act 1988 ...

2. (a) Pursuant to the rules of the organization and in particular rules 23 and 33 thereof, elections are required to be conducted triennially in respect of the federal offices of federal secretary and federal assistant secretary and branch offices respectively.

(b) Such a triennial election in respect of the federal offices referred to in paragraph (a) is required by rule 23(I) to commence in 1991 with the opening date for lodging nominations being the second Tuesday in November and the closing date, the last Tuesday in November: rule 23(I)(c). Any ballot required to be conducted is to open on the 11th February and to close on the 3rd March: rule 23(I)(e)(ii).

(c) Such a triennial election in respect of branch offices including offices within the Victorian Branch ("the branch") is required by rule 33(a) to commence in 1991 with the opening date for lodging nominations being the second Tuesday in November and the closing date the last Tuesday in November: rule 33(e). Any ballot required to be conducted is to open on the 11th February and to close on 3rd March: rule 33(g).

3. (a) Pursuant to s. 210 of the Act, the Australian Electoral Commission was responsible for the conduct of the elections referred to in paragraph 2.

(b) On 19th September, 1991 Mr John Nellor of the Australian Electoral Commission was appointed Returning Officer for the conduct of the election for the federal offices of federal secretary and federal assistant secretary.

(c) On 28th October, 1991 Mr Nellor was also appointed as Returning Officer in respect of the conduct of the election for offices within the branch.

(d) On or before 4th November, 1991 Mr Nellor set the following dates for the various steps in the conduct of these elections: Nominations open - 13th November, 1991 Nominations close - 26th November, 1991 Ballot open - 11th February, 1992 Ballot close - 3rd March, 1992

4. (a) At the closing date for nominations on 26th November, 1991, the returning officer had received nomination forms from the following persons in respect of the offices set out opposite their names:-

Christopher Keily branch secretary/treasurer John Price federal secretary branch president Murray James Lancaster branch organizer branch committeeman federal councillor John Brighton White branch organizer Patrick Thomas Power branch organizer branch committeeman

(b) The nomination form lodged by Christopher Keily stated that he was branch secretary. Each nomination form lodged by each of the other candidates referred to in paragraph (a) stated that the candidate was an organizer or branch organizer.

(c) The nomination forms lodged by each of the persons referred to in paragraph (a) was signed by him and dated as follows:- Christopher Keily 19th November, 1991 John Price 25 November, 1991 (in respect of his nomination for the office of federal secretary) 19 November, 1991 (in respect of his nomination for the office of branch president) Murray James Lancaster 19 November, 1991 (in respect of his nomination for the office of branch organizer) 19 November, 1991 (in respect of his nomination for the office of branch committee man) 20 November, 1991 (in respect of his nomination for the office of federal councillor) John Brighton White 25 November, 1991 (in respect of his nomination for the office of branch organizer) Patrick Thomas Power 19 November, 1991 (in respect of his nomination for the office of branch organizer) 19 November, 1991 (in respect of his nomination for the office of branch committee man)

(d) On 3rd January, 1992 the returning officer determined whether to accept each nomination of each of the persons referred to in paragraph

(a); on the basis of the information supplied by each in his nomination form or forms, the returning officer was satisfied that each candidate held one of the offices identified in rule 22(a)(I)(ii) and accordingly, accepted each of the nominations.

5. On the 27th September, 1989 the Australian Electoral Commission by notice in writing signed by Ronald A. Cook, declared the results of an election conducted by it for offices within the branch. That declaration included Christopher Keily as branch vice-president.

6. (a) After the declaration of the results of the 1989 branch election, the branch committee of management on the 28th September, 1989 appointed a number of persons as field officers. This it did by resolution as follows:-

'That this BCOM appoint the following Field Officers with duties as determined by the BCOM in relation to Owner Drivers, Workcare/Health and Safety and generally:

(i) Chris Keily

(ii) John White

(iii) Patrick Power

(iv) Rupert Peake

(v) John Price

(vi) Murray Lancaster'

(b) From that time, each of those persons was employed within the branch on a full-time basis, performing industrial and organizing functions. ....

7. (a) Thereafter on the 13th October, 1989 the branch committee of management resolved as follows:- "In respect to field officer positions 'This BCOM resolves until further resolution, to make the office of Branch Vice-President a paid office with salary and entitlements equivalent to that of Branch Organizers and that the Branch Vice President hereby ceases to be a Field Officer'."

This was a reference to the employment of Christopher Keily and the office of branch vice-president to which he had been elected.

(b) After the passage of this resolution Christopher Keily remained employed on a full-time basis within the branch.

8. (a) At its meeting on the 2nd April, 1990 the branch committee of management resolved:- "That C. Keily be appointed to assist the Branch Secretary on all functions as outlined in the rules and position be known as Assistant Secretary. That the Union draft a suitable rule change to identify duties and responsibilities to reflect the above."

(b) Thereafter, Christopher Keily held himself out as branch assistant secretary and continued to do so up until the 19th August, 1991.

(c) At all material times the rules did not and do not provide for any such office at (sic) branch assistant secretary.

(d) During this time, Christopher Keily remained employed on a full-time basis within the branch.

9. (a) At an extraordinary meeting of the branch committee of management on the 19th August, 1991 it was resolved amongst other things -

"1.) That the Branch Committee of Management resolves to increase the number of branch organizers by 4.

2.) That the Branch Committee of Management resolves to appoint the following persons to the position of branch organizer to take effect from the 19th August, 1991, 1) John Price

2) Murray Lancaster

3) Chris Keily

4) John White."

(b) The same meeting resolved:- "That the Branch Committee of Management resolves to accept the resignation of N. Jones and appoint Pat Power to the position of Branch Organizer to take effect from the 30th August, 1991."

(c) N. Jones had been elected to a position of branch organizer as a result of the 1989 branch election.

10. (a) Each of the persons purportedly appointed and identified in paragraph 9(a) and (b) had been appointed as a field officer by the branch committee of management at its inaugural meeting on the 28th September, 1989.

(b) Each of the persons referred to in paragraph (a) took up that employment as a field officer within the branch from that time and each, except Christopher Keily remained so employed until the resolution purporting to appoint each as an organizer. ....

12. (a) At an extraordinary meeting of the branch committee of management on 19th August, 1991 the branch secretary Keith Wise tendered his resignation to take effect on 9th September, 1991.

(b) At an extraordinary meeting of the branch committee of management on the 9th September, 1991 it was resolved "that C. Keily be appointed to the position of Branch Secretary".

(c) As a result of the resignation of K. Wise from the office of branch secretary, a casual vacancy occurred therein. The provisions of rule 34(1) were applicable to the filling of that vacancy.

(d) The provisions of rule 34(1) empowered the branch committee of management to fill that vacancy by appointment of a member eligible to nominate for and hold the office pursuant to rule 22."

The issues

The substantial issues were:
(1) The construction of rule 22 of the organisation's rules;
(2) Whether Messrs Keily, Price, Lancaster and Power were at the

material times "employed in the industry in connexion with which the Union is registered" within the meaning of those words in rule 22(a)(II)(ii), as contended in their contentions of fact and law.

(3) Whether the respondents were correct in their amended contention

(para 16) that, "if each of the said candidates was not eligible, by operation of Rule 22(a)(II) to be appointed to the office of organiser as contended for by the Applicant (which contention is denied), then such Rule is contrary to Section 196(c) (of the Act)".

(1) The construction of rule 22

Detailed submissions as to the construction of rule 22 were advanced by counsel for the applicant, the organisation and the respondents.
Rule 22(a) and (b) of the rules provided as follows:-

"(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 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 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 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 respondents submitted that the words "is a person holding office as ... Organizer", appearing in rule 22(a)(II)(ii), did not arise for consideration until the time arrived for that person "to hold" the office to which he had been elected. Those words were contrasted with the words "a person shall not be eligible to nominate for any office ... unless, at the date of close of nominations for election ..." appearing in rule 22(a)(I) - set out above.
The applicant and the organisation submitted that rule 22(a)(II) should be construed as part of rule 22(a) and that it would be absurd if a person who could not "hold" an office could validly be appointed to that office. The organisation submitted that the "combination of Rule 22(a)(I) and (II) means that a person eligible to stand for and occupy any office in the union must be relevantly qualified at the times of nomination, appointment, first taking up the office and retaining it". It was put by the organisation in its contentions that that construction of rule 22 reflected a discernible, rational policy, which was said to be:

"... to ensure that persons appointed or elected to office within the organisation are either:

(i) rank-and-file members; genuinely employed in the transport industry; or

(ii) existing full-time officers, validly appointed or elected."

Reliance was also placed upon the meaning of the words "eligible to hold" in rule 22(b) and it was submitted that the words "to hold" in rule 22(a)(II) should be given a meaning consistent with that in rule 22(b). In my opinion the submissions of the applicant and the organisation should be upheld; a person could not be validly appointed as an organiser unless he fulfilled the requirements of rule 22(a)(II) at the time of the appointment.

It should be stated that, in reaching that conclusion, I have not accepted the submission by the organisation that the court should infer that "in revising the rule, the organisation intended only to remedy the mischief exposed" by this court's decision in Grimshaw v Petrie (ex tempore decision of 17 December 1982 - unreported).
I have rejected the submission by the respondents that the construction of rule 22 for which they contend is supported by the reasons for judgment of Smithers A.C.J., Woodward and Northrop JJ. in Allshorn v Stapleton and Ors. (1984) 8 IR 229 at 231-232. As the Full Court said (at 231) it was considering the question whether the rules "merely" required that the federal secretary should be a branch secretary "at the time of his election or whether ... he ceases to be eligible to retain the position if he ceases to be a branch secretary". Further, the issues in that case were different, as is made clear by the report (in (1984) 6 IR 439) of the judgment which was there under appeal. I have also considered the reasons for judgment in Re Brzycki; ex parte RANF, S.A. Branch (1984) 2 FCR 546, another authority cited by the respondents, but in my opinion they do not support the respondents' submissions.
Before turning to the second issue, it should be noted that the respondents' contentions (para 11(a)) accepted that Mr White was not, on 19 August 1991, "employed in or in connexion with the industry ...". His senior counsel accepted that his eligibility to nominate depended entirely upon the respondents' contention as to the construction of rule 22. As that contention has failed, Mr White was not entitled to nominate for the office of branch organiser and an irregularity has occurred in the acceptance of his nomination.
(2) Whether Messrs Keily, Price, Lancaster and Power were, at the material times, "employed in the industry ..."
In Re Election Inquiry - Transport Workers Union Western Australian Branch (judgment delivered 12 February 1992), French J. considered the construction of rule 22 and the words "employed in the industry". An irregularity had been alleged in relation to the acceptance, by the returning officer, of the nomination of one Handmer for the office of Branch Secretary in the Western Australian Branch of the organisation. The applicant contended, amongst other things, that there was "no contract of employment between Handmer and Carter Transport and no intention to form any legally binding relationship".
French J. said (at pp 19-20 of the typed reasons for judgment):-

"The evident purpose of r.22 is to limit access to elective Union office to those who are currently, actively engaged in the transport industry. There may be a question whether it applies to those who have a continuing history of involvement in the industry, but are between jobs and looking for work in the industry at the time they nominate. A construction of the rule to exclude from candidacy such persons or those who continue to make their living as casual employees in the industry but do not have a job on nomination day would be unfortunate and the applicants did not contend that it should be so construed. But the choice of language in the rule is such that it is capable of a narrow construction which imposes as a condition of eligibility the requirement that a nominee for a union office be working under a contract of employment on the day of the nomination. A broader construction would treat the words "employed in the industry" as meaning engaged in or occupied in the industry in a sense which covers a person who has worked in the industry and continues to seek work in it. The difficulty with the latter approach is that it may be productive of uncertainty in the application of a rule of considerable importance to the democratic government of the Union.

Nevertheless, the wider view is consistent with that preferred approach to the construction of union rules which requires them to be construed not technically or narrowly but broadly and liberally and not "subjected to the same meticulous scrutiny as a deed carefully prepared by lawyers" - R v Holmes; Ex parte Public Service Association (NSW) (1977) 140 CLR 63 at 73 (Gibbs J.); Re An Election in the Australian Collieries Staff Association (NSW Branch) (1990) 26 FCR 499 at 502 (Lockhart J.)."

I agree, with respect, with his Honour that "the choice of language in the rule (rule 22) is such that it is capable of a narrow construction ...". However, in my opinion the rule should be given the "broader construction", which his Honour said "would treat the words 'employed in the industry' as meaning engaged in or occupied in the industry in a sense which covers a person who has worked in the industry and continues to seek work in it".
Senior counsel for the organisation in his final address did not contend "that casual employment or part time employment, if engaged in at the relevant time, would be outside of the concept of employment within rule 22". He did not make submissions on the particular facts or circumstances of the individuals but confined himself to general submissions about what arrangements would constitute employment as a matter of law.
The applicant's counsel submitted "that rule 22 where it is dealing with employment in the industry does not require that you actually be employed. You may be seeking employment or you may be usually employed ... if, for example, a person were retrenched ...". In her final address she did not contend that rule 22(a)(I) should be construed as "excluding part-time and casual employees". She said "it is possible to be both a full time officer and employed in the industry ... part-time (but) casual employment may not result in a subsisting contract, only a contract from time to time at those times and so often as the work may be performed". In this connexion senior counsel appearing for each of the four respondents accepted that "each case (was) a separate contract" (transcript p 771). However he relied upon the evidence that "the work was carried out over regular intervals", which had "gone on over a considerable period of time". He submitted that each of the four respondents had shown "a long involvement in the trucking industry", which was "established casual work in the workplace ... of a kind recognized in the transport industry".
I agree with the observations of French J. in the TWU W.A. Branch Election Inquiry that the question of whether the candidate's arrangements to perform work amounted to a contract of employment requires "a judgment to be made in all the circumstances of the case"; further, that (p 23) it "is of little utility to review the considerable body of case law to which (the court) was referred in which courts have assessed the contractual or other nature of various types of arrangements which depend upon their own facts and circumstances".
I also agree with his Honour's observation (at p 20) that the "broader construction" of rule 22 (which I have accepted in these reasons) "may be productive of uncertainty in the application of a rule of considerable importance to the democratic government of the Union". Similar concern was expressed by Gray J. in dealing with the question of whether people were employees or independent contractors, in Re Porter; Re Transport Workers Union of Australia (1989) 34 IR 179 at 184:-

"A court determining whether a particular relationship is that of employment or of some other kind can therefore only resort to the process of balancing all of the factors, or as they are called in Stevens (v Brodribb Sawmilling Co. Pty. Ltd. (1986) 160 CLR 16) and other cases, the "indicia". In truth, the result may be a matter of impression. It is unfortunate that this is so. It should not be necessary for people to obtain a decision of a court, in order to know the true nature of their relationship. Unfortunate or not, that is the case. ..."

In that case, Gray J. also said (at 184):-

"As is indicated by the passages in Stevens to which I have referred, there is no prescribed list of factors which will be examined in determining whether a contract is one of employment. Any circumstance which may shed light on the nature of the contract will be taken into account. .... (at 185) In many respects, the balancing of various factors once they are assembled is difficult. This is because many of the factors commonly relied upon prove to be of insubstantial weight upon proper analysis."

The applicant's counsel submitted that the work performed by each of Messrs Keily, Price, Lancaster and Power ("the four respondents") was not performed under any contract, in that there was no intention to enter into legal relationships. Alternatively, it was argued that "whatever the arrangement was, it certainly was not employment". Counsel also said:

"I am quite happy to accept that for the purpose of this case that I should demonstrate ... that they did not have a contract of employment at that time, ie, working in the industry. But ... I really do not have to prove ... exactly what the nature of the arrangement they might have had with these other people were."

In my opinion there was no onus on the respondents to show that they were employed "in the industry". It may be that there is no formal onus of proof on an applicant where, as here, the court is conducting an inquiry. However, the applicant has claimed, under s. 218, that irregularities have occurred, and has given particulars of those irregularities as including the acceptance by the returning officer of the nominations of each of Messrs Keily, Price, Lancaster and Power. The court is required by s. 223(1) of the Act to "inquire into and determine the question whether an irregularity has happened in relation to the election". In this inquiry the court can not find that any of those alleged irregularities has "happened" unless it first finds, on the balance of probabilities on the evidentiary material before it, that the relevant respondent was not, at the material time, "employed in the industry" within the meaning of rule 22.
As the applicant's counsel said "... all the evidence was one-sided ... it all emanated from the person who had a vested interest in maintaining the assertion that there was an employment situation. None of the putative employers were called ...". However, most of them were available to be called to give oral evidence; reference will be made later in these reasons - in dealing with the individual respondents - to the availability of evidence from certain "putative employers".
The evidence as to the arrangements for the performance of the work under consideration has been critically examined by the applicant's counsel who, in her final address, said "... by and large we do not have direct evidence of ... what the intention of the parties was, and it is a matter of ... making the relevant inference having regard to all the surrounding circumstances ...".
It is understandable that lawyers question why the parties to an arrangement for work did not conduct themselves in a certain way; for example, (a) why did they not keep records of the days and times worked, the amounts paid etc., (b) did they give consideration to the question whether the Victorian award applied to the work, (c) was "suing him (the putative employer) part of that arrangement" (see, for example, transcript 228-229) and (d) was consideration given to whether the respondent needed to obtain permission to work (see rule 59(c) of the rules). Presumably the arrangements would have been more closely considered and the details clearly specified if the respective parties to those arrangements had been legal practitioners. The parties were not legal practitioners; they were truck drivers and small businessmen, respectively.
In considering the evidence it should be borne in mind "that people are seldom found in fact conducting themselves as, according to general reasoning, they are expected to do". That opinion appears in the reasons for judgment of Dixon and Evatt JJ. in Haevecker v Haevecker (1936) 57 CLR 639 at 661. Their Honours, after referring to "the economy of explicit statement practised by the parties", said:-

"Neither the evidence which has been believed nor that which has been disbelieved contains an account true or false of any occasion when the husband, or either of the other two persons concerned, insisted on stating his or her position in unmistakable terms. From this, perhaps, no more should be drawn than a lesson that people are seldom found in fact conducting themselves as, according to general reasoning, they are expected to do."

It is neither necessary nor practicable to refer to all of the lengthy evidence given (in excess of 200 pages of transcript) as to the work and work arrangements in respect of each of the four respondents but it is desirable to refer to the more significant parts of it.
Mr Keily
Mr Keily worked as a truck driver (1) for about one year from 1973 for one employer (2) for about four and a half years for "W.G. Hicks, a transport company" (affidavit para 4) and (3) for Carlton and United Breweries ("C.U.B.") from March 1979 until February 1987 when he (and all the drivers) was dismissed and later re-employed. He had joined the organisation in 1973, been elected Assistant Shop Steward in about 1981 and from 1985 was the organisation's delegate at the Bouverie Street C.U.B. yard. In September 1987 there was a stoppage of work for some days and he, together with the other drivers, was dismissed. Drivers were offered re-employment "on a selective basis" but he was not offered re-employment and believed that that was because he "was an active Shop Steward".
Between November 1987 and September 1989 he was employed driving trucks on a casual basis for various employers including the Relief Driver Bureau. In June 1989 Mr Keily was asked by Mr Bill Buchholtz if he would service the 8-9 tonne International tray truck which Mr Buchholtz used in his business as an owner-driver (the spelling of his name in these reasons has been taken from the subpoena, in response to which he attended court). The work offered was to grease the truck, wash and clean it, check the oil, water and brake fluid levels; also, at times, to paint the wheel hubs, change the oil filter, change the air filter and change tyres. Mr Keily gave evidence that Mr Buchholtz would have had some difficulty in performing all of that work himself.
The work was done, on an average, once every three or four weeks; always on a weekend and generally performed on a Sunday. Until the end of September 1989 he was paid in cash an amount which varied between $60 and $80, depending on "how long it took to do it".
Mr Buchholtz supplied the necessary equipment - including grease gun, grease can and paint. He normally instructed Mr Keily as to what work he wanted done but at times was not present when the work was performed; on those occasions Mr Keily got the equipment from a "back shed" and was paid by Mr Buchholtz later in the week. After becoming a field officer with the Branch at the end of September 1989, Mr Keily continued to perform that work for Mr Buchholtz; he did so after coming to an arrangement that Mr Buchholtz would pay him a slab or slabs of beer, instead of cash.
At times Mr Keily did other work for Mr Buchholtz, including moving furniture and moving window frames, with Mr Keily performing the work of both loading and unloading the truck and also of driving it. On 26 November 1991 Mr Keily had a rostered day off from his work at the branch office and worked for Mr Buchholtz driving the truck, loading it with paper products and then delivering them, working from 7.00 a.m. until about 12 noon. He was "paid in the form of 2 slabs of beer". His evidence (on 4 February 1992) was that he had last worked for Mr Buchholtz 2 weeks ago last Saturday (i.e. 18 January 1992).
Neither the applicant nor Mr Keily called Mr Buchholtz to give evidence as to the nature of the arrangement between him and Mr Keily. He was available to give evidence and attended court in response to a subpoena to produce documents, issued at the request of the applicant (transcript p 451).
I have considered the applicant's submissions (and cross-examination) directed towards the questions (a) whether Mr Keily would have sued Mr Buchholtz, for remuneration and "whether suing him was part of that arrangement" (transcript p 228-229) (b) whether Mr Keily sought permission from the branch to perform the work (rule 59(c)) and (c) whether Mr Keily gave consideration to the Victorian Carters and Drivers Award and the Victorian statutory provisions which are based upon the Truck Act.
Having considered all of the evidence as to Mr Keily, including the detailed cross-examination of him as to the work arrangements, I am not prepared to uphold the submissions of the applicant's counsel that (a) there was no intention to create legal relations and (b) alternatively, if there was a contract it was not a contract of employment. Reference may be made briefly to some of the authorities cited by the applicant. In my opinion Mr Keily was not a mere volunteer (cp Kemp v Lewis (1914) 3 KB 543; nor was his arrangement with Mr Buchholtz a matter of "practical convenience to both" (cp Coward v Motor Insurers' Bureau (1963) 1 QB 271 which referred to "a contribution to the cost of transport"); nor was it a case of the "ordinary domestic relationship of husband and wife" as in Balfour v Balfour (1919) 2 KB 571 at 577-599. The arrangement was not in the well-known category of family, domestic or social agreements, in respect of which there is a presumption that the parties do not intend to create legal relations.
The work performed by Mr Keily for Mr Buchholtz between November 1987 and the end of September 1989 was:-

(i) of benefit to Mr Buchholtz in carrying on his business as an owner driver

(ii) work which Mr Buchholtz would have had some difficulty in performing

(iii) work in respect of which Mr Buchholtz supplied all the necessary equipment

(iv) work in respect of which Mr Buchholtz normally gave all necessary instructions and

(v) Mr Keily was paid in cash - $60 or $80 depending on how long it took to perform the work.

The work performed before the election result in September 1989 was, in my opinion, performed under contracts of employment. As to the work performed by Mr Keily for Mr Buchholtz after that date, in my opinion items (i), (ii), (iii) and (iv) above were equally applicable. Mr Keily's explanation as to the change in the type of remuneration (from cash to beer), for the work performed by him after the election result in September 1989 (see item (v) above), had some unsatisfactory features. However, notwithstanding the change in the remuneration and the explanation given for it, in my opinion the later work was also performed under contracts of employment.
In my opinion Mr Keily was, at the date of close of nomination, "employed in the industry" within the meaning of rule 22. The acceptance of his nomination did not constitute an irregularity.
Mr Price
Mr Price was employed by Express Freight Pty. Ltd., which was owned by United Transport Pty. Ltd., which was sold to Brambles Limited in 1989. He was employed as a semi-trailer driver from 1976 to 1980. From 1980-1983 he worked as a forklift driver in the yard at United Transport, loading and unloading freight, working a 12 hour day. From 1983-1985 he was employed by Express Freight as a radio operator; he was then promoted to the position of a fleet controller, where he remained until late in 1986, when he was appointed operations manager for United Transport; in 1987 he was transferred back to the position of a fleet controller.

In September 1987 he became a shift supervisor with Caltex Oil Limited, co-ordinating the loading and unloading of oil tanker trucks. In March 1988 he returned to United Transport as a fleet controller and in August 1988 he was transferred to work as a "local wharf semi-trailer driver" (at his own request).
On 28 September 1989 he was appointed by the Branch as a field officer. He was "conscious that it might be difficult to get employment back in the transport industry as an ex-union official" and "(as) a result ... arranged to work for a person regularly on a Saturday driving a truck".
The person for whom that work was done was Mr Danny Moylan, with whom Mr Price had worked at United Transport. From just before 26 September 1989 until February 1990 he worked for Mr Moylan (who operated as a sub-contractor for United Transport), driving his Kenworth prime mover, hauling trailers owned by United Transport. That work was done on a Saturday "about once a month"; on "a lot of Saturdays (Mr Moylan) wanted to work the vehicle himself".
Instructions as to the work to be performed were given by Mr Moylan and the duration of a day's work was generally about four hours. Mr Price was paid "at the appropriate overtime rate according to the 1983 award"; income tax was deducted and tax stamps supplied by Mr Moylan to the Taxation Department.
Mr Price also arranged with Mr John Stacey to wash and clean his Ford XF panel van about once a month; in the winter months Mr Price on some occasions performed that work for Mr Stacey on a fortnightly basis. That work occupied one and a half to two hours and commenced in February or March 1990. The remuneration for the work "was a slab of beer" which was brought to him by Mr Stacey when he came for his van. Mr Price has continued to perform that work on that basis, the last occasion being "a couple of weeks ago".
Mr Stacey had a contract with Ipec which obliged him to maintain that vehicle "in a clean and proper condition" - said by Mr Price to be important because "those companies try and have both their drivers and their vehicles presenting the best image possible to be able to obtain work".
Mr Stacey supplied to Mr Price the "bucket and sponge and the appropriate detergent and everything in the back of his van" but Mr Price used his own hose and the work was performed at Mr Price's home.
Mr Stacey at times made specific requests e.g. he asked Mr Price "after (he) had washed and cleaned it, to Windex all the windscreen and the windows on the vehicle. Other occasions he wanted me to apply tyre black to the tyres ... on one occasion ... he even asked me to rotate all the tyres around on the vehicle from the front to the back".
Neither the applicant nor Mr Price called Mr John Stacey to give evidence as to the nature of the arrangement between him and Mr Price. He was available to give evidence and attended court in response to a subpoena to produce documents, issued at the request of the applicant (transcript p 480).
Having considered the detailed submissions advanced by the applicant's counsel and all of the evidence as to Mr Price, including the detailed cross-examination of him, I am not prepared to uphold the applicant's submission that (a) there was no intention to create legal relations and (b) alternatively, if there was a contract it was not a contract of employment.
Much of what already appears in these reasons in dealing with the question of whether Mr Keily was "employed in the industry" has substantially the same application to Mr Price. For example, his work was of benefit to Mr John Stacey in his business; Mr Stacey supplied the necessary equipment and gave the necessary instructions and paid Mr Price with a slab of beer for work the performance of which took one and a half to two hours. In my opinion Mr Price was, at the date of close of nominations, "employed in the industry" within the meaning of rule 22. The acceptance of his nomination did not constitute an irregularity.
Mr Lancaster
Mr Lancaster completed his apprenticeship as a motor mechanic in 1982. He worked for the Shire of Bulla for about 12 months starting in 1985, driving a tipper truck and also working as a mechanic. In 1986-87 he performed delivery and pick up of equipment and plant for B.E. Hire Pty. Ltd. and also did mechanical work. After an accident he was off work for a number of months.
In February 1988 he began work for his brother Kevin Lancaster as a full time driver of a tipper truck. That continued for about 4 months. From September-October 1988 and for 3 or 4 months before 27 September 1989 he worked for Pringle Automotive Pty. Ltd. as a mechanic but he also worked for his brother.
From September 1989 until about July 1990 Mr Lancaster drove his brother's Toyota tipper truck at weekends to earn some extra money. During that period, Mr Lancaster generally worked every second weekend, about 6 hours on the Saturday and 2 hours on the Sunday. He was instructed by his brother as to the places where he was to call and the addresses to which he was to deliver - normally a list of 6 houses where he had to deliver soil or screenings; he was paid $10 per hour for the work.
From July 1990 until about August 1991 Mr Lancaster worked for Grants Removals, assisting in the removal of furniture from houses and flats and occasionally from offices. He was paid cash, $10 per hour, for that work. That work varied between one and four days per month and normally occupied about 4 hours per day. He was hired by Mr Grant Myers who would generally ring him early in the week regarding the weekend work; he was normally given instructions by Mr Myers as to where he was to go and what he was to do but sometimes those instructions were given by another person working for Grants. During the last 6 months Mr Myers had telephoned him to offer work but Mr Lancaster was working for someone else.
Towards the end of 1990 Mr Lancaster began work for W.K. and C.G. Kirkham. Between then and December 1991 he worked for them "about a dozen times; might be a little bit more" probably between 4 to 6 hours each time. That work included "going out and picking up ... small loads to make up one big interstate load" and loading a truck in the yard with a forklift. His instructions were given by Mr Keith Kirkham and he was paid $10 per hour. Mr Lancaster said he did that work because he needed the money.
Neither the applicant nor Mr Lancaster called Mr Grant Myers to give evidence as to the nature of the arrangement between him and Mr Lancaster. He was available to give evidence and attended court in response to a subpoena to produce documents, issued at the request of the applicant (transcript p 481). Attempts by the applicant to serve, upon each of W.K. Kirkham and C.G. Kirkham and upon W.K. and C.G. Kirkham Transport Pty. Limited, a subpoena to produce documents were unsuccessful (transcript p 812).
Having considered the applicant's submissions and all - 29 of the evidence as to Mr Lancaster, including the detailed cross-examination of him, I am not prepared to uphold the applicant's submissions that (a) there was no intention to create legal relations and (b) alternatively, if there was a contract it was not a contract of employment.
Much of what has been said earlier in these reasons, in relation to Mr Keily, has substantially the same application to Mr Lancaster. His work was of benefit to (a) his brother (b) Grants Removals and (c) W.K. and C.G. Kirkham in their respective businesses; they paid him in cash, supplied the necessary equipment and gave him the instructions necessary for the performance of the work.
In my opinion Mr Lancaster was, at the date of close of nominations, "employed in the industry" within the meaning of rule 22. The returning officer's acceptance of his nomination did not constitute an irregularity.
Mr Power
The evidence given by Mr Power as to being "employed in the industry" may be summarised as follows. He was employed by Mr Brian Crichton, initially on a part-time basis, to drive a taxi and then on a full-time basis in 1980-81. In 1982-85 he worked for Wreck-Air Hire Pty. Ltd. with his own truck and crane and continued to work part-time for Mr Crichton, mainly on Sundays. Whilst still working part-time for Mr Crichton, in about April 1986 he obtained employment with Carlton and United Breweries as a truck driver, where he worked until about September 1987, when he was dismissed whilst on strike. From November 1987 until September 1989 he "continued working as much as (he) could driving a taxi employed by Mr Crichton". In his affidavit he deposed that, "from September 1989 (when he began working for the branch) until February, 1990 I continued working part-time, mainly on Sundays, driving a taxi for Brian Crichton. He died in March, 1990". It may be noted that his oral evidence gave a somewhat different version. Asked by his senior counsel why he stopped driving for Mr Crichton, he said "Well, unfortunately, Mr Crichton died and I discontinued driving."
From 1988 to June 1990 K and G Stack owned a chicken catching business near Lara. G. Stack was his sister-in-law and K. Stack was her husband. He worked for them in that business "from time to time ... with some of my duties involving driving trucks" but not after his appointment by the branch as a field officer in September 1989.
After K. and G. Stack bought two Produce Stores he did driving work for them "on an irregular but not infrequent basis" from about June 1990 until "middle to late" January 1992. That work was to transport stock feed and other products from Fitzroy for their stores in Geelong "on either a Wednesday evening or on weekends as required ...".
Mr Power said he also worked for Dean Stack and Brent Stack, sons of K. and G. Stack, driving a horsefloat, which had room for 5 horses, to various rodeos in Victoria. He deposed that he "would receive a small payment for doing this" and in his oral evidence that he had "done that three times over a period of two years". Asked as to "the small payment" he said (transcript p 444):-

"It is just a matter of convenience and seeing I had the heavy licence I drove the truck and at the end of the day when we came back and unloaded the horses, the people that had put their horses in the horse float they would come up and - there was no set amount but, you know, sometimes there would be a $50 note off one and $40, you know, all depends because it would cost them that much in petrol anyway themselves so it is convenient for them and, as such, for my time they would slip something in my pocket. And those amounts were from persons other than Dean and Brent Stack?---That is correct."

Mr Power was also a representative of "the lessee drivers of the taxi industry" on the Victoria Taxi Consultative Council, having been nominated by the branch secretary. He had attended four or five meetings and had a "feeling they (the Government) are going to start sending cheques for" the time taken to attend meetings and some investigative work done by him outside meetings. He added "I suppose when (the cheques) start arriving, I still don't know what to do with them, that is - I don't know." There was no evidence as to the likely money amounts in any such cheques nor as to the basis of calculation of any such amounts.
As to the work from about June 1990 until the time of the hearing, Mr Power's evidence that there was an "agreement" that he would repay the money he had borrowed from K. and G. Stack by driving for them was quite unsatisfactory. Asked by his senior counsel "what is the agreement in terms of remuneration in relation to each hour of service you provide to K. and G. Stack" he answered "Roughly $12 an hour ... not in cash or monetary terms but it is paid towards paying off - it goes towards the debt that I owe them" (transcript p 406-407).
Further, his evidence as to how much of the debt had been repaid was quite unconvincing, including his answer to his senior counsel "I would say that within two or three months I will be in the clear" (i.e. clear of the debt). He had no record at all of the days on which he worked or the hours worked. Asked how did he know that he would "be in the clear", if he did not have some record, he said (transcript p 407):

"Well, I have got nothing specific; I just know that I have worked roughly 200 - you know, I just know I work about 15 to 20 hours a month and on my calculations I am due to have a talk to Kerry to discuss the matter.

Do you know if he has a record?---No, he trusts me. You do not know or you know that he does not know?--- No, I am sure that he has not got a record."

In considering, earlier in these reasons, the work performed by Messrs Keily, Price and Lancaster, I concluded that the failure of the parties to keep records did not necessarily suggest that there was no intention to create legal relations and no contract of employment, although it is obviously relevant to those contentions. Each of those three respondents was receiving remuneration - either in cash or in kind. Mr Power, on the other hand, did not have handed over to him cash or slabs of beer or anything else of value in lieu of cash - as occurred with those three respondents, at or shortly after the completion of the work. In his evidence on that aspect, set out earlier, Mr Power said that his remuneration was "not in cash or monetary terms but ... it goes towards the debt that I owe them" (transcript p 406-7). In the case of Mr Power the absence of records - and his evidence on that subject - are more significant. His answer (quoted earlier) to his senior counsel of "Roughly $12 an hour" is also significant.
I am unable to accept Mr Power's evidence that there was an agreement that the balance of his existing debt to K. and G. Stack - which balance was uncertain and was said by him in his evidence in chief to be "between $2,500 and $3,000" - was to be reduced by "roughly" $12 per hour for each hour worked by him.
Mr Power, in cross-examination, said that at an earlier stage, when he was "campaigning and driving a taxi", K. and G. Stack had made "funds available to my wife on a lot of occasions"; he also accepted that it was "a close extended family". That family relationship is relevant to the question whether there was an intention to create legal relations.
In my opinion, on Mr Power's own evidence, including his answers in cross-examination, there was no contract of employment nor was there any intention to create legal relations with K. and G. Stack in respect of the period from about June 1990 to January 1992. The evidence of Mr Power (transcript p 407 - quoted earlier) that Mr Stack "has not got a record" and that "he trusts me" (bearing in mind that Mr Power had kept no record of the days or the hours worked) may be contrasted with the formal agreement, dated 2 May 1981 (Exhibit G3), between Mr Power and K. and G. Stack as to the way in which he was to pay them for his purchase of a truck.
Even making full allowance for the matter referred to by Dixon and Evatt JJ. in the passage quoted earlier from Haevecker v Haevecker, I accept the applicant's submission that, on the evidence before the court, Mr Power and K. and G. Stack did not intend to create legal relations in their arrangement as to that work, which began about June 1990.
In this case, as in those of the other three respondents, neither the applicant nor Mr Power called the "putative" employer (K. Stack or G. Stack) to give evidence as to the nature of the arrangement between them and Mr Power. Mrs Stack was available to give evidence and attended court in response to a subpoena to produce documents, issued at the request of the applicant (transcript p 566).
In my opinion, on Mr Power's evidence, there was no intention to create legal relations with Dean and Brent Stack or with any of the horse-owners who gave him some money on three occasions during a period of two years; nor was there, on the very brief evidence before the court, a contract of employment in relation to the Taxi Consultative Council.
In my opinion in the period from about June 1990 until January 1992 Mr Power was not "employed in the industry" within the meaning of those words in rule 22. His nominations were for the offices of branch organiser and of branch committeeman. It follows from the foregoing that, as he was not "employed in the industry" within the meaning of rule 22 at the time of his purported appointment as an organiser, in August 1991, nor at the date of close of nominations in November 1991, he was not eligible for nomination and irregularities occurred in that the returning officer accepted those nominations.
(c) Whether rule 22(a)(ii) is contrary to s. 196(c) of the Act
As will be noted from para 16 of the amended contentions of the respondents, the challenge to rule 22(a)(ii) was introduced by the words "if each of the said candidates (i.e. the five respondents) was not eligible ... to be appointed to the office of organiser ... then such Rule is contrary to Section 196(c) (of the Act)". As three of the five candidates have been held to be eligible, it may be thought that the challenge does not arise. However, the matter has been argued and should be determined, although the arguments advanced in the challenge to rule 22(a)(ii) are weakened by the court's ruling that Messrs Keily, Price and Lancaster were eligible to stand for office.
The challenge must, of course, be considered in the light of the following well-known, and oft-cited, passage in the reasons for judgment of Deane J. in Municipal Officers' Association of Australia v Lancaster (1981) 54 FLR 129 at 164-165:-

"The constraints and restrictions imposed, by positive and negative requirements of the Act and regulations, upon the freedom of the members of an organization to select, for themselves, the rules which they consider appropriate for their particular organization, are real and significant. It cannot, however, be too strongly stressed that, subject to those constraints and restrictions, the content of the rules of a registered organization is primarily a matter for the members (Watson v Australian Workers' Union ((1967) 10 FLR 347, at p 361);Cassidy v Amalgamated Postal Workers' Union of Australia ((1967) 11 FLR 124, at pp 126-127); Wiseman v Professional Radio and Electronics Institute of Australasia ((1978) 35 FLR 24); Re Airline Hostesses' Association ((1980) 48 FLR 214)). This Court has no authority generally to supervise the content of the rules or to require that the rules comply with what those constituting the court might see as preferable, desirable or ideal. To put the matter differently, it is for the members, or those entrusted by the members in that regard, to decide the content of the rules. The function of this Court is to determine, in accordance with ordinary judicial procedure, whether some provision or provisions of the rules adopted by, or on behalf of, the members can properly be described not merely as undesirable but as oppressive, unreasonable or unjust. In this regard, it seems to me that if any of the comments of members of the Commonwealth Industrial Court in Cameron v Australian Workers' Union ((1959) 2 FLR 45) would support the view that the court was exercising a primary, rather than a restricted supervisory, function in determining whether the rules of an organization conflicted with the requirements of s. 140(1)(c) of the Act, those comments should not be followed by this Court. ...

Those three words are used objectively in the clause and each of them is to be given its ordinary strong meaning. Plainly, their meanings overlap and definition is liable to adulterate the strength which the words possess. Nonetheless, it seems desirable that I indicate the meaning which I ascribe to them. To be oppressive, a condition, obligation or restriction must be burdensome, harsh and wrongful (see, for example, Scottish Co-operative Wholesale Society v Meyer ((1959) AC 324, at p 342); Re Jermyn Street Turkish Baths Ltd. ((1971) 1 WLR 1042); Allen v Townsend ((1977) 31 FLR 431)). To be unreasonable, it must be immoderate and inappropriate. To be unjust, it must be contrary to right and justice and to ordinary standards of fair play (see, for example, Re Kempthorne Prosser and Co.'s New Zealand Drug Co. Ltd.

((1964) NZLR 49))."

In my opinion the material before the court does not establish that the rule imposes on members "conditions, obligations or restrictions that ... are oppressive, unreasonable or unjust"; in reaching that conclusion I have taken into account both the construction of the rule (set out earlier) and the effect of the rule in practice, as far as it appears from the conclusions expressed by the court in relation to Messrs Keily, Price, Lancaster and Power.
I accept the following passages from the written submission in reply lodged by the organisation:-

"(1) The organisation has a right to determine qualifications to candidacy for office.

(2) Whether or not competent people can be recruited to offices within the organisation is a matter of assessment and policy for the organisation.

(3) The evidence does not support the argument of the disputed nominees that the skills required of organisers are not possessed by the rank and file membership or delegates.

(4) A rule requiring a candidate for office in an organisation to have performed work in the relevant industry is a sensible one because it ensures that office holders have bona fide experience in the industry.

(5) In any event the Rule does not harshly affect the interests of the very small number of relevant employees of the organisation because they take up employment with the Union of their own volition; they are not compelled to remain in the employment but are free to return to employment in the relevant industry.

(6) That such Union employees may experience difficulty in obtaining work outside of the organisation is not a factor to be taken into account in determining the validity of the Rule and in any case is not supported by the evidence in this case."

Having concluded that the respondent's challenge cannot be upheld, it is not necessary to consider the submission advanced by the applicant's counsel as to the court's discretion where the challenge is made, as in the present case, during an election inquiry and not by a proceeding under s. 209 of the Act.
Because of an earlier joint request by the parties that the court should defer the making of orders in this matter, the parties will be afforded an opportunity to address the court as to whether any orders should be made in the present inquiry pending the hearing and determination of the matters raised in matter number VI 4 of 1992, which is fixed for hearing on Monday, 23 March 1992.

[1992] FCA 153

16 MARCH 1992