Re McJannett (No 2)

Case [2009] FCA 1015

FEDERAL COURT OF AUSTRALIA

Mcjannett, in the matter of an application for an inquiry in relation to an election for offices in the Construction, Forestry, Mining and Energy Union, Western Australian Branch (No 2) [2009] FCA 1015

INDUSTRIAL LAW – application for an election inquiry - s 201(b) of the Fair Work (Registered Organisations) Act 2009 (Cth) – Construction, Forestry, Mining and Energy Union election – whether reasonable grounds for application by reason of irregularity – whether conduct contravenes s 190 of the Act – application dismissed

Conciliation and Arbitration Act 1904 (Cth) s 141,
Fair Work (Registered Organisations) Act2009 (Cth) Pt 3, s 6, s 190, s 200, s 200(1), s 201, s 201(b), s 216, s 747, s 757, s 760
Fair Work (Registered Organisations) Regulations 2009 (Cth)
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Item 11(1) of Sch 2
Fair Work (Transitional Provisions and Consequential Amendments) Regulations 2009 (Cth) reg 5.11(2)
Federal Court of Australia Act 1976 (Cth) s13, s 15
Workplace Relations Act 1996 (Cth), s 200 of Sch 1
Workplace Relations (Registration and Accountability of Organisations) Amendment Regulations 2009 (No 1) (Cth)
Workplace Relations (Registration and Accountability of Organisation) Regulations 2003 (Cth)
Industrial Relations Act 1979 (WA) s 69(9)

Becker, in the matter of an application for an inquiry in relation to an election for offices in the Australian Education Union, Queensland Branch [2004] FCA 1534
CFMEU v Kavanagh (2008) 175 IR 225
Hodge v The King (1907) 5 CLR 373
Jess v Scott (1986) 14 IR 341
Nelson v Cameron (2000) 98 IR 46
Mcjannett, in the matter of an application for an inquiry in relation to an election for offices in the Construction, Foresty, Mining and Energy Union, Western Australian Branch [2009] FCA 996
Mcjannett v Reynolds [2009] WAIRComm 211
Re Post; Re Election for Offices in Transport Workers Union of Australia, Western Australian Branch (1992) 40 IR 162
Re Collins; Ex parte Hockings (1989) 167 CLR 522
Re Jarman; Ex parte Cook (No 2) (1996) 136 ALR 233
Re; Health Services Union [2009] FCA 829
Scott v Jess (1984) 3 FCR 263
Tanner v Darroch (1986) 12 FCR 235
Tanner v Maynes (1985) 7 FCR 432
Trade Practices Commission v TNT Management Pty Ltd (1985) 58 ALR 423

ROBERT MCJANNETT, IN THE MATTER OF AN APPLICATION FOR AN INQUIRY IN RELATION TO AN ELECTION FOR OFFICES IN THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, WESTERN AUSTRALIAN BRANCH (NO 2)

WAD 221 of 2008

BARKER J
10 SEPTEMBER 2009
PERTH


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

FAIR WORK DIVISION

WAD 221 of 2008

ROBERT MCJANNETT, IN THE MATTER OF AN APPLICATION FOR AN INQUIRY IN RELATION TO AN ELECTION FOR OFFICES IN THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, WESTERN AUSTRALIAN BRANCH (NO 2)
Applicant

JUDGE:

BARKER J

DATE OF ORDER:

10 SEPTEMBER 2009

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The application by the applicant for an inquiry by the Federal Court in relation…

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AGLC
Re McJannett (No 2) [2009] FCA 1015
Case
[2009] FCA 1015
Decision Date

CaseChat Overview and Summary

The case of Re McJannett (No 2) involved an application by an applicant seeking an inquiry into the elections for offices within the Construction, Forestry, Mining and Energy Union of Workers (CFMEUW). The Construction, Forestry, Mining and Energy Union (CFMEU) and two individuals, Mr Reynolds and Mr Kavanagh, were permitted to make submissions in opposition to the application. The primary legal issue before the Court was whether the applicant had provided reasonable grounds to suspect irregularities in the election process that would warrant an inquiry under section 201 of the relevant legislation. The Court had to assess the reliability and factual basis of the evidence presented regarding the posting and removal of election materials.

The Court concluded that the evidence provided by the applicant lacked a sufficiently reliable base or "substantial factual foundation." The material presented had a generalised and second-hand nature, and the Court was not satisfied that the conduct complained of constituted reasonable grounds for an inquiry. The Court emphasised that initiating an inquiry was a serious matter and that the onus was on the applicant to demonstrate a case for irregularity. Given the evidence, the Court found that the applicant had not met the required standard to establish reasonable grounds for suspecting irregularities in the CFMEU elections.

Accordingly, the Court dismissed the applicant's application for an inquiry. The Court ordered that the application for an inquiry by the Federal Court in relation to the elections for offices in the CFMEU declared on 25 November 2008 was dismissed. This decision underscores the stringent criteria necessary for establishing reasonable grounds for an inquiry into union elections, ensuring that such inquiries are only pursued on a firm factual basis.

Orders

Orders of the court

1. The application by the applicant for an inquiry by the Federal Court in relation to the election for offices in the CFMEU that were declared on 25 November 2008 is dismissed.

Note:

Background

Background to the litigation

The Court granted leave to the CFMEU, Mr Reynolds and Mr Kavanagh to make submissions in opposition to the application as interested persons, although only the union and Mr Reynolds appeared by counsel at the hearing of the application.BACKGROUND TO THE CFMEU ELECTION The materials lodged with the application of the applicant, including by reference to the judgment of Heenan J in CFMEU v Kavanagh (on which both the applicant and interested persons rely) disclose the following background to the application, namely, that at material times:·The CFMEU was an organisation registered under the provisions of the WR Act.·Mr Reynolds was the Branch Secretary of the Western Australian Divisional Branch of the CFMEU.·The State Branch of the CFMEU was controlled and directed by the Divisional Branch Management Committee, commonly known as the Executive or State Executive.·Positions within the State Branch of the CFMEU including membership of the Executive and the offices of the Divisional Branch Secretary and the two Divisional Branch Assistant Secretary positions were subject to election every four years.·The elections for the CFMEU State Branch offices (amongst others) were due to be held in or about October 2008. At the time of the hearing before Heenan J, a date for a calling of the nominations and the ballot for elections had not been set, but, in due course would be established by a returning officer, appointed by a Deputy Industrial Registrar of the Australian Industrial Relations Commission.·In addition, Mr Reynolds, an elected official of the Construction, Forestry, Mining and Energy Union of Workers (CFMEUW), occupied the position of State Secretary.·The CFMEUW was an organisation registered under the provisions of the Industrial Relations Act 1979 (WA) (WAIR Act).·Various offices within the CFMEUW, including membership of its governing committee and the office of State Secretary are subject to election every four years. The elections for those offices and others were due to be held between August and October 2008.·A returning officer of the Western Australian Electoral Commission would be responsible for opening nominations for those positions in late August, nominations were to close in early September, ballot papers were to be distributed in late September and the ballot was due to close on 16 October 2008.·Although the CFMEU and the CFMEUW are distinct corporations and are registered under different legislation, the administrative arrangements for them in Western Australia are conducted concurrently, in the sense there is one office, there was one register of members and one set of administration. The relevant timetables for the opening and closing of nominations in the two elections were set out in the decision of Heenan J at [30] and following, as follows:nominations for the position of the WA divisional branch secretary of the [CFMEU] are due to open on 31 August 2008 and close on 19 September 2008, with a ballot to be held for that position between 2 and 16 November 2008 (rule 38(q) of the first plaintiff's rules). Similarly, Mr Kavanagh deposes to the fact that nominations for the position of State secretary of the [CFMEUW] are due to open on 21 August 2008 and close on 4 September 2008. He says that the ballot for that position is to be a period of not less than 21 days and not more than 28 days and a count of the ballot papers must be completed by 30 October 2008 (rule 23(18) State rules).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

BARKER J
It is ultimately a question of judgment as to whether or not the material before the Court in relation to the posting of election materials and removal of election materials has a sufficiently reliable base, or "substantial factual foundation", as French J put it in Re Post to constitute reasonable grounds for the application. In the event, for the reasons I have set out above, I am not satisfied that the conduct complained of, all of which has a generalised, second hand aspect to it, constitutes reasonable grounds for the application.CONCLUSION AND ORDER The instituting of an inquiry under s 201 is a serious matter, as explained by Kirby J in Re Jarman; Ex parte Cook (No 2) (1996) 136 ALR 233 at 241. The onus to make out a case is on the applicant in bringing an application. On the materials presented by the applicant I am not satisfied that there are reasonable grounds to consider that there is any irregularity by reason of conduct on the part of the CFMEU that is said to contravene s 190. In these circumstances, I would dismiss the application by the applicant for an inquiry by the Federal Court in relation to the elections for offices in the CFMEU the subject of the application. The Court would therefore order:1.The application by the applicant for an inquiry by the Federal Court in relation to the election for offices in the CFMEU that were declared on 25 November 2008 is dismissed.

Ratio Decidendi

Legal Principle Established

Established by: BARKER J

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