Rennie, G.A. v Australian Workers Union

[1990] FCA 558

INDUSTRIAL - inquiry into ballot - allegation of irregularity -whelhcr rctulL of clection may

have been affectcd - "real not merely theorctlcal possibility" tcst applicd - fa~ lors considered in

cver~lsing ditcrction Lo dccl.~re cleclion void

lndustlial Rclalions Acl 1988 - 5s 218, 223

GORDON ANDREW RENNIE v. AUS1 RALIAN WORKERS' UNION & ANOR,

No. 0 1 5 of 1990

Pincus d . Syd~iey

5 Octobcr 1990

RECEIVED

AUSTRALIA

..__ -2-

IN THE FEDERAL COURT O F AUS'I'RALIA
OUEENSLAND DISTRICT REGISTRY

INDUSTRIAL DIVISION No. Q1 5 of 1990

IN THE MA'ITER of the Indu~trinl Relnt~on~ Act 1988

- AND -

IN THE MA7TER of an Elcction for an O f f ~ ~ e	in the
Australian Workers' Union, Queensland Branch

AND -

IN THE MATTER of all Application Tor laquiry Relatll~g to that Election by Cordon Andrew Rentlle

MINUTES O F ORDER

JUDGE MAKING ORDER.	PINCUS J
DATE O F ORDER:	5 OCTOBER 1990
WHERE MADE	SYDNEY
THE COURT ORDERS THAT:

1            The Inquiry he tern~inatcd.

NOTE	Settlement and entry of orders is de;~lt	w~th	in Ordcr 36 of the Federal Court Rulcs
IN T H E FEDERAL COURT OF AUSI'RAISA	)	No	0 1 5 01 1990
QUEENSLAND DISTRICI' REGIS'I'RY	)
INDUSTRIAL DIVISION	)

IN 'THE MATTER of the 1ndustr1:tl Relations Act 1988

- AND -

IN T H E MA'I'TER of an Elcct~on for an Office in the

Australian Workers' Union, Queensland Branch

- AND -

IN 'I'IIE MA'I"1ER o f an Applrca t io~~ for Inquiry Relating

to that Election by Gortlon Andrcw Renr~ic

CORAM.	Pincus J
PLACE.	Sydney
DATE	5 October 1900

REASONS FOR JUDGMENT

This is an inquiry under Division 5 of Part 1X ol the lndustrlal Kelahons Act 1988 ("the Act") It relates to a 1989 elcct~on held in the Oucensland Branch of the Australian Workers' Union ("the organisation"). The election was held hy secret ballot which opened on 20 November 1989 and closed on 18 Deccnlher 1989, and the contested positions incloded 23 branch organisers
The applicant was an unst~cccssful	candidate for one o f thosc 2.3 positions

The application was based initially on two grounds, but of those only one need now be

considcrecl, the other hawng been nknndoned	The former ground is that two people, Messrs L.T.
Arnold and K L Ball~n,	who stood for election as branch organisers, werc not entitled to do so

Although Messrs Arnold and Ballin were, l ~ k e thc appl~canl , unsuccessfl~l in their quest for

office, the applicant says that there shoold be a ncw election because the votes g:~rnercd by Messrs Arnold and Ballin might have gone to him in s i~ff icient numbers to achieve his election

Scction 218 of the Act permits an application to be made for an inquiry by the Court where there is a claim "that there has been an irrcgularily in relation to an election for an office in [an] organisation or a branch of the organisation . ". Section 219 contemplates that a time and

place shall be fixed for conducting t l ~ e inquiry; that was donc on 25 M J ~ 1990 and, under s.219,

the inquiry was then taken to have been instituted Under s 223(1), the Court has the duty t o inqnire into and determine the que5tion whether an irregularity has happcned and under s 223(3),

if i t finds an irregularity, i t may (amongst other orders) declare the election void That is what

the applicant asks for here and the circu~nstances are such that if t l ~ e ~ e was an irrcgularity, the

only practical courses operl are to declare the election void or make no ordcr

Under s 223(4), the election is not to be declared void:-

".. unless the Court 1s of the opinion that, having regard to the irregularity found,

and any circumstances giving rise to a lihclihood that similar irregolaritics may have happened or may happen, the resnlt of the clection may have been affected	by	irrcgul:~ritics "
I t should be mcnt~oned	that on 25 May 1990, thc question was r;~iscd	as to whether or not

an organiser iq , under the rules of the organisnt~on,	the holder of an "office" wtthin the meaning
of S 218 of the Act	On that point, 1 ruled in favour o l lhe applicant and, the rnaller not having

been re-argued, 1 will say nothing further about 11

The applicant's point depends upon role G8(a)(ii) of the org;inisatioii's rules, under which

a member is nc~t cligihle for nomination for election '1s an of l~ccr : -

"unless he or she has been a ~ont i1 iuo11~ member for the 12 months ininicdiatcly

preceding the closing date for ~iomiiiation"

Because the closing date for nominat~c~n was 20 October 1989, it is necessary to consider

whether Mcssrs Arnold and Ballin were continooos members during the twelve months commencing on 20 October 1988 and concluding on 19 October 1989 'I'hc expression "conlinuous rnemher" is defined in rule 89(e).-

"'Continuous inemher' is a niemher who has made full paynlelit of all contributions and part payments in accordance with rule 10, 11, 12(f) for a consecotivc period of 12 months ntirl has not been more t11.1n one month in arrears of dues at any time during soch 12 niontlis' period "

It will be noted that the definition requires that, to qu:~lify, a mcmber Inlist fulfil two requirements, firstly making full payment for the period and, secondly, not being more than one month in arrears during that period. According to the evidence, Mr Ariiold has been a meniber

of the organ~sation for some 17 years. I le paid his contribution for the 1988189 ycar on 1 2

December 1988 and for the following year on 27 June 1989. As to Mr Ballin, the evidcnce shows

that lie became a membcr in 1986 and on various dates in July 1989, lie paid for three years' membership, that is for the 1987188. 1988189 and 1989190 ye:lrs. On some unspecificd date, Mr

Ballin is said to have resigned from the Union but no point was souglit to bc made of that.

l 'he financial ycar of tlic organisation and of the braiicli ends on 31 July in each year

Althoiigh the rules are not qoite coesistent, the general intention appears to be that the annual

contribution hecomcs payahle a t the beginning o f each fiiiancial ycar Under rule 8(h), dealing
with applications for membership, a proviso is incloded that -

" .. whcre the annual contribution rcqolred hy Rulc 10 (or tlic contributiol~

rcqilired hy Rule 11) has been paid on o r bcfore the 7151 luly, the n~embcr's

name shall be cotcretl onto tlle menibership roll for thal f~nancial ycar "

One possihle construction, since 31 July is the last date of tlic financial ycar, is that if,

'11 any time during tIi:~t financial year, tlic annual contribution is palcl, thcn the membcr's name is entered, on that view, if the contrihution is paid on 31 Jilly 1990, thcn the membcr's name

would he entcrcd for the 1989190 year l h a l secms unlikely to have been intended Then rule

8(c) says, in effect, that payroll deduction aothorities arc to tay that.-

"

unless contributions required by Rulc 10 or Rulc 11 are paid in full on or before the 31st of luly in each financial year, snch applicant shall not be entitled to vote in the election of officers or plebiscites contluctcd within tlic Un~on."

Suppose there is an election to be held in a branch Under rule 77, tlie ballot must close

between 28 November and 10 D e ~ e r n h c r I t secms to me that when rule 8(c) spcaks of tlie

necessity of paying on or before 31 July, it muct surely mean paying hefore thc hallot, in respect

of the year in wl~lch tlie ballot is held

Rule 1 2 makcs a number of special provisions for paying contributions. U n d e ~ rille 12(b),

a member who works only part of the year pays on the season's first payd:iy; under rule 12(c),

shearers pay in the first shcd in which they arc cmployed :~ f t c r the imlncdiately preceding Annual

Convention, and under rule 12(f), a brancli sccrctary may approve of payment by instalments But the basic provision is rule 12(a), which nlukes the annual contribution payable on l August in each year It will bc noted that this docs not liarnionise will1 rule 8, which seems to require

payment on 31 July; that discrepancy does not nlatter here

Rule 12(d) reads as follows:
"Member% who ccrntinuc in arrcars ttftcr 31st August each ycar, after bcing

notified, Inay be sued for l l ~ e	rccovery of same "
It was si~bmitteil	bp counsel, ancl it scctns to nlc correct, that the usc of the expression

"continue in arrears" is consistent with thc position that mernbcrs who have not paid at the beginning of the ycar - i e on 31 July or 1 August - are in arrears during tlie whole of August.

In my opinion, cach of Mcssrs Arnoltl and Ballin was one month in arrears on 31 August

1988. It has been noted ahove that t l ~ c reqolremcnt of continuoi~s mcmbership ope~a tc s only

from 20 October 1988, bccause nomination5 closed on 20 October 1989 Mr Arnold r e ~ n a ~ n c t l in

arrears from 31 August 1988 to 12 December 1988, so that he war more than one month in arrears "at any time during s~icli twelve months' period", namcly at all t ~ m e s from 20 October 1988 to 12 December 1988. Mr Bnllin (assum~ng that he was a rnc~nber during the whole of the requisite twelve month pcriod) was in arrcarq from 20 Octobcr 1988 to 31 luly 1989, when he paid his 198811989 subscription, twclvc months late.

I t follows that ncither Mr Arnold nor Mr Ballin was a "continoous member" within the

meaning of rule 68(a)(ii) and neither was cl ig~ble for nolnination for cleclion as an o l f ~ c e r .

This was an "irrcguldrity" within tlie nleatiing of s 223 and the f ~ r s t question is wlicther

"tlie result of the election may have been affected" by i t

In Chanter v. Blackwood (No.2) (1903-1904) 1 C L R 121 at 130, ( h i f f ~ t h C.J. expressed

the view that, under the Conimonwealth Electoral Act 1!)02, the IJigh Coart shoiild apply the law as laid down in Woodward v Sarsons (1875) LR, 10 C.P , 773, at p 743 It was there said that

under t l ~ c common law applicable to Parliamentary e1cctions.-

". . if tlic tribnn:~l s l ~ o i ~ l d only he sat isf~cd that ccrtaln of such mishaps had

occurred, hut should not be satisfied e i t l~cr th.it s majority 1i:ld bccn, or that there

was rcasonahlc groand to believe that a majority r ~ r l ~ h t have Occrt, prcvcntecl f r o ~ n electing the candidate they preferred, then we think that the existence o f s i ~ c h

mishaps would not entitle the tribunal to declare the c l c c t i o ~ ~	void hy the
Common Law of Parliament " (emphasis addcd)

The language used in this passage does not seem very different in effcct f ~ o m	that to be found
in s 223 of the Act

In Bowen & Ors v. Hinchcliffc & Anor (1924) 24 SRNSW 262 (anotlicr AWU election

case), Street C J in Eq said at p 267:-

"Under the common law the Court will not ~n te r f c rc and declare ;in election void unlets it is niadc to appear t1i.1t somell~ing wrong or improper has taken place which has so affected the proreedings or which .it least may prol~ably havc so affected them that the voters have not had a free and fair opportunity of

electing the candidate whom the ~najori ty prefer .."

The prcdccessor to s 223(4) was construed by Keely J In Re Vcl~icle Builders Eninlovees'

Federation of Australia (SA Branch) (1987) 1'3 F C R 350. At 352-353, hit Honour expressed the view that in forming an opinion as to whether "the result of the election may havc been

affectcd" the Court shoultl lc~ok at "real not merely theoretical poss~hilities". His Honour went

on, referring to a judgment of 'Toohey J .-

"However, it should be noted that his I-Ionour ic speaking of possihilitics - not
probabilities	In my opinion, where the possil~ility is 'real', as distinct from
'merely tlicorelicat', i t is proper for the Court to form the op in~on	that the result
of thc election 'may have been affected "'
The expren5ion "may have been" in lhis rc~ntcxt	is, ill my view, apt to cover possibilities

as well as probabilities, a5 Kcely J has said With some hesitation I liavc come to the concli~sion that one cannot deny the possibility that the applicant might have bccn elected, but for tlic

presence of M c s s ~ s Arnold and Ballin among the cantlidatcs from whom the 23 were to be chosen;

nor could one fairly call that possibility a merely theoretical one It seems to me unlikely that

the error whic l~ was made caused the appl~cant to fall, 11111 one ~ o u l d not rdtionally deny the

possibility that it did The question depends on whether the votes which went to Messrs Arnold

and Ballin would have bccn directed in snfficicnt numbers to the applicant.

There were, 11s I have said, 23 positions to be Iillecl ancl there were 26 candidates. Of those elected, Dcirdre Anne Swan received the least votes, n:~mely 3,665 and MS Swan was followed by Mr Rcnnic who reccived 3,356, Mr Ballin reccived 2,702 and Mr Arnold who

receivcd 2,644 I f neither Mcssrs Arnold ant1 nallin had stood, there m~gl l t have bccn 5,346 extra votes to be distributed amongst the other 24 candidates; absent Messrs Arnold and Ballin, some supporters of theirs may have not have voted at all I I the 5,346 votes had been distributecl in

the same proportions as were the votes actually reccived by the 24 rc~naining candidates that

would, of course, not have advantaged Mr Rcnnie, hut simply put him further behind. If the 5,346 votcs hacl bccn distributetl equally amongst the 24 candidates, h15 position woold neither

have been improved nor worsened H e receivcd 309 votcs fewer than did Ms Swan. Leaving

aside those extra votes, if the rest had been distr~buted	evenly, that would have made about 210
votes per candidate.
The result ic that, to catch the least favoured of those canditlates who were elected, the applicant would have needed to do grcatly better than the average, in distribution of the

additional 5,346 votes For example, if MS Swan had reccived only the avcrage nu~nher of surplus votes, the applicant would have had to receive about 140% hctler than the average for his vote to equal hers Such a result would have bccn quite improbable, but to call it impossible

or only a tlicoretical possibility seems to me an overstatement 'There is no in lormat~on as to what was the (relatively limited) attraction of Messrs Arnold and B;~llin for the electors and there is, as was submitted, a considerable clcmenl of c o n j e ~ l u r c in considering possible distributions of

t l ~ c extra votes

I t was also conlendcd tliat the Court sliould take into accoitnt th.it the applic:int was on a ticket which was rather unsuc~essful. Ilowevcr, to tlic iircumstanccs of this case, that, i f relevant at all, does not appear to be sufficienl to defeat the appltcant, ;IS to the test in s 223(4).

'I'he remaining question is whether the Court should evcrclse its discretion to de~l:ire thc

election void. In Re Vehicle Builders (ahove). Keely J , remarked.-

"I accept that the Court has a rcsidual dtscretion and coi~ld	decltne to declare the
election valid if there were cogent reasons favouring that ~ o u r s c	in all the

circum~tances	of the case .	"
In my respcctfi~l	opinion, il is not cleat tliat the d i s~ rc t ion	gtven by s 223(3) is confined

in this way	The sub-section says the Coiirt "may" make one of the orders listed, not that it shall
do so and, on the facc of it, gives rise to a discrction which is complete. In	v.

Amalgamated Metal Workers' and Shiowriehts' Union (1981) 56 F L R 124 at 149-50, Sheppard I. considered and rejected the possibilily that "may" in lhis context really means "shall"; I respectfnlly agree with his Honour's conclusion that i t does not.

In my opinion, a nl t~nbcr of circutnstanccs point to the undesirability o f a dcclaration that

the election is void	The practical point of such a declaration is to clear the way for a new
election, giving the applicant a fltrthcr chance of becoming an organiser Sincc last year's

election, four of the organisers chosen have resigned and, after the first three resignations, it was

decided to hold a new election to repldce them

Nominations close on 15th October next, so that the applicant has time, after delivery of

this judgment, to nominate again

Whetl~cr thc applicant wonltl have a bcllcr cl~ancc of being elccled organiser, if all the

19 persons clccled who still rcniain in o f f ~ c c were lr~rced lo stand again, thso he w ~ l l havc if he

chooses to contest the clcction for the three places just mentioned, is entirely a matter of spccula t io~~ Thcrc is no particl~lar reason for t l ~ ~ n k ~ n g that thc ayplir.~nt's cllar~ces of clcction

by his fcllow meml~crs must he less if only tllrce plares arc availal~lc	than they would bc if 23
were l~e ing	contested

In exercising t l ~ c discretion. I think 11 rig111 to have regard to Ll~e nature of the

irregularity; as 1 have cxylaioed, it has given rise to a rcal possibility, rather than a probnhility,

that the rcsult w:~s affected It sccms to me a rather thin b:tsis on which to remove fro111 office

the remaining 19 clcctcd orgnniscrs, none of t11cn1 likely Lo 11:ivc bccn beaten by ihc applicant if

the irregularity had not occurrcd In my opinion, t11c Court exe r~ i s ing the jurisdiction in

question should cndcavour to take a practical rather than ;I tcchn~cal approach to the exercisc of

the discretion lo dcclare an e lcc t~on void, particl~lorly where there appears to have been no

del~bernle breach of tllc rules.

In summary thcn, I am satisfied that l l~c rc was an irregularity in that Mcssrs Arnold and

Bal l~n were not enlitlcd to stand and that t l ~ c rcsult of the clcction "may have been affectcd" by

that circomstancc in the sense I have explained Ho\vcocr, I d e ~ l i n c to tlcclare Lhc clcction void,

in all the circumstances, particolarly bccaosc the :tpplicant will in any event soon havc a further

opportunity of elcction 'Ihe i n q o ~ r y is terminated

I certify that t h ~ s and the preceding 8 pages

are a true copy of the reasons for jr~dgmcnt o f

the Honourable Mr lusticc P~ncus .

D a t e	5 October 1990
Counsel for the applicant.	Mr G.C Martin
Solicitors fo r the applicant	C o ~ ~ n o l l y Suthers
Counsel for the respondents	M r J natch
Solicitors for the respondents	Thompson King & Partners
Counsel for the Aurtr;ilian Workers' Union (Federal).
Solicitors for the Australian	Mclnnes, Wilson & Jeiisen
Workers' Union (Feder.rl).	Town agents for T ~ i r n e r Freeman
Counsel for the
Australian Electoral Commission:	Mr J Parker
Solicitors for the
Australian Electoral Commission,	Australian Government Solicitor
Date of judgment	5 October 1990