Rennie, Gordon Andrew v Australian Workers Union

[1990] FCA 682

682 90-

JUDGMENT No. . .......-... /...-

C A T C H W O R D S

INDUSTRIAL - inquiry sought into alleged irregularity -

interim relief sought to restrain election - candidate alleged not to be eligible for election as officer - whether eligible to be member of union - meaning of "bona fide worker" - whether sufficient evidence to justify inquiry.

Jndustrial Relations A c t 1988, ss.218, 221

Gordon Andrew Rennie

1. B

Q1 10 of 1990

8 NOVEMBER 1990

LN THE FEDERAL C O U R T O F Q E A E T ~ I A 1

LAND DISTRICT REGISTU 1

INDUSTRIAL DIVISION ) No. Q1 10 of 1990

IN THE MATTER of the Industrial

Relations Act 1988

- and -

IN THE MATTER of an election

for an office in The Australian

Workers' Union, Queensland Branch

- and -

IN THE MATTER of an application

for inquiry relating to that

election by GORDON ANDREW RENNIE

MINUTES OF ORDER

JUDGE MAKING ORDER* PINCUS J .

M E	OF ORDEB:	8 NOVEMBER 1990
8	-	BRISBANE

T ORDERS THAT:

1.    The application for interim relief be refused.

2.    The application for an inquiry into an election be dismissed.

m COURT CERTIFIES THAT:

1.   In making the applications, Mr. G.A. Rennie acted reasonably in applying, for the purposes of s.343(1)

of the Ind U 1988.

K!m:	Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
RAL COURT OF ~ R A L I . 9  1

SLAND DISTR 1

mDUSTRIAL DIVISION 1 No. Q1 10 of 1990

IN THE MATTER of the Industrial

Relations Act 1988

- and -
IN THE MATTER of an election
for an office in The Australian

Workers' Union, Queensland Branch

- and -

IN THE MATTER of an application
for inquiry relating to that

election by GORDON ANDREW RENNIE

W: PINCUS J.

EGB(;Efr BRISBANE

m: 8 NOVEMBER 1990

EX TEMPQRE REASONS FOR JUDGMENT

By application filed on 7 November 1990 and Notice of Motion filed the same date, the applicant, Mr. G.A. Rennie, seeks an inquiry by this Court into an alleged irregularity relating to an election within the Australian Workers' Union,

Queensland Branch, and also interim relief with respect to	that subject matter. The former application is made under
8.218, and the latter under 8.221 of the Induetrial Relations
&& 1988.
The application is made by Mr. Rennie as a member of what is admitted to be an "organization" registered under the Act. The application complains of the nomination of Mr. K.L. Ballin for election to the office of branch organizer. The ballot is to open next Monday, four days from today. The applicant says that Mr. Ballin was not eligible for membership of the union, and, therefore, not eligible for nomination for election as an officer because:

"Prior to applying for membership of the union, Mr. Ballin was an hotel employee in Bundaberg, Queensland, which industry is not a federal

calling within the meaning of rule 6".

Mr. Glen Martin of counsel for the applicant has submitted that Mr. Ballin was not, at relevant times, a "bona fide worker'' within the meaning of rule 89 of the rules of the organization, which says:

" 'Bona fide worker' means an employee, male or

female, engaged in manual or mental labour in
or in connection with any of the industries

mentioned in rule 6 hereof".

Rule 6 sets out a list of persons entitled to become
and remain members of the union. They comprise, among others,

every bona f ide worker, male or female, engaged in manual or

mental labour in or in connection with any of the following

induetriee or callings, namely, pastoral, agricultural,

sugar-growing, cane-cutting, milling and refining.

Mr. Martin's contention is that Mr. Ballin joined
the union at a time when he fulfilled none of the descriptions

in rule 6, and that he has not become a member, although

iseued with a ticket. In connection with the relevance of his

having been issued with a ticket, I am referred to Bielski v.

Dliveg, (1958) 1 F.L.R. 258, which appears to me to be authority for the view that the issue of the ticket does not preclude inquiry into the right to membership.

It is, I think, relevant to note the correspondence which preceded the commencement of the proceedings. In May 1990, a letter was written to Mr. Ludwig, the branch secretary of the union, by Mr. J.W. McLatchey with respect to the membership of Mr. Ballin. Mr. McLatchey enclosed membership tickets for Mr. Ballin and a receipt. He also enclosed other documents, explained the past history of Mr. Ballin's membership of the union, and said:

"Mr. Ballin accepted a position with the union on 31 July 1989, and actually took up the position with the union after giving notice to his previously employed (sic) on 7 August 1989. Mr. Ballin was employed by the Sugarland Tavern and during his employment he had second jobs,

mainly in the sugar industry. Some on sugar
farms would have been for a very short period
of time, half a day or up to a day. He has
also done some minor form work with Isis

Central mill".

The letter which I have mentioned suggests that Mr. Ballin had a principal job and secondary jobs, and was written some months ago. On 18 October 1990, Messrs Connolly Suthers, solicitors, wrote on behalf of the applicant to the Australian Electoral Commission explaining that they act for Mr. Rennie and raising the question of the qualification of Mr. Ballin. Among other things, the letter of 18 October 1990 says:

"After his resignation on 30 June 1987, Mr. calling.
-
Ballin worked as an attendant at the Sugarland

("FR6" means Federal Rule 6) -

After more than two years at the Sugarland Tavern, in early Auguet 1989, Mr. Ballin resigned from this job as an attendant to immediately take up a position as paid organizer with the union, also not an FR6 industry or calling. Notwithstanding his lack of eligibility for FR6 membership, on accepting employment with the union, Mr. Ballin purported to take out membership for 1987/88, 88/89, and 89/90, all within a 10 day period in the month of July 1989. It is claimed on Mr. Ballin's behalf that, while working full-time at the Sugarland Tavern, Mr. Ballin had second jobs mainly in the sugar industry, some on sugar farms for a very short period of time, half a day, or up to a day, and doing some minor formwork for Isis Central mill.

must be a bona fide worker engaged in a
designated industry or calling. At the time To be eligible for FR6 membership, a person industry, he did not take out fresh FR6 membership, notwithstanding that he now claims that he was entitled to do so, and notwithstanding that the district secretary of the Central District was, and is, Mr. Ballin's father-in-law".

The letter goes on to assert, again, that Mr. Ballin was not eligible for membership.

The reason I have set out the relevant part of the
correspondence at some length is that it appears to me

important to notice that at the time when the application was

made - that is, on 7 November - the applicant had, for some

time, been aware of the general nature of Mr. Ballin's claim
to eligibility.

The evidence which Mr. Ballin gave before this Court was to the effect that up to July 1989, he had a full time job as a tavern employee, a job which, as is conceded, did not fall within rule 6. Mr. Ballin's case is, however, that he fell within that rule for two reasons: firstly, he says he made inquiries about obtaining a job at the local sugar mill; secondly, he was receiving part-time work, from time to time, on a farm, and hoped and expected to receive further part-time work.

As to the sugar mill, it is my view that there is nothing of any strength in support of the suggestion that at relevant times Mr. Ballin was one who, in that capacity, fulfilled the description in s.261(6) of the Act, that is, "A person who is qualified to be employed in a particular occupation and seeks to be employed in the occupation". It does not appear to me that a person who is in full-time employment but has merely made inquiries about the possibility

of getting another job or jobs seeks to be employed in that

active seems to be envisaged.	job or in every one of those other jobs. Something more
A more difficult question, and one which has troubled me somewhat, is whether at relevant times Mr. Ballin was engaged in manual or mental labour, in or in connection with his part-time work, which undoubtedly does fall under federal rule 6. The suggestion made by Mr. Herbert, who appeared for Mr. Ballin, was that perhaps it is necessary to
decide whether or not to deal with that matter finally, or to deal with it merely in a preliminary way.
Having heard the evidence, I am satisfied that I should not attempt to deal with it, in the sense of making positive and final findings for or against Mr. Ballin, but should confine myself to the questions whether or not there is ground for interim relief and whether or not there is, to use the expression in 8.219, "reasonable ground for the application". I say that because Mr. Ballin's evidence seems to me to have been confused and rather inconsistent. He seemed to say, in general, that late in July he heard of the possibility of obtaining the job of organizer with the union, a much better job than that which he then had, and accordingly rejoined the union and eventually, in early August, got the job. However, the tickets which have been supplied are difficult to reconcile with that. The relevant tickets are three: that in respect of the 1987/88 year purports to have been issued on 2 July 1989; that in respect of the 1988/89
year purports to have been issued on 31 July; and that in
respect of the 1989/90 year purports to have been issued on 28 July.
Further, there is the letter from Mr. McLatchey which I have previously referred to, which includes the sentences:

"On accepting employment with the union, Mr. Ballin renewed his membership for 1987/88, 1988/89, and 1989/90. These tickets were

issued in the month of July 1989, dates of
which are shown on the ticket".

There is an inconsistency within that, if one takes into account that on any view - that is, on the view put

forward by Mr. McLatchey or that given in evidence by Mr.

Ballin - the job does not seem to have been offered till the

very end of July; it is difficult, therefore, to understand for what reason a ticket was issued on 2 July. It is the problem with the tickets, and my suspicions about them, which have mainly concerned me.

As Mr. Herbert says, the essence of the matter is that the evidence of Mr. Ballin that he was continually interested in obtaining part-time work of the type which he got on two occasions and available for such work at relevant times is uncontradicted. Further, and perhaps a little worse

for the applicant, the applicant has known for some time that Mr. Ballin sought to make out eligibility, at least in part,

on that basis. In the end, Mr. Martin submitted, as I

that, at the relevant date on which he joined the union, Mr.	understood him, that the reason for lack of eligibility was
Ballin was not eligible because he was then an organizer. I do not accept that, nor do I think that the evidence provides any reasonable foundation for that submission. It appears to me to be correct, as Mr. Herbert has submitted, that on the evidence, whether the job was offered on 30 July or 31 July, it was not accepted, and the employment did not commence until
August .
The real question is whether or not, in his capacity as a part-time worker for Mr. Robert Charles Steemson, the declarant in Exhibit 1, Mr. Ballin qualified as being a bona fide worker engaged in manual labour in or in connection with any of the "following industries or callings", it being admitted that the industry or calling in which Mr. Steemson was engaged falls within rule 6. I have had some anxiety, as
I have said, about the peculiarities of the evidence
concerning the tickets, and I feel no confidence that Mr. Ballin has managed to give me an accurate account of the history of his dealings in relation to his union membership in July 1989. Nevertheless, if one focusses upon the question, was he or was he not a bona fide worker (although part-time) in one of the industries at the relevant time, I feel forced to the conclusion that there is not a sufficient case made against him under that head to justify an inquiry. I have, as I have said, rejected what seemed in the end to be Mr. Martin's principal submiasion that Mr. Ballin was not within rule 6 at relevant times, because he was a full-time union
organizer. That seems to me to be wrong. With somewhat more hesitation, I find that there is not a sufficiently strong
case to require investigation on the other point, that is, on his part-time employment with Mr. Steemson. I therefore hold that, for the purposes of s.219(b), I am not satisfied that there is reasonable ground for the application. I should add that, insofar as that holding implies some criticism of Mr. Rennie for raising the matter, I would eschew that implication.
~t seems to me that there is some ground for suspicion, but in the end, on a point which was raised well in advance of the hearing, Mr. Ballin has adduced some evidence which I am not prepared to reject: there is nothing solid against it. It seems to me to follow that I should not grant any interim relief under 8.221, and that application must be refused.

I will dismiss the applications.

I certify that, in making the applications, although

they have been unsuccessful, Mr. Rennie acted reasonably in
applying, for the purpose of 8.343(1).

I certify that this and the

eight preceding pages are a true copy of the reasons for judgment herein of his Honour Mr. Justice Pincus.

-7	7
C-	- / -

c- 7

~ssociatf

Date d~*+-c '790

Counsel for the applicant:	Mr. G.C. Martin
Solicitors for the applicant:	Connolly Suthers
Counsel for the second respondent,
Mr. K.L. Ballin:	Mr. A.K. Herbert
Solicitors for the second
respondent, Mr. K.L. Ballin:	Thompson King & Partners
Counsel for Australian Workers'
Union (Federal):	Mr. J.E. Murdoch
Solicitors for Australian Workers'
Union (Federal):	McInnes, Wilson & Jensen
Counsel for Australian Electoral
Commission:	Mr. J.C. Parker
Solicitors for Australian
Electoral Commission:	Australian Government Solicitor
Date of Hearing:	8 November 1990