Saddington, J.A. v Oliver, B.

[1993] FCA 327

JUDGMENT No. ........ ........ ., ......,., ., 327 , l9%3 i

CATCHWORDS

Industrial law - registered organisation - rules - performance and observance - interim orders - use of union logos in

I

I electioneering material - whether breach of rules by

. -

I

candidates in elections - whether organiser distributing

electioneering material during working time.

Industrial Relations Act 1988 S. 209

JOHN ALLAN SADDINGTON V. BILL OLIVER & ORS.

NO. V.I. 30 OF 1993

JUDGE :	Gray J.
PLACE :	Melbourne
DATE :	7th May 1993

AUSTRALIA

21 MAY 1993

FEDERAL coum OF

IN THE FEDERAL COURT OF AUSTRALIA	)
)
VICTORIA DISTRICT REGISTRY	1 NO. V.I. 30 of 1993
)
INDUSTRIAL DIVISION	1
B E T W E E N :

JOHN ALLAN SADDINGTON

Applicant

and

BILL OLIVER & Ors

Respondents

JUDGE :	Gray J.
PLACE :	Melbourne
DATE :	7th May 1993

EX TEMPORE REASONS FOR JUDGMENT

There are in progress elections for various offices Building Union Division, Victorian Divisional Branch. Those	in the Construction, Forestry, Mining and Energy Union,
elections are being conducted by the Australian Electoral Commission. The ballot material is due to be distributed next Monday, 10th May 1993. The respondents in this proceeding, who number twenty-four persons, constitute a group of

- candidates in those elections known as the official ticket or as the BWIU Rank and File Supporters Group.

On Wednesday, 5th May 1993, the applicant, who is a member of the union and a candidate in opposition to the respondents' group, obtained a rule to show cause, calling upon the respondents to show cause why the following orders should not be made:-

(l)	That the respondents perform and observe the rules of the Construction, Forestry, Mining and Energy Union, ("the Union") by:-
(a) refraining from using the staff funds or resources of the Union or the Building Unions Division, Victorian Divisional Branch of the Union for the purpose of assisting or promoting certain candidates in the election currently being held in the Building Union Division, Victorian Divisional Branch to the exclusion of other candidates;

(b) refraining from authorising, producing or distributing any leaflet bearing the official logo of the Union or the official logo of one of the Union's predecessor organisations, the Building Workers Industrial Union of Australia, for the purpose of assisting or promoting certain candidates in the election currently being held in the Building Union Division, Victorian Divisional Branch to the exclusion of other candidates.

The application is made under S. 209 of the Industrial Relations Act 1988. At the time when the rule to show cause was granted, the judge granting it granted interim orders until 4.00 pm today, 7th May 1993, in the terms in which final relief is sought. The rule to show cause was made returnable today and counsel for the applicant and counsel for the respondents have appeared. Counsel for the applicant has sought the continuation of the orders made on Wednesday, by way of interim orders, pending the hearing and determination of the proceeding or further order.

It is convenient for me to deal first with the second order, that relating to the union logo. The claim for this order stems from the fact that the respondents have distributed pamphlets, supporting their election campaign and

bearing two logos. One is the official logo of the union.	The other is the official logo of an organisation which, by
amalgamation, became part of the union. There is little doubt that the appearance of the logos is intended to enhance the electoral prospects of the respondents. The question is

I whether there is involved any breach of the rules which can be
- remedied by order against the respondents, pursuant to S. 209

of the Act.

Counsel for the applicant, when pressed to indicate on which rules he relied, drew attention to national rule 23(vii), which provides as follows:-

"The funds or property of the Union, under the control of the National Office or Branch or Division or Divisional Branch in accordance with the rules of the Union, shall be under the control of the National Executive, or Branch or Division or Divisional Branch Committee of Management and/or Executive respectively."

Rule 23(vi) might also be relevant. It provides among other

things :  -

"The funds and property of the Union shall be invested wherever possible in the name of the

Union. "

It makes provision for the holding of property in the name of trustees, if it is not possible or convenient to hold property in the name of the union, and makes various other provisions for dealing with moneys.

The provisions of rule 23(vii) of the national rules

are reflected to some degree in the provisions of rule 14(v)
of the rules of the Building Unions Division, which provides:-

"The property of the Division shall be under the control of the Divisional Executive and shall be in the name of the Union."

The principles dealing with the misuse of the funds and property of registered organisations in relation to elections are well established. The law which has developed in this area is by way of implication, which restricts what would otherwise be unrestricted powers in an organisation's rules. It is illegitimate to approach a matter of this nature by attempting to find in the rules of an organisation some implied term and to enforce that. Section 209 does not permit the enforcement of implied rules or implied terms in the rules. Rather, it permits the enforcement of the rules, which may themselves be subject to some implied limitation.

In the present case, if it be the case that the logos concerned constitute property, and I am prepared to assume that they do, then that property is under the control of the relevant decision making body under national rule 23(vii) or divisional rule 14(v). If there is a complaint that property has been misused in aid of one group of candidates in an election and to the exclusion of another, then the proper approach would be to proceed against the persons who have control of the property, who would be alleged to have acted in breach of the rules in authorising the misuse

of that property.

It may be that some of the respondents in the present proceeding hold positions on the relevant decision making bodies. It is not alleged that they constitute all of the members of those bodies and there is no evidence before me

l

I - as to which, if any, of the respondents are members of them at

all. They have not been joined on the basis that they are members of the relevant bodies, but rather on the basis that they are the alleged misusers of the property. If they are to be pursued in that capacity, it does not seem to me that they can be pursued properly as respondents in a proceeding under

S. 209 of the Act.

That conclusion is sufficient to require me to dismiss any application for an interim order in terms of paragraph (b) of the rule to show cause. It is unnecessary for me to go to any other issue in relation to that. It has been suggested that I should discharge that paragraph of the rule to show cause. I do not think that would be appropriate, because the applicant ought to be allowed such opportunity as he might avail himself of to seek to amend the rule to show cause, by adding parties or otherwise, and to make his case good if he is able to do so.

The second aspect of the proceeding is really
restricted to one only of the respondents, the thirteenth

respondent, Dave Noonan. Counsel for the applicant

acknowledges that the material would not justify making any

order in relation to any of the other respondents.

The material against Mr. Noonan arises out of the
applicant's observations of Mr Noonan at the Cabrini Hospital
construction site after about 1.15 pm on 28th April 1993.
-According to the applicant's evidence, he saw in the back of a
motor vehicle owned by the union, and used by Mr. Noonan in
the course of his official duties as an organiser, what
appeared to be green and blue election material. The
applicant subsequently obtained copies of that green and blue
election material, apparently from a shed on the site itself.
He had a conversation with a shop steward, who he describes as
named Rocco, in which the applicant asked, "Rocco, who put the
pamphlets in the shed?". Rocco replied, "Dave put the
pamphlets in the shed." This conversation is alleged to have
given rise to a belief on the part of the applicant that Mr.
Noonan was promoting or assisting candidates on the official
ticket whilst he should have been performing his official
duties as an organiser. The applicant also says that, as he
left, he noticed Mr. Noonan handing some election stickers to

Rocco and that Rocco left the site with Mr. Noonan.

Much of what the applicant says about the incident is contradicted by an affidavit of Rocco Lopreti, which was sworn today and filed in court. In particular, Mr. Lopreti denies that the applicant asked him who put the pamphlets in the shed and denies that he said, "Dave put the pamphlets in

the shed." He also denies that Mr. Noonan gave him any	election material and that he accompanied Mr. Noonan when he
left the site. He says that what Mr. Noonan gave him was some plastic wallets for union cards and some pencils.

I cannot regard the applicant's material as anything

- other than inadequate to establish, to any degree of

i
i

I	satisfaction, the proposition that Mr. Noonan put pamphlets in
j
I	a shed on the Cabrini Hospital construction site during the
i	I
course of his official duties. Nor can I be satisfied that I should make an interim order, imposing on Mr. Noonan the possible sanction of the criminal law or penalty for contempt of court, on the basis of the material which is in conflict. It seems to me that considerable weight must be given to a direct denial by Mr. Lopreti of receipt of any election material from Mr. Noonan on the occasion in question, as against the single sentence account which the applicant gives. The applicant's account contains no detail as to the point of observation of the applicant, or the manner in which he recognised what was handed over to be election stickers.
The duties of organisers are set out in rule 48 of the divisional rules. The relevant ones are in paragraphs (a) and (b) which provide as follows:-

"(a) They shall be under the control and supervision of the Divisional Branch Management Committee and shall carry out their duties within the provisions of the Rules.

(b)	They shall visit shops and jobs where members of the Divisional Branch and other workers eligible to join are employed and endeavour to enrol new members. They shall co-operate with all Shop and Job Stewards and District Secretaries, and carry out organisational work in any part of the State or Territory as directed by the Divisional Branch Management
Committee. "

It is plainly to be implied in those provisions of

1	the rules that an organiser will not so conduct himself or
!	l
herself as to campaign for or against any candidates in
i
elections within the union, whilst carrying out duties, or whilst he or she should be carrying out duties under those provisions of the rules. Given the history of matters of this nature in this Court, that obligation is without doubt well understood by many people. Given the nature of the evidence before me, it does not seem to me to be appropriate to reinforce that well known obligation by any interim order directed to Mr. Noonan.
Having reached those conclusions, it seems to me that I am bound to discharge so much of the order made on 5th May as amounts to interim orders and I propose to do so. I propose also to dismiss the applicant's claim for interim orders and to make directions, which have been discussed in argument, for the future conduct of the proceeding. For those reasons, I make the following orders:-
1. The interim order made on 5th May 1993 is discharged.

2.    The application for interim orders is dismissed.

3.   On or before 28th May 1993, the applicant file and serve contentions of fact and law and any further affidavits on which he seeks to rely.

- 4 . On or before 18th June 1993, the respondents file and serve contentions of fact and law and any affidavits on which they may seek to rely.

5.    The directions hearing is adjourned to 21st June 1993.

6.   Liberty to apply is reserved on seven days' notice in

writing.

Counsel for the Applicant:	Mr. Watson
Solicitors for the Applicant:	Gill, Kane h Brophy
Counsel for the Respondents:	Mr. Boronstein
Solicitors for the Respondents:	Holding Redlich
Date of Hearing:	7th May 1993
Date of Judgment:	7th May 1993

I certify that this and the

preceding ten (10) pages are a true copy of the reasons for judgment of his Honour Justice Gray

Associate:

Date: 18th May 1993