Scarlett, in the matter of an application for an inquiry relating to an election for offices in the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
[1999] FCA 733
•14 MAY 1999
FEDERAL COURT OF AUSTRALIA
Scarlett, in the matter of an application for an inquiry relating to an election for offices in the Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union
[1999] FCA 733INDUSTRIAL LAW – application for election inquiry – whether manner in which particular nominations lodged comply with relevant rules of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.
Workplace Relations Act 1996 (Cth) ss 219(b), 222, 343(1),
Acts Interpretation Act 1901 (Cth) s23(b)Re; Emmett Ex p. Australian Federated Union of Locomotive Enginemen (1978) 33 FLR 269, referred to.
Bowman v Durham Holdings Pty Ltd (1973) 131 CLR 8, cited.
IN THE MATTER OF AN APPLICATION BY NEVILLE SCARLETT FOR AN INQUIRY RELATING TO AN ELECTION FOR OFFICES IN THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION, PRINTING DIVISION, VICTORIAN REGION
V 151 OF 1999
MARSHALL J
MELBOURNE
14 MAY 1999
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 151 OF 1999
IN THE MATTER OF AN APPLICATION BY NEVILLE SCARLETT FOR AN INQUIRY RELATING TO AN ELECTION FOR OFFICES IN THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION, PRINTING DIVISION, VICTORIAN REGION
MARSHALL J
14 MAY 1999 MELBOURNE THE COURT ORDERS THAT:
1.The interim order of 1 April 1999 be vacated.
2.The inquiry be terminated.
3.Pursuant to s343(1) of the Workplace Relations Act 1996 (Cth) it is certified that the applicant acted reasonably in applying for the inquiry.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 151 OF 1999
IN THE MATTER OF AN APPLICATION BY NEVILLE SCARLETT FOR AN INQUIRY RELATING TO AN ELECTION FOR OFFICES IN THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION, PRINTING DIVISION, VICTORIAN REGION
JUDGE:
MARSHALL J
DATE:
14 MAY 1999
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This matter is an application for an inquiry relating to an election for certain offices in the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“the Union”). On 1 April 1999 the Court determined, after hearing counsel for the applicant in chambers, that there were reasonable grounds for the inquiry. See s219(b) of the Workplace Relations Act 1996 (Cth) (“the Act”).
The applicant, Mr Scarlett, is a member of the Union in the Victorian Region of its Printing Division. The election, the subject of the inquiry, is an election for the following offices in the Victorian Region of the Printing Division of the Union:
· Regional President,
· Regional Vice-President, and
· Regional Councillor.
(“the relevant offices”)
The Union is an organisation of employees registered under the Act.
The Returning Officer who has the conduct of the elections for the relevant offices is Mr Dean. Mr Dean is an employee of the Australian Electoral Commission (“AEC”).
Mr Dean determined that nominations for the relevant offices were to be lodged when received by him in any of the following ways:
· By post to GPO Box 4382 QQ Melbourne Vic 3001,
· by fax to 03 9285 7149; or
· by hand to Level 22, Casselden Place, 2 Lonsdale Street (Cnr Spring Street), Melbourne.
The closing date for the lodging of nominations was 12 noon on Wednesday 3 March 1999.
The applicant and about 29 other members of the Union wished to contest the election for one or more of the relevant offices as part of a team.
On behalf of the team Mr Adrian Colebrook was requested to co-ordinate the completion and lodgement of nomination forms for election to the relevant offices.
Mr Scarlett gave his completed nomination form to Mr Colebrook. He understood that Mr Colebrook would post the form to Mr Dean together with nomination forms of other team members.
At about 9.30 am on 2 March 1999, Mr Colebrook attended at the Granville Post Office in New South Wales. When he reached the counter he spoke to a Ms Gia Law, an employee of the Australian Postal Corporation (“Australia Post”). He informed Ms Law that he wished to forward the nomination forms to Mr Dean so that Mr Dean received them in Melbourne before noon the next day.
Ms Law informed Mr Colebrook that Australian Air Express (“AAE”) guaranteed that delivery would be effected before noon on 3 March 1999. Mr Colebrook gave the forms to Ms Law for forwarding to Melbourne by AAE and was issued with a delivery consignment note by Ms Law on behalf of Australia Post.
On 3 March 1999 at about 11.15 am Mr Colebrook telephoned Mr Dean to inquire whether the nomination forms he sent to Melbourne had been received. Mr Dean replied in the negative. Mr Colebrook then spoke to the Postmaster at Granville, Mr Neville Robinson. Mr Robinson told him that in the ordinary course the forms should have been received in Melbourne by noon on 3 March 1999.
Mr Robinson contacted AAE, which had no record of the relevant item in its system for delivery. Mr Robinson ascertained that a “service failure” had occurred between the Leightonfield Mail Centre and the AAE Receiving Office. Mr Colebrook was subsequently informed by Australia Post that the forms were delivered to GPO Box 4382 QQ Melbourne at about 6.00 am on 4 March 1999.
The solicitors for Mr Scarlett, in their capacity as solicitors for Mr Colebrook, wrote to Mr Dean on 3 March 1999 requesting that he accept the nominations because they were posted by means which in the ordinary course would have resulted in them reaching Mr Dean in time. The solicitors letter referred to Rule 2 Part A paragraph (8)(a) of the rules of the Union which provides relevantly that:
“A nomination under this Rule shall … be forwarded to the Returning Officer at the place determined by him/her…so as to reach him/her no later than the date determined by him/her as the closing date for lodging nominations.”
A further representation was made by the same solicitors to Mr Dean on 5 March 1999 once they had discovered that the nomination forms had been delivered on the previous morning.
By letter dated 19 March 1999 Mr Dean advised the solicitors that he had not accepted the nominations as he did not receive them until after the time designated.
Mr D Langmead, of counsel, appeared for the applicant. Mr J Bourke, of counsel, appeared for both the AEC and Mr Dean, each of whom were granted leave to appear at the inquiry pursuant to s222 of the Act.
Mr Langmead submitted that Mr Dean’s determination that a post office box was a place at which nominations could be lodged and that nominations could be lodged by post was tantamount to a determination that any official mail receptacle, including a post office, could be a place at which nominations may be lodged. In the course of this submission Mr Langmead conceded that the Returning Officer had determined a place for the receipt of nominations. I accept that concession. The place, in the Court’s view, was not the post office box. It was the Lonsdale Street address of the AEC. In addition to permitting nominations to be lodged at that address Mr Dean permitted them to be lodged by being sent to the postal address for the Lonsdale Street office of the AEC or to the fax machine at that address. The correct analysis is that the place for the lodging of nominations was the Lonsdale Street address alone, the other two methods of receipt being by way of assistance to facilitate interested persons not able to physically attend at the Lonsdale Street premises.
Mr Langmead relied heavily on the judgment of Keely J in Re; Emmett Ex p. Australian Federated Union of Locomotive Enginemen, (1978) 33 FLR 269. In Emmett, the Returning Officer had determined that (at 272):
“Nominations close on November 12th, 1977, and must be mailed to -
Returning Officer,
Box 65,
NORTH MELBOURNE. 3051.”At the material time sub-reg 146AC(2) of the Conciliation and Arbitration Regulations provided for a returning officer to determine the place for lodging nominations of candidates for election.
In Emmett, Keely J said (at 274):
“No doubt the returning officer intended box 65 to be the place at which nominations should in the normal course of events arrive. However, I consider that the notice amounted to a notification that “the place for lodging” nominations determined by the returning officer was any official mail receptacle.”
In the next paragraph of his reasons, his Honour said:
“The returning officer’s notice directed that nominations “must be mailed” and therefore required any intending candidate to mail his nomination by enclosing it in a properly addressed and stamped envelope and then depositing or placing that envelope containing the nomination in any official mail receptacle.”
His Honour further considered that the word “place” in reg 146AC comprehended the plural as well as the singular. See also D C Pearce and R S Geddes “Statutory Interpretation in Australia” 4th ed at par 6.27 and s23(b) of the Acts Interpretation Act 1901 (Cth).
In reliance on Emmett, Mr Langmead submitted that lodgment of the nominations in any official mail receptacle by noon on 3 March 1999 complied with Mr Dean’s determination regarding the lodging of nominations. In Emmett the Returning Officer’s determination that the nominations must be mailed to him differed from the determination made by Mr Dean. Mr Dean gave three options for the lodging of nominations:
· By post,
· by fax, or
· by hand.
All such methods involved actual receipt by Mr Dean of the nominations by the due date. In the context of the post office box address that meant, in the Court’s view, lodging in the box by the due time.
In circumstances where a determination had been made that the nomination forms be mailed simpliciter it is easy to understand why Keely J held that lodging at any mail receptacle met the relevant requirements. In this case no such determination was made. In this matter the nominations had to be forwarded in at least one of the three ways set out so as to reach Mr Dean no later than noon on 3 March 1999. If the nominations did not comply with that determination they were lodged out of time. The Court considers the nomination forms the subject of this inquiry to be in that category.
In the alternative Mr Langmead submitted that a determination which included provision for nominations to be lodged by post amounted to a determination that they may be lodged by post and received by the Returning Officer by the deadline set in the normal course of post. This submission conflicts with the plain words of Mr Dean’s determination which contemplated that the nominations reach him by the deadline set. It was the responsibility of a person seeking to lodge such a nomination to ensure that the requirement was fulfilled within the confines of the three methods available.
In his alternative submission Mr Langmead referred to the judgment of the High Court of Australia in Bowman v Durham Holdings Pty Ltd (1973) 131 CLR 8. In Bowman, Stephen J, with whom Barwick CJ and Menzies J agreed, dealt with a submission concerning whether a purported notice of an option to purchase interests in coal and other minerals was given in time. His Honour discussed the meaning of “ordinary course of post” in the context of the inclusion of those words in the relevant deed. In the context of Mr Dean’s determination the meaning of “ordinary course of post” does not arise as a matter requiring resolution in the inquiry.
Consequently the Court is of the view that in failing to accept the nomination of Mr Scarlett and other members of that team Mr Dean did not act contrary to the rules of the Union. Accordingly the Court is unable to find that any irregularity occurred in relation to the election by the Returning Officer’s failure to accept those nominations.
In the circumstances it is appropriate to order as follows:
1. The interim order of 1 April 1999 be vacated.
2. The inquiry be terminated.
3. Pursuant to s343(1) of the Workplace Relations Act 1996 (Cth) it is certified that the applicant acted reasonably in applying for the inquiry.
The Court is prepared to make the certification referred to above given its view that the applicant’s main contention although ultimately unsuccessful was arguable.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate:
Dated: 14 May 1999
Counsel for the Applicant: Mr D Langmead Solicitor for the Applicant: Maurice Blackburn & Co Counsel for the Respondent: Mr J Bourke Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 14 May 1999 Date of Judgment: 14 May 1999 (ex-tempore as revised from the transcript)
1
1
0