Sellars v Woods

[1982] FCA 281

Re: DAVID JOHN GARLAND MAPSTONE; BERNADETTE ANNE CALLAGHAN; DIANNE MARGARET
LINNANE and CHRISTOPHER WOODS
And: WILLIAM THORNTON and JOAN RIORDAN
Qld No. Q9 of 1982
Industrial Conciliation and Arbitration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
INDUSTRIAL DIVISION
Fitzgerald J.

CATCHWORDS

INDUSTRIAL CONCILIATION AND ARBITRATION - Registered Organisation - Order that members observe Rules of Organisation - application for order requiring out-going office-bearers to hand control of Union bank accounts to in-coming office-bearers - relevance of pending application under Part IX for election enquiry.

Conciliation and Arbitration Act 1901, ss. 141, 159 and 165

HEARING

BRISBANE

#DATE 15:12:1982

ORDER

1. UPON THE UNDERTAKING of the applicants by their counsel not to dismiss, retrench or put off any of the staff currently employed by the Union, until further order, THE COURT ORDERS THAT until further order the respondents William Thornton and Joan Riordan observe the rules of the Federated Clerks Union of Australia Central and Southern Queensland Branch, by signing all documents necessary to give effect to Rule 41 and, more particularly, to sign transfer of authority documents in respect of accounts in the name of the Federated Clerks Union of Australia, Central and Southern Queensland Branch, at the Commonwealth Bank of Australia and the Metropolitan Permanent Building Society.

2. THE COURT FURTHER ORDERS THAT the application is adjourned to a date to be fixed.

JUDGE1

There are circumstances of urgency about this matter and accordingly I propose to deliver judgment immediately. I am, of course, not in a position to provide detailed reasons but I shall state briefly why I am satisfied that I should make the interim order asked for by Mr Douglas, and refuse to permit the previous office bearers to continue to act for the time being, as sought by Mr Hanger.

It is common ground that, in the recent election the previous office bearers, Miss Riordan as president, Mr Palmer as vice-president and Mr Muller as secretary, were defeated by the present applicants, Mr Mapstone, Miss Callaghan and Miss Linnane. It is also common ground that the previous office bearers' term of office has, since the declaration of the poll and acceptance of the returning officers' report by the Branch Council, come to an end by virtue of Rule 27.

However, challenges to those elections have been initiated this morning, and will no doubt be referred to the court forthwith in accordance with para. 159(4)(a) of the Conciliation and Arbitration Act 1904, and thereupon, as provided by that paragraph, an enquiry shall be deemed to have been instituted. However, the Court will not be required to proceed with the enquiry unless it is satisfied that there are reasonable grounds for the application (para. 159(4)(b)), and may not declare the election void or declare that any person was not elected unless of opinion that, having regard to any irregularity found and any circumstances giving rise to a likelihood that similar irregularities may have occurred or may occur, the result of the election may have been or may be affected by irregularities (sub-s. 165(4)).

I have had placed before me a copy of Miss Riordan's application for an enquiry concerning the election in which she was involved, and I have been informed that the applications by Mr Muller and Mr Palmer are relevantly identical. In broad terms, three matters are raised. One complaint relates to acts and omissions of the Commonwealth Electoral Office in the conduct of the election. Although in respect of this and the other complaints I have, of course, formed no concluded view, on the face of the application there is nothing to indicate that the result of the election may have been affected by the conduct of the Australian Electoral Office.

The next matter concerns the roll of voters and the records of the union from which the roll was compiled. It may be said immediately that if any persons are shown in the records who were not entitled to be members, the blame for that cannot be attributed to those who were successful in the elections but, on the contrary, may well be the fault of those who were defeated who, it is common ground, have been in control of the Union for a long time.

However that may be, I am by no means convinced that because signed applications for membership in respect of a number of persons can no longer be found in the Union records it will necessarily follow that such persons were not members in fact. Even less must it follow that the outcome of the election may have been affected when, at least to this point, all that has been done has been to take two samples and to extrapolate from that to arrive at the total number of persons whom, it is said, are shown in the Union records and on the roll of voters of members but who are not in fact members.

The third complaint relates to 259 persons said to be non-financial members who it is said were included on the roll of voters and some 15 others who were wrongly included in or excluded from the roll of voters. The numbers are such that, at least if all voted who were not entitled to vote, the outcome of the election may have been affected. There is, however, nothing to indicate that that was so at this point.

Even if I were of the tentative view that an enquiry should proceed, a matter as to which I have at the moment an entirely open mind, it would by no means follow that those seeking to have the elections declared void would succeed, and that those recently elected would not.

I have had material put before me as to the attitude of the Federal Executive which would prefer that the Union be left in control of the previous office bearers who, as I have said, have controlled it for a lengthy period. I have taken those views into account although they do not seem to me to be of particular weight. Certainly, I see no reason to prefer them to what is, prima facie, the wish of the rank and file members of the Branch as established by the recent elections. I am by no means convinced that there is any ground to suspect that, if the recently elected members are permitted to control the Union pending the outcome of an enquiry into the elections, or, if re-elections are ordered, the outcome of those further elections, the affairs of the branch will be destabilised or that any other disadvantages will accrue. Appropriate undertakings should, however, be given on behalf of the present applicants for whom Mr Douglas appears.

It is perhaps a regrettable aspect that whoever is in control of the Union at the time may have an advantage in any further elections which may be ordered. There is, however, no reason, if that be so, to prefer the previous office bearers relative to those recently elected.

The present applicants are in control of the Union's premises and physical assets. To place them in control of its funds is, in my view, to do no more than to give effect to the wishes of the rank and file at the recent election. If the elections must be set aside and a different result ensues at the next elections, so be it. There is no present sufficient basis for assuming that that will be the result.

No ground exists, in my opinion, for interfering, on the balance of convenience or otherwise, with the status quo in which the present applicants are the office bearers.

Upon the applicants by their counsels undertaking not to dismiss, retrench or put off any of the staff currently employed by the Union, until further order, the Court orders that until further order the respondents William Thornton and Joan Riordan observe the rules of the Federated Clerks Union of Australia Central and Southern Queensland Branch, by signing all documents necessary to give effect to Rule 41 and, more particularly, to sign transfer of authority documents in respect of accounts in the name of the Federated Clerks Union of Australia, Central and Southern Queensland Branch, at the Commonwealth Bank of Australia and the Metropolitan Permanent Building Society.