White, in the matter of an election for an office in Transport Workers’ Union of Australia, Queensland Branch
[2019] FCA 2131
•19 December 2019
FEDERAL COURT OF AUSTRALIA
White, in the matter of an election for an office in Transport Workers’ Union of Australia, Queensland Branch [2019] FCA 2131
File number: QUD 168 of 2019 Judge: COLLIER J Date of judgment: 19 December 2019 Catchwords: INDUSTRIAL LAW - Inquiry into election for offices in an organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth) - 2018 Transport Workers’ Union of Australia Queensland Branch Election – allegation of irregularities – whether applicant bears onus of establishing an irregularity – whether the comments made by union delegates at training sessions constituted a use of union or Branch resources - whether conduct of campaigners contravened s 190 – whether use of union vehicles contravened s 190 – whether unauthorised ballot boxes were utilised at various sites – whether the use of unauthorised ballot boxes contravened union rules – whether all eligible voters were included on the members’ list – whether union officers campaigning for one election team exercised a right of entry to enter work sites – whether established irregularities materially affected the outcome of the election – application of s 324 because irregularities established – no costs jurisdiction. Legislation: Fair Work (Registered Organisations) 2009 (Cth) ss 6, 161, 190, 200, 201, 206, 324, 325, 329
Fair Work Act 2009 (Cth)
Workplace Relations Act 1996 (Cth) s 223
Workplace Relations Amendment (Registration and Accountability of Organisations) Act 2002 (Cth)
Cases cited: Asmar, in the matter of an election for an office in the Victorian No 1 Branch of the Health Services Union (No 3) [2012] FCA 1289; (2012) 207 FCR 476
Asmar, in the matter of an Election for offices of the Health Services Union [2009] FCA 1294
Becker, in the matter of an application for an inquiry in relation to an election for offices in the Australian Education Union, Queensland Branch [2004] FCA 1534
Carney v Matthews, unreported, IRCA N1.109/1994, 27 March 1995
Clancy, in the matter of an application for an inquiry in relation to an election for offices in the Australian Nursing and Midwifery Federation [2017] FCA 460
Gray, in the matter of an application for an inquiry relating to an election for an office in the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia, Electrical, Energy and Services Division [2012] FCA 1165
Kelly, in the matter of an application for an inquiry in relation to an election for an office in the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Branch of the Australian Municipal, Administrative, Clerical and Services Union (No 2) [2011] FCA 490
Mcjannett, in the matter of an application for an inquiry in relation to an election for offices in the Construction, Forestry, Mining and Energy Union, Western Australian Branch (No 2) [2009] FCA 1015; (2009) 188 IR 156
Nelson v Cameron [2000] FCA 554; (2000) 98 IR 46
Nimmo, in the matter of an application for an inquiry relating to an election for an office in the Australian Education Union (NT Branch) [2011] FCA 38; (2011) 192 FCR 111 at [28]
Reid, in the matter of an application for an inquiry relating to elections for offices in the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2007] FCA 417; (2007) 163 IR 392
Sara, in the matter of an inquiry into the election for offices in the Australian Salaried Medical Officers Federation [2018] FCA 844
Scott v Jess (1984) 3 FCR 263
Thompson, in the matter of an application for an inquiry relating to an election for an office in the Automotive, Foods, Metals, Engineering, Printing & Kindred Industries Union, Victorian Branch [2000] FCA 745; (2000) 99 IR 225
Date of hearing: 2 and 3 September 2019 Date of last submissions: 11 October 2019 Registry: Queensland Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 217 Counsel for the Applicant: The Applicant appeared in person Counsel for the First, Second and Third Interested Persons: Mr LS Reidy Counsel for the Fourth Interested Person: Mr M Gibian SC Solicitor for the Fourth Interested Person: Michael Doherty Legal Solicitor for the Fifth Interested Person: Mr PV Hickey of Clayton Utz ORDERS
QUD 168 of 2019 IN THE MATTER OF AN ELECTION FOR AN OFFICE IN TRANSPORT WORKERS’ UNION OF AUSTRALIA, QUEENSLAND BRANCH BETWEEN: MR DARREN WHITE
Applicant
AND: MR ADAM MICHAEL CARTER
First Interested Person
MR BRADLEY COLIN WYATT
Second Interested Person
MR PIERLUIGI BIAGINI
Third Interested Person
TRANSPORT WORKERS UNION OF AUSTRALIA
Fourth Interested Person
AUSTRALIAN ELECTORAL COMMISSION
Fifth Interested Person
JUDGE:
COLLIER J
DATE OF ORDER:
19 DECEMBER 2019
THE COURT ORDERS THAT:
1.The election inquiry be terminated forthwith.
2.There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLLIER J:
On 2 and 3 September 2019, the Court sat as a Court of Inquiry (inquiry) into alleged irregularities in the 2018 Transport Workers’ Union of Australia Queensland Branch Elections (E2018/141) (election). The inquiry followed an application by Mr Darren White, a member of the Transport Workers’ Union (TWU) and delegate of the Queensland Branch, filed 11 March 2019 pursuant to s 200 of the Fair Work (Registered Organisations) Act 2009 (Cth) (FWRO Act), claiming irregularities in the following terms:
·The TWU used, or allowed to be used, its property and resources to help the Your Transport Workers’ Team (YTWT) against a rival election team, Team Driven.
·TWU officers supporting YTWT exercised of a right of entry under the Fair Work Act 2009 (Cth) to enter work sites.
·A local ballot box was put into place at the Surfside Buslines site at Tweed Heads, with a note instructing members that the ballot box was able to be used, where the Australian Electoral Commission (AEC) had not directed or authorised its use.
·A local ballot box was put in place at the Sunbus site in Townsville, where the AEC had not directed or authorised its use.
·There was a failure to maintain an accurate register of TWU members, and the register of members included a number of persons who were not eligible members or whose membership details were not up to date.
The following background facts were not in dispute:
·Nineteen officer positions were up for election including Branch President, Branch Vice President, Branch Secretary, Branch Assistant Secretary and two Branch Trustees.
·The applicant, Mr White, nominated for the office of Branch Secretary, and as part of a team which was nominating candidates for all offices up for election. The name of his team was “Team Driven”.
·Mr Pierluigi Biagini (also known as “Peter Biagini”) nominated for the office of Branch Secretary. Mr Biagini campaigned as part of the YTWT. YTWT fielded candidates for all offices in the Branch.
·Nominations for office in the Branch opened at 12.00 pm (AEST) on 11 September 2018.
·Nominations for office in the Branch closed at 12.00 pm (AEST) on 2 October 2018.
·The ballot opened at 12.00 pm (AEDT) on 12 November 2018.
·The ballot closed at 12.00 pm (AEDT) on 30 November 2018.
·The election period was the period between the opening of nominations at 12.00 pm (AEST) on 11 September 2018 and the close of ballot at 12.00 pm (AEDT) on 30 November 2018.
·The following members of the YTWT held the following offices in the Branch prior to and during the election period:
• Mr Brad Wyatt was Branch President
• Mr Biagini was Branch Secretary
• Mr Adam Carter was Branch Assistant Secretary
·The result of the election was that candidates from the YTWT were successful in all positions.
The following members were nominated by Team Driven as candidates:
·Branch President: Mr Greg Eaves
·Branch Vice President: Mr Mick White
·Branch Secretary: Mr Darren White
·Branch Assistant Secretary: Mr Brad Hampson
·Branch Trustee: Mr Gary Taylor and Ms Amanda Lawson
·Branch Committee or Management Member: Mr Peter Seage, Ms Wendy Saunders, Mr Barry Levey, Mr Brett Perry, Mr Brad Hixon, Ms Sonja May, Mr Jimmy Doyle, Mr Henry Adsett, Mr John Dale and Mr Phil McPherson
·National Councillor: Mr Gary Taylor and Ms Wendy Saunders
·Female National Councillor: Ms Amanda Lawson
The following members were nominated by YTWT as candidates:
·Branch President: Mr Brad Wyatt
·Branch Vice President: Mr Neil Conway
·Branch Secretary: Mr Peter Biagini
·Branch Assistant Secretary: Mr Adam Carter
·Branch Trustee: Mr Mick Cardile and Mr Kent Wilkins
·Branch Committee or Management Member: Mr Greg Delamotte, Mr James Wilkinson, Mr Stephen Hurndell, Ms Chyna Marsh, Mr Ian Buckingham, Mr Neville Wheeler, Mr Adam Winters, Mr Andrew Thomson, Ms Julianne Kingaby and Mr Nick Harris
·National Councillor: Mr Terry Russell and Mr Guillaume Maze
·Female National Councillor: Ms Sue Cleary
The declaration of results of the election were as follows:
·Branch President: Mr Wyatt received 1,980 first preference votes and Mr Eaves received 659 first preference votes. Accordingly, Mr Wyatt was elected as Branch President.
·Branch Vice President: Mr Conway received 1,972 votes and Mr White received 668 votes. Accordingly, Mr Conway was elected as Branch Vice President.
·Branch Secretary: Mr Biagini received 1,983 first preference votes and Mr White received 660 first preference votes. Accordingly, Mr Biagini was elected as Branch Secretary.
·Branch Assistant Secretary: Mr Carter received 1,984 first preference votes and Mr Hampson received 655 first preference votes. Accordingly Mr Carter was elected as Branch Assistant Secretary.
·Branch Trustee: Mr Wilkins received 1,959 first preference votes, Mr Cardile received 1,934 first preference votes, Ms Lawson received 672 first preference votes and Mr Taylor received 658 first preference votes. Accordingly, Mr Wilkins and Mr Cardile were elected as Branch Trustees.
·Branch Committee or Management Member: The total first preference votes for the candidates were as follows:
• Mr Harris – 1,961 first preference votes
• Ms Saunders – 667 first preference votes
• Ms Marsh – 1,958 first preference votes
• Mr Hixon – 668 first preference votes
• Mr McPherson – 646 first preference votes
• Mr Dale – 650 first preference votes
• Mr Thomson – 1,953 first preference votes
• Mr Perry – 661 first preference votes
• Mr Doyle – 671 first preference votes
• Mr Wilkinson – 1,943 first preference votes
• Mr Buckingham – 1,956 first preference votes
• Mr Wheeler – 1,955 first preference votes
• Mr Levey – 670 first preference votes
• Mr Delamotte – 1,946 first preference votes
• Ms Kingaby – 1,945 first preference votes
• Mr Adsett – 658 first preference votes
• Mr Seage – 665 first preference votes
• Mr Hurndell – 1,942 first preference votes
• Mr Winters – 1,952 first preference votes
• Ms May – 679 first preference votes
Accordingly, Mr Harris, Ms Marsh, Mr Buckingham, Mr Wheeler, Mr Thomson, Mr Winters, Mr Delamotte, Ms Kingaby, Mr Wilkinson and Mr Hurndell were elected as Branch Committee of Management Members.
·National Councillor: Ms Saunders received 680 first preference votes, Mr Taylor received 658 first preference votes, Mr Russell received 1,960 first preference votes and Mr Maze received 1,934 first preference votes. Accordingly, Mr Russell and Mr Maze were elected as National Counsellors.
·Female National Councillor: Ms Cleary received 1,964 first preference votes and Ms Lawson received 668 first preference votes. Accordingly, Ms Cleary was elected as Female National Councillor.
On 15 April 2019, I considered the originating application for inquiry relating to an election, filed by Mr White on 11 March 2019 pursuant to s 200 of the FWRO Act. After hearing the submissions of Mr White, I was satisfied that there were reasonable grounds for the application and that it was appropriate for the Court to conduct an inquiry. Pursuant to s 201 of the FWRO Act, I fixed a time and place for conducting the inquiry in the following terms:
1.An inquiry (Inquiry) into the election for offices in the Transport Workers’ Union of Australia Queensland Branch (the TWU), being election number E2018/141 conducted by the Australian Electoral Commission (AEC), is fixed to be conducted at 10.15 am on 11 June 2019 at the Sir Harry Gibbs Commonwealth Law Courts, 119 North Quay, Brisbane QLD 4000.
2.By 4.00 pm on 15 April 2019 the applicant is to serve a copy of these orders on the TWU and the AEC.
3.By 4.00 pm on 18 April 2019, the TWU is to cause to be published on its website:
a)a notice notifying members of the time and place fixed for the Inquiry and informing them that the affidavit material filed by the applicant as at the date of this order may be made available to them by the applicant upon request; and
b) the originating application (Form 85).
4. The Electoral Commissioner is to notify by letter or email, by 4.00 pm on 26 April 2019:
a) the TWU; and
b) the nominees in election number E2018/141;
of the time and place for the Inquiry, annexing the originating application (Form 85) and this order and informing them that the affidavit material filed by the applicant as at the date of this order may be made available to them by the applicant upon request.
…
6.On or before 4.00 pm on 17 May 2019, any person who wishes to apply for leave to appear before the Court at the Inquiry is to file and serve:
a) an application for leave to appear; and
b)any affidavit material on which the person intends to rely in support of the application and at the Inquiry if leave is granted.
…
Pursuant with these orders on 31 May 2019 the following parties were granted leave to appear in the proceedings as Interested Persons:
(1)Mr Pierluigi Biagini, at material times the Branch Secretary of the Queensland Branch of the TWU and a candidate for the office of Branch Secretary in the election;
(2)Mr Adam Carter, at material times the Branch Assistant Secretary of the Queensland Branch of the TWU and a candidate for the office of Branch Assistant Secretary in the election;
(3)Mr Bradley Wyatt, at material times the Branch President of the Queensland Branch of the TWU and a candidate for the office of Branch President in the election;
(4)The TWU; and
(5)The AEC.
Conduct of Mr Tom Pfund, an organiser for the Townsville and Mackay regions employed by the Queensland Branch of the TWU and a YTWT supporter was also relevant to this inquiry, and Mr Pfund gave both affidavit and oral evidence.
SUBSTANTIVE HEARING
Section 206 of the FWRO Act provides:
Action by Federal Court
(1)At an inquiry, the Federal Court must inquire into and determine the question whether an irregularity has happened in relation to the election, and such further questions concerning the conduct and results of the election as the Court considers necessary.
(2)For the purposes of subsection (1), the Court must determine whether an irregularity has happened on the balance of probabilities.
(3)In the course of conducting an inquiry, the Court may make such orders (including an order for the recounting of votes) as the Court considers necessary.
(4)If the Court finds that an irregularity has happened, the Court may, subject to subsection (5), make one or more of the following orders:
(a)an order declaring the election, or any step in relation to the election, to be void;
(b)an order declaring a person purporting to have been elected not to have been elected, and declaring another person to have been elected;
(c) an order directing the Commissioner to make arrangements:
(i)in the case of an uncompleted election--for a step in relation to the election (including the calling for nominations) to be taken again and for the uncompleted steps in the election to be taken; or
(ii)in the case of a completed election--for a step in relation to the election (including the calling for nominations) to be taken again or a new election to be held;
(d)an order (including an order modifying the operation of the rules of the organisation to the extent necessary to enable a new election to be held, a step in relation to an election to be taken again or an uncompleted step in an election to be taken) incidental or supplementary to, or consequential on, any other order under this section.
(5)The Court must not declare an election, or any step taken in relation to an election, to be void, or declare that a person was not elected, unless the Court is of the opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have happened or may happen, the result of the election may have been affected, or may be affected, by irregularities.
(6)Without limiting the power of the Court to terminate a proceeding before it, the Court may, at any time after it begins an inquiry into an election, terminate the inquiry or the inquiry to the extent that it relates to specified matters.
Section 6 of the FWRO Act defines “irregularity” as follows:
irregularity, in relation to an election or ballot, includes:
(a)a breach of the rules of an organisation or branch of an organisation; and
(b) an act or omission by means of which:
(i) the full and free recording of votes by all persons entitled to record votes and by no other persons; or
(ii) a correct ascertainment or declaration of the results of the voting;
is, or is attempted to be, prevented or hindered; and
(c) a contravention of section 190.
Section 190 of the FWRO Act provides:
Organisation or branch must not assist one candidate over another
An organisation or branch commits an offence if it uses, or allows to be used, its property or resources to help a candidate against another candidate in an election under this Part for an office or other position.
Penalty: 100 penalty units.
As I noted earlier, the irregularities claimed by Mr White can be summarised by reference to four categories. These claims are further particularised in written submissions filed by Mr White.
In relation to the allegation that the TWU used, or allowed to be used, its property and resources to help the YTWT, Mr White alleges in summary that s 190 was contravened by:
·The use of the Branch Van by Mr Biagini supporting the YTWT.
·The use of Branch vehicles by union officials supporting the YTWT.
·The campaigning by union officials supporting the YTWT over Team Driven at delegate training sessions and at various sites.
·The alleged campaigning of union officials supporting the YTWT during “work time”.
Mr White, provided evidence in chief in the form of three affidavits dated 11 March 2019, 7 May 2019 and 18 July 2019. Additional evidence in support of the application was provided in:
·Confidential affidavits dated 11 July 2019 and 1 August 2019
·Further confidential affidavits dated 12 July 2019 and 1 August 2019; and
·Affidavit of Ms Rebecca Smith dated 7 May 2019.
Ms Smith also gave oral evidence at the hearing.
Evidence on behalf of the First to Third Interested Persons was given by :
·Mr Biagini (in affidavits dated 16 May 2019 and 5 August 2019)
·Mr Wyatt (in affidavits dated 16 May 2019 and 5 August 2019)
·Mr Pfund (in affidavits dated 16 May 2019 and 27 August 2019)
·Ms Donna Clapham (in an affidavit dated 17 May 2019)
·Mr James Dunne (in an affidavit dated 17 May 2019)
·Mr Nathan Turner (in an affidavit dated 17 May 2019)
·Mr Patrick White (in an affidavit dated 17 May 2019)
·Mr Ben Segond (in an affidavit dated 21 May 2019)
Mr Biagini, Mr Wyatt and Mr Pfund all gave oral evidence at the hearing.
Evidence on behalf of the Fourth Interested Person was given by:
·Ms Kay Stanley (in an affidavit dated 15 May 2019)
·Mr Jon Clark (in affidavits dated 19 May 2019 and 29 August 2019)
·Mr Biagini (in an affidavit dated 28 May 2019)
Evidence on behalf of the Fifth Interested Person was given by :
·Mr Alan Jones (in an affidavit dated 17 May 2019) and
·Mr Stephen Gillespie (in an affidavit dated 17 May 2019).
CONSIDERATION
In this case the issues raised for consideration are as follows:
1.Does the applicant bear the onus of establishing that an irregularity has occurred?
2.Did the actions of YTWT campaigners at the delegate training session at Murarrie on 10 October 2018 constitute an irregularity?
3.Did the actions of YTWT campaigners at the delegate training session at StarTrack Rockhampton on 2 November 2018 constitute an irregularity?
4.Did the conduct of YTWT campaigners at various sites breach s 190 of the FWRO Act?
5.Did YTWT’s use of the Branch Van and/or Branch vehicles constitute an irregularity?
6.Was an unauthorised ballot box used at the Surfside Buslines Site and/or the Sunbus Townsville Site? If so, did these actions constitute irregularities?
7.Was the members’ list accurate, so as to allow voting by eligible members in the election?
8.Did YTWT utilise work entry permits to enter worksites? If so, did this conduct constitute an irregularity?
9.If conduct did constitute irregularities, were the irregularities such that the result of the election may have been affected by the irregularities within the meaning of s 206(5) of the FWRO Act?
I will examine each of these issues in turn.
ISSUE 1: DOES THE APPLICANT BEAR THE ONUS OF ESTABLISHING THAT AN IRREGULARITY HAS OCCURRED?
The parties are in dispute as to whether the applicant carries the onus of satisfying the Court that pursuant to s 206(2) an irregularity has occurred.
In closing submissions, the applicant referred to the following comments of Finkelstein J in Thompson, in the matter of an application for an inquiry relating to an election for an office in the Automotive, Foods, Metals, Engineering, Printing & Kindred Industries Union, Victorian Branch [2000] FCA 745; (2000) 99 IR 225 at [25]:
In Re Magee; Re Inquiry into Elections for Offices within Transport Workers' Union and the Victorian Branch thereof (1991-92) 41 IR 27 at 35, Keely J expressed the tentative opinion that there "may be no formal onus of proof on an applicant where...the court is conducting an inquiry [into an election]". He went on to say, however, that the Court could not find that an irregularity had happened unless it was so satisfied on the balance of probabilities. In Re Bailey; Re Transport Workers' Union of Australia (Victorian Branch) (1997) 79 IR 1, Gray J took Magee to hold that an applicant did carry a burden to establish the requisite facts on the balance of probabilities. Gray J said (at 21):
"...those who wish to establish that irregularities have happened in relation to elections must at least bear an onus of producing evidence and that, on the whole of the evidence, the Court must be satisfied on the ordinary civil onus of proof that such irregularities have occurred, before it can make a finding to that effect."
I do not believe that an applicant carries any burden of proof either in the sense that the applicant is obliged to prove or disprove facts (sometimes referred to as a legal burden) or is obliged to adduce evidence in order to raise an issue (sometimes referred to as an evidential burden, but see Jayasena v R [1970] AC 618 as to the use of this expression). The only burden that an applicant must satisfy is to show that an inquiry should be instituted. S219 imposes that burden. In my opinion, once an inquiry is being undertaken the applicant carries no burden of proof. His interest is to see that a fair election has been held, but he is under no obligation to prove the case.
(Emphasis added.)
The applicant submitted that whilst the decision of Finkelstein J concerned s 223 of the Workplace Relations Act 1996 (Cth) (the predecessor to s 206 of the FWRO Act), there was no reason that the decision of Finkelstein J was not applicable.
Further, the applicant submitted that s 206(1) of the FWRO Act imposed an obligation of this Court to inquire into and determine the question of whether an irregularity had occurred. This placed a technical onus on the Court to determine the question on the balance of probabilities.
The First to Third Interested Persons and the Fourth Interested Person both submitted that the applicant bore the onus of establishing an irregularity on the balance of probabilities. The Court’s attention was referred to the decision of Reeves J in Nimmo, in the matter of an application for an inquiry relating to an election for an office in the Australian Education Union (NT Branch) [2011] FCA 38; (2011) 192 FCR 111, in particular at [28]:
While this does not directly resolve the interrelated question as to who, if anyone, bears the onus of proof, I consider it does so by implication. Since the civil standard of proof has now been adopted by the legislature for the purposes of this type of inquiry, in my view that clearly implies that someone has to meet that standard in the inquiry. As Gray J observed in Bailey, while these proceedings are in the nature of an inquiry, they must still be conducted as judicial proceedings (see at 21). I consider it follows the person who “claims that there has been an irregularity in relation to an election” under s 200(1) of the Act must at least bear the onus of producing evidence to satisfy the court that the irregularities he or she claims to have occurred did, in fact, happen. For these reasons, I respectfully agree with the observations of Gray J in Bailey set out above. I also note that in Re Jacomb (2000) 180 ALR 134; [2000] FCA 1891 (“Jacomb”), Weinberg J (at [9]) appears to have accepted that an applicant in a similar position to Mr Nimmo bears such an onus. I therefore reject Mr Nimmo’s counsel’s contention on this issue and hold that Mr Nimmo does bear the onus of producing evidence to satisfy me that the irregularities he claims occurred in relation to this election, did happen.
(Emphasis added.)
The position of Reeves J in Nimmo, namely that an applicant bears the onus of producing evidence to satisfy the Court that irregularities happened, was similarly adopted by Tracey J in Asmar, in the matter of an election for an office in the Victorian No 1 Branch of the Health Services Union (No 3) [2012] FCA 1289; (2012) FCA 1289 at [13]; Flick J in Gray, in the matter of an application for an inquiry relating to an election for an office in the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia, Electrical, Energy and Services Division [2012] FCA 1165 at [8] and Flick J in Kelly, in the matter of an application for an inquiry in relation to an election for an office in the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Branch of the Australian Municipal, Administrative, Clerical and Services Union (No 2) [2011] FCA 490 at [15].
No reason has been advanced demonstrating error in the principle articulated by Reeves J in Nimmo and subsequently followed by other Judges of this Court. While the Court is tasked by s 206 of the FWRO Act with inquiring into and determining whether an irregularity has occurred, this does not abrogate the general principle that a party bringing an action – in this case, the party claiming that there has been an irregularity in an election – bears the onus of producing evidence to satisfy the Court that an irregularity has occurred on the balance of probabilities.
It follows that I do not accept the submissions of Mr White on this issue. In this case, Mr White bears the onus of establishing that an irregularity has occurred in respect of the election.
ISSUE 2: DID THE ACTIONS OF YTWT CAMPAIGNERS AT THE DELEGATE TRAINING SESSION AT MURARRIE ON 10 OCTOBER 2018 CONSTITUTE AN IRREGULARITY?
It is common ground that, on 9 October 2018 and 10 October 2018, Mr Jon Clark, a Union Educator employed by the TWU, delivered a two day scheduled Tier 1 training course to TWU delegates at Murarrie, Queensland (Murarrie training course). It is uncontested that Mr Carter and Mr Wyatt attended part of the Murarrie training course. However it is only Mr Carter’s conduct at the course which is relevant in this context.
Mr Clark deposed that each year he creates a schedule setting out the dates on which he will deliver training. The training is then delivered according to the schedule subject to the availability of delegates and requests from the Branch. There is no suggestion by any party that the delegate training session was deliberately scheduled to coincide with the election period.
The First to Third Interested Persons submitted that Mr Carter spoke to the delegates in a short session on the second day, and that he spoke generally about the processes and importance of the upcoming election.
The applicant accepted that Mr Carter was present to address delegates, and indeed there does not appear to be a dispute as to the words Mr Carter used at the session. However the applicant alleged that Mr Carter took this opportunity to advocate for the YTWT in the upcoming TWU election. The applicant further submitted that, in Mr Carter advocating on behalf of the YTWT team, the TWU or the Queensland Branch was using, or allowing its property or resources to be used, to help YTWT candidates against Team Driven candidates in the upcoming election. The applicant claimed that this conduct constituted a contravention of s 190 of the FWRO Act, and therefore an irregularity within the meaning of s 6 of the FWRO Act.
The applicant has provided the Court with an audio recording on a USB stick of the relevant session on 10 October 2018. An affidavit dated 11 July 2019 was provided by a third party who deposed that he attended the Murarrie training course and made the audio recording of the discussions about the upcoming election. This affidavit was filed on a confidential basis and contained a transcript of the relevant recording.
An alternative transcript of this recording is also annexed to the affidavit of Mr Wyatt affirmed 5 August 2019. Mr Wyatt deposed that the transcripts were incomplete in that Mr Carter spoke to the delegates for a number of minutes prior to the recording commencing.
Although the transcripts do not vary to a significant degree, it is useful to extract them both in these reasons. The transcript attached to the affidavit of 11 July 2019 is as follows:
Carter:So it is run, actually the election is run by the government so [indistinct] all above board. This year Peter, myself as the assistant secretary and Brad as the president and the whole branch committee of management are going to be challenged by another team. [Voices]
There will be some questions.
Female Member: [indistinct] officers do?
Carter:Yes and at the end of the day you will get a vote, you can vote who you think will do the best job hopefully for your union. What I say is this is not a time where we should be looking for changes cos we have got plans for the future and if we don't have continuity in this branch and across the whole union those plans would be put in some jeopardy so when the time comes to vote, I'm hopeful that you will vote to reelect Peter Biagini myself and Brad and his team your transport workers team because the consequences are starting to think about the team that is running against us don’t have a year of experience as organisers amongst them, they tap themselves as being a [indistinct] team but that is all well and good but unless you have experience unless you got knowledge and knowledge is power as I said right at the start yesterday unless you got that knowledge experience you just going to be foundry so that would be a disaster for our union so one thing I will say about elections union elections is sometimes people don't vote, in fact more often then not they don't particularly when its not a critical election people won't view it as a time for change so they might go well Peter will be right we don't need to vote, On average about 30% of members vote in union elections what happens to the ballot papers they go in the bin, they sit on the fridge until six weeks after the due date this is where delegates can their roles are really important because delegates can remind about the people the importance of voting and help in that process get people to vote go through the list of members that you have and say have you voted, have you voted, have you voted and hopefully with having for Peter Biagini and your Transport workers team but as delegates it is really important you get members to vote because democracy is only work when people participate so get your members to vote. Does anyone have any questions about this?
Female Member: When are the other side going to come give their talk?
Carter:When?
Female Member: Yes? You have given yours and I don't know anyone and I might want to see other [indistinct] have to say I want them to come and give me a spill as well
Carter: They are not hanging about the office at the moment so
Female Member: Well that is not very democratic if they can't give me any words
Carter:There is democracy both sides get the list of members and the AOC gives us
Female Member: You have a very captive audience here so I would like to get a spill of what they have to say as I feel that you have come in and told us all about how great you are and Peter Biagini
Male Voice:I don't interrupt you so I didn't ask you so give me the same courtesy so all we are trying to do is let you know that this is a really important time think about when the ballots come out cos as Adam said a lot of people don't bother voting at all so you will be getting stuff in the mail from us you will be getting stuff in the mail from them they will explain their side and as Adam said there will be a contact number on that that you can ring up them and ask them to come to your workplace and they can talk to you, it is a free country
Female Member: [indistinct) message to go around [indistinct]
Male Voice:Been up to North Queensland, don't worry about that.
Male Voice:Is the appropriate term just for reference is it called team driven?
Yes
Male Voice: So that wanka in the ute climbing up on the bridge over there?
[Laughter, voices interrupting/talking in background]
You said that stuff [indistinct] out of his ute and all you can see is team driven and its covered in TWU things and everyone from my work who saw the ute there immediately oh the TWU is advertising they are advertising for us which in turn is bringing more attention to you not to them because a lot of people they don't know the other candidates names - they haven't looked
Male Voice: They shouldn't be doing what they are doing I mean we don't go TWU
Female Member: I have been involved in [indistinct] but why are they so bad?
Male Voice:All I said that they don't have any experience and they don't have a plan they don't have plan for the future like we do and I think that it would be quite harmful to the union if we changed forces midstream
Female Member: [indistinct] what do you think they motives are for running –
Male Voice:I can't speculate about their motives cos at the end of the day our rules are very clear if you are a member and you have had the requisite period of membership then you can put up your hand and run for any elective decision
[Voices interrupting/talking in background]
Male Voice:As Adam said in 2010 when Peter Biagini's team stood against and run the election Peter Biagin and the majority of our crew had been organisers for 25 plus years and Peter had run his own business, been a union organiser for a long long time and had been subbranch president all this sort of stuff these other guys haven't had any of that experience at all and in fact the guy who is standing for state secretary has been on our committee and management for eight years since 2010 and not once has put up his hand to be an organiser not once and we have been looking for people to be an organiser so you have to have some experience to run an organisation as big as this with as many members as we've got so that's what we
Male Voice:What I was explaining is the process, I've explained to you the importance of voting and as I said it's a democracy and you get to choose
Female Member: I don't have the information we need to know, I don't know
Male Voice:You will get it in the post
Male Voice:Can I add a little bit to this I did actually run when I was at the CPU I did run against them and what I did I got tied up with the other branch they come up and we did a tour of Queensland so as far as I'm concerned I think the others that are running against these guys have got the right to come and put their case forward, it is not for these fellows to bring them in here and hear there case.
Female Member: Where is the audience saying [indistinct] surely for a democracy transparency the other mob where they are, I don't know should be the same
Male Voice:Yeah they are saying it's not their job
Male Voice:Its not their job to do it
[Voices interrupting/talking in background]
Male Voice:Yeah but they have the right to go to your workplace cos I have done it.
Carter:The word we are trying to get across is as delegates it is important that you get members to participate in our democracy so that's the key point I want you to take away and when the time comes to vote and I'm sure you'll make your enquiries with the other team
Female Member: But I have no information so I can not
Carter:Well I'm sure you will get that information.
Female Member: I can't talk to them
Carter:I can't arrange that today so I think we will leave it there. Do you have anything to say about that?
[Laughter, voices interrupting/talking in background]
Male Voice:I wish you didn't come in [laughter]
Male Voice:I think what Adam is trying to get across is now is a pretty important junction in the history of the TWU we have to change of rules campaign going on with is a important one with the ACTU, we have the 20/20 campaign that is really really important to the future of everybody in this room and half of our members so that is what we are trying to tell you, we are telling you our point of view if you want to contact them
Female Member: [Yelling] I don't care
Carter:Well I'm telling you about the process
Female Member: [indistinct] tell us your members when we had the opportunity it’s like the liberal party saying god forbid 'we are the only party [indistinct] vote for us [indistinct – background noise]
Carter: Well I can't help you with that
Female Member: No when are they coming in
Carter:Apart from saying that they will send you in the post a whole lot of material and I'm sure I would be very surprised if this doesn't happen on the material the will have names of being able to contact.
Female Member: I want them to come and address me now like you are now from democracy
Carter:That's probably not going to happen is it
Female Member: And that's not a very general credit of process
Carter:Well that's your view
[Voices interrupting/talking in background]
Female Member: Well pretty blatantly obvious. I don't know who they are, I don't know who they are, but I think this is not a demographic transcript of process
[Voices interrupting/talking in background]
Male Voice: He's actually made the presence to turn up
[Voices interrupting/talking in background]
Female Member: I don't know who they are, I'm not defending them I don't know - I just like to have a bit of transparency if you are going to say vote for us, we are fantastic let them say - why politicians have that five minutes or three minutes on the television just pay to have a quick spill
Male Voice: I don't know what you heard but I didn't hear?
Female Member: I didn't hear anything
Male Voice:Hang on hang on hang on a sec, I don't know what you heard but I know what I heard. Adam didn't say vote for us, Adam said hopefully you'll vote for us
[Voices interrupting/talking in background]
There is a difference
are trying to find out how you vote is up to you, we are not going to be there when you fill it out so.
[Indistinct - noises in the background, voices interrupting/talking in background/ laughter]
(Errors in original.)
The transcript attached to the affidavit of Mr Wyatt is as follows:
Mr Carter:So it is run, the election is run by the Government. So it is all above board. This year Peter, myself as the Assistant Secretary and Brad as the President, and the whole Branch Committee and Management are going to be challenged by another team.
Ms Smith:(lndistinct)
Mr Carter:There will be time for questions.
Ms Smith:Indistinct ..officers do?
Mr Carter:Yes, at the end of the day you all get a vote. You can vote for who you think will do the best job hopefully for your Union
What I will say that this is not a time where we should be looking at changes because we have got plans for the future and if we do not have continuity in this Branch and across the whole Union those plans will be put in some jeopardy. So, when the times comes to vote, I am hopeful that you will vote to re-elect Peter Biagini, myself and Brad and his team Your Transport Workers' Team because the consequences don't bear thinking about.
The team that is running against us don't have a year of experience as Organisers amongst them. They tout themselves as being a rank and file team. Well that is all well and good, but unless you have got experience, unless you have got knowledge, and knowledge is power as I said right at the start yesterday, unless you have got that knowledge and experience you are just going to be floundering and so that would be a disaster for our Union.
So one thing I will say about elections, or Union elections, is sometimes people don't vote, in fact more often than not they don't, particularly when it is not a critical election. People won't view it as a time for change so they might think "oh well, Peter will be right so I don't need to vote". On average about 30% of members vote in union elections.
What happens to the ballot papers? They go in the bin, they sit on the fridge until six weeks after the due date. This is where Delegates can, where their roles are really important because Delegates can remind people about the importance of voting and help in that process. Get people to vote. Go through the list of members and say have you voted, have you voted, have you voted and hopefully having voting for Peter Biagini and Your Transport Workers' Team. As Delegates it is really important that you get them to vote because democracies only work when people participate, so get your members to vote.
Does anyone have any questions?
Ms Smith: When are the other side going to give their talk?
Mr Carter: When?
Ms Smith:Yes. You have given yours and I don't know anyone, and I am of the view that other people (indistinct) have to say. I want them to come and give me a speel as well.
Mr Carter:Well they are not hanging about the office at the moment so.
Ms Smith:Well that's not very democratic if they can't get give me any words
Mr Carter:Well there is democracy, both sides get the list of members that the AEC gives us.
Ms Smith:You have a very captive audience here so I would like to get a feel of what they have to say because I feel that you guys come in and tell us all about how great you are and Peter Biagini is and that
Mr Carter:Well, I am telling you about the process.
Ms Smith:(Indistinct) tell us your members when we have had an opportunity, it is like the Liberal party saying god forbid we are the only party (indistinct) so vote for us (indistinct). So I want to hear what the other side has to say.
Mr Carter:Well I can't help you with that.
Ms Smith:No when are they coming in.
Mr Carter:All I can say is that they will send you ..
Ms Smith:I want to speak to them.
Mr Carter:A whole lot of material and I am sure, I would be very surprised if this does not happen, on their material they will have names of their contact.
Ms Smith:I want them to come in and address me now like you are now for democracy.
Mr Carter:That's probably not going to happen is it?
Ms Smith:And that's not a very democratic process.
Mr Carter:Well that's your view.
Ms Smith:Well pretty blatantly obvious. I don't know who they are, I don't know who they are but I think this is not a democratic transparent process.
Male:He's actually made the presence to turn up.
Mr Carter:Well I do work in the office.
Male:I know that but..
Ms Smith:I don't know who they are, I'm not defending them I don't know. I just like to have a bit of transparency. If you are going to say vote for us, we are fantastic let them say - why politicians have that five minutes or three minutes on the television just pay to have a quick speel.
Mr Wyatt:Well I don't know what you heard but I didn't hear ...
Ms Smith:I didn't hear anything
Mr Wyatt:Hang on a second. I don't know what you heard but I know what I heard. Adam didn't say vote for us, Adam said hopefully you will vote for us. There is a difference.
Ms Smith:Same thing ??
Mr Carter:What I am explaining is the process, I have explained to you the importance of voting and ...
As I said it is a democracy and you get to choose.
Ms Smith: I don't have the information we need to know, I don't know.
Mr Carter: No doubt you will get it in the post.
Mr Nicholson: Can I add a little bit to this. When I was in the CEPU I did run against them, and what I did, I got tied up with the other Branch and they came up and we did a tour of Queensland. So as far as I am concerned I think the other mob that are running against these guys have got the right to come and put their case forward, it is not for these fellows to bring them in here and hear their case
Ms Smith:Where is the audience (indistinct). Surely for democracy transparency the other mob, whoever they are, I don't know should be the same.
Mr Nicholson: Yeah, but I am saying that it is their job to do.
Voices and talking
Mr Nicholson: Yeah, but they have the right to go to your workplace because I have done it.
Mr Carter:What I am trying to get across is that as delegates it is important for you to get members to participate in our democracy. That's the key point that I want you to take away and when the time comes to vote, and I am sure you will make your enquiries with the other team
Ms Smith:But I have no information so I can not
Mr Carter:Well I am sure you'll get that information
Ms Smith:I can't talk to them.
Mr Carter:Well I can't arrange that today. So, well I think we will leave it there. Do you have anything to say about that?
Male:You wish you didn't come in (laughter)
General laughter and talking
Mr Wyatt:Look I think what Adam is trying to get across is now is a pretty important juncture in the history of the TWU. We've got the Change the Rules campaign going on which is a really important one with the ACTU. We've got the 20/20 campaign that is really, really important to the future of everybody in this room and all our members, so that is what we are trying to tell you, we are telling you our point of view. You want to contact them.
Ms Smith: How long have you had these meetings?
Mr Wyatt:Well, okay, I don't interrupt you.
Ms Smith:I don't even care I just want ??
Mr Wyatt:Right, well I don't interrupt you so give me the same courtesy. So what we are trying to do is let you know that this is a really important time, to think about when the ballots come out because as Adam said a lot of people don't bother voting at all. So you will be getting stuff in the mail from us, you will be getting stuff in the mail from them. They will explain their side and, as Adam said, there will be a contact number of that that you can ring up them and ask them to come out to your workplace, and they can talk to you. It is a free country.
Ms Smith:Message to go around.(indistinct)
Mr Wyatt:Sorry?
Ms Smith:I haven't got a thing from them.
Mr Wyatt:They have been up in North Queensland, don't worry about that.
Male:Is the opposing team, just for reference called Team Driven?
Mr Wyatt:Yes
Male:So that that wanker in the ute on the bridge over there ..
Lots of laughter and indecipherable comments
Male:You said that stuff out of his ute and all you see is Team Driven and its covered in TWU things and everyone from my work who saw the ute there immediately with signs oh the TWU is advertising they are advertising for us which in turn is bringing more attention to you because a lot of people they don't know the other candidates names - they haven't looked.
Mr Carter:They shouldn't be doing what they are doing. I mean we don't go around in TWU ??
Ms Smith:I haven't been involved but why are they so bad?
Mr Carter:All I said is that they don't have the experience and they don't have a plan. They don't have a plan for the future like we do and I think that it would be quite harmful to the union if we change horses midstream.
Ms Smith:But given (indistinct) What do you think their motives are for running?
Mr Carter:I can't speculate about their motives because at the end of the day our rules are very clear. If you are a member and have had the requisite period of membership then you can put up your hand and run for any elected position.
(Indistinct)
Mr Wyatt:As Adam said in 2010 when Peter Biagini and his team stood against Hughie Williams and won the election, Peter Biagini and the majority of that crew had been Organisers for 20 plus years.
Male:Yeah that's a wealth of experience.
Mr Wyatt:Absolutely, Peter had run his own business, he had been a Union Organiser for a long, long time and he had been a Sub-Branch President, all this sort of stuff. These other guys haven't had any of that experience at all, and in fact the guy who is standing for State Secretary has been on a Committee Management for eight years, since 2010, and not once has he put up his hand to be an Organiser. Not once when we were looking for people to be an Organiser. So you have got to have some experience to run an organisation as big as this with as many members as we have got. That is what I am trying to point out. How you vote is up to you, you know. We are not going to be there when you're filling it out.
Mr Carter:So just in case (indistinct).
Applause
(Errors in original.)
In relation to the delegates training session on 9 to 10 October 2018, Ms Smith deposed in her affidavit dated 7 May 2019 as follows:
12.On 9 and 10 October 2018, I attended a 'TWU T1 training session' ('Training Session') at the Branch's Murarrie office.
13.I noticed that the Branch Assistant Secretary, Adam Carter was sitting at the back of the training room. I chatted with him briefly.
14.After breaking for lunch, Adam and Brad Wyatt, who I now know to be the Branch President, were invited by the trainer to give a presentation.
15.I have become aware that part of the presentation made by Adam and Brad was recorded and that a transcript of the recording is exhibit 'DW7' in the Affidavit of Darren White, filed 14 March 2019.
16.I have had the opportunity to review the transcript and confirm that I am the attendee identified as 'Female Member'. The transcript is an accurate reflection of what occurred at the Training Session.
Further evidence was provided in relation to the Murarrie training session. Relevantly, Mr Wyatt deposed in his affidavit affirmed 5 August 2019:
2.I refer to my affidavit sworn 16 May 2019 and in particular the paragraphs 4 to 6 of that affidavit. I also refer to paragraph 12 to 16 of the affidavit of Rebecca Smith sworn 7 May 2019.
3.I have listened to the recording of the delegates training session on 10 October 2019. This was the second day of the delegates training.
4.The recording is incomplete in that Adam Carter spoke to the delegates for a number of minutes before the recording commences.
5.I have identified the speakers on the audio recording as best I can. Annexed and marked "BW-2" Is a transcript of the recording which identifies the speakers that I am able to identify.
6.The only other speaker I could identify apart from Adam Carter, Ms Smith and myself is Ian Nicholson. Mr Nicholson is the delegate at Australia Post Northgate.
7.Listening to the recording has assisted me in recalling this particular session over the two-day period and the sequence of events during this session.
8.I recall that Adam was at the front of the training room and Jon Clark said something along the lines that Adam wanted to say something to members. I can't specifically recall what else Jon said.
9.I recall that Adam gave a general talk to the delegates in the period before the recording. He talked about the following:
•the Rules of the Union;
•the procedure for quadrennial elections provided for under the Rules;
•eligibility for voting;
•the importance of eligible members participating in the democratic processes provided for under the Union's Rules;
•the Australian Electoral Commission's role in running the election;
•the method by which voting is conducted;
•delegates were likely to be asked questions by members about the election;
•delegates having the information needed to be able to answer the questions;
10.When speaking about the Rules, I recall that Adam told delegates that only financial members would get a vote and that a list of all financial members is sent to the AEC. When talking about the voting method, I remember that he explained that the AEC would post out the ballot papers to the residential addresses of members who were eligible to vote and that if member's address details were not up to date there might be difficulties in receiving ballot papers.
11.I understood his talk to be about the delegates encouraging members to participate in the democratic process because there has been historically a very low turnout of members and explaining how the election process worked so delegates unfamiliar with elections might answer questions.
12.The only time that Adam made any mention of the teams in the election was when Ms Smith asked questions which is the point at which the recording commences.
13.I spoke up because Ms Smith had misunderstood what Adam was saying. She was saying that Adam's talk was about voting for our team. I understood him to be saying as part of his response to questions that hopefully members would vote for our team.
Under cross-examination, Mr Wyatt conceded that he was not on annual leave when at the training (transcript p 88 lln 23-26). Mr Wyatt also stated that his reference at the training to “the guy who’s standing for the state secretary” was in relation to the applicant. When questioned as to whether candidates were required to be organisers to become Branch Secretary, Mr Wyatt stated:
No. I was simply pointing out, as the recording said, that the other team didn’t have any experience as officials of the TWU.
(Transcript p 89 lln 14-15.)
Mr Clark’s unchallenged evidence was that Mr Carter gave an opening address to the delegates on 9 October 2019, in which he welcomed the delegates, introduced Mr Clark and spoke about the importance of training. Mr Clark also deposed that Mr Carter on 10 October 2019, gave a short presentation about the TWU’s Rules and the process for the election.
Mr Clark gave the following evidence in relation to the events which occurred at the delegates training:
…Mr Carter gave a short presentation about the Union's Rules and the process for the Election. I recall that he spoke about it being overseen by the AEC. During the presentation, a female Delegate asked Mr Carter a series of questions regarding the Election. Her questions were quite different to those that were generally asked by attendees, as set out in paragraph 7 above. She asked Mr Carter quite specific questions regarding her view that the Team opposing Mr Biagini and Mr Carter should be given an opportunity to speak to the attendees during training session as Carter was speaking to them about his Team. I don't recall the precise words she said. I do recall that she was quite persistent and forceful with her questions and as such, it appeared to me that she was trying to bait Mr Carter into saying something derogatory. I don't recall him doing so. Whist I do not recall the precise words he said, I recall that he said something about a challenge to him and Mr Biagini's Team, that everyone would be given an opportunity to vote on which team they wanted to lead the Branch and the need for the attendees, as TWU Delegates, to encourage members in their workplaces to vote in the Election.
Mr Clark was not required for cross-examination.
The same witness who gave the affidavit of 11 July 2019 also deposed in an affidavit dated 1 August 2019 that he was late to the meeting and did not record the meeting from the beginning. He noted that he “commenced recording at the time that I did as I walked from lunch and Mr Carter has began speaking about the election”.
This evidence is supported by the evidence of Mr Wyatt who deposes that in the period before the recording commenced, Mr Carter gave a general talk which addressed:
·the Rules of the Union;
·the procedure for quadrennial elections provided for under the Rules;
·eligibility for voting;
·the importance of eligible members participating in the democratic processes provided for under the Union's Rules;
·the Australian Electoral Commission's role in running the election;
·the method by which voting is conducted;
·delegates were likely to be asked questions by members about the election;
·delegates having the information needed to be able to answer the questions.
The witness in his affidavit of 1 August 2019 also deposed that Mr Carter spoke about:
·The rules of the Union and the procedure for quadrennial elections provided for by the rules
·The importance of all members participating in the democratic processes provided for under the Union’s rules because there is usually a very low participation rate in union elections.
·The AEC’s role in running the election.
·Delegates being likely to be asked questions by members about the election.
·The role of delegates in encouraging members to participate in the election by voting.
The applicant alleged that the comments of Mr Carter demonstrated support for the YTWT and, because union resources were used to facilitate the session, the evidence substantiated, on the balance of probabilities, that an irregularity occurred.
In contrast, the First to Third Interested Persons submit:
·The Murarrie training course was organised and conducted by Mr Clark as part of his national, regular and structured training scheme and was not for any reason connected with the election.
·Mr Carter spoke to the delegates in a short segment on the second day. This was a general address about the processes and importance of the upcoming election.
·Mr Carter spoke about the rules of the TWU, the procedure and method for the election, the importance of member participation, the AEC’s role and other general matters.
·During this address, Mr Carter was interrupted by Ms Smith and asked a series of questions in relation to the election. This appeared to be an attempt to “bait” Mr Carter.
·In responding to Ms Smith’s questions, Mr Carter briefly expressed the view that he hoped YTWT would be re-elected.
·The purpose of the course was to deliver standard TWU training to new delegates. The information provided by Mr Carter in relation to the election was an important matter and delegates were provided with practical and important information.
·Mr Carter’s references to the teams in the election were very limited. His comments were incidental to the purpose of the address and were directly responsive to Ms Smith’s questioning.
·There was no irregularity because the Branch’s property and resources were not used to help one candidate over another.
Further, the TWU submitted that:
·The session was part of a regular training course provided to delegates for purposes separate to the election.
·Mr Carter spoke to the delegates about the TWU’s rules, the election process, eligibility for voting and the importance of members participating in the election.
·No complaint could be made about Mr Carter speaking to the delegates generally about the election process.
·To the extent that Mr Carter referred to the teams running in the election, he did so only briefly and only in response to questioning from Ms Smith.
·In circumstances where the training was organised and conducted for reasons separate from the election, Mr Carter discussed the election to inform delegates of the process for the conduct of the ballot and any mention of the teams arose only from discussion, no use of the Branch’s property or resources to help one candidate could be said to have occurred.
·There was no irregularity.
Further, and generally in relation to s 190 of the FWRO Act, the TWU submitted:
·Section 190 only operates with respect of the use of property and resources “to help a candidate against another candidate in an election”. There must be both a “candidate” and an “election” before the section has operation.
·This section is concerned with conduct in the course of an election and not with conduct in anticipation of an election or after it has been held.
·Section 190 only applies where the calling of nominations for the relevant positions has occurred.
·A contravention of s 190 will only occur, where the organisation’s property or resources have been used to help one candidate in circumstances where they have been denied or will be denied to another candidate.
·Section 190 will not be contravened where property or resources of the union are available to all candidates or the candidate complaining of a contravention did not take steps to access the resources in question.
·The prohibition on the use of resources does not go so far as to prevent existing office holders of an organization from campaigning for re-election and accommodates some advantages that necessarily flow from incumbency.
·Not every technical or incidental action of a union official that might be characterised as involving the use of a union’s resources should be so characterised.
·Section 190 creates an offence capable of being committed by the organisation (Union) or by a branch of the organisation. To establish a contravention it is necessary to demonstrate that resources or property have been used by the organisation or branch, or to demonstrate conduct by the organisation or branch which allows the use of its property or resources.
A similar position is adopted by the First to Third Interested Person who submitted:
·Section 190 is directed to what the Branch of the Union has done or allowed to be done.
·The Branch does things or permits things to be done by its official decision-making processes under its Rules.
·For s 190 to apply, the applicant must establish that there was a candidate and election at the relevant times.
·There is no reason to give the term “resources” any interpretation other than its natural and ordinary meaning. “Campaigning by branch employees” is not a resource of the Union.
As to whether comments at a union meeting by a candidate for election can constitute an improper use of union resources, and hence an “irregularity” within the meaning of s 6 of the FWRO Act, a case on point is Nelson v Cameron [2000] FCA 554; (2000) 98 IR 46. In that case Ryan J relevantly observed:
[28]I find that Roe attended at the Hella plant on 28 March pursuant to arrangements made with management some weeks before by Curak, the shop steward. The purpose of that visit and the meeting which Roe addressed was to alert Hella employees to the “cost downs” and Campaign 2000 issues. Although Ormsby, the Union organiser for the Hella plant, attended whilst on annual leave with the intention of enlisting support for Roe’s re-election as State Secretary, I regard it as inherently improbable that Hella management would have acquiesced the conduct at a meeting for something like 45 minutes of working time for predominantly electioneering purposes. I find that Roe addressed the meeting for approximately half its duration on the “cost-downs” and tariff issues in relation to which it was called and did not refer to his own candidature in the forthcoming election. References of that kind were made briefly by Ormsby, and more extensively by Curak, who also responded to questions from the floor of the meeting. Roe remained present throughout the meeting before moving, at its conclusion, to discuss the tariff and related issues with Hella management. A similar procedure was followed at the subsequent meeting at Dura (Asia-Pacific) except that only Ormsby spoke in support of Roe’s candidature.
[29]The implied prohibition on the use of an organisation’s resources in connection with an election campaign does not, in my view, extend so far as to preclude a salaried officer or employee from engaging, even incidentally, in electioneering during working hours. It is one of the inherent advantages of an incumbent seeking re-election that he or she will have opportunities for favourable exposure to the electorate by attending meetings, communicating with members, formulating or expressing policies on behalf of the organisation and exercising patronage in the making of appointments. There may also be circumstances in which to deny a salaried officer or employee a technical, or incidental, use of the organisation’s resources for electioneering purposes, as in the transport of campaign material in the organisation’s vehicle for distribution outside working time, would be to place that officer or employee at an unfair disadvantage. It is undesirable in the circumstances of the present case to attempt to define with any more precision what may amount to a technical or incidental use, in that sense, of an organisation’s resources. As Dunphy J said in Holmes v Riordan (1955) 86 CAR 180 at 195:
A feature of the case presented on behalf of the applicant was an attempt to demonstrate, through lengthy cross-examination of the respondent, that advantage had been taken by Riordan of his position as Branch Secretary to use certain of his salaried staff and the office premises and equipment to further the successful conduct of his election campaign. ....... A careful review of the transcript demonstrates that Riordan admitted that certain paid officials did help his electoral ambitions by rendering assistance in a number of ways, but his uncontradicted testimony was that these acts were performed after office hours or during periods of special leave. In this regard Riordan clearly stated that similar concessions would have been granted to any officer of the Union wishing to assist a member of the opposition if requests to that effect had been made. But the plain position is that no such request had been forthcoming.
I can see no basis for attack on this particular ground, for if it were a valid proposition it would mean that acceptance of a paid position on a union staff automatically bars a union member from taking any active interest in his own or some other member’s candidature. As long as an officer voluntarily exercises his right to assist a candidate, and his functions and duties to his employer are not adversely affected as a consequence, he should be entitled to take as active an interest in an election as an ordinary member of the union. Likewise, the use of union premises and equipment, if freely available to any applicant, is not, in my opinion, objectionable providing such use is more or less inevitable as a consequence of the election itself. The respondent’s evidence on the point indicates that little was done on the Union premises other than the copying by his supporters, of portions of the electoral roll and as the applicant clearly never made a request for similar use there was no denial to him of similar facilities. As I have stated previously herein, it must be obvious that such a function is an inevitable consequence of the holding of an election and the proper and probably the only place for such work to be performed is in the union office either during office hours or outside such hours under supervision. These questions involve matters of degree and if the suggestions made by applicant’s counsel during the course of these proceedings had been supported by evidence the result might have been different.”
[30]Similarly regarding the issues in the present case as matters of degree, I do not consider that any aspect of the use of the services on delegation of Fairley or Thompson or anything which occurred at the meetings at Hella or Dura (Asia-Pacific) infringed the implied prohibition which the applicants have invoked.
(Emphasis added.)
In Mcjannett, in the matter of an application for an inquiry in relation to an election for offices in the Construction, Forestry, Mining and Energy Union, Western Australian Branch (No 2) [2009] FCA 1015; (2009) 188 IR 156 at [100], Barker J agreed with the comments of Ryan J at [29] and added:
The conduct of persons such as union officials during an election, are almost bound to attract allegations of the type made by the applicant here, in that they may often find it difficult not to show some inclination to partial conduct. In my view, not every technical or incidental action of a union official that might be characterised as involving the use of union resources, should be so characterised. Questions of fact and degree arise.
(Emphasis added.)
The particular structure and phrasing contained in s 190 is clear, in that it is concerned with the activities of an “organisation or branch” in using or allowing its resources to be used to for campaigning purposes. In Asmar, in the matter of an Election for offices in the Health Services Union [2009] FCA 1294 (Asmar 1), Tracey J noted:
[16]The evidence relied on by the applicant supports the allegation that Union meetings were convened at some hospitals using notices on Union letterhead. Those meetings were attended by some Union employees who, although supposedly on leave, were said to be present on Union (as distinct from electoral) business. Those employees used the meetings to encourage members to vote for the Bolano team. Mr Bolano and other employees said to have been involved have not, as yet, denied that such conduct occurred. In fairness to them, it must be said that some of the affidavits on which the applicant relies were not served until late on 4 November 2009.
[17]Such conduct as is alleged, if it occurred, would have constituted contraventions of the directions given by Mr Vines. It does not, however, follow that such conduct constituted an irregularity for the purposes of the Act. It would only have done so had it given rise to a contravention of s 190. That could only have happened if the Union (or, possibly, the Branch) used or allowed its property or resources to be used to assist Mr Bolano and members of his team in the course of the election campaign.
[18]Counsel for the applicant accepted that neither the Union nor the Branch had used Union resources in convening and conducting the workplace meetings. She submitted, however, that the Union and/or the Branch had, nonetheless, allowed the property and resources of the Union to be used because action had not been taken to prevent the impugned conduct of the Union employees occurring. I do not accept these submissions. The evidence establishes that Mr Vines had taken reasonable steps to ensure that the Union’s property and resources were not used for electoral purposes. He issued clear directives requiring employee candidates to take leave during the campaign and not to use any of the Union’s property and resources to support their candidacy. If these directives were not obeyed it was no fault of Mr Vines and it cannot, in my opinion, be said that, by inaction, he allowed the alleged misconduct to take place.
The introduction of s 190 followed the enactment of the Workplace Relations Amendment (Registration and Accountability of Organisations) Act 2002 (Cth). The prohibition reflects the established principle that a union will contravene its rules if it uses its resources to promote one candidate over another. In Scott v Jess (1984) 3 FCR 263, Evatt and Northrop JJ found:
The reference to the objects of the Act as set out in s 2, and the detailed provisions contained in the Act and the Conciliation and Arbitration Regulations relating to the election of officers within an organization makes it clear that those elections must be conducted fairly, having regard to the interests of all members and of all candidates. Implicit in that concept of fair play is the principle that the officers exercising power within an organization shall not exercise that power to authorize the use of the resources of the organization to support or promote a candidate or a group of candidates or to seek to defeat a candidate or a group of candidates during the conduct of an election to offices within the organization. In the present case it is not necessary to determine what are the limits of the conduct of an election. For present purposes it is sufficient to say that the election commences at least at the closing of nominations for candidates for the election and continues at least until the close of the ballot for that election. If during the conduct of an election, officers of an organization expend the resources of the organization on conduct which tends to support or promote a candidate or a group of candidates at that election, directions may be given under s 141(1G) of the Act that they perform and observe the rules of the organization by refraining from so expending the resources of the organization
The Scott decision was referred to in Becker, in the matter of an application for an inquiry in relation to an election for offices in the Australian Education Union, Queensland Branch [2004] FCA 1534, where Cooper J noted at [20]:
As Evatt and Northrop JJ made clear in Scott v Jess, the prohibition of the use of the resources and funds of an organisation to support one candidate in an election in circumstances where they have been denied or will be denied to another was based on the same principle relating to the proper use of a power. Namely, that the power to deal with the funds granted under the rules was not a power granted for the impugned purpose: see 270 – 271 and the references to Short v Wellings at 87 – 88; Valentine v Butcher (1981) 51 FLR 127 at 138 – 139 and Re Penhallurick (1983) 51 ALR 589 at 595. The rationale is that the funds and resources of an organisation belong as much to one faction as another and all should be treated equally when and if resources are to be made available for election purposes. Further the powers are to be exercised fairly to ensure that all qualified candidates may stand for election on an equal footing.
I note that during the course of the hearing, Mr White referred to comments of Mr Wyatt at the Murarrie training session (for example, transcript pp 88-89). However in closing submissions no point was taken in respect of those comments of Mr Wyatt. Rather, the particular comments of Mr Carter of which the applicant complains for the purposes of this issue appear to be the following:
Ms Smith:(lndistinct)
Mr Carter:There will be time for questions.
Ms Smith:Indistinct .. officers do?
Mr Carter:Yes, at the end of the day you all get a vote. You can vote for who you think will do the best job hopefully for your Union
What I will say that this is not a time where we should be looking at changes because we have got plans for the future and if we do not have continuity in this Branch and across the whole Union those plans will be put in some jeopardy. So, when the times comes to vote, I am hopeful that you will vote to re-elect Peter Biagini, myself and Brad and his team Your Transport Workers' Team because the consequences don't bear thinking about.
The team that is running against us don't have a year of experience as Organisers amongst them. They tout themselves as being a rank and file team. Well that is all well and good, but unless you have got experience, unless you have got knowledge, and knowledge is power as I said right at the start yesterday, unless you have got that knowledge and experience you are just going to be floundering and so that would be a disaster for our Union.
So one thing I will say about elections, or Union elections, is sometimes people don't vote, in fact more often than not they don't, particularly when it is not a critical election. People won't view it as a time for change so they might think "oh well, Peter will be right so I don't need to vote". On average about 30% of members vote in union elections.
What happens to the ballot papers? They go in the bin, they sit on the fridge until six weeks after the due date. This is where Delegates can, where their roles are really important because Delegates can remind people about the importance of voting and help in that process. Get people to vote. Go through the list of members and say have you voted, have you voted, have you voted and hopefully having voting for Peter Biagini and Your Transport Workers' Team. As Delegates it is really important that you get them to vote because democracies only work when people participate, so get your members to vote.
In relation to these comments:
·I accept the submissions of the First to Third Interested Persons and the TWU that the comments made by Mr Carter, in relation to the YTWT and Team Driven, were in the context of a much lengthier and more general address about the Union rules and election procedures.
·On such evidence as is before the Court it appears that Mr Carter’s comments concerning the respective qualities of the competing teams were in response to direct questions from delegates, specifically Ms Smith.
·There is no suggestion, or evidence before the Court, that Ms Smith’s questions were made to in any way assist in the promotion of the YTWT campaign, or were to facilitate comments of Mr Carter in support of YTWT, or that that there was any conspiracy about those questions between Ms Smith and Mr Carter to promote YTWT.
It follows that while union resources were used to facilitate the training session, I am satisfied that the relevant comments of Mr Carter were incidental to the training session within the meaning explained in Nelson.
Finally, as I already noted, there is no suggestion that the Murarrie training course was connected in any meaningful way with the upcoming election, such that it could be said that the TWU allowed the course to be used as a forum to facilitate campaigning by either team within the meaning of s 190. The Murarrie training course had been arranged for the purpose of facilitating and delivering structured and scheduled training to TWU Branch Delegates.
I am not satisfied that an irregularity occurred in relation to the Murarrie training course.
ISSUE 3: DID THE ACTIONS OF YTWT CAMPAIGNERS AT THE DELEGATE TRAINING SESSION AT STARTRACK ROCKHAMPTON ON 2 NOVEMBER 2018 CONSTITUTE AN IRREGULARITY?
The applicant alleges that officials of the union campaigned for YTWT at a meeting at StarTrack Rockhampton on 2 November 2018 (StarTrack Rockhampton meeting), during which Mr Biagini spoke negatively about Team Driven’s experience and advocated for YTWT.
The applicant has provided the Court with an audio recording of this meeting, the transcript of which was annexed to the affidavit dated 12 July 2019. This affidavit was filed on a confidential basis. The transcript read as follows:
Male Member: "As you know we've got an election coming up, Peter and Graham are part, well Graham is over there, are part of the team that are looking to be elected again. They've got a proven track record, there is another team that's come in that don't have a proven track record but that's the combination. You, who you vote for is up to you but Peter and Graham are here at the moment. We had Robert came up a couple of months ago and speak to us and we were in the smoko room".
Male Member: "Yes, explained it all".
Male Member: "Yes, explained it, so I don't need to explain it more to you".
Male Member: “No”.
Male Member: "But Peter might be able to give you a bit of a gist as to what's going on rather than me who knows little, but yeah. Basically throughout the industry people that matter".
Peter Biagini: "Alright thanks for that, we've got some posters there, it's just to remind people a ballot paper will end up in your letterbox from the 12th of November, that's only a couple of weeks away. Again democracy is good, it keeps everyone on their toes and makes sure everyone performs to their maximum. All I say to yous is have a look at the experience, really important, the team we put together, there's two people from StarTrack, Neil Conway works at the airport, he's an owner/driver/contractor, and we got Chyna from the Darry. They are on the Branch Committee of Management that runs the union, you got two StarTrack people representing StarTrack, I think that's important, the other team has nobody from there. We have waste, the other team has no one from waste. Toll, Ian Buckingham is a strong figure for Toll, been with toll for 30 odd years, a very strong delegate, he is on our team. Cash in transit, we have Steve that's part of the case in transit industry. Ports, we have James Wilkinson from ports. So I suppose what I'm trying to say to you is the union is, everyone should be represented. On the other side of the ticket, there is 19 positions, 11 of them are in two workplaces whereas our 19 are spread right across our industry. People like myself and Graham, we been members for 40 years. We started around the same time as organizers for 25 odd years. Takes a long time, it takes about four years for a delegate, and we got a few new ones, to became a reasonably good understanding delegate takes sometimes up to four years at least, let alone doing roles as secretary, assistant secretary. Your opposition, no of them have ever been an organizer before. So that's like you jumping in saying I think I can run this place, I'm gonna be the manager tomorrow, no training, no nothing, just gonna jump into it.
Male Member: "Probably go alright though".
Male Member: [overtalking and laughter)
Male Member: "Haven't got a hard act to follow, the little Gold Coast hunk".
Male Member: "Yeah, yeah".
Peter Biagini: "You'd probably do alright operationally, but when it comes to the legals, you know there is a lot of compliance issues and unions nowadays... "
Male Member: "Outsource it [unclear]".
Male Member: [laughter]
Peter Biagini: “... unions nowadays with the Registered Organisations Commission which is the watchdog that the federal government put in place, we have a lot of restrictions, and auditing, compliance we got to do and if you miss they hit you hard with fines. So there is a lot of all that sort of stuff. My own background, I used to be a PED driver just like you guys, at Freight Express. I started there when I was 17, and then I ran the first election 1983, honorary positions you know do the hard yards, and took a paid position 1994 as an organizer. I took over as Secretary 8 years ago, so I done a lot of years as an organizer first, so you learn a bit and that's where the other people, we are, I'm not gonna, we are running a good clean campaign and I'm not gonna be here bagging anybody but there is some real concerns I have with their motive, why they are doing this because the best way to, I feel, to take a role over in a organization is build your way up, show everyone that you can do it, and eventually, because we all move on, you know I've only got a few more years before I retire, Graham, these people prove themselves, they get support of the rest of the organization and they take over. And that way you don't disrupt the organization, its like throwing a hanger bomb in when you do the kind of thing they are doing at the moment.
Male Member: "Why do they want to take over?"
Peter Biagini: "Well, good question, I think there is a few people behind it that are ex-officials that I got rid of, and would I do that again, absolutely".
Male Member: "So they were a bit dodgy?"
Peter Biagini: "Yeah, well I think you would expect me as Secretary to make sure everyone works to their best ability, are skilled up, and are doing the right thing. And if they don't, I get rid of them. And, even in other states where there is also competitors, in Victoria, their competition are ex-officials because this is the only job that you can do, like if you got the sack from here you can't try and get that guy a job but with us oh it costs nothing to put a nomination in and run a campaign. They're disgruntled exofficials, and the guy running against me, Darren White, was our trustee, and we had a falling out with him because self-interest, we had $8 million invested, he's got a mate of his that runs an investment company and his mate comes in, was working at Macquarie's looking after investments, mate leaves and he wants us to follow his mate and he went to Aubernette and then Shaws and we said no mate, we don't do that, there is a proper process to go through. So, he took that as well I'll fix you up and run against you and that way he will get his own say. And he's got a couple of people on the Branch Committee of Management who have gone his way because they were friends of Bob Gizzard who was a bus organizer, at the end of the day he was an organizer for about 5 years and we made him redundant because as far as we are concerned he was not doing what we wanted for that part of the industry. We took it over, myself and another one of the officials, and now we got equal rates, we got $126 million off the government into a fund, and all the bus drivers in our area will be up on 26.21 by the end of this year funded by the government, that's going after the client, not going after the bus company because they are funded by Translink, the government, so we went after the government and we got that sorted. We want results for yous guys, and we'll do, make sure we got the right people to get those results. Alright".
Mr Biagini further deposed that on 22 November 2018, he caused a Notice to be posted on the website of the TWU Queensland Branch. The notice relevantly provided:
ATTENTION: TWU MEMBERS
As you may be aware, TWU elections are currently taking place.
As part of the running of the elections, the Australian Electoral Commission and Registered Organisations Commission have directed that under no circumstances should completed ballot papers or ballot packs be collected by an intermediary.
This means that members are to fill out and post their own ballot papers back to the AEC in a post office box and that no other person should touch the ballot paper or envelope.
Please note that not following these directions may contravene Section 195(2) of the Fair Work (Registered Organisations) Act 2009 and Regulation 145 of the Fair Work (Registered Organisations) Regulations 2009.
In relation to the alleged irregularity caused by the use of a ballot box at the Surfside Buslines site, the applicant submitted:
·There was undisputed evidence that a ballot box existed at the site.
·The extent of this ballot boxes use was not able to be ascertained, however, the deployment and use of the ballot box did, in and of itself, represent an irregularity.
·The use of ballot boxes was not limited to one location and may have affected multiple locations.
·The use of ballot boxes represented a departure from established practice and generally accepted principles governing the conduct of an election.
·He did not have the resources to investigate the more widespread use of proscribed ballot boxes.
·The investigation of such matters was referred to the ROC who referred the matter to the Australian Federal Police.
·The mere existence of ballot boxes would represent a departure from established practice and accepted principles governing the conduct of an election.
·On the balance of probabilities, the use and existence of ballot boxes gave rise to an irregularity.
·It was open for the Court to draw an inference that the use of ballot boxes was not confined to two sites.
In relation to the use of a ballot box at the Surfside Buslines site, the First to Third Interested Persons submitted:
·The argument that the mere existence of ballot boxes is a departure from established practice and, by implication, an irregularity is without substance. Something more is required for a departure from a rule, established practice or generally accepted principle governing the conduct of an election. It is not enough that they sit dormant, they must be used to divert the flow of ballot papers from the ordinary course.
·There is no evidence ballot papers were placed in the ballot box.
·The issue of the notice being displayed, was immediately and decisively dealt with by the Union when it was brought to its attention.
·In summary, the evidence is that one person advised that the union box could be used for ballot papers but the situation was remedied before the box was used. In those circumstances, the evidence does not establish an irregularity.
Further the TWU submitted:
·Even if established the mere placing of a ballot box would not give rise to an irregularity. At the very least, there would need to be evidence that ballots were in fact placed in the ballot box. There is no such evidence.
The definition of “irregularity” for the purposes of s 6 of the FWRO Act includes:
(a) breach of the rules of an organisation or branch of an organisation…
Rule 60 of the Transport Workers Union Rules (TWU Rules), which are certified under s 161 of the FWRO Act, makes provision for Branch Elections of the TWU. Subrule 60(9)(a) provides that voting in a branch election must be “by secret postal ballot”.
The First to Third Interested Persons and TWU submitted that the Court ought not accept that the mere existence of ballot boxes was an irregularity. In my view however the evidence before the Court goes beyond the mere existence of ballot boxes. There was clearly the prospect that union members would use the box, Ms Clapham deposed that she heard “members talking about putting their ballot papers into the multi-purpose box”, and I consider it likely that union members did take advantage of the provision of the ballot box and use it. This is so, notwithstanding that the box was signed as a “ballot box” for only a limited period of 24 hours.
It is clear that the provision of a ballot box at the Surfside Buslines site at Tweed Heads contravened subr 60(9)(a), which requires ballots to be secret and posted.
I consider the use of the ballot box at the Surfside Buslines site at Tweed Heads constituted an irregularity pursuant to s 6(a) of the FWRO Act.
Sunbus – Townsville site
In relation to the claim of an irregularity in relation to the use of a “ballot box” at the Sunbus Townsville site, the applicant relies on the evidence of Ms Smith who provided an affidavit dated 7 May 2019 and was cross-examined at the hearing. Ms Smith deposed materially:
17.Prior to the election, Tom asked me to collect ballot papers from my workplace. He gave me the combination to the ballot box and instructed me to tell workers to put them in the union box and to collect and post them all at the nearest post-box without delay. I was asked to do it for the whole week of elections.
18.I agreed to, and I did not spruik either team. I decided I would simply remind people to vote, tell them if they were to give their paper to me I would post it straight away or they could post it themselves. I resolved that if people asked, I would tell them who I was voting for, and that “if you like the union as it is, vote this team; if you want change, vote that team”.
19.On the Saturday prior to the opening of the ballot I updated my Facebook profile picture with a Team Driven banner.
20.The following morning, Tom attempted to call me several times. When I answered the telephone, Tom was furious and frantic and questioned whether I should be collecting ballots as he had originally instructed.
Additional oral evidence was given by Ms Smith at the hearing, in summary:
·The Union ballot box was in fact a large fishing tackle box, which presumably was used for union purposes such as for members or potential members to put information in the box.
·Ms Smith was instructed by Mr Pfund to sit in the room with the ballot box for the duration of the election (which was one week in length).
·Staff were told to put ballot papers into the ballot box, and Ms Smith was to collect the ballot papers from the ballot box and post them. She did so on her own time.
·Ms Smith sat in the room with the ballot box for one week between the hours of 9.30 am and 1.30 pm and “didn’t really speak to anyone… no one was interested”.
·Ms Smith collected the ballot paper of Mr Eric Mackey, which she took straight to the post office and mailed. She believed that, in total, she posted possibly three ballot papers.
·Contrary to the evidence of Mr Pfund, Ms Smith was not instructed to ask members to put “pledge cards” in the union box.
Ms Smith also gave evidence at the hearing about “pledge cards”, as follows:
HER HONOUR: Can I just ask a question. So what was the purpose of the pledge cards?---Well, that’s – I think it was just to encourage people to say, “Promise I will vote for a particular team.” Like, that’s what they were, “I will pledge to support Your Transport Workers’ Team.” That’s what the cards were. And, look, I had no idea all this was going to happen; otherwise, I would have kept them. I don’t know if they had names, addresses, phone numbers. I thought they would just sign it and we were told to get them to sign it. And it went against my values of, you know, I’m not forcing someone to vote some particular way, so I didn’t do it.
(Transcript p 50 lln 16-23.)
In his affidavit of 27 August 2019 Mr Pfund gave evidence rebutting that of Ms Smith. In particular Mr Pfund deposed:
7.I refer to paragraph 17 of Ms Smith’s affidavit. The Sunbus workplace has what is called a “union box”. It is a plastic tackle box with a combination lock. The box is used for members and potential members to communicate with delegates. For example, an employee may use it to lodge a completed application for membership. A delegate or I will subsequently collect the application. I have the combination and delegates have the combination. The Australian Workers’ Union also have a “union box” at the Sunbus workplace. Sunbus is the only workplace in the Townsville and Mackay regions that has a TWU “union box”.
8.I do not recall if I gave the combination to Ms Smith or, if I did, when I gave her the combination. I agree that I may have given it to her.
9.…
10.I did not ask Ms Smith or any other delegate to tell workers to put their ballot papers in the “union box” and to collect and post the ballot papers at the nearest post-box without delay. I did not tell Ms Smith or any other delegate to do anything in relation to collecting ballot papers at the workplace. However, I did ask Sunbus delegates before the election to support the YTWT and to assist by handing out how to vote materials to TWU members
11.…
12.During my telephone conversation with Ms Smith, I said to Ms Smith words to the effect: “How could you support Team Driven?” I was surprised and disappointed that she was not supporting YTWT. I spoke to her in a normal and calm manner. I was not furious or frantic as Ms Smith claims. I did not question whether Ms Smith should be collecting ballots, I have never given any such instruction. It was a short conversation.
Further, at the hearing in response to questions from Mr White, Mr Pfund gave the following evidence:
And on the same – with – now, on number 7 it’s about the union box in Sunbus, and you asked the delegates to collect cards and put them in the union box, or - - -?---The what?
- - - or did you ask them to pick up voting slips?---The – no. The pledge cards. Yes.
Just pledge cards only?---Yes.
They put them in that union box?---Yes.
…
So I’m just trying to work out – because we’re using these union boxes to put either pledge cards in or voting slips, so I’m just trying to work out that it must have been – so there’s actually three?---No. The pledge cards.
(Transcript p 104 ll 1-31.)
Mr Pfund also gave evidence that he had handed out “pledge cards” whilst campaigning (for example, transcript pp 100-102).
The evidence of Ms Smith and Mr Pfund clearly conflicts in respect of whether Mr Pfund gave instructions to Ms Smith or any other union delegate about the use of the union box as a ballot box, and the collection and postage of ballot papers from the ballot box. The First to Third Interested Persons and the TWU submit that I should prefer the evidence of Mr Pfund. On balance, however, I prefer the evidence of Ms Smith in respect of whether the union box at the Sunbus site was used as a ballot box for votes during the TWU election period. This is because:
·It is clear that the union box at the Sunbus site was used for election purposes during the election, although Ms Smith and Mr Pfund differed as to the precise usage of it;
·Although Ms Smith was somewhat dogmatic in her oral evidence, I considered her to be a credible witness and do not accept that she was evasive or non-responsive to questions;
·Ms Smith was very firm in her views as to events relating to the use of the union box at the Sunbus site as a ballot box;
·There is no plausible reason for Ms Smith to invent the evidence she has given in this respect;
·Ms Smith’s evidence was specific, including for example in respect of the time she spent sitting in the room with the ballot box, and the fact that she was able to name a particular union member who did not directly post his ballot paper;
·I consider it likely that the circumstances relating to the ballot box in Townsville were of great interest to Ms Smith, as being an event which was out of the ordinary, as well as being an event early in her role as union delegate. It is likely that Ms Smith would recollect these events, compared with Mr Pfund who had other TWU responsibilities of importance as well as the election campaign which required his attention.
·While the evidence that Ms Smith gave at the hearing may not have been properly reflected in her affidavit, I note that Ms Smith’s affidavit was tendered in support of a litigant in person, Mr White; and
·There is no evidence as to a procedure relating to the use of the pledge cards and deposit of the pledge cards in the union box, other than the oral evidence of Mr Pfund at the hearing.
I am satisfied that the union box at the Sunbus site was used as a ballot box during the election period and that this arrangement was instigated by instructions given by Mr Pfund to Ms Smith and other delegates.
A question arises however as to the implications of this arrangement.
Subrule 60(9)(a) of the TWU Rules provides that voting in a branch election must be “by secret postal ballot”.
The evidence is inconclusive however as to whether any TWU members actually used the ballot box at the Sunbus site to deposit their ballot papers. The events at the Sunbus site can be distinguished from the events at the Surfside Buslines site, in respect of which Ms Clapham gave evidence that she had heard members discussing their usage of the ballot box. However, the evidence of Ms Smith was that, following instructions by Mr Pfund, arrangements had been put in place to facilitate voting in the elections by members, and that the postage of ballot papers by Ms Smith was part of those arrangements.
There is no evidence before me that those ballot papers posted by Ms Smith were anything other than sealed, or that Ms Smith was doing anything other than merely posting ballot papers to the AEC with the authorisation of the relevant voting members. However, the informal arrangements put in place by the TWU, under the direction of Mr Pfund, at the Sunbus site by way of the ballot box, and the apparent associated use of delegates such as Ms Smith as intermediaries to collect ballot papers for dispatch to the AEC, compromised the integrity of the secret ballot, and accordingly breached r 60(9)(a). This was an irregularity within the meaning of s 6(a) of the FWRO Act.
ISSUE 7: WAS THE MEMBERS’ LIST ACCURATE, SO AS TO ALLOW VOTING BY ELIGIBLE MEMBERS IN THE ELECTION?
In his affidavit dated 11 March 2019, Mr White deposed that prior to the election he received complaints from at least 40 members that they were unable to update their details on the Branch register of members, and they therefore did not receive a fair opportunity to vote in the election.
Annexed to this affidavit was a letter from the ROC to the applicant dated 4 January 2019 in which the ROC referred to a complaint by the applicant of failure to maintain an accurate register of members and in particular the alleged inclusion of members who were either not eligible members or did not accurately record contact details. Relevantly the ROC’s letter continued:
Following receipt of the Branch's response, which included provision of a copy of its register of members as at 31 December 2017 and 21 August 2018, ROC staff reviewed the information provided.
From that review, ROC staff identified a range of concerns regarding the information contained in the register of members, including the inclusion of possibly ineligible persons on the register, as well as whether the register contains all of the required information, and whether that information is current, as required by section 230 of the RO Act.
As these matters may be possible contraventions of the RO Act, I will be seeking further information from the Branch in relation to its record keeping obligations, specifically concerning the register of members.
The applicant submitted that he was unable to provide any additional evidence relating to the alleged failure to maintain an accurate register of members due to his limited resources.
The applicant has failed to adduce any evidence, indicative of irregularities in relation to the membership register. On the material before me, notwithstanding the potential concerns of the ROC as expressed in their letter, the current allegation of irregularity is speculative and unsubstantiated.
ISSUE 8: DID YTWT UTILISE WORK ENTRY PERMITS TO ENTER WORKSITES? IF SO, DID THIS CONSTITUTE AN IRREGULARITY?
In relation to the alleged irregularity caused by the entry of TWU officials onto work sites pursuant to the exercise of a right of entry entitlement, the applicant submitted as follows:
16.I am of the understanding that right of entry under the Fair Work Act 2009 would be required to access the following sites:
(a) StarTrack Gold Coast;
(b) Cement Australia;
(c) Hills Tankers;
(d) Toll Priority;
(e) Ceva Logistics
(f) TNT;
(g) Surfside Buslines;
(h) Cleanaway Industrial;
(i) SkyBus Gold Coast;
(j) Armaguard;
(k) Toll Coles Contract
(l) NQX Intermodal; and
(m) Brisbane Airport.
17. I am of the understanding that at all relevant times:
(a)Mr Wyatt was, during the Election, the Branch President and was also employed by the Branch as an organiser for the South-West Brisbane area;
(b)Mr Adam Carter was, during the Election, the Branch Assistant Secretary which is a full-time paid office of the Branch.
(c)Mr Tom Pfund was, during the Election, employed by the Branch as an organiser in North Queensland and was not a candidate in the Election;
(d)Mr Peter Biagini was, during the Election, the Branch Secretary which is a full-time paid office of the Branch;
(e)Messrs Wyatt, Carter and Biagini were candidates for the YWTW at the Election; and
(f)Messrs Wyatt, Carter, Pfund and Biagini campaigned for the YWTW during the Election.
18.The affidavit of Mr Biagini inadequately addresses the question of whether right of entry permits were used to gain entry onto worksites for the purpose of campaigning.
19.It is accepted that some worksites do not require the formal production of a right of entry permit by known officials of the Branch to access the site.
20. Although the officials did not formally produce their right of entry, they exercised a right of entry because the officials mirrored the requirements of the FW Act and were known permit holders that gave notice to the employers of their entry.
The First to Third Interested Persons, and the TWU, submitted, in summary:
·It is unclear from the applicant’s submissions to which entries he was referring as having been the subject of an improper exercise of right of entry;
·This aspect of the claim misses the point that the applicant is required to establish use of union property or resources in respect of the election, which is not the case in respect of the exercise of a right of entry;
·There is no evidence that there was in fact any use of a right of entry;
·The evidence of Messrs Biagini and Wyatt was that officials did not utilise right of entry permits for the purpose of attending worksites in order to campaign to members of the union.
In my view the submissions of the First to Third Interested Persons and the TWU are compelling, and I accept them.
This aspect of the applicant’s claim is not substantiated.
ISSUE 9: IF THE CONDUCT DID CONSTITUTE IRREGULARITIES, WERE THE IRREGULARITIES SUCH THAT THE RESULT OF THE ELECTION MAY HAVE BEEN AFFECTED BY THE IRREGULARITIES WITHIN THE MEANING OF S 206(5) OF THE FWRO ACT?
Section 206(5) of the FWRO Act provides :
The Court must not declare an election, or any step taken in relation to an election, to be void, or declare that a person was not elected, unless the Court is of the opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have happened or may happen, the result of the election may have been affected, or may be affected, by irregularities.
In relation to the relevant election, I have found the following irregularities occurred:
·Use of union resources at a TWU Branch meeting at StarTrack Rockhampton on 2 November 2018 to assist YTWT;
·Use of an unauthorized ballot box at the Surfside Buslines site during the election period; and
·Use of an unauthorized ballot box at the Sunbus Townsville site during the election period.
In Sara, in the matter of an inquiry into the election for offices in the Australian Salaried Medical Officers Federation [2018] FCA 844, Steward J recently said at [25]:
…the irregularity must be of a kind that has affected, or may affect, the result of an election: see s 206(5) of the FWRO Act. As Siopis J said in Clancy, in the matter of an application for an inquiry in relation to an election for offices in the Australian Nursing and Midwifery Federation [2017] FCA 460 at [26]:
It follows that it is incumbent on an applicant under s 200 of the FW(RO) Act, to satisfy the Court not only that the claim that the irregularity occurred is based on reasonable grounds, but also that there are reasonable grounds to support the making of an order of the kind referred to in s 206(4) of the FW(RO) Act. In other words, in respect of a completed election, such as in this case, that the result of the election may have been affected by the claimed irregularity, if established.
(See also Wilcox CJ in Carney v Matthews, unreported, IRCA N1.109/1994, 27 March 1995)
It follows that the onus remains on the applicant to satisfy the Court that an order should be made in terms of s 206(4) of the FWRO Act.
Further, Reeves J considered in Nimmo at [69]:
This brings me to s 206(5) of the Act, which is set out at [8] above. There is ample authority in this Court that the question whether the result of the election may have been affected has to be assessed as a matter of “real not merely theoretical possibilities”: see Re Ferguson; Re Inquiry into Election in the Australasian Meat Industry Employees Union, WA Branch (1986) 17 IR 208 (“Ferguson”) at 210 per Toohey J, and the cases cited by Gray J in Bailey at 22 and by Weinberg J in Jacomb at [54].
There is also authority that an appropriate approach to considering whether there was a “real” possibility of the irregularity or irregularities affecting the result of the election is to consider the margin between the “lowest scoring elected person and the highest scoring unelected person”. In Carney for example Wilcox CJ observed:
The reason why counsel for the applicant submits that the election inquiry ought to be terminated is that, as a result of the lengthy investigation process which has been undertaken in preparation for the inquiry, the applicant and his legal advisers are satisfied that, even if the allegations of irregularity were established to the satisfaction of the Court, it is highly unlikely that the Court would make an order setting aside the result of any of the ballots. The reason for this is that s.223(4) of the Act provides that the Court shall not declare an election to be void, or declare a person not to be elected, unless the Court is of the opinion that, having regard to the irregularity found and any circumstances giving rise to a likelihood that similar irregularities may have happened or may happen, the result of the election may have been affected or may be affected by irregularities. In other words, although the Court may come to the conclusion that there has been an irregularity and has power to make a declaration to that effect, the poll is not affected unless the Court is satisfied that that irregularity or those irregularities may have affected the result. It seems to me that the applicant and his advisers are correct in reaching the conclusion that it is highly unlikely that they would overcome the hurdle presented to them by this subsection. It is a feature of the subject elections, in respect of each of the disputed offices, that there was a considerable margin between the lowest scoring elected person and the highest scoring unelected person. The lowest margin seems to be of the order of 1100 votes. In respect of most offices, including the senior offices of Secretary and Assistant secretaries, the margins are well over 2000. When one adds the number of votes which may have been affected by the various categories of irregularity suggested by the applicant, it is extremely difficult to see that, even if they were established, they would affect any of the offices. Probably the strongest element in the applicant's case is the allegation of multiple voting. This is supported, as to one of the ballots, by some expert evidence which itself is subject to challenge; but the significant point is that it shows that a maximum of 159 votes are suspect on this score. As I understand the expert evidence, it is not suggested that one person filled in 159 votes. The evidence only suggests that 159 votes are in a category where more than one ballot was completed by one person. Many of them are cases where only two or three ballots seem to have been completed by one person. A situation like that is not necessarily an irregularity. A member may legitimately ask a friend or relative to fill in a ballot for him, that other person also being an elector. Having regard to that fact, and the circumstance that in relation to the other allegations it is extremely hard to put numbers to them, I think it is unlikely that the Court would reach the conclusion that is required in order to enable it to set aside the elections.
(Emphasis added.)
Similarly, in Clancy, in the matter of an application for an inquiry in relation to an election for offices in the Australian Nursing and Midwifery Federation [2017] FCA 460:
201.In light of the evidence of Mr Gilbert, Mr Clancy has not established good grounds for suspecting that 8,000 eligible voters were excluded from the electoral roll in a manner which constituted an “irregularity in relation to an election of an office” and has not established reasonable grounds for his application for an inquiry on that basis.
202.In any event, Mr Clancy has not established that even if, as he claimed, there were 8,000 student nurses who were “disenfranchised”, that the result of the elections as a matter of practical reality, may have been different had the 8,000 student nurses been included on the roll of voters. The evidence of Mr Gilbert was that there were approximately 65,000 eligible voters in the Victorian branch. It is apparent from the voting results at [9] above, that 12,829 eligible voters from the Victorian branch of the ANMF voted in the elections. On Mr Gilbert’s evidence, this is approximately 20% of the eligible voters from that branch. Applying that proportion to the 8,000 student nurses, results in a figure of about 1,600 voters who would otherwise have been likely to have voted in the elections, had they not, on Mr Clancy’s case, been wrongfully disenfranchised. However, in Victoria, Mr Clancy lost the election for the office of Federal President by 8,041 votes and for the office of Federal Secretary by 4,779 votes. Thus, even if all student nurses, who were likely to have voted, had they not been excluded, had voted for Mr Clancy in each election, there would have been no difference to the outcome of the election results in Victoria, nor to the outcome of the election results in the country at large.
Mr Stephen Gillespie was the Returning Officer for the election. Annexed to his affidavit dated 17 May 2019 was a copy of the TWU Queensland Branch Scheduled Election E2018/141 Post-election Report dated 13 December 2018. In that Report the Roll of Voters is described as:
Total number of voters on the Roll 7732
I have already found that the applicant’s claim concerning the membership register was not substantiated. Accordingly I accept that the total number of voters on the Roll accurately represented the eligible members entitled to vote in the election.
Further, I note that the Declaration of Results – E2018/141 in respect of contested offices in the Branch election was annexed to Mr White’s affidavit of 11 March 2019. In that document the following relevant details are recorded:
VOTING MATERIAL ISSUED Total number of people on the roll of voters 7,732 Number of voters issued with voting material 7,732 Total number of voters issued with replacement voting material 41 Total number of voting material packs issued 7,773 VOTING MATERIAL RETURNED Total number of envelopes returned for scrutiny by closing date of ballot 2,783 Number of declaration envelopes rejected at preliminary scrutiny (minus) 76 Number of ballot papers returned outside declaration envelopes 39 COUNT Total ballot papers admitted to the count 2,668 LATE OR UNRETURNED VOTING MATERIAL
Voting material returned as unclaimed material by closing date of ballot 117 Voting material packs not returned by voters by closing date of the ballot 4,873 Percentage of voting material packs returned by voters to number of people on the roll of voters 36%
In this election, where the total ballot papers admitted to the count was 2,668, the difference between the lowest scoring elected person and the highest scoring unelected person for each Branch position was as follows:
·Branch President: 1,321 votes
·Branch Vice President: 1,304 votes
·Branch Secretary: 1,323 votes
·Branch Assistant Secretary: 1,329 votes
·Branch Trustee: 1,262 votes
·Branch Committee or Management Member: 1,263 votes
·National Councillor: 1,254 votes
·Female National Councillor: 1,294 votes
The smallest difference between the lowest scoring elected person and the highest scoring unelected person occurred for the position of National Councillor, where there was a difference of 1,254 votes.
I have already set out in detail the outcome of the election, and the respective votes for candidates from each team. It is clear that the votes given across the Queensland Branch for the successful team YTWT substantially exceeded those in favour of Team Driven.
The relative success of each team and its candidates indicates that any effect of the irregularities on the outcome of the election would have been negligible.
Further, in respect of each of the three irregularities:
(1)In relation to the irregularity at StarTrack Rockhampton: it is unclear how many members were present at the meeting addressed by Mr Biagini at StarTrack Rockhampton on 2 November 2018. However a photograph annexed to Mr Biagini’s affidavit of 5 August 2019 shows eight people present. In an earlier affidavit dated 16 May 2019 Mr Biagini deposed that “about three members” attended that meeting, and that the meeting “was poorly attended”. Further, there is evidence in an affidavit dated 12 July 2019 that approximately ten workers were present. Mr White submitted that the delegates or members at that meeting would have been influenced by representations made by Mr Biagini, such that they would have then advocated for the YTWT with other members in their home yards. However:
(a)There is no evidence of such advocacy occurring;
(b)Even if there were such advocacy there is no evidence of the number of potential members who could have been influenced;
(c)In circumstances where so few members attended the meeting, it is reasonable to conclude that the influence of representations made at the meeting would not have been widespread; and
(d)I am satisfied that such influence would not have affected the outcome of the election.
(2)In relation to the irregularity at the Surfside Buslines site: there was no evidence before the Court to demonstrate the number of members at the site who could have been affected, or who may have used the ballot box. The only evidence was that of Ms Clapham that she heard some people talking about having used the ballot box. Further, the unchallenged evidence of Mr Dunne was that the box was only marked as a ballot box for 24 hours, and Ms Clapham gave evidence that she later placed a sign on the box specifically stating that the members were required to post their own ballot papers. I consider that the possibility of members using the box for election purposes would have been very limited.
(3)In relation to the irregularity at the Sunbus Townsville site: such evidence as was before the Court in respect of the ballot box and acts of Ms Smith at the Sunbus Townsville site indicated that only three votes were involved.
Mr White submitted that the Court should infer that the irregularities arising from campaigning by YTWT supporters at member meetings, and the unauthorised use of ballot boxes, was widespread. In the absence of any evidence to that effect I am not prepared to draw that conclusion.
For these additional reasons I am not satisfied that result of the election would have been affected by these irregularities.
CONCLUSION
In circumstances where I have found irregularities, however I am not satisfied that the result of the election would have been affected by the irregularities, I consider that the election inquiry should be terminated forthwith.
Section 325 of the FWRO Act provides:
Federal Court may certify that application was reasonable
(1)Where a person has applied for an inquiry into an election but the Federal Court does not find that an irregularity happened, the Court may certify for the purposes of this Division that the person acted reasonably in applying.
I have found that three irregularities occurred, however I was not satisfied that they would have affected the result of the election. In circumstances where I have found irregularities, the power granted by s 325 of the FWRO Act to grant a certificate is not relevant: Reid, in the matter of an application for an inquiry relating to elections for offices in the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2007] FCA 417; (2007) 163 IR 392 at [35]. In any event, I note the terms of s 324 of the FWRO Act, which relevantly provides:
(1)Subject to this Division, the Minister may, on application made by a person under subsection (2), authorise payment by the Commonwealth to the person of financial assistance in relation to the whole or part of the person's relevant costs, if the Minister is satisfied:
(a)that hardship is likely to be caused to the person if the application is refused; and
(b)that in all the circumstances it is reasonable that the application should be granted.
(2)An application may be made to the Minister for financial assistance under this Division by the following persons (other than organisations) in the following circumstances:
…
(d)a person who applied for an inquiry into an election, where the Federal Court found that an irregularity happened;
Finally, I note that this is a no costs jurisdiction unless a proceeding is instituted vexatiously or without reasonable cause: s 329 of the FWRO Act. In circumstances where I have found irregularities (albeit not irregularities which affected the outcome of the election) I am satisfied that this proceeding was neither vexatious nor instituted without reasonable cause.
I certify that the preceding two hundred and seventeen (217) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate:
Dated: 19 December 2019
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