Re John Charles Penhallurick; Gregory John Ray; Trevor Rodney Newton; Leonard Edward Ward; Ronald James Potter, of An Inquiry Into An Election In the Transport Workers Union of Australia [1983] FCA 259 (14 October 1983)

FEDERAL COURT OF AUSTRALIA

Re: JOHN CHARLES PENHALLURICK; GREGORY JOHN RAY; TREVOR RODNEY NEWTON; LEONARD
EDWARD WARD; RONALD JAMES POTTER, for an Inquiry into an Election in the
TRANSPORT WORKERS UNION OF AUSTRALIA
No. Q2 of 1983
Industrial

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
INDUSTRIAL DIVISION
Fitzgerald J.

CATCHWORDS

INDUSTRIAL - alleged irregularities in or in connection with elections for various positions within branch - use of misleading circulars - use of union resources in production and distribution of the circulars - whether conduct which does not fall within the definition of irregularity nonethtless constitutes an irregularity for the purpose of s. 165 of the Conciliation and Arbitration Act.

Conciliation and Arbitration Act, ss. 4, 165

HEARING

BRISBANE
14:10:1983

ORDER

THE COURT DECLARES the elections completed in March 1983 to the offices of Branch Vice-President, Branch Secretary/Treasurer, Branch Trustees, Additional Federal Councillors, Branch Industrial Research Officer, Branch Organizer (Ipswich sub-branch), Branch Organizers (Brisbane sub-branch), Branch Committeemen, Brisbane Sub-branch Chairman, Brisbane Sub-branch Vice-Chairman, Brisbane Sub-branch Secretary and Brisbane Sub-branch Committeemen to the Queensland Branch of the Transport Workers' Union of Australia to be void.

DECISION

On 11 May 1983, the Industrial Registrar, acting pursuant to sub-s. 159(4) of the Conciliation and Arbitration Act 1904, as amended, ("the Act"), referred to the Court applications by John Charles Penhallurick, Gregory John Ray, Trevor Rodney Newton, Leonard Edward Ward and Ronald James Potter ("the applicants"), by which the applicants claimed that there had been irregularities in or in connection with elections for various positions in the Queensland Branch ("the Branch") of the Transport Workers' Union of Australia ("the Union"). The Union is an organization of empoyees registered under the Act. The Branch had at the time approximately 14,300 members.

The elections were conducted under s. 170 of the Act by Kevin John Fitzgerald, an officer of the Australian Electoral Office, Brisbane. Nominations opened on 9 November 1982 and closed at noon on 14 December 1982. A number of positions were uncontested. However, there were three nominations for Branch Vice-President, two nominations for Branch Secretary-Treasurer, four nominations for two positions as Branch Trustees, six nominations for three positions as additional Federal Councillors, two nominations for Branch Industrial Research Officer, two nominations for Branch Organiser (Ipswich Sub-Branch), twelve nominations for seven positions as Branch Organisers (Brisbane Sub-Branch), eight nominations for four positions as Branch Committeemen representing the Brisbane Sub-Branch, two nominations for Brisbane Sub-Branch Chairman, two nominations for Brisbane Sub-Branch Vice-Chairman, two nominations for Brisbane Sub-Branch Secretary, eleven nominations for six positions as Brisbane Sub-Branch Committeemen and two nominations for Rockhampton Sub-Branch Chairman. Although the available positions as Branch Organizers related to particular sub-branches of the Branch, all members of the Branch were eligible to vote for all positions except those of Branch Committemen representing the Brisbane Sub-branch, Brisbane Sub-Branch Chairman, Brisbane Sub-Branch Vice-Chairman, Brisbane Sub-Branch Secretary, Brisbane Sub-Branch Committeemen and Rockhampton Sub-Branch Chairman.

The poll in respect of each of the contested positions opened on 11 February 1983, closed at noon on 3 March 1983, and was declared on 10 March 1983. The result was fully set out in the report of the returning officer but may be summarized as follows -

POSITION WINNING MARGIN FORMAL INFORMAL
(MINIMUM) BALLOT PAPERS BALLOT PAPERS
______________________________________________________________________________ _
1 Branch 1,112 5,849 100
Vice-President

1 Branch 640 5,894 55
Secretary/
Treasurer

2 Branch 519 5,901 48
Trustees

3 Additional 876 5,893 56
Federal
Councillors

1 Branch 970 5,880 69
Industrial
Research
Officer

1 Branch 749 5,671 226
Organizer
(Ipswich
sub-branch)

7 Branch 588 5,833 64
Organizers
(Brisbane
sub-branch

4 Branch 634 4,336 48
Committeemen

1 Brisbane 1,006 4,320 64
Sub-branch
Chairman

1 Brisbane 713 4,327 57
Sub-branch
Vice-chairman

1 Brisbane 891 4,337 47
Sub-branch
Secretary

6 Brisbane 645 4,335 49
Sub-branch
Committeemen

1 Rockhampton 98 324 5
Sub-branch
chairman

In substance, the election was contested by two groups. The applicants were part of a group known as the Ward/Potter team; the other group, of which the respondents other than the Union were members, was known as the Williams/McPaul team. Three persons who sought positions as Branch Organizers Brisbane, Messrs Sheard, Burgaty and Kendall, one person who was a candidate for election as an Additional Federal Councillor, Mr Crosby, and one who was a candidate for a position as Brisbane Sub-Branch Committeeman, Mr Brown, were members of both teams. The Williams/McPaul team did not field a candidate in the election for the position of Rockhampton Sub-branch Chairman, or at least it did not appear that the unsuccessful candidate, Mr Thursley, was a member of either team. The successful candidate, Mr Smith, was a member of the Ward/Potter team. The Williams/McPaul team, including Messrs Sheard, Burgaty, Kendall, Crosby and Brown in respect of the positions mentioned, was otherwise entirely successful. Fifteen of the successful candidates, all of whom were members of the Williams/McPaul team, including Mr Kendall, have appeared to resist the application.

A number of candidates from each team occupied Branch positions prior to the election and a number from each team were full-time salaried officers of the Branch. For example, each of the applicants was a branch organizer. The Ward/Potter team controlled the Branch Committee of Management, the ruling body of the Branch. However, an attempted coup to oust one the leaders of the Williams/McPaul team, Mr Hughie John Williams, from his position as Branch Secretary/Treasurer failed late last year. Consequently, although members of the Ward/Potter team had access to Union resources, for example, cars and telephones, and opportunities to canvass in the course of their duties, so did the Williams/McPaul team. The Williams/McPaul team had de facto control of, or at least considerably greater access to, the secretarial staff and facilities of the Branch office in Brisbane.

The election campaign was vigorous, involving personal canvassing, "How to Vote" cards, posters, advertisements, and other forms of propoganda. Although other complaints are made by the applicants, the nub of their case is that the Williams/McPaul team utilized misleading circulars and that union resources were used in connection with their production and distribution.

On or about 1 February 1983, a letter was sent on Branch letterhead, signed by Mr Hughie Williams as State Secretary, to all delegates, about 400 in number. It provided:

"DELEGATES AND MEMBERS

Attached is a rather lengthy document - but a very important document containing vital information.

It is imperative that you read it thoroughly and bring the contents of it to the notice of members in your Yard.

I am most concerned that innocent members of this Union could be led into trouble.

I say this to you, the members, particularly in view of the text of the Solicitor's letter attached hereto. It could be the case that some of our members could repeat the malicious lies and thus find themselves involved in legal action.

This document is also for the benefit of members so that they know the facts - facts which can be proven and are there for you to see.

I am also very concerned that these lies regarding our Union could be the downfall of the whole of the Queensland Branch, which would simply mean that members would have no protection whatsoever.

We cannot tolerate a handful of disgruntled "ego-trippers" wrecking OUR Union for their own benefit - THEIR OWN BENEFIT, NOT YOURS]

It is important for their own protection, that the contents of this document brought to the immediate attention of all members in your Yard."

The "rather lengthy document" referred to consisted of 5 pages headed "A TRUTHFUL MESSAGE TO ALL MEMBERS OF THE TRANSPORT WORKERS' UNION (QUEENSLAND BRANCH) - FROM THE STATE SECRETARY, HUGHIE WILLIAMS".

The "truthful message" commenced:

"Over the last couple of weeks some Union Organisers have been attending Job Meetings and making all kinds of false and malicious statements - statements which are NOT factual and which are very misleading to the Rank and File Members.

These Organisers are endeavouring to endorse their false and fictitious statements with extracts of the Minutes of the Branch Committee of Management Meetings. Of course, this is not difficult if you tell only half the story]

It is because of these actions that I am writing to ALL members officially with ALL the facts and extracts of the Branch Committee of Management Meetings. I would never have needed to resort to this action, but I feel that it is in the members' interest to know the facts.

These Organisers are causing this Union and its members intolerable harm for one reason - and that is for themselves only]

Please follow the facts as they occurred at the Branch Committee of Management Meetings:-

1. The Queensland Branch has four (4) Delegates: -

H. Williams, W.K. McGrath, A. McPaul and R. Lincoln of the Federal Council.

The Federal Council of the Transport Workers' Union of Australia votes for any increases in Fees if it so desires - NOT THE STATE BRANCHES.

THESE ARE THE FACTS: - "

Thereafter were set out various extracts from Branch Committee of Management meetings, with comments. The general tenor of what was stated in this part of the document was favourable to members of the Williams/McPaul team and unfavourable to the members of the Ward/Potter team although perhaps only marginally so. More importantly, by a re-arrangement of the order in which resolutions were passed and by the comment added, there was, in some respects, significant misrepresentation of the true position. The "truthful message" concluded:

"I now trust that the true facts are clear to you. If you have any doubts, please contact me and I will arrange inspection of the official Minutes of the Transport Workers' Union.

I look forward to working with and for the Rank and File Members and to make this Union a better and responsible one."

Then followed the name "Hughie Williams" with the description "State Secretary - Queensland Branch".

All work involved in the preparation, copying, and distribution of the documents in question, to which other documents were also attached, was performed by Union staff in the course of their employment, using Union resources.

On its face, the documentation purported to be an official communication from the Union. It was, in truth, blatant electioneering, directed to advancing the Williams/McPaul team and involving an attack on the Ward/Potter team. It was not authorized by the Branch Committee of Management which was controlled at the time by the Ward/Potter team. It was distributed to all delegates for publication to all branch members. The issues with which it was concerned were election issues. Its contents were misleading.

The solicitors for the applicants complained to the solicitors for Mr Williams. The attitude, however, was taken by Mr Williams, and persisted in by him at the hearing before me, that the documentation was not related to the election but to Union business. No other step was taken by the applicants at that time.

The other principal document, albeit of much lesser importance, can be referred to briefly. It purported to be a statement by 52 life members of the Branch in support of the Williams/McPaul team. Minimal use of the Union's resources was involved in the preparation of this document, however, the Union's resources were not used in its copying or distribution. This document was not widely circulated. I am, however, satisfied that not all the persons named in the document acquiesced in the use of their names in connection with such a document.

Sub-sections 165(3) and (4) provide:

"165(3) If the Court finds that an irregularity has occurred, the Court may, subject to the next succeeding sub-section, make one or more of the following orders:

(a) an order declaring the election, or any step in or in connexion with 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 Industrial Registrar to make arrangements -

(i) in the case of an uncompleted election - for any step in or in connexion with the election (including the submission of 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 any step in or in connexion with the election (including the submission of nominations) to be taken again or for a new election to be held;

(d) an order (including an order modifying the operation of the rules of the organization to the extent necessary to enable a new election to be held, a step in or in connexion with an election to be taken again or an uncompleted step in an election to be taken) incidental or supplementary to, or consequential upon, any order under this section.

(4) The Court shall not declare an election, or any step taken in or in connexion with an election, to be void, or declare that a person was not elected, unless the Court is of opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have occurred or may occur, the result of the election may have been affected, or may be affected, by irregularities."

A definition of "irregularity" is to be found in sub-s. 4(1). Except where otherwise clearly intended, "'irregularity' in relation to an election or ballot, includes a breach of the rules of an organization or of a branch of an organization, and any act, omission or other means whereby the full and free recording of votes by all persons entitled to record votes, and by no other persons, or a correct ascertainment or declaration of the results of the voting is, or is attempted to be, prevented or hindered."

It was not in dispute, that, even in the absence of an express provision in an organization's rules, there is an implicit prohibition upon the use of the resources or funds of an organization to support one candidate in an election in circumstances where they have been denied or will be denied to another candidate. That is well established by a series of cases, a number of which I referred to in Re The Australian Workers' Union; ex parte Clyde Raymond Ferris (unreported judgment delivered 25 October 1982.) However, reliance was placed upon the decision in Re Australian and Telecommunications Union; ex parte Wilson [1979] FCA 107; (1979) 28 A.L.R. 330 for the proposition that a breach of rules is not an irregularity unless it is a breach "whereby the full and free recording of votes by all persons entitled to record votes, and by no other persons, or a correct ascertainment or declaration of the results of the voting is, or is attempted to be, prevented or hindered". If that is correct, the qualification introduced by those words into the definition of "irregularity" effects a serious limitation upon the control of union elections to ensure a fair and democratic result.

The language in which the definition of "irregularity" is expressed does not require such a conclusion and, indeed, as was noted in Wilson's Case at p. 336, at least the punctuation tends to point to the contrary. However, in Wilson's Case it was thought that the qualification must have been intended since it was thought that it seemed unlikely that the legislature would have intended that any breach of the rules of an organization whatsoever was sufficient to warrant the court exercising jurisdiction under s. 165. In my respectful opinion, that reasoning overlooks that, by virtue of sub-s. 165(4), not every breach of the rules or other irregularity will suffice. The irregularity, be it a breach of the rules or otherwise, must be such that, having regard to any circumstances giving rise to a likelihood that similar irregularities may have occurred or may occur, the result of the election may have been affected, or may be affected. In other words, irrespective of any limitation to be found in the definition of "irregularity", a breach of the rules will only be an irregularity which is of present consequence if it may be or may have been of significance in connection with the election.

I am encouraged in the view which I hold by the consideration that there are three judgments by Northrop J. in which expressly or impliedly a different view has been taken from that which found favour in Wilson's Case: see Re Federated Liquor and Allied Industries Employees' Union of Australia; ex parte Huxtable [1979] FCA 17; (1979) 40 F.L.R. 418; Re Federated Clerks Union of Australia; Taxation Officers' Branch; ex parte Bath (unreported judgment of 4 March 1982); and Re Federated Clerks Union of Australia, Victorian Branch; ex parte Rayner (unreported judgment dated 24 May 1983). Further, Evatt J. left open the correctness of Wilson's Case in Re Federated Clerks Union of Australia, South Australian Branch; ex parte Hibbert (unreported judgment delivered 29 July 1983).

In part at least, the solution seems to me to be found in a recognition that, as was pointed out in Huxtable's Case, the definition of "irregularity" in the Act is not exhaustive but expansive (p. 425). Thus, any breach of the rules will be an irregularity, as will be any act, omission or other step which prevents or hinders the full and free recording of votes by all persons entitled to record votes or the correct ascertainment or declaration of the results of the voting. But conduct which may not meet either description may also be an irregularity. For example, it seems to me that it may well be that conduct which misleads voters and thereby causes them to alter their votes but not to refrain from voting may not properly be described as conduct which prevents or hinders the full and free recording of votes; cf. Evans v. Creichton-Browne [1981] HCA 14; (1981) 55 A.L.J.R. 287,288. However, it does not seem to me to be open to doubt that such conduct might well constitute an irregularity and might well justify the Court declaring an election void if, having regard to the likelihood of other similar irregularities, the irregularity in question may have affected the result of the election.

Indeed, that seems to me to be the very case with which I am confronted here. No rule was pointed to which forbade the use of misleading election material. On the other hand, for the respondents it was not disputed that such conduct would constitute an irregularity, at least were it not for Wilson's Case. I do not think that it is satisfactory to strain the language of the definition of irregularity so as to describe conduct which merely inappropriately influences the manner in which votes are cast as having the effect of preventing or hindering the full and free recording of votes. The sounder footing seems to me to be to acknowledge that the definition of irregularity is not the ultimate determinant and to recognize that conduct which does not fall within that definition may nonetheless constitute an irregularity for the purpose of s. 165.

Neither the applicants nor those members of the Williams/McPaul team who were in the position to take advantage of Union resources paid scrupulous regard to their obligations as officers and employees of the Branch. Their concern was less with the general body of members of the Branch than with defeating the rival team and securing their own election. It is difficult to avoid the suspicion that perhaps the real complaint of the applicants is that they were defeated and that, had the opportunity been available, it might have been them not the Williams/McPaul team which utilized the Union resources to the greater degree. It is also to be noted that the applicants complained but did nothing else until after the election had taken place and they had been defeated and indeed did nothing then for a considerable period of time.

Nonetheless, the present proceeding cannot be viewed merely as a lis inter partes. The proper conduct of Union elections is a matter of public interest and, more particularly the proper conduct of a particular Union election is of special interest not only to the rival protagonists but to a class of the public, the particular Union members involved.

It might be unrealistic to seek to impose too high a standard on those who seek such positions. However, the present dispute does not involve merely incidental canvassing or isolated use of Union resources by existing branch officers or employees during the course of their duties. The second of the documents was of limited significance. It is part of the background in much the same way as is some of the applicants' own conduct to the extent that it was susceptible of criticism. There were a number of other even less significant incidents involving the Williams/McPaul team to which reference could also be made. However, it was the documentation first referred to which to my mind has significance in the present case.

The contents of that documentation went to issues which were conceived to have critical electoral importance. The document was sent out as an official document and intended for wide publication which it doubtless received. It involved the use of Union resources to an impermissible extent and it was untruthful. It is true that it was only a small part of the large volume of material which was utilized by each side in a hard fought contest and that the Williams/McPaul team candidates won by large margins. However, it seems to me correct to conclude that there is a practical risk, which is more than mere fanciful speculation, that that documentation did or might have affected the result of the election. Those who disseminate such material for the purpose of electioneering should not be too readily heard to say that they did not achieve their purpose.

Accordingly, I have concluded that the elections other than the election for the position of Rockhampton Sub-branch Chairman ought be declared void. I am satisfied that there is no basis for differentiation in respect of those successful candidates who were members of both teams. It is impossible to speculate to what extent the votes which they received were the product of the Williams/McPaul team material. On the other hand, no basis has been shown for interference with the election of Mr Smith as Rockhampton Sub-branch Chairman, any more than with the position of those who were elected unopposed. As requested, I will hear the parties concerning what if any other orders ought also be made.