Re Conciliation and Arbitration Act 1904 and Re An Application By Glenn William Ferguson of An Inquiry Into An Election In the Australasian Meat Industry Employees Union, Western Australian Branch and Re A Ref [1986] FCA 369 (5 November 1986)

FEDERAL COURT OF AUSTRALIA

IN THE MATTER of the Conciliation and Arbitration Act 1904 and IN THE MATTER
of an application by GLENN WILLIAM FERGUSON for an Inquiry into an Election in
THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION, WESTERN AUSTRALIAN BRANCH and
IN THE MATTER of a reference of such Application by the Indutrial Registrar to
the Federal Court of Australia
No. WA 5 of 1986 and WA 6 of 1986
Industrial Law
17 IR 208

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Toohey J.

CATCHWORDS

Industrial Law - election inquiry under Pt IX of Conciliation and Arbitration Act - allegation that persons ineligible to vote issued with ballot papers - construction of eligibility rule - 110 members to whom ballot papers issued found ineligible to vote - whether result of election affected

Conciliation and Arbitration Act 1904 s.165

HEARING

PERTH
5:11:1986

DECISION

On 10 July 1986 I handed down reasons for judgment in this inquiry, under Pt IX of the Conciliation and Arbitration Act 1904 ("the Act"), into an election held by The Australasian Meat Industry Employees Union, Western Australian Branch ("the Union"), an organization registered under the provisions of the Act.

2. On the basis of findings made as to irregularities which had occurred in connection with the election and the likelihood that similar irregularities had occurred, I concluded that the election should be declared void.

3. On 31 July 1986, following an application by the Union prior to any orders being made, I granted leave to the Union and to the applicant to re-open their respective cases to adduce evidence as to the likelihood of ballot papers having been issued to ineligible persons other than those to whom reference had been made during the original hearing of the application.

4. At the original hearing the applicant alleged that a number of irregularities had occurred in connection with the election, in particular that persons ineligible to vote had been issued with ballot papers. In support of this allegation, the applicant tendered the ledger cards in computer print-out form of 326 members, all of whom it was agreed by counsel were persons to whom ballot papers had been sent.

5. Of those 326, I found that 94 were ineligible to vote. The reason for their ineligibility lay primarily within the terms of the Union's eligibility rules. In my original reasons for judgment I considered in some detail the provisions of the rules and expressed my views as to their proper construction. I do not propose to repeat the exercise. Any conclusion as to eligibility or ineligibility expressed in these reasons is reached against the background of my earlier reasons. In those reasons I dealt with the particular instances on which the applicant relied (all being from abattoirs at Robb's Jetty, Katanning or Albany) and said that there was "a real possibility that ballot papers were issued to persons in other places of employment who were not eligible to vote". This was a reference to the system of pay-roll deductions used by the Union. In an affidavit filed in support of the motion to re-open the hearing, the secretary of the Union deposed in effect that the problems connected with pay-roll deductions which had arisen in the three abattoirs just mentioned had not occurred elsewhere. When the inquiry re-opened, counsel for the applicant expressly accepted the accuracy of the affidavit so that the possibility to which I adverted has now been rebutted.

6. At the present hearing the applicant tendered an additional 43 ledger cards in book form. These cards related to persons drawn from a variety of places of employment, including Robbs Jetty, Katanning and Albany.

7. While the ledger cards were tendered on the basis that the persons to whom they related were persons ineligible to vote but to whom ballot papers had been sent, counsel for the applicant conceded that 7 of the 43 persons were eligible to vote. He also accepted that 3 persons had not in fact been sent ballot papers.

8. As to the remaining 33 persons whose eligibility was in question, counsel for the respondent agreed that they were all persons to whom ballot papers had been sent and that 11 of those persons were ineligible to vote.

9. With one exception, the arguments advanced by counsel did not raise new questions concerning the construction of the Union's eligibility rules. In the main they involved questions of fact which have to some extent arisen from ambiguities in the information recorded in the ledger cards.

10. One argument put by counsel for the applicant was dealt with in my original reasons for decision and may be disposed of quite shortly. He submitted that a number of persons were ineligible on the basis that they had arrears of contributions, notwithstanding that they had, between January and June 1985, paid the contribution fixed for that period. This submission placed considerable strain on the language of r.6A(1)(a) and indeed counsel for the applicant did not press it. I need do no more than refer to the following passage from my earlier reasons where the effect of r.6A(1)(a) in the context of the election the subject of this inquiry is summarised:

"If between January and June 1985 a member paid his

contribution for that period, he would be eligible to
vote in the election even though he was in arrears in
respect of a period earlier than January 1985"
(emphasis added) (p.7).

During the present hearing a question arose as to whether eligibility under r.6A(1)(b) was conditional upon compliance with the time limit imposed in the rule. In my original reasons I expressed the view that a person would be eligible to vote pursuant to r.6A(1)(b) if

"not later than 30 days before 13 September 1985, he
paid his contribution for the period July to December
1985 ..." (p.7).

Counsel for the Union submitted that the requirement of payment not later than 30 days prior to the closing of the ballot was directory only and that accordingly failure to comply did not carry with it the consequence of ineligibility. I do not accept this submission. Both paras.(a) and (b) of r.6A(1) clearly fix 30 days prior to the closing of the ballot as the date by which members wishing to exercise a vote must bring themselves within the eligibility rule. The purpose of this provision is no doubt to ensure that there is sufficient time between the preparation of the roll of eligible members and the closing of the ballot to enable the posting of ballot papers and the casting of votes to be carried out. This construction of the rule is consistent with r.53, which requires the returning officer to forward to each eligible member a ballot paper no later than 14 days prior to the closing of the ballot (r.53(6) and (8)). The respondent's submission would lead to the result that, at any time prior to the close of the ballot, a person might pay a subscription and demand a ballot paper. Such a result is inconsistent with the body of the rules and would produce uncertainty in the administrative steps to be taken in connection with the holding of an election.

11. I propose to deal with the 33 persons whose eligibility was in question (including the 11 whose ineligibility was conceded) much in the way that I did in my reasons for judgment delivered on 10 July 1986. That is, I attach a schedule containing an analysis of ledger cards with findings of eligibility and ineligibility and the reasons for making those findings.

12. As a result of that analysis, there are 16 persons to whom ballot papers were sent but who were ineligible to vote. As before, whether any of them did vote is not known. In my earlier reasons I found that there were 94 persons to whom ballot papers were sent who were ineligible to vote. In total then there are 110 persons to whom ballot papers were sent but who were ineligible to vote. In the light of the further hearing, there is no justification for concluding that there is a real possibility that ballot papers were issued to other persons who were not eligible to vote. Put another way, at most there were 110 persons, ineligible to vote but who may have voted.

13. As pointed out in the earlier reasons for judgment, the margins between successful and unsuccessful candidates in the various positions varied from 68 (in the case of the representatives for the Albany area) to 264 (in the case of the secretary of the Union). Mr. Schapper, counsel for the Union, submitted that an appropriate and realistic approach to take would be to have regard to the fact that of 2,476 ballot papers despatched, only 1,116 votes were cast. That is, 54 per cent of persons to whom ballot papers were sent voted in the election. If this percentage is applied to the 110 ineligible persons to whom ballot papers were sent, it might be inferred that no more than 50 of those persons voted, in which event none of the particular elections would have been affected by ineligibility.

14. I find the tenor of this submission persuasive, especially in the context of sub-s.165(4) of the Act which precludes the Court from declaring an election void "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". For reasons already given, I disregard the likelihood of similar irregularities. Thus the question is whether the Court is of opinion that, having regard to the irregularities found, the result of the election may have been affected. Unless the Court is of that opinion, it may not declare the election void. Clearly the Court is not required to make a positive finding but, equally, the Court is looking at real not merely theoretical possibilities. I am not to be taken as accepting as a fact that no more than 50 of the 110 ineligible persons voted. I say no more than that I am not of opinion that the result of the election may have been affected by the existence of 110 ineligible persons to whom ballot papers were sent.

15. Nothing that occurred in the most recent hearing bore on the eligibility of Mr. de Sousa and Mr. Correia to stand as representatives "normally employed in the small-goods and bacon curing manufacturing area". My earlier finding that they were ineligible to stand remains and there must be an election for those positions.

16. I shall hear from counsel as to the precise orders to be made.