Re Industrial Relations Act 1988 v Re An Application By Leslie Ronald Birch of An Inquiry Into An Election In the South Australian Branch of the Australian Workers Union [1991] FCA 1; (1991) 37 IR 293 (4 January 1991)

FEDERAL COURT OF AUSTRALIA

Re: IN THE MATTER of the Industrial Relations Act 1988
And: IN THE MATTER of an application by LESLIE RONALD BIRCH for an inquiry
into an election in the South Australian Branch of The Australian Workers
Union
No. S I1 of 1990
FED No. 13

[1991] FCA 1; (1991) 37 IR 293

COURT

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Keely J.(1)

HEARING

ADELAIDE
4:1:1991

DECISION

FINDINGS RE ALLEGED IRREGULARITIES NOS. 1-10
The application for an inquiry into the above election having been filed on 19 June 1990, von Doussa J. on 22 June 1990 ordered that an inquiry be conducted into the elections for each of the offices in the South Australian Branch ("the Branch") of the Australian Workers' Union ("the Union"), which were declared on 21 December 1989. The inquiry was listed for directions hearings on six occasions. The parties' legal practitioners jointly asked the court to commence the hearing of the inquiry in Adelaide on Monday 26 November 1990, the estimate of the hearing time being 10 sitting days. On 30 August 1990 the court raised with the parties the possibility of the hearing taking longer and the question of whether the hearing should commence at an earlier date in order to ensure that the hearing would be finished (and, if possible, judgment given in the matter) before the end of the year; however, the parties' legal practitioners, apparently confident that the matter would be completed in 10 sitting days, maintained their request that the hearing not commence until 26 November 1990. The hearing commenced on that day.

2. After it became apparent that the matter would take considerably longer than 10 sitting days, it was suggested by one party that the course of the hearing would be assisted if the court were to hear the cases and submissions of all parties in respect of the alleged irregularities numbered 1 to 10 inclusive, with a view to announcing its findings in respect of those 10 alleged irregularities as soon as possible. That suggestion, which was accepted by the court, was intended to enable the parties to have sufficient time to prepare their cases in respect of (a) the remaining alleged irregularities (numbered 11 to 13 inclusive) and (b) the matters which the court is required to consider under s. 223(4) of the Industrial Relations Act 1988 ("the Act"). It was clear that the respondents would seek an adjournment, to enable them to consider the court's findings as to irregularities and to decide what evidence should be placed before the court as to the remaining alleged irregularities and the s. 223(4) question.

3. The hearing has already occupied 20 sitting days, including 6 days during the court's vacation, and since adjourning the matter on 24 December 1990 the court has received written submissions from the parties.

4. The applicant's counsel, Mr di Fazio, sought and was given leave to amend the application on a number of occasions. The application in its final amended form, filed in court on 17 December 1990, alleged, as the first irregularity, that:
"Persons other than those entitled to vote, namely

Brickworker members of the Organisation, were granted a vote
and did vote in the election thus preventing or hindering a
correct ascertainment of the results of the voting in the
election."

5. I find that at least 33 persons who voted in the election had not validly been admitted as members of the Union; the evidence establishes that they were not eligible to become members, under rule 6 of the Union's rules, at the time when they purportedly became members. Those members were Messrs. Chesser, East, Evans, Fuss, Green, Johnson, Matheson, R. L. Normington, B. R. Robinson, Roe, Rooney, Scott, M. C. Smith, Whellum, Burns, Ciantor, Elliot, Gilbert, Healey, Kerr, R. Lehmann, McKelliff, C. J. Murray, Poulton, Rander, Rigney, Shaw, Tate, Turner, Wade, Watt, Wilson and Wray.

6. I accept Mr Stanley's submission that the eligibility of each brickworker "must be determined individually" but on the evidence I am unable to accept his submission that each of them was at the relevant date engaged in manual and/or mental labour in or in connection with one of the callings specified in Rule 6, namely " ... all kinds of general labour ...". I find, on the evidence, that the applicant has not proved that 15 members had invalidly been admitted as members. Those members were Messrs. M. Normington, Peisley, Ceravolo, Collenette, A. L. Lehmann, McNeill, T. C. Murray, Pearson, Quinlish, Rawlings, Rydzynski, Simonetta, Worley, Kristensen and I. Smith.

7. I am unable to accept Mr Stanley's submission that the Union's rules required it to admit to membership all persons who applied for membership (sub-rule 8(a)).

8. As to his attempted reliance upon s. 256 of the Act, the evidence does not support the submission that "each was admitted to membership by a person holding or purporting to hold a position in the organisation and purporting to exercise power under the Rules". Further, in my opinion there is considerable doubt as to whether that section applies to the purported admission to membership of persons not eligible to join an organisation of employees. Section 256 expressly refers to purported "election", "appointment" and "making ... or the alteration ... of a rule ..." but does not expressly refer to the purported admission to membership of persons; as to whether it does so impliedly, it must be noted that s. 260(1), which is the section dealing with a person "treated by the organisation as a member", is expressly limited to persons "eligible" for membership.

9. It should be added that (1) no application has been made under s. 257 of the Act and (2) the statement in Mr Stanley's outline of submissions (page 10 paragraph 8) that Mr Dunnery "applies to the Court for an order pursuant to Section 258 ..." has not yet been considered by the court.

10. I am unable to accept Mr Stanley's submission that the "alleged 'irregularity' is the admission to membership of the brickworker". In my opinion "irregularities" occurred in that persons who were not validly admitted as members of the Union voted in the election; the "irregularity" lay in their voting - not in their admission to membership cp. Mr Stanley's Outline (page 10 paragraph 9.1). Had those persons not voted in the election the first irregularity alleged by the applicant would not have occurred - notwithstanding that their admission to membership was invalid. In my opinion the "irregularity" lay in votes being cast by persons who were not entitled to vote. Each of those votes was an "act ... by means of which: (i) the full and free recording of votes by all persons entitled to record votes and by no other persons ...(was) prevented or hindered" (s. 4(1) of the Act - emphasis added).

11. The second alleged irregularity was expressed in the following terms:

"The omission of an employer namely Longyear Australia Pty.
Ltd., in not forwarding ballot papers onto the employers'
employees who were members of the Organisation had the
result that those members were denied a vote in the
election. The full recording of votes by all persons
entitled to record votes was therefore prevented or
hindered."

12. I find that an irregularity occurred in that Longyear Australia Pty. Ltd. ("Longyear") failed to forward to at least three of its employees, who were members of the Union, ballot papers which had been forwarded by the Returning Officer to those employees, in envelopes addressed to them "c/o P.O. Box 84, Parkholme 5043" (GJC 29). As a result the recording of votes by those persons was prevented - in each case an irregularity as defined in s. 4(1) of the Act. I find that Messrs. P. R. Downes and P. J. Fisher, each of whom gave evidence, did not receive ballot papers and I make the same finding as to Mr K. Holmstrom, based upon the affidavit of Mr Maegraith as what he was told by Mr Holmstrom (whom he inaccurately referred to as Mr K. Holstrum).

13. On the evidence presented, I reject Mr di Fazio's submission that the court should infer that Messrs. C. D. Ludwig and N. W. McCallum did not receive ballot papers. As to Mr A. M. Harvey I find that he did receive a ballot paper. The evidence does not establish that Mr M. J. Biggins did not receive a ballot paper. No ballot paper was sent to Mr H. Whitehair by the Returning Officer, who said he did not have any address for Mr Whitehair. As to Messrs. D. A. Marston and P. A. Wait, the Returning Officer sent the ballot papers to their residential addresses (Exh GJC 29). I reject the suggestion by the applicant that electioneering material was included in the envelope from the Returning Officer containing his ballot paper.

14. I am not prepared to accept Mr di Fazio's submission (Outline p 14) that, in relation to persons who were no longer employed by Longyear, Mr Rosewarne "neither returned those ballots to the Returning Officer nor forwarded them on to the member for whom he had viable addresses". As to his submission that Mr Rosewarne "did not forward ballots to at least 7 employees still working for Longyear at the time", having considered Mr Rosewarne's evidence, I am not prepared to find that he personally (as distinct from Longyear) failed to forward the ballot papers to the employees. On his evidence, they were sent to the company's branch office in the relevant State but he had no personal knowledge of what happened to mail, including the ballot papers, after he had arranged for it to be sent to the Branch office (he believed it was sent by an overnight bag).

15. The third alleged irregularity was expressed in the following terms:

"A person or persons who were not entitled to do so did cast
votes in the election with the result that persons other
than those entitled to record the votes in question namely
the 17 members of the Organisation employed by Matthews
Bros. Contractors Pty. Ltd., did record them. A correct
ascertainment of the results of the voting was thereby
prevented or hindered."

16. I find that at least two irregularities occurred in that some person or persons unknown forged the signatures of Messrs. D. J. O'Brien and Gary Francis (both of whom gave evidence) on the outer envelopes containing their ballot papers. It may well be that there were other forgeries on other outer envelopes but the evidence does not satisfy me (in the sense used in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-362) that there were such forgeries in respect of other members including Messrs. G. Brokate, R. Hibbett (also known as R. Wall) and P. W. Browne (also known as P. Wiggins). There is much force in the criticisms made by Mr White, of counsel (Outline p 10) as to the applicant's submissions on this aspect.

17. In his Outline (p 20 paragraph 6) Mr di Fazio submitted that:-

"In any event the employees at Matthew Bros. were not
validly admitted to membership because (1) they did not
apply to become members (2) they did not consent to
applications being made on their behalf and (3) they did not
pay any contributions."

That submission does not appear to relate to the third alleged irregularity, namely, the claim that there were forged ballot papers. None of the respondents advanced submissions as to this matter. In the circumstances I make no finding at this stage.

18. The fourth alleged irregularity was expressed in the following terms:

"The full and free recording of the votes of at least two
members, namely Leonard John Sharp and Ross Peter Davidson,
was prevented and that in each case:
(1) some other person wrongly voted in their stead; and
(2) they were wrongly deprived of a vote."

19. I find that two irregularities occurred in that some person or persons unknown forged the signatures of Leonard John Sharp (an employee of S.A. Co-Operative Bulk Handling) and Ross Peter Davidson (an employee of Woodville Council) on the outer envelopes containing their ballot papers, and recorded votes that that person or persons was or were not entitled to record; such conduct was an offence against s. 315(1)(d) of the Act.

20. Paragraph (a) of the fifth alleged irregularity was expressed in the following terms:

"(a) 5 candidates namely A. Alexander, T. Girdham, R. V.
Willis, L. Noda and T. Sherratt were not eligible to
be nominated in that they were not, at the time of
their nominations, continuous members within the
meaning of Rule 68(a)(ii) and Rule 89(e).

21. I find that there were irregularities in that five candidates, namely Messrs A. Alexander, T. Girdham, R. V. Willis, L. Noda and T. Sherratt, were not eligible to be nominated for the offices for which they stood because at the time of their nominations they were not "continuous members", as defined in rule 89(e), within the meaning of rule 68(a)(ii). Messrs. Alexander and Girdham were successful candidates for the positions of Branch Organisers and Messrs. Willis, Noda and Sherratt were unsuccessful candidates for the positions of Branch Executive Members (GJC 27).

22. Mr di Fazio, in submitting that those candidates were not "continuous members" relied upon the reasons for judgment of Pincus J. in Rennie v Australian Workers Union and Anor. (No. QI 5 of 1990 - unreported delivered 5 October 1990). Mr White (Outline paragraph 5.37 and 5.38) in a carefully prepared and strongly argued submission, said that that decision was wrongly decided and should not be followed. Having considered his Honour's reasons for judgment, and the arguments of counsel in the present case, I have decided that the proper course is to follow his Honour's decision, notwithstanding that there are real difficulties in construing the relevant rules. However, that question of construction of the same rules has been recently decided by a Judge of this Court and it is undesirable that there should be conflicting decisions as to their construction. If one applies the construction accepted by Pincus J. to the facts as revealed by the evidence before this court, each of the five candidates was ineligible for nomination. It is hardly necessary to add that, if that construction of the rules does not accord with the intention of the rule-makers, then the rules can be amended.

23. Paragraph (b) of the fifth alleged irregularity was expressed as follows:

(b) One candidate namely R. Healy was not eligible to be
nominated in that he was ineligible to become a member,
because at the time that he purported to become a member he
was not employed in any industry or calling described in
Rule 6."

24. The correct spelling of that candidate's name is Healey - see GJC 27. I find that an irregularity occurred in that Mr R. Healey, who was an unsuccessful candidate for the office of Branch Organiser, was not eligible to be nominated for that office. That finding is based upon the evidence that, at the time of his purported admission, he was employed as a hand setter. Accordingly, he had not been validly admitted as a member of the Union; for the reasons given earlier in dealing with the first irregularity, he was not eligible to become a member of the Union.

25. The sixth alleged irregularity was abandoned.

26. Paragraph (a) of the seventh alleged irregularity was expressed in the following terms:-

"(a) An irregularity occurred in that the Returning
Officer failed to post ballot papers to 489 members
of the Union who were entitled to vote. Those 489
members were thereby deprived of a vote. The full
and free recording of votes by all persons entitled
to record votes was therefore prevented.

27. I find that irregularities occurred in that the Returning Officer failed to post ballot papers to 489 members of the Union who were entitled to vote; accordingly the full and free recording of votes by all persons entitled to record votes was prevented or hindered.

28. I accept as correct the following submissions by Mr Stanley (Outline pp 20-21):-

"Further, it is submitted that it is not open to the Court
to substitute its view of whether such action should have
been taken for the view of the Returning Officer and to find
that an irregularity had occurred as a result of the action
taken. Unless the action of a Returning Officer is wrong in
law or such that no reasonable Returning Officer could have
taken it, or the exercise of the power to take such action
is not a bona fide exercise of that power, for the purpose
for which the power is given, the Court should not
interfere. Action taken by a Returning Officer in the
exercise of the power given by Section 170A overrides the
Rules of the organisation concerned. It follows that a
failure to comply with those Rules, where such action has
resulted in the non-compliance, cannot amount to an
irregularity."

29. Mr Stanley submitted (Outline pp 19) that, pursuant to his powers under s. 215 of the Act (adopting Mr White's submission as to the applicability of that section of the Act), the Returning Officer

"... took such action in relation to the election as he
considered necessary in order to ensure that no
irregularities occurred in or in connection with the
election, including omitting to issue ballot papers to 489
financial members of the union otherwise entitled to receive
ballot papers where he had reason to believe that the
addresses provided to him by the Union on the main listing
was not the current address of the member concerned.
24.1 The Returning Officer took this action in the belief
that if ballot material was issued and sent by pre-
paid post to the addresses provided by the Union the
ballot material would be highly unlikely to reach the
member and could be misappropriated by other persons.
It is submitted such a belief was reasonable in the
circumstances."

30. Mr Carey was a truthful witness who explained in detail his actions, his practices and the problems which he faced as Returning Officer. There were, however, some inconsistencies in the way in which he expressed his answers at different times; in particular in answering the important question whether his direction - that ballot papers were not to be posted to the 489 Union members - was a direction that he considered "necessary: (i) to ensure that no irregularities occur in or in relation to the election". I have carefully considered his oral evidence and the evidence contained in his affidavits and I have re-read the transcript of his evidence. Notwithstanding the answers elicited in leading questions by Mr White and his answers to the court (e.g. transcript pp 1416-1417), I am quite satisfied that at the relevant time Mr Carey did not consider it necessary to give that direction in order to ensure that no irregularities occurred in or in relation to the election (s. 215(1)(b)(i)). The passage at pp 1416-1417 of the transcript, cited above, was preceded by the following evidence (transcript p 1416), in answer to counsel for the Australian Electoral Commission:

"Mr Cullimore: Did you, as it were, balance in your mind
the conflicting interests of additional costs, the
committing of additional resources to taking further steps
such as the ones His Honour has outlined to trace these 554
members against the perhaps conflicting interests of
avoiding irregularities under section 170(a) of the 1904
Act?---Yes, I did.
His Honour: ... You balanced the conflicting interests of
additional costs such as writing to the members beforehand?-
--I considered the cost, yes.
Against what? I am trying to get what the balance was?---
Really against the product or the result of the expenditure
of those costs, and I also considered my statutory
obligation to prevent irregularities by not posting to
members at the addresses that were not current or dead
letter addresses.
....
His Honour: The balance is of the cost. It was a cost
benefit. The money expended on the one hand against the
likely number of members who whom you got up to date
addresses?---Yes."

31. Paragraph (b) of the seventh alleged irregularity was expressed as follows:

(b) Alternatively, if no irregularity occurred as alleged
in paragraph 7(a) (on account of the operation of s.
170A of the Conciliation and Arbitration Act or
otherwise) there was an irregularity in that the
Branch Secretary failed to keep a correct Register of
the postal addresses of all members of the Branch by
failing to keep all addresses up to date in
accordance with s. 268 of the Industrial Relations
Act 1988. 489 members of the Branch were thereby
wrongly deprived of a vote. The full and free
recording of votes by all persons entitled to record
votes was thereby prevented."

32. In view of my finding that irregularities occurred in relation to 7(a) above, it is not necessary for me to deal with this alternative allegation.

33. The eighth alleged irregularity was expressed in the following terms:-

"There was an irregularity in that the Branch Secretary
failed to keep an address for 65 members of the Union. This
failure resulted in ballot papers not being sent to those
members, who were entitled to receive them. Those 65
members were thereby wrongly deprived of a vote. The full
and free recording of votes by all persons entitled to
record votes was therefore prevented."

34. I find that irregularities occurred in that the Branch Secretary failed to keep a correct register of the names and addresses of 65 members of the Union. That failure constituted a breach of rule 48(h) of the Union's rules. The significance of the duty on the Branch Secretary under rule 48(h) is reinforced by rule 63 which confers upon members (as there defined) a right to inspect all records including the "register of the names and addresses of all the members of the Branch". The duty imposed by the rules upon the Branch Secretary to keep a correct register of the names and addresses of members must not be seen as a formality; it is an important duty having regard to the express duties imposed upon registered organisations by ss. 268(1)(a), 268(2)(a) and 268(2)(c) of the Act. Section 268(3) requires that there be lodged with the Industrial Registrar each year "a statutory declaration by the (Federal) secretary ... certifying that the register of members has, during the immediately preceding calendar year, been kept and maintained as required by subsection (1) and (2)". The importance of those statutory provisions is not lessened by the fact that on 27 April 1967 the Industrial Registrar granted to the Union a certificate of exemption under s. 153 of the Conciliation and Arbitration Act 1904-1966 (see document supplied by Mr Rau, on behalf of the Union, on 2 January 1991).

35. The failure of the Branch Secretary to keep addresses for the 65 members of the Union was both a breach of the Union's rules and also an "omission by means of which: (i) the full and free recording of votes by all persons entitled to record votes ... (was) prevented or hindered" (see definition of "irregularity" in s. 4(1) of the Act).

36. It should be said that Mr Dunnery has only been Branch Secretary since February 1989. I accept his evidence that he had been careful to follow the practice which had been established by previous Branch Secretaries. That policy was, essentially, to leave the administration of the office, including the recording of details relating to members and their addresses, to Mr Higgs, who had worked in the Branch office for 17 years and who described himself in his affidavits as an accountant. Mr Dunnery gave evidence that he directed Mr Higgs to supply all information requested by the Returning Officer from the Branch; his explanation for so doing was that he knew that the ballot was going to be "a very hard-fought ballot", and he "did not want to be seen to be manipulating anything".

37. The ninth alleged irregularity was expressed as follows:-

"An irregularity occurred in that the Returning Officer
failed to check any of the signatures on ballot papers (sic)
admitted to scrutiny."

38. Mr White correctly pointed out in his Outline that the applicant "has not supplied any particulars of the alleged irregularity". Nor did the "summary of applicant's argument of irregularities 1-10" deal with alleged irregularity 9. In those circumstances it is simply not clear as to precisely how the applicant puts his case. It may be that the essence of the alleged irregularity is the act of the Returning Officer in admitting to scrutiny ballot papers contained in envelopes on which the members' signatures either were not endorsed or were endorsed in such an illegible way that it was simply not possible for the Returning Officer to form the opinion that those purported signatures were the signatures of the members in question - see rule 78 which says "If the member's signature is not endorsed on the outer envelope addressed to the Returning Officer, the ballot paper in the inner envelope shall not be admitted to scrutiny". In the circumstances I do not propose expressing any view as to this alleged irregularity.

39. The tenth alleged irregularity was expressed in the following terms:-

"An irregularity occurred in that the Returning Officer
failed to advertise prominently and widely the fact of the
election and in particular that addresses of members were
unknown or uncertain in a large number of cases and that
those members who did not receive ballot papers were
entitled to apply for duplicate ballots."

40. Mr White, in his Outline, "conceded that the Returning Officer did not advertise at all the fact that addresses of members were unknown or uncertain in a large number of cases or that members who did not receive ballot papers were entitled to apply for duplicate ballot papers". However, he submitted that any "failing" by the Returning Officer to advertise further did not amount to an irregularity in the relevant sense. There appears to be much force in that argument advanced by Mr White. However, as I do not consider that I have had the benefit of adequate submissions on the matter overall, I do not propose expressing any view as to this alleged irregularity.