Re Industrial Relations Act 1988 and Re An Election of Office In the Transport Workers Union of Australia, Western Australian Branch [1992] FCA 40; (1992) 40 IR 245 (12 February 1992)

FEDERAL COURT OF AUSTRALIA

Re: IN THE MATTER OF THE INDUSTRIAL RELATIONS ACT 1988 and IN THE MATTER OF AN
ELECTION FOR OFFICE IN THE TRANSPORT WORKERS UNION OF AUSTRALIA, WESTERN
AUSTRALIAN BRANCH
No. WA I4 of 1991
FED No. 33
Industrial Law
[1992] FCA 40; (1992) 40 IR 245

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
French J.(1)

CATCHWORDS

Industrial Law- registered organisations - elections - irregularity - rule governing eligibility for nomination - requirement of employment in the industry at the date of nomination - principles of construction of rules - whether current contract of service required - whether pre-existing history of work in industry sufficient - Industrial Officer employed by union - not involved in relevant industry for six years - alleged employment for four hours on day of nomination - whether employed in industry - whether engaged under contract of employment - whether legally binding contract of employment formed.

Industrial Relations Act 1988 s.218

R. v Holmes Ex parte Public Service Association (NSW) [1977] HCA 70; (1977) 140 CLR 63

Re An Election in the Australian Collieries' Staff Association (NSW Branch) (1990) 26 FCR 499

Bielski v Oliver (1958) 1 FLR 258

Rounsevell v Mitchell (1968) 11 FLR 414

Egan v Harradine (1975) 25 FLR 336

Ransley v Australian Public Service Association (1985) 12 IR 55

Re Collins; Re Clothing and Allied Trades Union of Australia (1987) 19 IR 182

HEARING

PERTH
12:2:1992

Counsel for the Transport Workers Union: Mr A.M. North QC with Mr M. Carn

Solicitors for the Transport Workers Union: Ryan Carlisle Thomas

Counsel for Mr J.J. O'Connor: Mr R. Le Miere

Solicitors for Mr J.J. O'Connor: Dwyer Durack

Counsel for Mr L.P. Humphreys: Mrs N. Owen-Conway

Solicitors for Mr L.P. Humphreys: Greg Hocking and Associates

Counsel for Mr R.W. Handmer: Mr T. Lucev

Solicitors for Mr R.W. Handmer: Freehill Hollingdale and Page

ORDER

It is declared that the acceptance by the Returning Officer of the nomination for election to the office of Branch Secretary/Treasurer of the Transport Workers Union Western Australian Branch lodged by Robert William Handmer on 26 November 1991 is void.

The Industrial Registrar make arrangements for uncompleted steps in the election for Branch Secretary/Treasurer to be completed on the basis that there has been one valid nomination for election to that office being that of John Joseph O'Connor.

The inquiry be otherwise terminated.

Liberty to the parties to apply within seven (7) days for such further orders as may be necessary to give effect to these reasons.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

On Tuesday, 12 November 1991, the Australian Electoral Commission advertised a notice to members of the Transport Workers Union, Western Australian Branch ("TWU") calling for nominations to various branch offices including those of President and Secretary/Treasurer. The notice, signed by Mr E.M. Panegyres, acting as Returning Officer under arrangements made between the Australian Electoral Commission and the Deputy Industrial Registrar of the Industrial Relations Commission, required nominations to reach his office or postal address by noon on Tuesday, 26 November 1991.

2. Nominations for the office of Branch President were received and accepted from Robert William Dunn and Lawrence Peter Humphreys. Nominations for the office of Branch Secretary were received and accepted from the incumbent, John Joseph O'Connor and from Robert William Handmer, an industrial officer employed by the TWU. Nominations were also received and accepted from Mr Humphreys for election to the offices of Branch Organiser and Branch Federal Council Representative.

3. On 23 December 1991, Mr O'Connor lodged an application in this Court pursuant to s.218 of the Industrial Relations Act 1988 seeking an inquiry into alleged irregularities which he claimed had occurred in relation to the pending election for the offices of Branch President, Branch Secretary/Treasurer, Branch Organiser and Branch Federal Council Representative. The irregularities alleged were that the Branch Returning Officer had accepted the nominations of Handmer and Humphreys when they were not at the time of the close of nominations at 12 noon on 26 November 1991 or subsequently, qualified for nomination for election to the offices for which they had nominated or subsequently qualified to hold those offices. Reliance was placed in this respect on the requirements of r.22 of the Rules of the Union.

4. The substantive ground relied upon in each case was that neither Humphreys nor Handmer met the requirements of the Rules that candidates for election and office holders be persons employed in the transport industry or holding certain specified offices in the Branch or Federal organisation.

5. On 24 December 1991, Lee J. gave directions for the service of copies of the application and supporting statutory declaration on the Union, the incumbent Branch President, Branch Secretary/Treasurer, Returning Officer and all candidates for election to the offices in question. On 16 January 1992, being satisfied under s.219 of the Act that there was reasonable ground for the application, I made orders for the conduct of an inquiry including the filing of affidavits.

6. The inquiry commenced on 10 February 1992. Appearances were entered for Messrs. Handmer and Humphreys, each of whom was represented by counsel. Mr O'Connor entered a joint appearance with Messrs. Robert Dunn, James Lawrence McGiveron, Glenn Sterle, Verdun Edward Griffin, Richard Burton and Karl Brandenburg, all of whom are candidates in the forthcoming election and were jointly represented by counsel. The Union also entered an appearance and was represented by senior counsel. The returning officer, apart from appearing by counsel at the preliminary stages of the inquiry, took no part in the hearing. Having seen Mr Humphreys' affidavit and certain documents produced under subpoena, Mr O'Connor withdrew the objection to his candidacy. No other party wished to maintain the objection and counsel for Mr Humphreys withdrew by leave. The grounds for the challenge to Mr Handmer's candidacy were narrowed to his eligibility to nominate. The objection based upon his eligibility to hold office was not pursued. Against that background, and before turning to the evidence, it is necessary to set out the relevant parts of the Rules of the Union and the Transport Workers Award 1983.
The Conditions for Eligibility

7. Eligibility to nominate for election to office in the Transport Workers Union or any branch or sub-branch of the Union is regulated by r.22 which, in the relevant part provides:
"22. - ELIGIBILITY TO NOMINATE FOR AND HOLD OFFICE

(a)(I) That subject to Rule 63(14) in respect
of the New South Wales Branch a person shall not be
eligible to nominate for any office in the Union or
any Branch or Sub-Branch of the Union unless, at the
date of close of nominations for election to such
office he or she is -
(i) a financial member of the Union, and
(ii) either is employed in the industry in
connexion with which the Union is registered
and in respect of such employment is entitled
to membership of the Union pursuant to Rule
4, or is a person holding office as Federal
Secretary, Federal Assistant Secretary,
Branch Secretary, Branch Industrial Research
Officer or Organiser (whether elected or
appointed) or as organiser appointed by
Federal Council or Federal Committee of Management.
.
.
.
(f) To assist in the election of persons to an office
under this Rule each candidate shall provide proof of
his age by way of the candidate's birth certificate
or other statutory proof of age."

8. Rule 3 describes the industry in connection with which the Union is registered in the following terms:

"In or in connexion with road or aerial transport,
delivery of milk, sanitary carting, mechanical
excavation of earthworks and mechanical or animal-power
haulage or driving industries but not so as to
include the industries of transport by water,
transport by Railways (except the despatch to or from
the railways of goods and the necessary loading or
unloading operations connected therewith and shunting
operations by horse-power), tramways passenger
transport, driving of stationary engines, driving of
passenger lifts, and driving of agricultural machines
and implements in use for agricultural pursuits.
AND the industry of chauffeurs, conductors, and
attendants on or about motor vehicles and employees
engaged in and about garages, motor stables, and other
similar places in the repair and maintenance of motor
vehicles or as attendants."

Conditions of eligibility for membership are defined in r.4 which opens with the words:

"4. - CONDITIONS OF ELIGIBILITY FOR MEMBERSHIP
(A)(1) The Union shall consist of an unlimited number
of persons employed or seeking to be employed in or in
connexion with the industry or industries, and/or
occupation, and/or calling, and/or vocations, and/or
industrial pursuits of:
(a) the transport of persons and/or passengers
and/or goods, wares, merchandise, or any
material whatsoever, by or on vehicles or
animals or by aircraft or by motor, steam,
oil, electric or other mechanically
propelled contrivances; drivers,
assistants and conductors of same, and
stable work wheresoever performed,
including the work of attendants on horses
and other beasts of burden, whether in
stables or otherwise; all yard and garage
cleaning and other work in connexion with
driving and transport, including, washing,
greasing, oiling, cleaning, polishing,
tyre-fitting and general attendance on
horse or mechanically-propelled vehicles
and mechanical contrivances, training and
breaking-in of horses, loading and
unloading on to and/or from any vehicle;
shunting by horsepower, supervising and
collecting moneys, or washing cans in
connexion with the distribution of milk,
working in pits, tarring and washing pans,
ploughing in of night soil, digging
trenches and burying soil in connexion
with sanitary work, ploughing in
conjunction with the construction and
excavation of earthworks; and
(b) All driving; and
(c) Chauffeurs, Conductors and Attendants on
or about motor vehicles, and employees
engaged in and about Garage, Motor Stables
and other similar places in the repair and
maintenance of motor vehicles, or as attendants.
(A)(2) For the purposes of this rule a person shall
be deemed to be employed in one or more of the
specified industries, occupations, callings, vocations
or industrial pursuits if:
(i) his usual occupation is that of an
employee in one or more of the specified
industries, occupations, callings,
vocations or industrial pursuits; or
(ii) he is a person employed in one or more of
the specified industries, or engaged in
one or more of the specified industrial
pursuits in the State of New South Wales,
Queensland, South Australia or Western
Australia who
.
.
.
(d) in the case of a person so employed or
engaged in Western Australia - is an
employee for the purposes of the
Industrial Arbitration Act 1979 of that
State or that Act as amended from time to
time up to and including 31 December 1981."

9. Rule 4(A)(3), 4(B) and 4(C) are not relevant for present purposes.

10. Rule 35 governs the office of Branch Returning Officer who is appointed by the Branch Committee of Management. Rule 59 deals with the conditions of service of employees of the Union. In particular, para.(c) of r.59 provides:

"An employee of the Union, shall not accept employment outside the
Union for which he receives remuneration unless permission is
given by the Federal Council or by the Branch Committee of
Management concerned, as the case may be."

11. A copy of the Transport Workers Award 1983 was also put before the Court, cl.4 of which defines the industry covered by the award in the following terms:

"The industry covered by this Award is or is in connexion with the
transport of goods, wares, merchandise, material or anything
whatsoever whether in its raw state or natural state, wholly or
partly manufactured state or of a solid or liquid or gaseous
nature or otherwise, and/or livestock."

Factual Background

12. Robert William Handmer has a history of involvement in the transport industry from 1978 to 1986. He has been a financial member of the Transport Workers Union since 1979. From 1978 to 1988 he was employed as a road haulage driver by the Groote Eylandt Mining Co in the Northern Territory. He was also an honorary TWU delegate on site for about five and a half years until early 1985. On 1 July 1986 he transferred his membership of the Union from the Northern Territory to the Western Australian Branch. From July 1985 to July 1986 Mr Handmer was employed as a transport supervisor at the Swan Brewery. This involved co-ordinating the delivery of keg beer by trucks. He was provided with a utility in which he carried various items of equipment required by truck drivers. From July 1986 to February 1987, he was employed by the Association of Professional Engineers Australia ("APEA") as an Industrial Officer. He did not become a member of that union but during that time maintained his membership of the TWU. His duties as Industrial Officer involved him representing members of the APEA in various industrial tribunals and attending meetings of members to discuss industrial matters. From February 1988 to January 1989 he was employed as an Industrial Research Officer with the Amalgamated Metal Workers and Shipwrights Union (AMWSU). He became a member of that Union but continued his membership of the TWU. From 23 January 1989 until 28 November 1991 he was employed as an Industrial Officer with the Western Australian Branch of the TWU.

13. There was a conflict of evidence about the way in which Handmer came to be employed by the TWU with respect to the timing, detail and content of negotiations between himself and O'Connor. It is not necessary to resolve any of this conflict for present purposes. It is common ground that he received a letter of appointment dated 5 December 1988 signed by O'Connor on behalf of the Union which set out the terms of his appointment as follows:

"Dear Bob,
I write to confirm the offer to you of an appointment to the
Union's staff in the position of Industrial Officer commencing at
an annual salary of $31,420. Your salary shall be subject to
review annually.
The general conditions of employment which apply to T.W.U. staff
are set out below:
Holidays - All gazetted public holidays.
Annual Leave - 4 weeks plus 17 1/2% Loading.
Notice of Termination - one month's notice by either party.
Superannuation - As per the Rules of the Transport Workers Union of
Australia.
Motor Vehicle - The Union shall provide, at no cost to you, a motor
vehicle for both work related and private use.
It is understood that you shall commence duties with
the Union on 23rd January, 1989."

Handmer's duties as Industrial Officer included the research, presentation and preparation of wage cases to the Western Australian Industrial Relations Commission, the presentation of cases to the Australian and Western Australian Industrial Relations Commissions concerning unfair dismissals, redundancies, rosters and safety matters, negotiating with employers on members' employment conditions, presentation of award enforcement cases before the Industrial Magistrate for underpayment of wages, support for organisers and shop stewards through the provision of accurate and up to date copies of awards and wage rates, briefing of officials, shop stewards and members on important industrial matters involving wage case decisions and Industrial Relations Commission decisions, and co-ordinating and researching requests to the Federal Office of the Transport Workers Union relating to amendment of Federal Awards. The job also involved participation in Union education and leadership training through the Trade Union Training Authority and the Occupational Health and Safety Training Unit of the Trades and Labour Council.During his time as Industrial Officer, Handmer retained his membership of the TWU.

14. Handmer's entitlement to take rostered days off ("RDO's") was a matter to which it was sought to attach some significance. It is common ground that, although not mentioned in the letter of appointment, he had an entitlement to 10 rostered days off each year in addition to his annual leave. He contended that he was allowed to take these days off as he saw fit depending upon work load. He took RDO's when he shifted house and in order to study for economics exams at Murdoch University. On each such occasion he either wrote in the Union message book the evening before that he was going to take a day off or rang up on the morning of the day and advised the office that he would not be in. O'Connor disputed this evidence. He said he had told Handmer on 5 December 1988 that he would be entitled to take off 10 RDO's per annum, that he was to take them at the rate of one per month and that he would not be allowed to accumulate them. Further, according to O'Connor, he would be required to take his RDO's on a Monday or Friday. It was, he said, a matter of complaint on his part that Handmer did not always take his RDO's on a Monday and Friday and frequently took days off work that he was not entitled to take, especially during school holidays. He said he reprimanded him about these things on approximately 6 occasions.

15. As indicated at the beginning of these reasons, nominations were called on 12 November 1991 for election to the various offices with the TWU that are the subject of this inquiry. Handmer decided to run for the office of Branch Secretary and to link his candidacy with that of Niall Allgrove who is standing for the offices of Branch Committeeman, Organiser and Federal Council Representative. They had some discussion about what Handmer perceived as a requirement of the Rules that he be working in the transport industry on the date nominations closed in order to qualify as a candidate. He asked Allgrove if he could arrange some work in the industry for him on 26 November, which was the closing date.

16. On or about 20 November, Allgrove contacted Mr John Carter, the Managing Director of Carter Transport Pty Ltd ("Carter Transport"). He had had dealings with Carter previously on behalf of the TWU as a drivers' representative. Carter was asked if he would give Handmer a job on Tuesday, 26 November. Allgrove explained that Handmer was going to run for the position of secretary and needed to qualify by being in the industry for at least four hours. Carter's company has had a long running dispute with the TWU in relation to the employment of sub-contractors. Although he had no specific requirement for an additional worker on 26 November, he acceded to Allgrove's request. Because of the dispute his relationship with Allgrove was not very good and he thought that by doing him a favour he might make life a little easier for himself.

17. Allgrove said that Handmer had a truck driver's licence and had driven trucks previously. Carter told him that work started at the company premises at 7am. Allgrove said Handmer might be a little bit early. It was left on the basis that Handmer would turn up at the premises of Carter Transport the following Tuesday. Allgrove suggested that Handmer might be given some work in the company yard or driving or whatever Carter had available on that day.

18. Handmer had taken off Thursday 21 and Friday 22 November, treating them as RDO's. He also took off Tuesday, 26 November as an RDO and went to the premises of Carter Transport at about 6am.Carter Transport's premises are on land owned by a company called Union Steel, which is its only client. Carter Transport delivers steel products from the Union Steel warehouse adjacent to those premises. There is a demarcation of function between persons employed by Union Steel who load trucks from the warehouse and the truck drivers employed by Carter Transport who are restricted to assisting in placement of the load on the trucks. The Union Steel employees are members of the National Union of Workers, formerly the Storemen and Packers Union. Brenton Bain, employed as a casual truck driver by Carter Transport normally assists in the loading of trucks on the premises. If Union Steel indicates that it wants a trailer loaded, Carter Transport arranges to hook one of its prime movers up to the trailer and moves it to bays at the Union Steel warehouse to be loaded with the various steel products for delivery. Bain ordinarily drives the prime mover and assists with the loading by removing chains from loads deposited on to the trailer and placing wooden "gluts" under the loads so that they may be more readily lifted off the truck at the point of delivery. If he is unavailable for some reason, Carter does this job himself. The company does not require the services of more than one person for this kind of work.

19. There was some inconsistency between Handmer's account and that given by Carter on the sequence and some of the details of the events that took place on Tuesday, 26 November but that does not particularly matter for present purposes. Initially Handmer reported to the Carter Transport office. He met Carter who then showed him around the premises explaining the nature of the company's operations and more particularly how the trucks were loaded. This process took some time and, according to Carter, was completed at about 7.05 am. The first task of the day was to clean Carter's company car. Carter hooked up a pressure hose and Handmer and Bain cleaned the car. The job involved washing the car, vacuuming and polishing the interior and sponging and drying the outside. It is a job which, according to Carter, is done every two weeks or so, normally by Bain, sometimes with assistance from Carter. While Handmer and Bain were doing the cleaning, Carter took a call from Union Steel. When he came back Handmer and Bain were drinking coffee in the tearoom. Carter told them that he had a truck to be loaded. One or other of the three men collected some necessary paperwork which indicated the bay from which the load was to be taken. They apparently took a truck which was already partly loaded with steel products. Bain drove the truck around to the warehouse while Handmer sat in the cab. Carter did not see what happened after they left the vicinity of the Carter Transport office, but Handmer described the process in his affidavit.

20. Handmer and Bain found a person at Union Steel responsible for supervising the loading of the trucks and arranged to have an overhead crane allocated to them. They restowed some steel already on the trailer so that there would be room for the additional load to be put on. The material to be loaded evidently comprised only a few small pieces of steel. Handmer handled chains on the back of the truck supporting the loads and rechocked the existing load and the additional items. When this process was completed they returned the truck to the Carters Transport yard area. Again Bain drove the vehicle. There they finished tying the load down, a process which involved passing a chain over it and hooking the chain down on either side of the trailer. They then finished cleaning the windows on Carter's car. This task, according to Carter, took about another half hour. There was also evidence from Handmer that he washed an area of the yard where he and Bain had cleaned the vehicle. At some stage he also washed out a couple of rubbish bins.

21. When all this was over, Handmer, Bain and Carter had another cup of coffee. By this time it was about 11 am, although it could have been a little later. What followed between Handmer and Carter does not emerge with precision from the evidence. It is clear that both agreed that Handmer had done his four hours, that there was not much or anything more for him to do and that he could leave. Carter then arranged for him to be paid a net wage of $77.07, being a gross wage of $98.12 less $21.05 by way of a deduction for group tax. In a book with pages headed "Record of Hours Worked", Carter entered Handmer's name on a clean page under the heading "NAME OF EMPLOYEE". The designation Casual Driver/Loader was written in at the top. A commencing time of 7am and a finishing time of 3.06pm were shown with one half hour off. The figure 7.6 appeared under the column headed "Total Hours Worked". Notes of a rate calculation in the top left hand corner of the page indicate that Handmer was paid at the award rate applicable to a semi-trailer driver plus 20%, which worked out at $12.91 per hour. The gross wages represented the product of that rate and the 7.6 hours recorded as having been worked. Handmer signed the page in a column under the heading:

"I certify that I have worked the hours and received
the amount set out opposite my name."

22. Asked how he had fixed on the rate of pay that he did, Carter said he did not know it was just one of those things. He agreed that he had not paid Handmer at the rate applicable to a loader or a yardman. The 7.6 hours recorded by him is the number of hours to be worked daily over 5 days in order to achieve a 38 hour week. Carter also gave Handmer a group certificate and a letter evidencing his employment.

23. Handmer had completed his nomination form for the office of Secretary on the previous day, 25 November 1991. In it he described his occupation as "Loader" and his place of employment as Carter Transport Co. Pty Ltd. He arranged for his wife to lodge the form on 26 November and asked her to make sure it was in before midday. The nomination was accompanied by an extract of an entry from Handmer's birth certificate.

24. On 28 November 1991 at the office of the TWU, O'Connor asked Handmer to hand over the keys to the motor vehicle with which he had been provided, gave him a cheque and told him he was dismissed. Since that time Handmer has maintained his status as a financial member of the Union.
The Contentions

25. Counsel for O'Connor and the other candidates jointly represented with him, submitted that Handmer's case for eligibility to nominate rested entirely upon the characterisation of his activities on 26 November as employment in the transport industry for the purposes of r.22. There was, he said, no contract of employment between Handmer and Carter Transport and no intention to form any legally binding relationship. Alternatively, it was put that what was done by Handmer on that day was so lacking in substance that it could not be said to be work which brought him into any of the categories of work in the Award of the eligibility rule. It did not amount to employment in the industry. The third and somewhat related proposition was that the concept of employment in the industry as used in r.22 connotes some minimum commitment reflected by continuity of engagement and intention in respect of future employment. A further submission of a more technical character was advanced that the requirement of the rule that a person be employed in the industry at the date of close of nominations was not satisfied by employment on the day stopping short of the time at which nominations closed. In this case that time was 12 noon on 26 November. Senior Counsel appearing for the Union made additional submissions on the sole ground that there was no eligible employment if there were no contract and contended that the relationship between Carter Transport and Handmer on 26 November reflected an industrial arrangement and not a contractual one.

26. Counsel for Handmer submitted in response, that his client met all criteria for eligibility to nominate. He was a financial member of the TWU, employed in or in connection with the transport industry. It was not contended that Handmer's employment as an Industrial Officer with the TWU qualified him. His case relied entirely upon his employment as a "casual loader/driver" with Carter Transport. Counsel submitted that a contract of employment did exist when the appropriate tests were applied to the relationship between Handmer and the company. He argued also that there was no warrant in the language of r.22 for importing a requirement of continuity of employment.
Application of Rule 22

27. There is a distinction between the language of Rule 4 which prescribes the conditions of eligibility of membership of the Union and that of Rule 22 which prescribes conditions of eligibility to nominate and hold office. Rule 4 makes membership of the Union available to "... persons employed or seeking to be employed in or in connexion with the industry or industries, and/or occupation, and/or calling, and/or vocations and/or industrial pursuits" which are described in the rule. This criterion of eligibility is wide enough to encompass persons who are presently working in the industry, those who are looking for work in the industry for the first time and those who have been employed in the industry and are looking for further work in it. Rule 22 on the other hand, conditions eligibility to nominate for office in the Union on the nominee being a person who (apart from certain specified office holders) "is employed in the industry in connexion with which the Union is registered and in respect of such employment is entitled to membership of the Union pursuant to Rule 4...".

28. The evident purpose of r.22 is to limit access to elective Union office to those who are currently, actively engaged in the transport industry. There may be a question whether it applies to those who have a continuing history of involvement in the industry, but are between jobs and looking for work in the industry at the time they nominate. A construction of the rule to exclude from candidacy such persons or those who continue to make their living as casual employees in the industry but do not have a job on nomination day would be unfortunate and the applicants did not contend that it should be so construed. But the choice of language in the rule is such that it is capable of a narrow construction which imposes as a condition of eligibility the requirement that a nominee for a union office be working under a contract of employment on the day of the nomination. A broader construction would treat the words "employed in the industry" as meaning engaged in or occupied in the industry in a sense which covers a person who has worked in the industry and continues to seek work in it. The difficulty with the latter approach is that it may be productive of uncertainty in the application of a rule of considerable importance to the democratic government of the Union.

29. Nevertheless, the wider view is consistent with that preferred approach to the construction of union rules which requires them to be construed not technically or narrowly but broadly and liberally and not "subjected to the same meticulous scrutiny as a deed carefully prepared by lawyers" - R. v Holmes; Ex parte Public Service Association (NSW) [1977] HCA 70; (1977) 140 CLR 63 at 73 (Gibbs J.); Re An Election in the Australian Collieries Staff Association (NSW Branch) (1990) 26 FCR 499 at 502 (Lockhart J.).

30. If the broader construction of r.22 is open to make eligible for nomination those who are not at the time in a contract of employment, but who have a continuing involvement in the industry, then it is clear that it would be of no benefit to Handmer. Prior to 26 November his last employment in the industry ceased in 1986. Since then his employment has been as an Industrial Officer with three unions successively, save for an unexplained gap between February 1987 and February 1988. His employment as an Industrial Officer in the TWU does not constitute employment in the transport industry. It seems to be well established, subject no doubt to the exigencies of particular rules, that a union officer is not by reason of his employment in that capacity taken to be employed or engaged in the industry to which the union relates - Bielski v Oliver (1958) 1 FLR 258 at 262 (Spicer C.J. and Morgan J.); Rounsevell v Mitchell (1968) 11 FLR 414 at 430 (F.); Egan v Harradine (1975) 25 FLR 336 at 378 (Sweeney and Evatt JJ); Ransley v Australia Public Service Association (1985) 12 IR 55 at 67 (Gray J.). In the course of their judgment in Rounsevell v Mitchell (supra), the Judges comprising the Full Court said of a person employed on the staff of a union handling industrial matters in respect of the employment of union members in their various industries and callings:

"There is no connexion between his employment and those
other industries or callings. He does no work
connected with the actual work of those engaged in
those industries or callings. His work is to
endeavour to obtain for them wages and conditions of
employment which they seek or the organization seeks
on their behalf. Work of this kind is not work
connected with the industries or callings themselves."

31. Having regard to the period that has elapsed since he was last engaged in the transport industry, Handmer's only prospect for complying with the requirement of r.22 is to show that he was employed in the industry on 26 November, which means in this context that he had a contract of employment in the industry at that time. I am inclined to think that even that would not be enough if the work done is so trivial and transient that it could not be said to constitute in any serious sense, employment in the industry. The present case which evidences desultory activity unaccompanied by any commitment to work in the industry longer than the minimum regarded as necessary to achieve eligibility, in my opinion would fall below the lower threshold of commitment which separates the trivial from the serious engagement necessary for eligibility. That is not to say of course that a person whose motive in gaining employment is to qualify for election will not be eligible - see e.g. Re: Collins; Re Clothing and Allied Trades Union of Australia (1987) 19 IR 182 at 185 (Wilcox J.).

32. But the question which concludes the issue in this case, is whether Handmer's arrangements with Carter Transport amounted to a contract of employment. This is a judgment to be made in all the circumstances of the case.

33. In my opinion the arrangement between Handmer and Carter Transport viewed as a whole, lacks the indicia of a contract of employment. It is of little utility to review the considerable body of case law to which I was referred in which courts have assessed the contractual or other nature of various types of arrangements which depend upon their own facts and circumstances. A consideration of the features of this transaction is sufficient unto the day. Carter agreed with Allgrove to let Handmer do some work around his yard so that he would qualify for election. That agreement was clearly not contractual. And in relation to his dealings with Handmer, their lack of certainty, the lack of any evidence of mutual obligation, the absence of any need for his services or benefit to be derived from them, taken together with the transient nature of the activities and the underlying purposes of the parties, militate against the conclusion that they intended to form legally binding relationships. There was no evidence that Handmer submitted himself in any legally binding way to the direction of Carter. The payment he received was in substance a gratuity that bore no relationship to the time that he had worked. There was no mutuality of obligation. It is fair to say that the arrangement had some of the hallmarks of a sham. In my opinion, there was no contract.

34. In the result, for the reasons I have outlined I conclude that Handmer was not employed in the industry at the relevant time. He was not eligible to nominate for office and his nomination was wrongly accepted. In the circumstances I propose to make a declaration that the acceptance of his nomination was void and that the Industrial Registrar take the necessary steps consequential upon that order which will no doubt result in Mr O'Connor being declared elected unopposed. I do not consider that it is necessary for the Court to make that declaration. The inquiry should otherwise be terminated.