Application by Roderick Terrence Kelly for an inquiry into an election for... [1981] FCA 207 | Case summary

Federal Court of Australia|1981-07-01|Before: Sheppard J

THE COURT HAVING DET™RMINED that irregularities have occurred in or in connection with the elections with the Amalgamated Metal Workers! and Shipwrights' Union for the offices of National President, Assistant National Secretary and National Organiser Division 2 which elections were completed on the 18th day of November 1980 AND THE COURT BEING OF OPINION having regard to such irregularities that the result of the said elections may have been affected thereby IT IS ORDERED AND DECLARED:

That the said elections be and are hereby declared

That the Industrial Registrar take all necessary steps

to conduct an election for each of the said offices

to commence not less than 12 weeks after the closing date for nominations. :

That until the completion of the elections hereby directed to be conducted by the Industrial Registrar,

Mr. R, Scott, Mr. L. Carmichael and Mr. W. Martin continue to occupy and perform the duties of the respective offices as if they had been duly elected thereto in accordance with the rules of the organisation. That upon completion of the said elections the candidates declared elected to each of the said offices shall held office for the period for which they would have held office if they had been elected to take up their

offices in March 1981 and that the operation of the

The Submissions of the Parties and the Questions for Determination

Requirements of the Regulations and the Union's Rules and the Question of Non-compliance therewith

Pages 1 2 2 9 10 14 14 26 26 - 28 29 4% 4a - 45 4&5 50 50 52

IN THE FEDERAL COURT _OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY ) No. 38 of 1981 INDUSTRIAL DIVISION . j

IN THE MATTER OF THE CONCILIATION AND ARBITRATION ACT 1904

AND IN THE MATTER of an Application by Roderick Terence Kelly for an inquiry into an election for offices in the Amalgamated Metal Workers! and Shipwrights! Union

This is an application by Roderick Terence Kelly for an inguiry by the Court into a claim made by him that there have been irregularities in or in connection with elections for offices in the Amalgamated Metal Workers' and Shipwrights! Union. Mr. Kelly 1s a member of the Prahran branch of the Union,

The application is brought pursuant to s.159 of the Conciliation and Arbitration Act 1904, Pursuant to s,160 of the Act the Industrial Registrar decided to "grant the application and refer the matter to the Court", The powers of the Court 1n relation to the application are those provided for in s.165 of the Act to which I shal] later refer.

The offices 1n question are those of National President, Assistant National Secretary and National Organiser of

Division 2. Nominations for the offices were called at

branch meetings of the Union held in June 1980. Amongst

the nominations received were those of Mr. Scott for

National President, Mr. Carmichael for Assistant National Secretary and Mr. Martin for National Organiser of Division 2. Other nominations were received but no other nominee was willing to stand for election with the result that the three gentlemen to whom I have referred were elected unopposed toa the offices for which they were nominated,

In order to understand the claims which are made by the applicant 1t 1s necessary to refer to a number of the provisions of the Act and the Regulations made thereunder, to the Rules of the Union and to evidence concerning what appeared in certain of the Union's publications and in

The Legislation Part VIII of the Act 1s entitled "Registered Organisations",

Section 132 provides for the registration of organisations and s.133 for the inclusion in the rules of organisations of

certain provisions in relation to the holding of elections. Amongst other things s.133 requires that the rules of an organisation are to provide for the election of the holder of each office either by a direct voting system or a collegiate electoral system. The former system 18 that provided for

in this case. By definition (s.4(1)) 1t is a method of "election un which all financial members are eligible to vote.

Additionally the rules must provide for the conduct of

every such election (including the acceptance or the rejection of nominations) by a returning officer not

being the holder of any other office in the organisation. The rules must also provide that, if the returning officer finds a nomination to be defective, he shall, before rejecting the nomination, notify the person concerned of the defect and, where 1t 1S practicable to do so, give him the opportunity of remedying the defect within such period as 1S applicable under the rules, which is to be, where practicable, not less than seven days after his being so notified, Elections are to be by secret ballot,

The section goes on to specify a number of matters which are to be provided for in relation to the conduct of the election and provides that the rules shall be such as to ensure, as far as practicable, that no irregularities can occur in connection with such an election.

Section 133AA provides that every election by a direct voting system for an office within an organisation which 1s, inter alia, the office of president, assistant-secretary or other executive officer, shall be by secret postal ballot. "Postal ballot" 1s defined in s.4(1), but it is umnecessary to refer to the terms of the definition, The section also provides that the regulations may make provision for end in relation to the conduct of an election in accordance with the reauirements of the section in the case of an election in

respect of which the rules of the organisation do not

provide for a secret postal ballot. The section, and the regulations made for the purposes of the section, are to have effect notwithstanding anything contained an the rules of an organisation. Section 133AA was inserted into the Act by s.13 of the Conciliation and Arbitration Amendment Act 1976 (No.64 of 1976) which came into force on 1 March, 1978.

Regulations made for the purposes of s.133AA, although gazetted on 30 August, 1976, also came into force on 1 March, 1978. They are contained in Part V AA of the regulations made under the Act, which Part 1s entitled "Secret Postal Ballot". Regulation 146AA contains some definitions to which it 1s unnecessary to refer except to note that the word "election" means an election to which s,.1335AA of the Act applies, "being an election for an office within an organisation the rules of which do not provide for a secret postal ballot for that office". Regulation 146AB provides that where provision is made in respect of matters relating to the conduct of an election for an office within an organisation, the rules of the organisation shall not apply in relation to those matters except to the extent to wnich those rules so apply by cirtue of Part V AA of the regulations,

"146AC, (1) The Returning Officer shall determine the times and dates of the commencement and close

of the period for lodging nominations of candidates for election for an office having regard to ~

" (a) the date of expiration of the term of office of the holder of the office;

(b) the time required to lodge nominations; tS} the time required to complete the election; and

the provisions-of the rules of the organization relating to the times and dates of the commence- ment and close of the period for lodging nomin- ations in respect of the election. (2) The Returning Officer shall determine the place for lodging nominations of candidates for election.

146AD. (1) The Returning Officer shall, within the period of 21 days before the date of commencement of the period for lodging nominations of candidates for

an election for an office within an organization, cause to be published 1n a newspaper or newspapers a notice

(a) the name of the organization; (b) the title of the office;

'¢ the form in which nominations are to be made; d) the place for lodging nominations; (e) the times and dates of the commencement and

close of the period for lodging nominations, and inviting nominations of persons, eligible for election for the office under tne rules of the organization, to stand as candidates for election for the office.

(2) The Returning Officer shall, in respect of an election for an office within an organization, determine the newspaper or newspapers 1n which the notice referred to in sub-regulation (1) snall be published having regard to ~

(a) the region to which the functions of the office relate;

(b) the provisions of the rules of the organization relating to the publication of notices inviting nominations of candidates for election to that office.

(3) Where the rules of an organization provide for a notice inviting nominations of candidates for election to be published in a manner other than in a newspaper, the Returning Officer, in addition to publishing the notice referred to 1n sub-regulation (1) un the manner provided by that sub-regulation, shal], 1f practicable, publish the notice referred to in that sub-regulation in the manner provided by those rules.

"I46AE, (1) A person is not eligible for election for an office -

(a) where the rules of the organization provide for the nomination of a candidate for election for that office to be made in writing - unless the nomination 1s in accordance with the rules of the organization; or

(ob) where those rules do not so provide - unless the nomination 1S 1n writing and is signed by the person and by the number of persons, qualified under those rules to nominate a candidate for that office, that 1s equal to the number of nominators (if any) that 1s required, under those rules, for a nomination for that office.

(2) Where the Returning Officer finds that a doecu-

ment lodged at the place and within the period determined by the Returning Officer under regulation 146AC and purporting to be the nomination of a person as a candidate for an election for an office within an organization is not a nomination in accordance with

the provisions of sub-regulation (1), the Returning Officer shall, if practicable, give notice to the person, as soon as practicable, by telegram of the reasons why the document is not a nomination in accordance with

for election for the office under the rules of the organization, the Returning Officer shall, in the telegram, notify the person that his nomination as a candidate for the election may be lodged at that

(a) within a period of 7 days after the date of sending the telegram; or

(b) where, under the rules of the organization, a defective nomination may be remedied within a period of longer than 7 days after the close of the period for lodging nominations - within that longer period.

(3) A person 18 not eligible for election unless the nomination of the person as a candidate for election 18 lodged at the place determined by the Returning Officer under sub-regulation 146AC (2) and within the period for lodging nominations under sub-regulation 146AC (1), or under sub-regulation (2), whichever 1s applicable."

Regulation 146AF provides that where on the expiry of the period for lodging the nomination of a candidate for an election for an office, only one candidate is nominated, the returning officer shall declare tnat the candidate has been elected to that office. Succeeding regulations in Part Vv AA provide for the roll, a post box for ballot papers, the issue of ballot papers and a number of other consequential matters to which it is not relevant to refer.

There are further provisions of the Act to be mentioned, Section 140(1)(c) provides, anter alia, that the rules of an organisation shall not impose upon members of an organisation conditions, obligations or restrictions which, having regard to the obgects of the Act and the purposes of the registration of organisations under the Act, are oppressive, unreasonable or unjust. Section 140(2) provides that a member of an organisation may apply to the Court for an order under s.140 in respect of the organisation. Section 140(5D) provides that an order under the section may declare that the whole or a part of a rule of an organ- 1sation contravenes s.140(1) or that the rules of an organisation contravene it in a specified respect. Under

s.141 (sub-ss.(1) and (1G)) a member of an organisation may

apply to the Court for an order giving directions for the performance or observance of any of the rules of an organisation by any person who 1s under an obligation to perform or observe those rules. The Court has guris- diction to hear and determine an application for such an order,

I have already referred to s.159 of the Act pursuant to which this application is made. The section is in Part IX entitled "Disputed Elections in Organisations", Section 165(1) provides for the functions and powers of the Court at an inquiry under s.159, The Court is to inquire into and determine the question whether any irregularity has occurred in or in connection with the election, and such further questions concerning the conduct and results of the election as the Court thinks necessary. If the Court finds that an irregularity has occurred, the Court may, subject to sub-section (4), make one or more of a number of specified orders. These include an order declaring the election, or any step in or in connection with the election, to be void, an order declaring a person purporting to have been elected not to have been elected and an order directing the Industrial Registrar to make

arrangements, in the case of a completed election, for any

step 1n or in connection with the election (including the submission of nominations) to be taken again or for a new election to be held. It 1s to be observed that the exercise of the various powers which the Court has is conditioned upon the Court finding that an irregularity has occurred. It is also to be observed that the Court's power 1s introduced by the words "the Court may". Section 165(4) is as follows:

"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 1s of opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregular- ities may have occurred or may occur, the result of the election may have been affected, or may be affected, by irregularities."

Finally, in relation to the legislation, it is necessary to note the definition of "irregularity" an s.4(1) of the Act which begins with the words, "In this Act, except where otherwise clearly intended .....". The definition of "irregularity" is as follows: ' " 'tIrregularity', 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"

Before referring to the rules it should be noted that the union is an amalgamation of previously existing unions each of which was an organisation registered under the Act. The amalgamation of the Amalgamated Engineering Union, the Boilermakers' and Blacksmiths' Society of Australia and the Sheet Metal Working Agricultural Implement and Stovemaking Industrial Union of Australia was effected in 1972, the name of the union becoming the Amalgamated Metal Workers Union. In 1976 there was e further amalgamation when the Federated Shiowrights & Ship Constructors' Association was merged with the Amalgamated Metal Workers Union, the name of the Union then becoming the Amalgamated Metal Workers' and Shipwrights' Union, The union 1s a registered organisation under the Act, Its rules took effect in December 1976. Amendments to the rules were made in 1977 and 1978. Amongst the amendments which were made were amendments to take account of the antroduction into the Act of s.133AA4 and the coming into force of the regulations contained in Part V AA of the Regulations.

Rule 1 of the rules, to the detail of which it is unnecessary to refer, provides for the name, objects and

constitution of the union, Rule 2 provides for elections

ance with the provisions of the Act and Regulations. All other elections in the Union shall be by

secret ballot vote in accordance with these Rules. Election for all or any office prescribed by

There then follow a number of provisions to which it 1s unnecessary to refer.

" Candidates for all fulltime office shall be nominated not less than 12 weeks before the ballot voting commences. A member qualified

for any of the offices listed in this rule shall be nominated by any other financial member on the prescribed form provided at the Branch, but any member so nominated must accept nomination in the manner prescribed by these rules before a ballot takes place."

Rule 2.3 provides that acceptance of nomination for election to any office shall be in the candidate's own handwriting on an acceptance of nomination form prescribed by the National Council. Nominations are to be accepted "within the date specified on the form unless the date be extended for good reason by the Returning Officer conducting the ballot", The form referred to is the form provided for in Rule 2.2, not the acceptance of nomination form referred

Rule 2.6 provides 'for "the qualifications" to be held for particular offices. The relevant provisions of Rule 2.6 are as follows:

"The following qualifications must be satisfied in the case of the particular office referred to hereinafter,

Union may nominate a member qualified in accord- ance with these rules at the Branch meeting for the fulltime office of National President. The person elected shall hold office for a period of

in accordance with these rules shall be entitled to vote in the ballot for the election of National President,

NATIONAL SECRETARIES and ASSISTANT NATIONAL SECRETARIES

(b) The qualifications and conditions for the office of Joint National Secretary and Assistant National Secretary shall be the same as apply to the National President.

NATIONAL ORGANISERS (c) The qualifications and conditions for the

office of National Organisers shall be the same as apply to the National President." Rule 5 provides for the National Council of the Union. It is comprised of the National President, the National Secretaries, the Assistant National Secretaries, the National

Organisers and a number of other officials, Rule 6 provides

for the powers of the National Council. It is the committee

of management of the Union and, subject to the powers and decisions of the National Conference (provided for in rule 3) has the care,control, superintendence and management in all respects of the affairs, business, funds and property of the Union. There follow in rules 7 and 8 provisions concerning meetings of the National Council and duties of national officials including the National President, the Assistant National Secretaries and National Organisers.

"), The National Council shall determine the date for election to these positions.

The National Returning Officer shall by notice in the Union Journal and circular to all Branches inform members of the opening of nomin- ations for these positions in time to comply with the provisions of Rule 2,

The date for the receipt of nominations and acceptance shall be decided by the National Returning Officer, and such dates shall be fixed having 1n mind the provisions of Rule 2.

arrange for a supply of prescribed nomination forms to be available for Branches.

He shall notify the Joint National Secretaries of the result of all elections for National full- time positions."

meetings of those branches. Branches may be established

and their areas defined by the State Councils, subject to the approval and other powers of the National Council. Every member of the Union is to be attached to a branch which, except in special circumstances determined by the State Council, shall be the branch established in the area in which he resides, Rules 36.3 and 36.4 are as follows:

"3, A meeting of the members of each Branch shall be held monthly for the transaction of

its business. Such meetings shall be held between the 8th and 21st day of each month inclusive. No intoxicating drinks shall be allowed in the room until the conclusion of

shall be removed from one place to another unless by consent of a majority of the members voting at a meeting specially summoned for that purpose.

4, The time of commencing and finishing all Branch meetings shall be 7.30 p.m. to 10 p.m. Branches shall have the discretionary power to commence sooner or close later if these hours be convenient. Branches shall have the power to change their night of meeting 1f such night falis on a holiday, such alteration to be decided on not less than four weeks previously.

The Branch Meeting in the months of March, June, September and December shall be Star Nights

The persons elected to the offices in question were

the previous holders thereof, Mr. Scott's previous term of

office as National President expired on 5 March, 1981; Mr. Carmichael's term as Assistant National Secretary expired on 22 March, 1981, and Mr. Martin's term as National Organiser of Division 2 on 28 March, 1981. Regulations 136C and 136E required the lodging by the Union of a return of information concerning elections to be held and the publication of information concerning those elections by the Industrial Registrar. Pursuant to those regulations there were inserted by the Industrial Registrar on 6 October, 1979, advertisements in a number of newspapers circulated in each of the States and Territories of Australia. The advertisement in each case was headed with the name of the Union and, amongst other things, notified an election for each of the offices here in question. The advertisement stated that nominations would open on 8 June, 1980, and close on 21 June, 1980.

Further advertisements, this time inserted by the Union, were published 1n newspapers circulating in each of the States and Territories. The advertisements were

published on 20 May, 1980, and were in the following form:

All members of the above organisation are hereby advised that nominations will be called for the undermentioned positions at the June 1980 meeting of the respective branches of the Union

ASSISTANT NATIONAL SECRETARY
NATIONAL ORGANISER DIVISION 2

Any financial member may nominate any other member qualified in accordance with the rules of the Union for this position on the form provided at the Branch.

The June meeting of the respective branches summoned for this purpose will be held on the date between the Sth and 2lst June, 1980, as specified on each member's quarterly Membership Contribution Card.

Nominations for this position must reach the Returning Officer at the address shown here- under not later than 3 pm on the 7th July,1980.

Authorised by: J. P. Devereux National Returning Officer, PO Box M300, SYDNEY MAIL EXCHANGE, 2012. " The advertisements were inserted in the Public Notice column of the newspapers but were set out more as display type

advertisements than would be the case in relation to ordinary

classified advertising. In other words, the advertisement was displayed 1n each case in a prominent manner,

It is the Union's submission that the advertisements were 1unserted by Mr. Devereux in his capacity as Returning Officer pursuant to the provisions of Regulation 146AD earlier set out.

Also on 20 May, 1980, Mr. Devereux sent a circular to the secretary of each branch of the Union directing him to call nominations for the subgect offices "at your 1980 June summoned meeting of the branch". The circular informed each branch secretary of the name of the current holder of eacn office and said that each was eligible for re-election "provided they have conformed to the rules of the Union",

At the relevant time there was published each month by the Union a publication known as The Amalgamated Metal Workers and Shipwrights' Union Monthly Journal. The issue published for May 1980 contained on page 2 information under the heading "Elections. and Other 'Notifications". Amongst the information contained on that page was the following:

all the Unionts Branches at the June 1980 meetings which will be summoned for the purpose.

The present occupant Bro. R. Scott is eligible for re-election subgect to Rule.

Nominations for this position are to be taken in all the Union's Branches at the June 1980 meetings which will be summoned for the purpose.

The present occupant Bro. L. Carmichael is eligible for re-election subject to Rule.

All Branches of the Union are to take nominations for the above position at the June 1980 meetings which will be summoned for the purpose.

The present occupant Bro. W. Martin is eligible for re-election subgect to rule."

The usual practice in relation to the distribution of the journal was to send copies of it to the secretary of each branch of the Union and to all shop stewards. The estimated circulation of it was said in the evidence to be 12,000 copies. I referred to 1ts circulation in my decision in Wilson v. Devereux (1980) 40 F.L.R. 223. I there said (p.225) that 25 journals were sent to each of 107 branches and two to each of 7,500 shop stewards. That made the circulation in round figures some 18,000. During the argument in the present case there was general acceptance of those figures. The evidence of Mr. Campbell, who 1s one of the Assistant National Secretaries of the Union, is that the manuscript for the May 1980 journal was forwarded to a printing company,

Kralco Printing Co. Pty. Limited, and was printed by that

company before 7 May, i980. The wrappers and labels had been produced by an employee of the Union, Mr. Whitton, and had been collected from the Union's office by a courier for the printing company on 11 April, 1980. Copies of the May gournal were collected for distribution to the branches on 7 May, 1980, and were mailed on the following day to those branches of the Union which had post office box addresses. The balance were delivered by courier. Copies of consignment notes, which are in most cases receipted, were tendered and snow that the journals for delivery to addresses other than post office box numbers were despatched on 7 May, 1980. A receipt endorsed on the consignment note for delivery to Mr. N. Marshall, who 1s the secretary of the Prahran branch of the Union, shows that 25 copies of the gournal were received on his behalf on 9 May, 1980,

Due to a misunderstanding between a distribution company, R. L. Polk & Co.(Australia) Pty. Limited and the printing company, no copies of the May 1980 journal were despatched to any shop stewards. The circulation of the May 1980 journal was therefore to the branches alone and amounted to no more than approximately 3,000 copies, or

Another publication which the Union has 1s now known as the "Metal Worker". Previously the publication was known as the "Amalgamated News", That was the other publication referred to by me in Wilson v. Devereux (supra) The name was changed on 4 March, 1980. Thereafter the publication was no longer known as the "Official Journal of the Amalgamated Metal Workers! and Shipwrights! Union",

There is evidence by officials of the Union as to the history of the two publications, that 1s to say the Union Journal and the Metal Worker, Prior to the amalgamation an 1972 the Boilermakers' and Blacksmiths' Society had published a newspaper entitled either "Boilermaker" or "Bo1lermaker-Blacksmiths Journal", This publication did not contain official notifications of the Society but published news and information of a general nature. After the amalgamation the new Union continued the publication wnich then became entitled "The Amalgamated News". According to the evidence of Mr. Garland who is one of the Joint National Secretaries of the Union, the Amalgamated News was never regarded as a gournal of record by the Union. it was not produced to a strict or regular timetable, its publication depended upon the occurrence of events or

industrial issues with which the Union was concerned, The

newspaper was designed to inform the membership of the Union generally om industrial, social and political issues. It 1s true that from time to time 1t was described as the official gournal of the Union. But it has not always been described as such and was not so described when it was published in the months of May and June 1980. The evidence concerning the history of the two publications was not availl- able to me when I decided Wilson v. Devereux (supra). I then had no more than an agreed statement of facts and copies of the two publications. At that time the Amalgamated News was described as the official gournal of the Union. If the evidence now before me had been available at the earlier hearing I would not have expressed the tentative opinion that the Amalgamated News rather than the other publication was the journal referred to 1n Rule 12.2 of the Union's rules. Although the evidence satisfies me that the monthly journal 1s the publication referred to in Rule 12.2, there remains a difficulty. The evidence establishes, as I have mentioned, that the distribution of the gournal was both to branches and to shop stewards. The May 1980 issue notifying the opening of nominations for the offices here 1n question

was not distributed to shop stewards. That gives rise to

a question to which I shall later return of whether the gournal for May 1980 was published as must have been contemplated by those who drew the rules in question.

It has been the practice of the Union since it was formed in 1976 and for its predecessors to post to each member a quarterly membership card. The card is intended to be an account of what is owing for membership dues and to provide the member with a record of his standing as a member of tne Union, The cards serve an additional purpose, Each 1s a notification of what is described as a "summoned meeting", Each notifies the fact that the meeting will take place on a particular day in the month at a specified meeting place, On the reverse side of the card is noted business to be dealt with at the meeting.

The applicant for this inquiry, Mr. Kelly, received his membership card for the April/June 1980 quarter in the second half of May 1980. It notified him that there would be a meeting of the Prahran branch to;which he belonged on the third Tuesday in June (17 June) in the library opposite the Prahran Town Hall. No tame for the meeting was stated but Rule 36.4 of the Union rules earlier referred to, subject to what I have later to say, would make the time 7.30 p.m.

Noted on the back of the card was branch business which

was introduced by the words,"Dear Member, you are summoned to attend the June 1980 quarterly summoned meeting of your branch. The date and place are indicated on reverse side of this card", The business noted included nominations for the offices of National President, Assistant National Secretary and National Organiser Division No.2,

The meetings of other branches were not all held on the third Tuesday in June. They were held on dates from and including 8 June up to and including 21 June. Subject to that and, of course, to the meetings of other branches taking place at other locations, the evidence establishes that each member about the end of May 1980 had received what is described as a second quarter 1980 membership card wnich notified him that at the June meeting of his branch nominations for the offices in question would be called.

The evidence would suggest that the quarterly meetings of branches held in March, June, September and December referred to as summoned meetings on the membership cards are the "Star Nights" mentioned in Rule 36.4,

Mr. Kelly gave evidence as to what transpired at the meeting of the Prahran branch held on 17 June. His evidence

was not contradicted by other evidence and not challenged in

cross-examination. I therefore accept it. It establishes

that the circular from Mr. Devereux dated 20 May, 1981,

calling for nominations was read to the meeting. Nominations

were called for the positions in question, Messrs. Scott, Carmichael and Martin were nominated. The nomination forms are in evidence. It does not apvear that the nominators

signed the nomination forms, but rather that the names of

the nominees and nominators were written in by the secretary of tne branch, Mr. Marshall. The nominators made their nominations orally from the floor of the meeting. The forms were Signed at the bottom by the branch president and secretary. The procedure followed at the Prahran branch meeting would seem to have been the procedure adopted at other branch meetings as well. There is not direct evidence of that matter, but so much may be inferred from the way in which the nomination forms are set out and from general evidence which there is about the Union's practices in calling for nominations in the past.

Mr. Kelly said that he was anxious to nominate candidates for the positions other than Messrs. Scott, Carmichael and Martin, but did not do so because he was unaware until he went to the meeting that nominations would be called and he could not ascertain whether persons he wished to nominate were financial and willing to stand for office.

Mr. Kelly's evidence which are challenged by the respondents.

He said that he did not read the membership card and had

not appreciated that it served the purpose of notifying a summoned meeting or the business to be dealt with thereat. Although he had received similar cards for a period of

over 10 years (a similar practice had been followed by the A.E.U. of which he was a member before the amalgamation)

he had never appreciated that the cards were used to notify meetings. He did not carry the cards with him but kept

them 1n a plastic envelope which was produced by him

together with all cards going back to 1970. He did not carry his card with him because he was a shop steward employed by Kraft Foods Limited and could identify himself as a member of the Union because of his position as such.

Mr. Kelly said that he had not received the May 1980 journal. That evidence should be accepted because the evidence establishes that no May 1980 gournals were sent to shop stewards, He said that the secretary of the Prahran branch had not brought the journals to the May 1980 meeting. That evidence I would also accept because no evidence to the contrary was called. In the light of the fact that Mr. Marshall must have received the gournals on or about 9 May, the only inference open is that he must have forgotten to bring the gournals to the meeting.

The circular calling for nominations, although read at

the June meeting, was not, according to Mr. Kelly, read at

the May meeting. I accept his evidence in that regard, firstly because 1t 1s not contradicted and, secondly because the evidence would suggest that the circulars were not despatched in time for the May meetings of the branches. Furthermore, the evidence is that 1t was not the practice of the Union to send such circulars so as to enable them to be available earlier than the summoned meetings when the nominations were for National, as distinct from State, offices.

There remains a question mark concerning Mr. Kelly's evidence of whether he appreciated that the membership card was also a notice of meeting. That is a matter to which I shall return. The significance of his evidence in this respect is that, if accepted, it would establish that, until he came to the June meeting, he was not in fact aware that nominations for the offices in question would be called thereat. He had not seen the newspaper advertise- ment or the May 1980 issue of the journal. The circular from Mr. Devereux calling for nominations was read out only

The Submissions of the Parties and the Questions for Determination.

Mr. Kelly contends that there were irregularities in

(a) There was a breach of Rule 12.2 of the rules because, although notice of the elections was published in the Union journal in the sense of a notice being included therein, there was no proper publication of the journal because it did not go to shop stewards including Mr. Kelly.

(2) The Union journal was not made available at the May meeting of the Prahran branch.

(c) The procedure whereby nominations were called for only at meetings of the branches was contrary to the pro- visions of the regulations, particularly Regulations

In the submission of the respondents no irregularity 1s shown to have occurred. Additionally the respondents sub- mit that any irregularity which there 1s 1s not an irregularity for the purposes of s.165. If Mr. Kelly had a remedy 1% was to make an application pursuant to s.141 rather than s.159. The respondents further submit that I ought not to be satis- fied of the matter referred to in s.165(4) and finally contend that there is an overriding discretion in the Court to grant or refuse relief and that J should, even if satisfied as to all other matters, in the exercise of my discretion, refuse

In the course of the submissions of the parties and

the discussion thereon which ensued, there was an extensive

review of all relevant provisions of the Act, the regulations

and the Union's rules as well as of the evidence which 1s before the Court. This review drew to my attention

matters, other than those relied upon by the applicant,

which may constitute 1rregularities. In the treatment of

the argument that follows I have endeavoured to cover all these matters. I conceive it my duty to do so by reason

of the fact that this proceeding is an inquiry and concerns

matters of important public interest. The proceeding 1S

not adverserary litigation of the usual kind. It seems to me that in broad terms the following questions arise for determination:

Did the Returning Officer call for nominations in accordance with the provisions of the regulations and the Union's rules.

If not, 1s there any irregularity within the meaning of s.165.

If so, am I satisfied in terms of s.165(4) that, having regard to the irregularity or irregularities found, the result of the elections may have been affected thereby.

4, If I am so satisfied, have I any discretion nevertheless to refuse relief, and, if so, how ought that discretion

Requirements of the Regulations and the Union's Rules and the Question of Non-compliance therewith

The starting point is the first sentence of Rule 2.1 which, in effect, provides that elections within the Union for the offices here in question are to be conducted in accordance with the provisions of the Act and Regulations. That provision is to be contrasted with the second sentence of Rule 2.1 which provides that all other elections in the Union are to be by secret ballot vote in accordance with the rules. It will be remembered that s.133AA(2) provides that the regulations may make provision for and in relation to the conduct of an election in the case of an election in respect of which the rules of the organisation do not provide for a secret postal ballot. For the offices in question the rules of the Union here do not so provide. The fact that they provide for a secret ballot in relation to the elections for other positions in the Union 21s not to the point. It follows that the next step 1s to go to the regulations in Part V AA. These, and not the rules, govern the procedure which 1s to be followed. That is not to say that later provisions of the rules may not be picked up by the provisions of the regulations and thereby made applicable. But in this respect 1t is important to bear in mind Regulation

146AB which provides that where provision 1s made 1n respect

of matters relating to the conduct of an election for an office within an organisation, the rules of the organisation shall not apply in relation to those matters except to the extent to which they apply by virtue of regulations con- tained in Part V AA.

The first obligation cast by the regulations upon the returning officer 1s to determine the times and dates of the commencement and close of the period for lodging of nominations of candidates having regard, inter alia, to the provisions of the rules of the organisation relating to the times and dates of the commencement and close of the period for lodging nominations in respect of the election. The Returning Officer is also to determine the place for lodging nominations of candidates for election. The evidence reveals that Mr. Devereux as Returning Officer determined the date of the commencement of the period for lodging nominations as 8 June, 1980, and the close of that veriod as 21 June, 1980. But it also reveals that he did not intend that nominations could be lodged during the whole of that period by each member of the Union. The dates he selected were respectively the dates of the earliest and the latest of the branch meetings to be held in June 1980.

It was his intention to follow the procedure provided for in

the rules (2.6) which contemplate nominations being made only at branch meetings.

It was the submission of counsel for the respondents that Mr. Devereux's determination in this respect was within both the Union rules and the regulations. The regulations required the Returning Officer to have regard to the provisions of the rules of the organisation relating to the times and dates of the commencement and close of the period for lodging nominations for the offices in question. The relevant provisions were 1n Rule 2.6 read in conjunction with Rules 2.1 and 2.2. I reject this submission. I do so because Rule 2.6 apparently contem- plates nomination only at a branch meeting; the regulations contemplate that there will be times and dates certain fixed for the commencement and close of the period for lodging nominations. Unless the rules provide for the fixing of such a period, they make no relevant provision with the result that there is no rule to which the Returning Officer either may or 1s obliged to have regard. That being the position, the provisions of regulation 146AB exclude the operation which, but for its terms, the rule

would otherwise have had, Implicit in what I have said,

although I pause to spell it out, is that the regulations

require that each member of the electorate has available, for the purpose of lodging nominations, the same fixed period as determined by the Returning Officer.

I have some doubt as to whether Mr. Devereux ever determined the place for lodging nominations otherwise than at the respective meeting places of the branches, But the advertisement which he inserted in daily newspapers circulating in various parts of Australia might suggest that he had selected as a place for lodging nominations the post office box number which 1s snown at the end of the advertisement. If that were so I would conclude that a proper determination of a place had been made. But I think the better view 1s that the place, or rather places, determined were the places at which the various branch meetings would be held. I do not regard such a determin- ation to be within the terms of the regulation. I do not find it possible, in expressing my reasons for that view, to separate considerations relating to the period during which candidates might be nominated from those relating to the place or places at which nominations might be lodged. What 1t comes down to is that Mr. Devereux, albeit acting

an good faith and in accordance with what he believed was

required of him, specified the time and place to be the time and place of each branch meeting.

The evidence discloses that at least in relation to the Prahran branch, but I would suspect others, the meeting place was at premises over which the Union had no control other than during the time for which they were hired. No time at which branch meetings would be open was specified in the advertisement; no such time was specified either in the notices of meeting endorsed on the membership cards. In order to enable one to know the time, one had to be familiar with union practices, or to ask other members who knew the position, or to consult the rules (36(4)). If one did consult the rules, one would conclude the meetings opened at 7.30 p.m. and closed at 10 p.m., but with the proviso that the times might be different because of the power of branches to commence earlier or close later. It 1S my opinion that to determine a place for the lodging of nominations which in many cases will be at premises at which the Union has no more then a temporary presence in a situation where it might be present between 7.30 p.m. and 10 p.m. or at some other time, 1s no determination of a place at all. Certainly it is not such a determination of a place as 1s within regulation 146AC.

The next obligation imposed upon Mr. Devereux was to

publish the advertisement required by regulation 146AD. I

have earlier set out the form of this advertisement and

I do not refer again to the detail of it. During the argument I expressed the tentative view that the advertise- ment was 1n accordance with what the regulation required

in that it did fix the period, 8 to 21 June, 1980, as the period during which candidates might be nominated. On reflection I think that such a view is erroneous. After due consideration I have reached the conclusion that the advertisement was in accordance with Mr. Devereux's determination that nominations might only be made at

branch meetings which would be held between 8 to 21 June, 1980. That being the position the statement at the end

of the advertisement that nominations must reach the Returning Officer at the address shown not later than 3 o.m. on 7 July, 1980, 1S misleading. It could have led persons to think that nominations from members would be received at the

Application by Roderick Terrence Kelly for an inquiry into an election for Offices in the Amalgamated Metal Workers & Shipwrights Union [1981] FCA 207

At a glance

Court

Decision date

Before

Source

Judgment (313 paragraphs)