Asmar, in the matter of an Election for offices of the Health Services Union [2009] FCA 1294

REASONS FOR JUDGMENT 1 Because of internal disputes, the Victoria No 1 Branch ("the Branch") of the Health Services Union ("the Union") became dysfunctional. As a result the Union applied to the Court to approve a scheme which would enable the Branch to function effectively. On 4 August 2009, such a scheme was approved by the Court: see Health Services Union, in the matter of the Health Services Union [2009] FCA 829. Under the scheme, the National Executive of Union declared all elected offices in the Branch vacant and an Administrator was appointed pending the conduct of elections. 2 Under the timetable which was subsequently fixed for the conduct of the election, nominations for all Branch positions were called for on 1 October 2009. Nominations closed on 14 October 2009. Ballot papers were posted to members on 5 November 2009. The ballot will close on 7 December 2009 and it is expected that the poll will be declared for all positions on 8 December 2009. 3 At least three candidates have been nominated for each of the elected offices within the Branch. Most of these candidates have formed themselves into "teams" which are led by the member of the team who has been nominated for the position of Branch Secretary. The three team leaders are Ms Diana Asmar, Mr Doug Byron and Mr Marco Bolano. Mr Jamie Martorana and Ms Carol Carmichael are members of Mr Bolano's team. The evidence suggests that two other employees of the Union, Ms Tanya Tromp and Mr David Irwin, are supporters of that team. 4 Some of the candidates are paid employees of the Branch who work as organisers or in other roles. The Administrator appointed under the scheme approved by the Court, Mr John Vines, has been concerned to ensure that the resources of the Union were not used to support the election campaigns of any candidates. On 16 October 2009, he distributed by e‑mail a memorandum to all Branch employees which read: "Memo to HSU Victoria No 1 Branch Staff All staff are reminded that [the relevant Federal Court order] specifically requires that the Administrator shall not: a. permit the use of union funds or resources for campaigning or electioneering; b. permit the employees of the Branch to campaign or electioneer during their working hours; and c. permit any new material to be posted on the Branch's website, other than ordinary Branch business, until the declaration of the ballot, and for the avoidance of any doubt, the website must not be used for electioneering or campaigning. In accordance with this order, staff who are engaged in electioneering or campaigning are (i) required to take leave (Long Service Leave, Annual leave or ADOs) for any period in which they are electioneering or campaigning. (ii) not permitted to use the union resources including photocopying for any campaigning or electioneering (iii) not permitted to use the Union provided fuel card for any car use associated with electioneering or campaigning. It is understood that in some instances, Staff while on leave may be required to undertake union duties relating to urgent matters. Staff who are required to do so are required to notify me by email of any such instances. For those staff not engaged in electioneering or campaigning, the next 7 weeks will be a difficult period as the number of available staff will be significantly limited. This will mean that our resources will be thinly spread. Your continued professionalism in the face of these difficulties will be greatly appreciated". 5 The applicant, Ms Asmar, alleges that, notwithstanding Mr Vines' directions, certain employees of the Union, who are members of Mr Bolano's team, have used the resources of the Union to further their campaigns for election. The employees concerned are Mr Bolano, Mr Martorana and Ms Carmichael. 6 Ms Asmar alleges that these employees (or some of them) have: · Sent SMS messages to the mobile phones of some members of the Union in which they urge support for members of Mr Bolano's team. It is said that the senders of these messages have obtained the mobile phone numbers of the members from Union records. · Convened Union meetings at various workplaces. Notices convening the meetings have been typed on Union letterhead. Members have been advised that particular employees who are candidates will address the meetings. The meetings, according to the notices, were convened to discuss industrial issues. Notwithstanding that they were on leave, Union employees have attended the meetings and urged members present to support the Bolano team. · Printed and distributed leaflets and posters which include the slogan "Stronger Together" and photographs in which members of the Bolano team are seen wearing jackets, shirts and ties which bear the Union logo. 7 These complaints were raised with Mr Vines by solicitors acting on behalf of Ms Asmar. As a result he has issued further directives and sought an explanation from at least one employee arising from complaints. 8 On 4 November 2009, Ms Asmar filed an application for an inquiry relating to the election pursuant to s 200 of the Fair Work (Registered Organisations) Act 2009 (Cth) ("the Act"). 9 The application seeks interim orders that, pending the hearing and determination of the proceeding: "1. … Mr Bolano, Ms Carmichael, Mr Martorana, Ms Tromp and Mr Irwin … refrain from using data contained on the Union's membership register for the purposes of sending sms messages to Union members; 2. … Mr Bolano, Ms Carmichael, Mr Martorana, Ms Tromp and Mr Irwin … refrain from using the Union slogan "Stronger Together" and photographs depicting candidates in Union supplied clothing in promotional material in support of the Bolano ticket; 3. … Mr Bolano, Ms Carmichael, Mr Martorana, Ms Tromp and Mr Irwin … refrain from conducting meetings of Union members using Union resources and representing those meetings as Union meetings both to members and to employers". 10 Section 200(1) of the Act provides that: "If a person who is, or within the preceding period of 12 months has been, a member of an organisation claims that there has been an irregularity in relation to an election for an office in the organisation or a branch of the organisation, the person may make an application for an inquiry by the Federal Court into the matter". The term "irregularity" is relevantly defined in s 6 of the Act to include "a contravention of s 190." Section 190 provides that an organisation or branch commits an offence "if it uses, or allows to be used, its property or resources to help a candidate against another candidate in an election under this Part for an office or other position". 11 Section 201 of the Act provides that: "Where (a) an application for an inquiry has been lodged with the Federal Court under s 200; and (b) the Court is satisfied that there are reasonable grounds for an application; the Court must fix a time and place for conducting the inquiry, and may give such directions as it considers necessary to ensure that all persons who are or may be justly entitled to appear at the inquiry are notified of the time and place fixed and, where the Court fixes a time and place, the inquiry is taken to have been instituted". 12 Unlike some other remedial provisions in the Act (see, for example, ss 163 and 164), no provision is made for the making of interim orders pending the completion of an inquiry which has been instituted under s 200. The application suggests that the Court has power to make interim orders under s 204 of the Act. During argument, counsel for Ms Asmar did not seek to rely on this provision but pointed, somewhat tentatively, to s 208 as providing power for the Court to make the interim orders sought. 13 For reasons which will become apparent, I do not find it necessary to determine whether or not the Court has power to make interim orders in the course of an election inquiry which is instituted in the course of an election (and before the poll has been declared). This is because s 201 of the Act requires the Court to be satisfied that there are reasonable grounds for the application, made under s 200, before any inquiry is taken to have been instituted. 14 The approach taken by the Court to the preliminary issue identified by s 201(b) of the Act was explained by French J in Re Post; Re Election for Offices in Transport Workers Union of Australia, Western Australian Branch (1992) 40 IR 162 at 166-7 as follows: "The question for the Court … is whether it is satisfied that there is reasonable ground for the application. It will not be so satisfied if the grounds relied upon could not, even if made out, constitute "an irregularity in relation to an election for an office in the organisation". The question whether there is such an irregularity lies at the heart of this jurisdiction. Nor will it be so satisfied if the allegations of fact relied upon in the application do not at least offer good grounds for suspicion that there has been such an irregularity. The Court will not entertain an application of a speculative nature based upon the applicant's opinion that there has been an irregularity unless that opinion rests upon some substantial factual foundation. Necessary conditions to establish the requisite state of satisfaction can be multiplied. It is harder to state what is sufficient to satisfy the Court beyond the words of the section itself which require a an evaluative judgment at this preliminary stage". 15 Much of the affidavit evidence relied upon by the applicant contained hearsay. Insofar as it dealt with the sending of SMS messages to the mobile phones of members, it suggested that a small number of members had received messages supporting the Bolano team. It is not clear, on the evidence, how, whoever it was who sent the messages, obtained the mobile telephone numbers of the members to whom messages were sent. In the few cases in which the deponent of an affidavit received a message, the deponent said that he or she had provided Mr Bolano or some other person associated with his campaign with his or her telephone number but had not done so for the purpose of receiving campaign material. Some of these deponents were shop stewards at their workplaces and it is understandable that they would have provided Mr Bolano, an organiser, with their telephone numbers to facilitate contact on Union business. What is important, for present purposes, is that there is no evidence that enables me to infer that Mr Bolano or anyone else obtained mobile telephone numbers of members by resort to Union records. 16 The evidence relied on by the applicant supports the allegation that Union meetings were convened at some hospitals using notices on Union letterhead. Those meetings were attended by some Union employees who, although supposedly on leave, were said to be present on Union (as distinct from electoral) business. Those employees used the meetings to encourage members to vote for the Bolano team. Mr Bolano and other employees said to have been involved have not, as yet, denied that such conduct occurred. In fairness to them, it must be said that some of the affidavits on which the applicant relies were not served until late on 4 November 2009. 17 Such conduct as is alleged, if it occurred, would have constituted contraventions of the directions given by Mr Vines. It does not, however, follow that such conduct constituted an irregularity for the purposes of the Act. It would only have done so had it given rise to a contravention of s 190. That could only have happened if the Union (or, possibly, the Branch) used or allowed its property or resources to be used to assist Mr Bolano and members of his team in the course of the election campaign. 18 Counsel for the applicant accepted that neither the Union nor the Branch had used Union resources in convening and conducting the workplace meetings. She submitted, however, that the Union and/or the Branch had, nonetheless, allowed the property and resources of the Union to be used because action had not been taken to prevent the impugned conduct of the Union employees occurring. I do not accept these submissions. The evidence establishes that Mr Vines had taken reasonable steps to ensure that the Union's property and resources were not used for electoral purposes. He issued clear directives requiring employee candidates to take leave during the campaign and not to use any of the Union's property and resources to support their candidacy. If these directives were not obeyed it was no fault of Mr Vines and it cannot, in my opinion, be said that, by inaction, he allowed the alleged misconduct to take place. 19 The evidence establishes that members of the Bolano team distributed leaflets and posters which contained the material about which the applicant complains. There is evidence that the slogan "Stronger Together" was used from time to time in Union publications, but it cannot be said that the slogan was in any sense the property or a resource of the Union. Mr Bolano appears to have chosen to use the slogan to identify his team but there is no evidence to suggest that the Union or the Branch allowed this to occur. 20 The clothing worn by members of the Bolano team, when the photographs appearing in campaign leaflets and posters were taken, was clothing supplied by the Union. It was worn by officials in the course of their daily duties. Similar clothing was available to be purchased by members. I do not consider that such clothing can properly be considered to be the property or resources of the Union. It is open, on the evidence, to conclude that the various items of clothing were given to employees by the Union. There is no suggestion that the Union asserted any property rights in the clothing or that the employees were under an obligation to return the clothing on the occurrence of any particular event. 21 As Kirby J said in Re Jarman; Ex parte Cook (No 2) (1996) 136 ALR 233 at 241, the institution of an inquiry under s 201 is a serious matter. The onus is on an applicant to persuade the Court that there exist reasonable grounds for the application. For the reasons given I am not satisfied that there are reasonable grounds to consider that any irregularity has occurred in relation to the election. 22 I would, therefore, dismiss the application by the applicant for an inquiry. It follows that no interim orders can or should be made in the proceeding. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY.