Australian Education Union v Lawler

Federal Court of Australia|2011-05-13|Before: Mr J, Flick J

Pursuant to s 201 of the Fair Work (Registered Organisations) Act 2009 (Cth), an inquiry is to be held in Sydney commencing on Thursday 19 May 2011 at 9:30am. 2. Mr Alan Veney is to file and serve any evidence upon which he wishes to rely on or before Friday 13 May 2011 at 4:00 pm. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY FAIR WORK DIVISION NSD 479 of 2011

REASONS FOR JUDGMENT 1 On 18 April 2011 Graeme Paul Kelly filed an Application in this Court seeking an election inquiry under s 200 of the Fair Work (Registered Organisations) Act 2009 (Cth) (the "Registered Organisations Act"). 2 Mr Kelly is a member and Branch Secretary of the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Branch of the Australian Municipal, Administrative, Clerical and Services Union (the "Union"). 3 In very summary form, an election is to be held for the office of Branch Secretary of the Union. Mr Kelly is a candidate and contends that the only other candidate, Mr Allan Veney, is ineligible to stand for that office as he is no longer a member of the Union. On 19 April 2011 another Judge of this Court (Bennett J) granted interlocutory relief restraining any further step being taken in connection with the conduct of the election: Re Kelly, in the matter of an application for an inquiry in relation to an election for an office in the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Branch of the Australian Municipal, Administrative, Clerical and Services Union [2011] FCA 416. 4 For the purposes of s 200 of the Registered Organisations Act, Mr Kelly contends that there is an "irregularity" within the meaning of and for the purposes of that section. 5 Although Bennett J as duty Judge obviously concluded that interim relief should be granted, it is not considered that Her Honour was there intending to do anything other than to grant interim relief. It is not considered that Her Honour was intending to make any order under s 201 of the Registered Organisations Act instituting an inquiry. Her Honour certainly did not "fix a time and place for conducting [an] inquiry" as required by s 201. When the matter came before the Court on 5 May 2011 Counsel on behalf of Mr Kelly contended that such an order had nevertheless been made. Alternatively, he contended that if such an order had not been made it could be made instanter as both the Australian Electoral Commission and Mr Veney were present. No other persons, he contended, had any interest in the inquiry. 6 The step between the granting of interim relief and concluding that an inquiry should be instituted under s 201 may be but a short step but it remains a discrete and important step imposed by the legislature. Indeed, if interim relief is granted pursuant to s 204, such relief may only be granted "[w]here an inquiry into an election has been instituted …". 7 The alternative submission advanced on behalf of Mr Kelly was accepted and an inquiry was ordered to take place on Thursday 19 May 2011. The express institution of an inquiry removes any uncertainty as may arise from the basis upon which interim relief has already been granted. Fixing the inquiry on that date also accommodated the position of Mr Veney who maintained that he was not ready to proceed on 5 May 2011 and who wished to have an opportunity to adduce evidence. As events transpired, Mr Veney only requested a matter of days in order to determine whether or not there was further evidence he wished to adduce and it was obviously of importance to have an inquiry conducted sooner rather than later. 8 These reasons are provided in respect to the order to conduct an inquiry as made on 5 May 2011.

The Registered Organisations Act 9 The relevant provisions of the Registered Organisations Act are within a narrow compass. 10 First, s 166 deals with the entitlement of persons to become and remain a member of an organisation. Sub-sections (1), (2) and (3) provide as follows: Entitlement to become and to remain a member Employee organisations (1) Subject to any modern award or order of FWA, a person who is eligible to become a member of an organisation of employees under the eligibility rules of the organisation that relate to the occupations in which, or the industry or enterprise in relation to which, members are to be employed is, unless of general bad character, entitled, subject to payment of any amount properly payable in relation to membership: (a) to be admitted as a member of the organisation; and (b) to remain a member so long as the person complies with the rules of the organisation. (2) Subsection (1) does not entitle a person to remain a member of an organisation if the person ceases to be eligible to become a member and the rules of the organisation do not permit the person to remain a member. (3) A person who is qualified to be employed in a particular occupation, and seeks to be employed in the occupation: (a) is taken to be an employee for the purposes of this section; and (b) in spite of anything in the rules of the organisation, is not to be treated as not being eligible for membership of an organisation merely because the person has never been employed in the occupation. The ancestry of this provision was recounted by Moore J in Australian Education Union v Lawler [2008] FCAFC 135 at [272] to [278], 169 FCR 327 at 333 to 334. Moore J there said of s 166 the following: [7] If a person was eligible for membership of an organisation then, subject to presently irrelevant qualifications, that person was entitled to be admitted as, and remain, a member, although subject to the rules of the organisation and the provisions of the WR Act. Generally this was reflected in s 166 … Two things should be noted about this section. The first was that the statutory entitlement to membership of an organisation of employees was one conferred on an employee eligible for membership even though, at the time, the employee was not employed in an occupation specified in the eligibility rule but was seeking employment. The second is important. There was a statutory entitlement to remain a member conferred by s 166(1)(b). However by operation of s 166(2) that entitlement did not arise if two circumstances both existed. The first was that the person had ceased to be eligible to become a member. The second was that the rules of the organisation did not permit the person to remain a member. In the absence of a rule which did not permit the person to remain a member, the person who had ceased to be eligible to become a member nonetheless had a statutory right to remain a member. See also: Lander J at [64]. 11 Second, s 200 (within Chapter 7, Part 3 of the Act) deals with applications that may be made to this Court for an inquiry and relevantly provides in s 200(1) as follows: Application for inquiry When member of organisation may apply for inquiry (1) 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. … An "irregularity" is defined in s 6 as follows: "irregularity", in relation to an election or ballot, includes: (a) a breach of the rules of an organisation or branch of an organisation; and (b) an act or omission by means of which: (i) the full and free recording of votes by all persons entitled to record votes and by no other persons; or (ii) a correct ascertainment or declaration of the results of the voting; is, or is attempted to be, prevented or hindered; and (c) a contravention of section 190. See also: Tracey, R, 'The Legal Approach to Democratic Control of Trade Unions' (1985) 15 Melbourne University Law Review 177 at 185. 12 Third, s 201 provides as follows: Instituting of inquiry Where: (a) an application for an inquiry has been lodged with the Federal Court under section 200; and (b) the Court is satisfied that there are reasonable grounds for the 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. 13 The manner of operation of ss 200 and 201, and the meaning to be given to the term "irregularity", have been previously considered in Re Killesteyn, in the matter of an application for an inquiry in relation to offices in the Australian Salaried Medical Officers' Federation (Qld) [2009] FCA 1311, 261 ALR 730. 14 If an inquiry is to be held, ss 205 and 206 direct attention to the procedure to be followed at such an inquiry and the action that may then be taken by this Court. Section 205, it may presently be noted, provides as follows: Procedure at hearing (1) The Federal Court must allow to appear at an inquiry all persons who apply to the Court for leave to appear and who appear to the Court to have an interest in the inquiry, and the Court may order any other person to appear. (2) The persons appearing, or ordered under subsection (1) to appear, at an inquiry are taken to be parties to the proceeding. (3) For the purposes of this Part: (a) the procedure of the Court is, subject to this Act and the Rules of Court, within the discretion of the Court; and (b) the Court is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it considers just. And s 206 provides as follows: Action by Federal Court (1) At an inquiry, the Federal Court must inquire into and determine the question whether an irregularity has happened in relation to the election, and such further questions concerning the conduct and results of the election as the Court considers necessary. (2) For the purposes of subsection (1), the Court must determine whether an irregularity has happened on the balance of probabilities. (3) In the course of conducting an inquiry, the Court may make such orders (including an order for the recounting of votes) as the Court considers necessary. (4) If the Court finds that an irregularity has happened, the Court may, subject to subsection (5), make one or more of the following orders: (a) an order declaring the election, or any step in relation to the election, to be void; (b) an order declaring a person purporting to have been elected not to have been elected, and declaring another person to have been elected; (c) an order directing the General Manager to make arrangements: (i) in the case of an uncompleted election-for a step in relation to the election (including the calling for nominations) to be taken again and for the uncompleted steps in the election to be taken; or (ii) in the case of a completed election-for a step in relation to the election (including the calling for nominations) to be taken again or a new election to be held; (d) an order (including an order modifying the operation of the rules of the organisation to the extent necessary to enable a new election to be held, a step in relation to an election to be taken again or an uncompleted step in an election to be taken) incidental or supplementary to, or consequential on, any other order under this section. (5) The Court must not declare an election, or any step taken in relation to an election, to be void, or declare that a person was not elected, unless the Court is of the opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have happened or may happen, the result of the election may have been affected, or may be affected, by irregularities. (6) Without limiting the power of the Court to terminate a proceeding before it, the Court may, at any time after it begins an inquiry into an election, terminate the inquiry or the inquiry to the extent that it relates to specified matters. 15 When conducting an inquiry, it may further be presently noted that it will be Mr Kelly who will bear the onus of proving those facts relevant to the "irregularity" asserted: Re Nimmo [2011] FCA 38. Reeves J there considered (inter alia) "two interrelated questions: what is the standard of proof and who, if anyone, bears the onus of proof?": [2011] FCA 38 at [27]. The former question, as noted by His Honour had previously been the subject of decisions of this Court but was now resolved by s 206(2). His Honour continued: [28] While this does not directly resolve the interrelated question as to who, if anyone, bears the onus of proof, I consider it does so by implication. Since the civil standard of proof has now been adopted by the legislature for the purposes of this type of inquiry, in my view that clearly implies that someone has to meet that standard in the inquiry. As Gray J observed in Re Bailey; Re Transport Workers' Union of Australia (Victorian Branch) (1997) 79 IR 1, while these proceedings are in the nature of an inquiry, they must still be conducted as judicial proceedings (see at 21). I consider it follows the person who "claims that there has been an irregularity in relation to an election" under s 200(1) of the Act must at least bear the onus of producing evidence to satisfy the court that the irregularities he or she claims to have occurred did, in fact, happen. …. I also note that in Re Jacomb (2000) 180 ALR 134, [2000] FCA 1891 …Weinberg J (at [9]) appears to have accepted that an applicant in a similar position to Mr Nimmo bears such an onus. I therefore reject Mr Nimmo's counsel's contention on this issue and hold that Mr Nimmo does bear the onus of producing evidence to satisfy me that the irregularities he claims occurred in relation to this election, did happen. See also: Re Asmar, in the matter of an election for offices of the Health Services Union [2009] FCA 1294 at [21] per Tracey J.

The Rules of the Union - Working in the Industry 16 Two of the Rules of the Union assume present importance. 17 First, rule 30 provides as follows: 30 - PURGING OF THE REGISTER a. Each Branch Secretary shall from time to time as directed by the Branch Executive strike off the Register of Members the names of all members who satisfy the following criteria: i. All members owing subscriptions fines or levies for a period of 52 weeks or more, provided that members so struck off shall not be free from liability for arrears due. ii. Any or all members who have ceased to be eligible for membership under Rule 5 of these rules. iii. Notwithstanding anything in these rules, if the Branch Executive is satisfied that a member has ceased to be eligible under the rules of the Union to be a member of the Union, by reason of ceasing to work in the industry or industries specified in Rule 5 or otherwise, the Branch Executive may declare that such person shall cease to be a member of the Union. Where such persons owe money to the Union they shall be liable to pay immediately all subscriptions, levies, and fines due and owing to the Union, and, in default of payment, may be sued for any outstanding amounts. b. The Branch Secretary shall give a member fourteen days' notice in writing to the member's last address shown on the Register of Members of the intention to strike the name off the Register. c. Any member whose name has been so removed from the Register shall thereupon cease to be a member of the Union or to have any of the rightful privileges of membership. d. Any such member shall be liable to pay all such contributions, subscriptions, dues, fines or levies and any other monies due to the Union up to the date of the removal of the member's name from the Register. The provision of that Rule which assumes primary relevance is Rule 30(a)(iii) and the provision that a person may cease to be eligible to be a member "by reason of ceasing to work in the industry …". Rule 30(b) and (c) impose a procedural requirement to give notice of the consequences of removing a person's name from the Register. 18 This rule was characterised on behalf of the Applicant as a "qualified purging rule": Re Purvinas, in the matter of an application for an inquiry in relation to an election for offices in the Australian Licensed Aircraft Engineers Association [2010] FCA 672. Moore J there observed as to the manner of operation of a comparable provision there in issue as follows: [9] However the rule also provided (in r 6(2)(c)) that membership would cease if the member was notified in writing by the General Secretary "that he is no longer eligible to be a member of the Association under the conditions of eligibility thereof". It is tolerably clear that this was a qualified purging rule. By that I mean that, under the rules, a member who no longer satisfied the conditions of eligibility could be stripped of their membership (irrespective of the member's wishes) by a notice from the General Secretary. The membership did not cease automatically when the person no longer satisfied the conditions of eligibility. The sub-rule required, as a condition precedent to the membership ceasing, that notice be given. However that condition precedent probably can be described as a procedural formality. The substance of the sub-rule was that membership ceased when a member ceased to be eligible for membership. 19 Second, Rule 39 provides as follows: 39 - ELIGIBILITY OF CANDIDATES a. (i) Only members of the Union who are financial at the date on which nominations close, and have been continuously financial for twelve months immediately preceding that date, shall be eligible to be nominated for any Office within the Union. For the purposes of this Sub-rule, financial membership of an organisation whose members have, by means of an amalgamation, become members of the Union, shall be counted in the calculation of any period of membership. (ii) Only members of National Executive who are otherwise eligible in accordance with this Rule shall be eligible to be nominated for any of the National Offices set out in Rule 37.a.i. b. Deleted. c. In addition to the qualifications set out in a. and b. hereof, only members attached to a Branch may be nominated for election to any of the Branch Offices of that Branch. d. In addition to the qualifications set out in a, b. and c. hereof, only members allocated to an Industry Division, Sub-Branch, Section, District, Zone or other subordinate part created by or in a Branch pursuant to these Rules, may be nominated for an Office for which the members of such Industry Division, Sub-Branch, Section, District, Zone or subordinate part, form the sole electorate. e. In addition to the qualifications set out in a.i. hereof, only women members may be nominated for Branch Offices designated in the Branch Rules as reserved for women.

The Election Process 20 These two rules assume importance in the election process now being undertaken. 21 That election process commenced on 23 February 2011 when the Returning Officer of the Australian Electoral Commission (Mr Rhys Richards) fixed the timetable for the election presently in issue. In accordance with that timetable nominations opened on 9 March 2011 and closed on 30 March 2011. The ballot was to open on 20 April 2011 and was to close on 11 May 2011. 22 In accordance with that timetable, Mr Richards wrote to Mr Kelly on 30 March 2011 and advised him that nominations had closed and that two nominations had been received in respect to the position of Branch Secretary - one was for Mr Kelly himself and the other was from Mr Veney. 23 On 31 March 2011 Mr Kelly wrote in his capacity as Branch Secretary to Mr Richards informing him that there were "significant concerns as to [Mr Veney's] membership and his eligibility to contest the election". The letter continued in part as follows: In summary the Union holds no evidence that Mr. Veney has since he ceased employment with the United Services Union on 18 September 2006, been employed in Local Government. Similarly the Union holds no evidence that he is currently employed within that aspect of the Eligibility Rule which broadly would be characterised as relating to clerical or administrative duties. His eligibility status has been under review previously and no concluded position was reached and on review it appears to have been a matter of oversight that a concluded position was not reached some time ago. The letter concluded: The Union intends pursuant to Rule 30 to seek to give notice to Mr. Veney of an intention to purge his membership. He must be given 14 days notice by post in that regard and a relevant executive meeting is scheduled for 18 April. Pursuant to the Union Rules it is possible for the ballot to open, up to 4 weeks post the close of nominations. This could be accordingly 27 April 2011. The concerns in relation to Mr. Veney's possible status were foreshadowed by Mr. Hughes to your organisation in a telephone attendance of 30 March 2011 upon Mr. Rhys Richards. In the circumstances the Union respectfully asks the Australian Electoral Commission to defer the dispatch of any ballot papers until at least 27 April 2011 which would be in accordance with the Rules and this additional time should permit this matter to be settled. 24 On the following day, on 1 April 2011, Mr Kelly also wrote to Mr Veney giving him notice that consideration was being given to striking his name off the Register of Members. That letter provided in part as follows (without alteration): This letter, is to give you written notice pursuant to Rule 30 b of the ASU Rules that consideration will be given by the Branch Executive meeting of the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Branch of the ASU scheduled for 18 April 2011 at 9a.m. at Level 7, 321 Pitt Street, Sydney NSW that you have ceased to be eligible for membership of the Union under Rule 5 and the Branch Executive may if that is the determination, direct the Branch Secretary to strike your name off the Register of Members. Specifically there is no persuasive evidence available to the Union or supplied by you, that you are engaging in work in the industry or industries specified within the Constitution of the Union and more specifically you are engaging in employment within Rule 5a Part 1 or 11 or 5b 1 or 11. There is no evidence available at this time to the Union that you are employed in any relevant Local Government context. The last evidence available to the Union was that this was not the case. There is no conclusive evidence available that you were employed in any administrative or clerical capacity. The evidence overall is substantially to the contrary, in that there was correspondence and communication on the point dating back now to in or about 2006/2007. You have not provided any updated information to the Union in the intervening period to advance the proposition that you are employed in the clerical and/or administrative industry. There was annexed to that letter a series of documents said to support the concerns being expressed to Mr Veney. Mr Veney was further notified of the meeting to be held on 18 April 2011 by a subsequent letter forwarded to him on 11 April 2011. The central matter to which Mr Veney's attention was directed was the concern that "there is no persuasive evidence available to the Union or supplied by you, that you are engaging in work in the industry" and that there was "no evidence available at this time to the Union that you are employed in any relevant Local Government context …". 25 Intervening between these two dates was a letter forwarded to the Australian Electoral Commission on 7 April 2011 by the solicitor then acting for the Union, Mr Barnes. On the basis of the information then available, Mr Barnes stated that "there is every prospect that Mr Veney will be purged from the Register of Members". An application to this Court was then also foreshadowed. On 15 April 2011 the Director of Legal Services for the Australian Electoral Commission responded to Mr Barnes confirming the intention to proceed with the election in the following terms: Your letter concerns the forthcoming election for the office of Branch Secretary of the New South Wales Local Government Clerical, Administrative, Energy, Airlines & Utilities Branch of the Australian Services Union (the Union). Specifically, your letter raised the prospect that one of the candidates in that election, Mr Veney, might be purged from the Register of Members at the proposed Branch Executive Meeting on 18 April 2011. The Australian Electoral Commission (AEC) accepted Mr Veney's nomination on the basis of the Secretary's certification that Mr Veney was a financial member of the Union. The status of Mr Veney's candidature in the event of him being purged from the Union's registry of membership is unclear. Accordingly, the AEC does not believe that an action to defer, or indeed cancel, the ballot will resolve this matter. In the interests of fairness to all parties, the AEC therefore proposes to proceed with the ballot timetable as advertised. 26 It was on 18 April 2011 that Mr Veney wrote to Mr Kelly in his capacity as Branch Secretary. Mr Veney maintained that he remained a member of the Union. A Branch Executive meeting was apparently held on that day and a decision was then taken that Mr Veney ceased to be a member of the Union. 27 Mr Kelly thereupon wrote to Mr Richards at the Australian Electoral Commission, also on 18 April 2011, a letter in the following terms: I write as Branch Secretary of the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Branch to advise that the Branch Executive meeting on 18 April 2011 in summary declared that Mr. Veney had ceased to be a member of the ASU and directed the Branch Secretary to strike Mr. Veney's name from the register of Members. Prior to the Branch Executive meeting a letter was received from Mr. Veney dated 18 April and a copy is attached for your consideration. There is nothing in that letter that supports Mr. Veney having a continued entitlement to membership. That step has been taken. I accordingly invite you as the Returning Officer to declare me elected unopposed on the grounds that Mr. Veney is no longer entitled to stand as a candidate in the election since he is no longer a member.

A Claimed Irregularity & Reasonable Grounds 28 The Application as filed by Mr Kelly in this Court on 18 April 2011 invoked the jurisdiction conferred by s 200. 29 In making that Application Mr Kelly claimed that there had been an "irregularities … that … occurred in relation to the election". Prior to making that Application, Mr Veney had been invited by the letter forwarded to him on 1 April 2011 to respond to the concerns being expressed on behalf of the Union and to provide information as to why his name should not be removed from the Register of Members. That letter was written in conformity with the requirement imposed by Rule 30(b) of the Rules that 14 days' notice be given. 30 But steps taken on behalf of a Union prior to an application being made by a "person" pursuant to s 200(1) may presently be left to one side. Also left to one side is whether it is relevant to inquire into the steps taken prior to the Court's jurisdiction being invoked. The manner in which the Court may respond to an application being made in circumstances where there is neither a factual nor legal basis for the claims being advanced on behalf of the person who invokes the jurisdiction of this Court need not be resolved. Such is not the present case. 31 The prospect of an application being made in circumstances devoid of substance is presumably a reason for the requirement imposed by s 201(b), namely that the Court itself must be "satisfied that there are reasonable grounds for the application." In Re Killesteyn the following observations were made in respect to this requirement: [23] The power conferred by s 201 is constrained by the requirement that the court be "satisfied that there are reasonable grounds for the application". Grounds which provide no more than a speculative basis for a suspicion will not suffice: Re Post; Election for Offices in Transport Workers Union of Australia (WA) (1992) 40 IR 162. When considering the terms of earlier comparable legislation, French J there formulated the approach to be applied as follows (at 166): Reasonable ground for the application The question for the court mandated by s 219(b) of the Industrial Relations Act 1988 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 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 an evaluative judgment at this preliminary stage. See also: Re Randall (1993) 44 FCR 324 at 325 per French J. The same approach should be applied to s 201(b) of the 2009 Act. [24] To invoke this court's power to conduct an inquiry, it has been said, is "a serious matter": Re Jarman; Ex parte Cook (No 2) (1996) 136 ALR 233. Again, when addressing the terms of s 219, which conferred power on the Industrial Relations Court to conduct an inquiry, Kirby J there observed (at 241): It is true that the powers of the Industrial Relations Court in conducting an election inquiry should not be narrowly construed. But the Act has provided ample powers to the court to make orders, as appropriate and necessary, including at short notice, to meet irregularities appearing in the course of an inquiry into an election. To invoke the jurisdiction of the Industrial Relations Court and to conduct an inquiry into an election is a serious matter. This explains the procedure established by s 219(b) by which, before an inquiry is conducted, the court must be satisfied that "there is reasonable ground for the application". I say that the step is a serious one because it affects confidence in the integrity of the conduct of the organisation; introduces an element of uncertainty in the tenure of the office-holders affected; distracts the attention of those office-holders, to some extent, from the pursuit of their industrial functions; consumes a great deal of time of the organisation and of public office-holders; and involves much public and private cost. In such circumstances, the proper inference is that the Parliament intended that electoral inquiries should not be lightly embarked upon nor extended unnecessarily beyond the subject matter of the particular application. That is the scheme of Pt IX Div 5 of the Act. The provision of s 221(1)(c) must be read to give effect to that scheme … And, again, the same reservation is appropriate when an application is made pursuant to s 200 of the 2009 Act and when an inquiry is conducted pursuant to s 201: Re McJannett (No 2) [2009] FCA 1015 at [102] per Barker J. [25] Although it may be accepted that the holding of an inquiry is "a serious matter", it has also been said that the statutory precondition to the holding of such an inquiry has been set by the legislature at a "low" level: Bourne v Campbell [1999] FCA 1522 at [8], (1999) 93 IR 238 at 240. Einfeld J there observed: [8] When this application was first listed for directions, the Court was not invited by the respondents to determine that there was, as raised by s 219, no reasonable ground for the application. Yet a finding of satisfaction of the matter is in truth a statutory pre-requisite to the fixing of the hearing and the institution of the inquiry. The difficulty of reaching a preliminary view such as required by s 219, at a time when both the Court and the parties may not be in a position to consider the question, is probably at least one of the reasons for the presence in the legislation of s 223(5). In other words, if the Court and the parties are to achieve an early hearing of an inquiry into an election, as will virtually always be desirable, the level of satisfaction required by s 219 will ordinarily be quite low. The power to terminate under s 223(5) will then enable the Court to end an inquiry if a little later it is shown that there is no reasonable basis upon which the application can succeed. Whether it is correct to conclude that the "level of satisfaction … will ordinarily be quite low" may be left to one side. The level of satisfaction required is that prescribed by the legislature; namely, the Court must be "satisfied that there are reasonable grounds" for the application being made. The comments there made are adhered to. The observations of French J (as His Honour then was) in Re Post and the observations of Kirby J in Re Jarman have also been applied by Tracey J in Re Asmar, in the matter of an election for officers of the Health Services Union [2009] FCA 1294. 32 For present purposes, it is sufficient to conclude that there are "reasonable grounds for the application" within the meaning of and for the purposes of s 201(b). Those "reasonable grounds for the application", it is concluded, follow from the fact that: Rule 30(b) provides for the removal of a person's name from the Register of Members; Rule 39 provides for the eligibility of candidates; s 166(2) provides that a person may cease to be eligible for membership; and from the fact that: 14 days' notice has been given in accordance with Rule 30(b); and upon the information available it was open to the Union to conclude that Mr Veney had ceased to be eligible to be a member "by reason of ceasing to work in the industry" within the meaning of Rule 30(a)(iii); and upon Mr Veney's name being removed from the Register, he thereupon ceased "to have any of the rightful privileges of membership" within the meaning of Rule 30(c). The Court can thus be "satisfied that there are reasonable grounds for the application" for the purposes of s 201(b). To reach such a state of satisfaction, however, may say little as to the correct characterisation of any "irregularity" or the ability to grant relief pursuant to s 206 where any "irregularity" may not as yet have "happened". 33 These "facts", accordingly, may need to be revisited at the inquiry to be held on 19 May 2011 and the correct interpretation and application of the Rules may also need to be revisited. But, for present purposes, it is sufficient to conclude that these "facts" and rules provide a reasonable basis for concluding that an inquiry should be held.

The Relief Claimed 34 The Application as filed expressed itself to be an Application under s 200 of the Registered Organisations Act. That section expresses itself in terms of an application being made "for an inquiry by the Federal Court into the matter". But no such order was sought. 35 The relief which was sought in the Application was expressed as follows: 1. That the Court Declare/Order that: (a) an irregularity has occurred in the election for the office of Branch Secretary of the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Branch of Australian Municipal, Administrative, Clerical and Services Union, by the acceptance of Veney's' nomination and eligibility to stand for that position. (b) Mr Allan Veney is ineligible to stand for election to the office of Branch Secretary of the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Branch of the Australian Municipal, Administrative, Clerical and Services Union, (c) the acceptance by the returning officer of the nomination for election for the office to stand for that position of Mr Veney is invalid. (d) The returning officer declare Mr Graeme Kelly is elected to the position of Branch Secretary of the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Branch of the Australian Municipal, Administrative, Clerical and Services Union. 36 Whether such relief may ultimately be granted must necessarily await the results of the "inquiry" which must first be conducted. No declaratory relief (if any) should be granted until an inquiry is first held and until those who may have an interest in the subject matter of the inquiry being heard have the opportunity to appear. 37 Why an express order was not sought in the Application as filed for an inquiry was not explained. In the absence of explanation, it would seem desirable that such an order be expressly sought such that attention can be specifically focussed on the requirements imposed by s 201. 38 An issue which should also be addressed at the inquiry is the source of the power to grant the relief as sought. Section 206(1), it will be noted, is expressed in terms of whether an "irregularity has happened." Section 206(4) is thereafter also expressed in terms of the orders that may be made where "an irregularity has happened". On one view of the facts in the present proceeding, it may be that no "irregularity has happened" as yet. On one view of the facts, it may be that Mr Veney has been properly nominated and the Australian Electoral Commission may have taken no decision after he may have ceased to be eligible for election. An "irregularity" may perhaps only occur if the election were to proceed with Mr Veney as a candidate and if he were to be elected. These are questions, however, which can be deferred until the hearing of the inquiry when submissions can be made on behalf of Mr Kelly and Mr Veney - and, indeed, the Australian Electoral Commission. So, too, can submissions then be directed to the possible relevance of s 190. 39 Section 200, it should also be noted, is also expressed in terms of there having "been an irregularity in relation to an election". It would be a curious result if the Court could institute an inquiry by reason of there being satisfied that "there are reasonable grounds for the application" (s 201(b)) but be constrained in any ability to grant relief pursuant to s 206 by reason that the "irregularity" has not as yet "happened". It would also be curious if the Court could not institute an inquiry because an "irregularity" has not as yet "happened" even though such an "irregularity" is imminent. No submission was advanced in the present proceeding that the power to institute an inquiry pursuant to s 201 was not available by reason of the "irregularity" the subject of the s 200 application not having as yet happened.

Conclusions 40 It is thus concluded that "there [were] reasonable grounds for the application" within the meaning of and for the purposes of s 201 of the Registered Organisations Act. Notwithstanding the fact that the institution of an inquiry is a "serious matter", it was considered on 5 May 2011 appropriate that an inquiry should be held in the present proceeding. 41 Such a conclusion says nothing as to the ultimate fate of the contentions sought to be advanced by Mr Kelly. 42 Should Mr Veney apply on 19 May 2011 for leave to appear as contemplated by s 205(1), that application would most probably be granted and he would thereafter be taken to be a party to the proceeding in accordance with s 205(2).

THE ORDERS OF THE COURT ARE : 1. Pursuant to s 201 of the Fair Work (Registered Organisations) Act 2009 (Cth), an inquiry is to be held in Sydney commencing on Thursday 19 May 2011 at 9:30am. 2. Mr Alan Veney is to file and serve any evidence upon which he wishes to rely on or before Friday 13 May 2011 at 4:00 pm. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (11 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (15)

Cited By (6)