CFMEU v Kavanagh

grounds relating to Mr kavanagh and Mr reynold's conduct not involving use of union resources 43 The applicant's application squarely depends on showing that conduct complained of contravenes s 190. It was not argued on any other basis. 44 As noted earlier, the offence created by s 190, can only be committed by an organisation or branch if it uses or allows to be used its property or resources "to help a candidate against another candidate in an election". 45 It follows that the grounds of the application referred to in 7 and (3) above concerning the alleged improper or other conduct of Mr Kavanagh and Mr Reynolds cannot, in these circumstances, constitute a contravention of s 190. 46 For these reasons, those grounds must fail.

conduct relating to the calling of nominations 47 Nominations for the elections for the relevant positions were called on 28 August 2008. The allegations made by the applicant concerning conduct which pre‑dates the calling of nominations would, on the face of it, appear incapable of falling within the meaning of "irregularity" as defined. 48 The conduct in this category is that referred to in the first two affidavits of the applicant concerning the alleged use of the CFMEU's register of members. In this regard, the "resources" alleged to have been used contrary to s 190 are said to be the union membership roll: see affidavit of the applicant sworn 20 October 2008 at [24] and [29]. The use said to have been made of the roll is said to be evidenced or inferred from "election flyers" sent out by Mr Kavanagh on 18 June 2008, 8 August 2008, and by Mr Reynolds on 22 July 2008 and 14 August 2008. 49 The applicant says the Court should draw an inference that due to the receipt in the mail of the election flyers by the applicant, there must have been some access to the register by both Mr Kavanagh and Mr Reynolds. However, it is only the use of the register made by Mr Reynolds which the applicant says involves a contravention. That seemingly is because the applicant considers that the CFMEU was supporting Mr Reynolds and not Mr Kavanagh. 50 The applicant's affidavit of 13 October 2008 concerning the election flyers plainly relates to the period prior to 28 August 2008 when nominations were called. 51 Contrary to the submission of the applicant that the relevant period of "an election" and the meaning of the expression "in an election" used in s 190, and referred to above, I accept the submissions of the CFMEU, Mr Kavanagh and Mr Reynolds, as interested persons, that not only was there no "election" at material times when the election flyers were sent out, but there was also no "candidate" who could be helped by the use of resources at material times, as required by s 190. 52 The FWRO Act expressly distinguishes between candidates and prospective candidates, for example, in s 216. In my view, if the Parliament had intended s 190 to treat conduct in relation to each in the same way, it could easily have made provision to this effect. Parliament can be taken to be fully conversant with the manner in which industrial legislation, especially that creating offences, is strictly construed by courts. Re Collins, relied on by the applicant in setting out the legislative history to s 190, is a case in point and was referred to in the Parliamentary Committee Report. 53 When one has regard to the fact that s 190 is concerned with the assistance an organisation or branch might provide to "a candidate against another candidate in an election", it is plain that the Parliament was concerned with conduct in the course of an election by a declared candidate and not in anticipation of an election or after an election has been called but where candidates are not yet declared. All this, in my view, follows from the text of s 190 itself. However, the legislative history of s 190 in my view also goes to support that interpretation. 54 Additionally, this interpretation of the relevant "election" period also reflects the way in which rules designed to prevent the use of union resources for particular candidates have been construed at earlier times. For example, in Tanner v Maynes (1985) 7 FCR 432 (Tanner v Maynes), the Full Federal Court (Evatt, Northrop and Keely JJ) had to deal with an application under s 141 of the Conciliation and Arbitration Act 1904 (Cth) for directions for performance of rules of an organisation, namely, the Federated Clerks Union of Australia. By notice given on 1 April 1985, the returning officer gave notice he was conducting an election within the Victorian Branch of the union for a number of offices. The notice called for nominations to be made at any time from 1 April 1985 but not later than 12 noon on 15 April 1985. On 3 April 1985, the applicant lodged his nomination as a candidate for the offices of Assistant State Secretary, for one of the offices of State Councillor and for one of the offices of National Councillor. Earlier on 20 March 1985, some 200 pamphlets had been observed that carried the logo of the union. The document also indicated that it had been "Issued by the Federated Clerks Union of Australia". 55 On 10 April 1985, the applicant relying on s 141 of the Conciliation and Arbitration Act obtained a rule nisi calling upon the respondents, being the six persons named as being present at the commencement of the meeting of the National Executive Committee of the union on 31 January 1985 to show cause on 19 April 1985 why orders should not be made that they perform and observe the rules of the union, including in respect of the publishing of the pamphlet out of the funds of the union. Reliance was made on the decision in the Full Court in Scott v Jess (1984) 3 FCR 263 (Scott v Jess) in which Gray J at 286 - 288 stated four principles, the first of which was that officers exercising power within an organisation shall not exercise that power to authorise the use of the resources of the organisation to support or promote a candidate or a group of candidates during the conduct of an election to offices within the organisation. 56 In Tanner v Maynes, Evatt and Northrop JJ at 441 - 442 (who were members of the Court in Scott v Jess) agreed with the statement of the four principles of Gray J (which they listed as (a) - (d)) and said of the first principle that it imposed an absolute prohibition on the exercise of powers by officers of organisations which applies during a restricted period, namely "during the conduct of the election". Their Honours observed that the prohibition did not apply, however, to the distribution of material before the commencement of an election, although that did not prevent the application of a second principle stated in Scott v Jess, that officers of an organisation are under a duty to exercise powers conferred upon them by the rules of the organisation bona fide for the purposes for which the powers are conferred. 57 On the other hand, the third member of the Full Court in Tanner v Maynes, Keely J, considered that the first principle drawn from Scott v Jess should not be limited in the way suggested by Evatt and Northrop JJ. His Honour at 451 considered such a limitation would be unreal and artificial and that the principle was directed towards the harsh realities of what happened "in an election campaign" including the use of an organisation's resources to produce or distribute "electioneering material". This is in effect the contention now put by the applicant. 58 Notwithstanding the real world analysis provided by Keely J, s 190 is not a provision that depends on the construction of union rules, duties to act in good faith and the like, but is an express statutory offence provision introduced by the Commonwealth Parliament to deal with a particular issue. In my view it is unambiguous that the conduct proscribed by s 190 is assistance provided to a candidate in an election. There needs to be both a "candidate" involved, and an "election". 59 That s 190 is an offence provision is also relevant to its interpretation. A penalty provision is to be strictly construed in favour of the accused: see Trade Practices Commission v TNT Management Pty Ltd (1985) 58 ALR 423 at 427. This is an additional and compelling reason not to consider the terms "candidate" and "election" to have expansive interpretations. 60 In such circumstances, the present real questions are: (1) is there a candidate; and (2) when does an election period commence? 61 As to the latter question, in Hodge,relied on by the applicant as referred to earlier, Griffith CJ at 379 made it clear that the election begins when "the first step is taken that is prescribed by law as a necessary step in the process of holding an election". That view appears to have been supported by Barton J at 382 and 383, and is also consistent with what Isaacs J said at 387 concerning "the whole of an election as a combined process, a continuous process, consisting of a number of steps ending in the election of some representatives". 62 On the material before the Court, the first step in the election process is the calling of nominations for the relevant positions. That occurred, on the facts before me, on 28 August 2008. 63 In my view, s 190, in circumstances such as these, has no application to the conduct complained of relating to the election flyers that occurred prior to 28 August 2008. At that time there was no election underway, and, in turn, there were no candidates. 64 I also consider there is a real question whether, on the material before the Court, it could be said in any event that the union has helped one candidate against another when the assistance complained of is the utilisation of information in a register of members, that is freely available to any member. 65 In this regard, s 69(9) of the WAIR Act gives an unqualified right of access to the register, through the Registrar of the Western Australian Industrial Relations Commission (WAIRC). The facts suggest that Mr Reynolds wrote to the returning officer of the Western Australian Electoral Commission (WAEC) well prior to the opening of nominations in the CFMEU elections and was subsequently provided with a copy of the register: see the affidavit of the applicant, sworn 18 March 2009 at [17] and annexure A; see also Mcjannett v Reynolds [2009] WAIRComm 211 (Mcjannett v Reynolds) from [13] - [29]. The applicant could have availed himself of those rights prior to nominations opening in the CFMEU elections if he intended to become a candidate at that stage. Once in possession of the register, he could have communicated with members of the CFMEU/CFMEUW for the purposes of electioneering, as Mr Reynolds and Mr Kavanagh appear to have done. 66 The interested persons point out that the applicant complained in the proceedings in the WAIRC that he was not provided with a copy of the register in August 2008 by the returning officer of the WAEC. However, it was not alleged in those proceedings that the CFMEU, CFMEUW or other candidates had acted improperly in applying for and receiving copies of the register from the WAEC. The interested persons say that the source of the applicant's grievance is the fact that the CFMEUW elections were stayed by Ritter AP on 16 September 2008, at a time prior to the applicant receiving a copy of the register that he had requested: see applicant's affidavit sworn 18 March 2009 at [17] and annexure A. 67 The interested persons also point out that, additionally, r 33 of the CFMEUW Rules (rules) provides that the books and register of the members of the CFMEUW "shall be open for inspection at the registered office by any financial member of the Union at all reasonable times during business hours". They contend this provides an unqualified right of access to the register and that the applicant could have availed himself of this right in order to come into possession of the register or its contents. The exercise of the right cannot be considered relevant assistance by the CFMEU in breach of s 190. The assistance provided by the CFMEUW making its register of members open for inspection under its rules, is not relevantly the conduct of the CFMEU: see Becker: in the matter of an application for an inquiry in relation to an election for offices in the Australian Education Union, Queensland Branch [2004] FCA 1534, Cooper J at [27]. 68 I accept these submissions. 69 In conclusion, in relation to the election flyers, I am principally not satisfied that there are reasonable grounds for the application made by the applicant under s 200, based on a contravention by the CFMEU of s 190, because the conduct complained of, even if it be possible to characterise it as an instance of the organisation using or allowing to be used its property or resources to help a person, is not help provided to "a candidate against another candidate in an election under this Part for an office or other position", as that expression in s 190 is properly to be construed. 70 I additionally doubt that the use of the register by Mr Reynolds, on the facts, is relevantly a case of the CFMEU allowing its resources to be used to help one candidate against another, in circumstances where the register of members may be accessed by its members.

sticker and pamphlet relating to mr reynolds 71 The affidavit of the applicant sworn 18 March 2009 at [11] and [12] complains of the distribution of an election sticker that stated "Vote for Kevin Reynolds" that a person was handed when attending a construction skills training centre to take a training course run by the CFMEU in July 2008 and election pamphlets for Mr Reynolds handed out by persons who he believes were fulltime paid CFMEU organisers, which conduct is said to contravene s 190. 72 In my view, because the conduct complained of pre‑dated the commencement of the election it cannot constitute a contravention of s 190. 73 Additionally, at material times, there were no candidates declared and so s 190 was incapable of being contravened. 74 These allegations do not provide reasonable grounds for an inquiry and must fail.

allegations against mr kavanagh 75 In the affidavit of the applicant sworn 18 March 2009 at [9] and [10] the applicant refers to an election flyer sent out by Mr Kavanagh, that he believes was sent out to the entire membership of the CFMEU, and makes other generalised allegations all of which are said to illustrate contravention of s 190. 76 In my view, the allegations made by the applicant concerning Mr Kavanagh's conduct, taken at their highest, do not involve any allegation that Mr Kavanagh acted as an agent of the CFMEU. It is impossible to see a basis therefore on which it can be said that the CFMEU used or allowed to be used its property or resources to help Mr Kavanagh against another candidate at any material time. Section 190 is only contravened if the organisation uses or allows to be used its property or resources in the relevant way. 77 In any event, the conduct complained of was prior to the commencement of the election time when Mr Kavanagh was not a candidate. 78 These allegations do not provide reasonable grounds for an inquiry and must fail.

conduct after the calling of nominations 79 The applicant, in his affidavit, sworn 18 March 2009 at [16] alleges that on Melbourne Cup Day, 4 November 2008, election messages supporting Mr Kavanagh were sent to CFMEU members and up to six separate SMS messages were sent to thousands of members for whom Mr Kavanagh had obtained mobile telephone numbers. 80 So far as this complaint is concerned, it seems to me that, taken at its highest, it cannot involve any contravention of s 190 because it does not involve an allegation that the CFMEU used or allowed to be used its property or resources, as explained above. 81 This complaint is supplemented in [16] of the applicant's affidavit, by the applicant alleging that he was advised by an official of the AEC that he had "at least several hundred complaints". However, an AEC report dated 8 May 2009, states there were no written allegations of irregularity and no irregularity was otherwise identified by the AEC. In my view, there are no reasonable grounds for the application based on the particular set of allegations. 82 At [18] of the applicant's affidavit of 18 March 2009, it is further alleged that by reason of the "sheer number" of posters seen on construction sites and on footpaths and other areas outside adjoining construction sites, union resources must have been used in the form of union organisers and other officials acting in support of Mr Reynolds. 83 The test for determining whether or not reasonable grounds for the application have been demonstrated, as stated by French J in Re Post, makes it clear that a speculative complaint is not sufficient. In my view, this particular allegation is speculative. The allegation is that posters were put up, not only on construction sites, but also outside them. They could have been posted by any number of people. There is nothing to suggest that paid CFMEU organisers were responsible. Such an inference cannot be easily drawn. A range of people with rights of entry to a construction site at material times, for example under s 747, s 757, s 760 of the WR Act might have taken the opportunity to put up such posters. 84 I find there are no reasonable grounds for the application based on this particular complaint. 85 In the affidavit of the applicant sworn 30 March 2009 at [4] the applicant says that he received, at regular intervals, the further election flyers and how to vote notices, either in support of Mr Reynolds and his team, or attacking candidates other than Mr Reynolds. He considers from inquiries made with "numerous other Union members" that all of them received these further documents, that each was sent out to the entire CFMEU membership, and that the CFMEU role continued to be used as a resource to send out these documents. 86 I accept the primary submission made on behalf of the CFMEU and supported by the other interested persons, that the allegations relating to this electioneering material refers to the use made of the register of members. That is a matter discussed above. The primary allegation is that the register was provided prior to nominations opening. The complaint made, properly understood, is simply that Mr Reynolds took advantage of the use of the register of members following the calling of nominations. 87 I find that there is no allegation that the CFMEU provided the register of members to Mr Reynolds, during the election period, that is after 28 August 2008, when nominations were called. 88 The material before me, as explained above, indicates that Mr Reynolds received a copy of the register from the WAEC shortly after the calling of nominations in the CFMEU elections. In those circumstances, there was no relevant "help" provided by the CFMEU out of its property or resources. 89 I find that there are no reasonable grounds for the application based on this set of allegations. 90 In the applicant's affidavit sworn 30 March 2009 at [5], it is alleged that in addition to that electioneering material, in or about late October or early November 2008, the CFMEU brought out the Spring 2008 edition of its union magazine, Construction Worker. The applicant says the editorial page of this magazine contained an address from Kevin Reynolds urging the membership to vote and, at least by implication, to vote for him. Thus, union resources were used in the publication and distribution of a magazine for members. 91 In Scott v Jess, Evatt and Northrop JJ at 272 said this about the use of resources: It cannot be doubted that officers of an organisation have a power to inform members of matters of interest to the organisation and its members and for that purpose to expend the resources of the organisation. It is for the officers of the organisation to determine what matters of interest may be the subject of such information, the nature of that information and the amount of the resources of that organisation to be expended. Eventually, it is for the members of the organisation to exercise control over the officers as provided by the rules. At times, the information published may be contentious and may seem to be favouring one group within the organisation and disadvantaging a competing group. If a member can prove that the publication of that information was not made by the officers bona fide for the purpose of the power conferred upon those officers, orders under s 141(1G) [a provision directed at observance of an organisation's Rules] of the [Conciliation and Arbitration] Act may be made directing the officers to observe and perform the rules of the organisation by refraining from expending the resources of the organisation for the publication of that information. 92 In Tanner v Darroch (1986) 12 FCR 235 (Tanner v Darroch), Gray J at 248 referred to what Wilcox J said in Jess v Scott (1986) 14 IR 341 namely: If, in relation to any particular document and upon a fair reading thereof, it appears that the substantial purpose for which it was printed and distributed was either to advance or to reduce the prospects in the then elections of any candidate or candidates, the second qualification applies. Gray J noted at 248, that the "second qualification" was a reference in the judgment of Wilcox J to what he had said at 344, where his Honour referred to qualifications on the power of an organisation's council of management to spend union monies communicating with members, which he stated in the following terms: that it will not normally be proper for funds of an organisation to be expended upon the support of, or upon opposition to, a candidate for office within the organisation. The second qualification was a restatement of the fourth principle, stated in Scott v Jess by Gray J at at 286 - 289 (and adopted as principle (d) by Evatt and Northrop JJ in Tanner v Maynes as discussed above). Gray J at 249 then stated: It is my firm view that principle (d) requires the application of an objective test. In other words, if, on a fair view of the publication in question, it amounts to electioneering, its production and distribution will be beyond the power given by the rules, whatever may have been the subjective intent of those producing and distributing the publication. … In my view in searching for the 'substantial purpose' of each of the documents there in question, Wilcox J in Jess v Scott was doing no more than examining each document to determine whether, on a fair view of it, it amounted to an electioneering publication, or whether any effect it may have in persuading prospective voters to form views as to how they should cast their votes was incidental to the thrust of its text. 93 In my view, guided by this authority, the question whether the use of CFMEU funds to publish in a magazine an article such as Mr Reynold's "Secretary's Address", contravenes s 190, is to be resolved by reading the publication objectively and determining whether it amounts to an electioneering publication. 94 The particular article that the applicant complains of, which is annexed to his affidavit, is as follows: Secretary's address from Kevin Reynolds I'm pleased to report that our EBA claims are progressing well. We are confident of negotiating a good outcome for our members. In the face of the global economic crisis Western Australia is probably in a better position than most to ride out the storm. I have been through major economic storms before and now is the time to steer a solid ship. The Union elections are on and I ask all members to take the time to exercise their democratic right to vote. We are a democratic union and it's one of the privileges of being a fully paid up member that you get the right to vote. • On the result of the WA state election let me say this: The WA labor government traded away at least 6 months in government by going early. They didn't take ownership of their achievements and failed to communicate the benefits of those achievements. Parachuting so-called super stars into seats instead of local heroes or true believers was a flawed strategy. We now watch with interest if the Barnett Liberal Government will try to introduce a version of workchoices from the ashes of 'Court and Keirath's' draconian laws against workers. Not if I can help it! Buswell has already supported the ABCC! • Noel Washington the champion of all construction workers in the fight to remove the ABCC is going to court on December 2nd and 3rd when a verdict will be handed down. If he goes to jail for choosing to remain silent, a right under law given to murderers but not construction workers, then it will be on the heads of the Rudd and Gillard government. We live in a country where there should be 'One Law for All' under the Southern Cross. The ABCC should be abolished now. Watch this space!!! • In Victoria, barbed wire entry gates needing smart card access which can record all your movements and deny access to union reps have gone up on some sites. This is nothing short of a disgrace. Workers should not have to feel imprisoned in their workplace. We will not tolerate this type of Nazi-style prison camp here in WA. • It was sad to see the deaths of two workers recently at Yandi in the North-West. Once again this highlights the need for unions to have unrestrictive access to sites to check on safety procedures and standards. • Finally, figures compiled from the national office of membership numbers for all CFMEU branches showed that your WA branch achieved a record 19.8% growth in members in the year up to the end of July 2008. This is an extremely good result, achieved largely during the period of Howard's anti worker laws. Sincerely Kevin Reynolds Secretary At the bottom right of that page on which the address appeared the words "Don't forget to vote!" were separately printed. 95 In my view, on an objective view of this published document it does not amount to an electioneering document. It is a general statement that encourages members to vote in the forthcoming elections. There is no mention of any candidates, let alone any criticism of any. Nowhere does the address encourage members to vote for Mr Reynolds or his team. While it might be said in a very general way that the publication of such a document during an election period might be calculated to put the author, if a candidate for election, in a good light, in my view it simply does not pass the threshold test of being an electioneering document; or having that substantial purpose. 96 This allegation is put forward by the applicant as constituting reasonable grounds for considering the publication as the use of the CFMEU's resources in contravention of s 190. There is no separate allegation made that the CFMEU's conduct is in breach of implied rules of the types considered in Scott v Jess. I find there are no reasonable grounds for the application based on the publication of the address of Mr Reynolds. 97 In the affidavit of the applicant sworn 18 March 2009 at [14], the applicant refers to a poster that he is informed a person saw a paid CFMEU organiser put up in the lunchroom of a workplace. He believed the same paid CFMEU organiser had put these posters up in several places during working hours. In his affidavit, made 30 March 2009 at [6] and [7], the applicant additionally alleges that paid CFMEU officials attended a particular construction site during their normal hours and campaigned for themselves and put up posters and stickers for themselves and the Reynolds team and removed stickers and posters belonging to opposing candidates. The applicant contends that the conduct of paid CFMEU officials in acting in these various ways provides reasonable grounds for considering that the CFMEU has used or allowed to be used its property or resources to help a candidate. 98 In my view, the contention of the applicant fails. While questions are raised by such conduct, they do not in my view, constitute "reasonable" grounds for the application. This is because: · The allegations made are very broad, reliant on heresay, that is to say what a range of people have advised the applicant and in that sense involve a degree of speculation. · The conduct alleged, while not beyond the realms of ordinary experience, and so not by any means outlandish, provide no detail which enables an assessment to be made whether the posting of notices or removal of others did actually occur during the work period or other times that do not fit within the time the union officials were in "full‑time employment". · The allegations are generalised as well, in the sense that it is not clear whether the conduct that the applicant has had reported to him directly affected the applicant's opportunities as a candidate or just a general complaint about the conduct of union officials. 99 In my view, the allegations, taken as a whole, do not rest upon any substantial factual foundation, as required by the test enunciated in Re Post. 100 The conduct of persons such as union officials during an election, are almost bound to attract allegations of the type made by the applicant here, in that they may often find it difficult not to show some inclination to partial conduct. In my view, not every technical or incidental action of a union official that might be characterised as involving the use of union resources, should be so characterised. Questions of fact and degree arise. In this regard, I agree with Ryan J said in Nelson v Cameron (2000) 98 IR 46 at [29]: The implied prohibition on the use of an organisation's resources in connection with an election campaign does not, in my view, extend so far as to preclude a salaried officer or employee from engaging, even incidentally, in electioneering during working hours. It is one of the inherent advantages of an incumbent seeking re-election that he or she will have opportunities for favourable exposure to the electorate by attending meetings, communicating with members, formulating or expressing policies on behalf of the organisation and exercising patronage in the making of appointments. There may also be circumstances in which to deny a salaried officer or employee a technical, or incidental, use of the organisation's resources for electioneering purposes, as in the transport of campaign material in the organisation's vehicle for distribution outside working time, would be to place that officer or employee at an unfair disadvantage. It is undesirable in the circumstances of the present case to attempt to define with any more precision what may amount to a technical or incidental use, in that sense, of an organisation's resources. 101 It is ultimately a question of judgment as to whether or not the material before the Court in relation to the posting of election materials and removal of election materials has a sufficiently reliable base, or "substantial factual foundation", as French J put it in Re Post to constitute reasonable grounds for the application. In the event, for the reasons I have set out above, I am not satisfied that the conduct complained of, all of which has a generalised, second hand aspect to it, constitutes reasonable grounds for the application.

conclusion and order 102 The instituting of an inquiry under s 201 is a serious matter, as explained by Kirby J in Re Jarman; Ex parte Cook (No 2) (1996) 136 ALR 233 at 241. The onus to make out a case is on the applicant in bringing an application. On the materials presented by the applicant I am not satisfied that there are reasonable grounds to consider that there is any irregularity by reason of conduct on the part of the CFMEU that is said to contravene s 190. 103 In these circumstances, I would dismiss the application by the applicant for an inquiry by the Federal Court in relation to the elections for offices in the CFMEU the subject of the application. 104 The Court would therefore order: 1. The application by the applicant for an inquiry by the Federal Court in relation to the election for offices in the CFMEU that were declared on 25 November 2008 is dismissed. I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

Associate: Dated: 10 September 2009 Counsel for the Applicant: Mr H Christie

Solicitor for the Applicant: Henry Christie

Counsel for the Construction, Forestry, Mining and Energy Union: Mr TJ Dixon

Solicitor for the Construction, Forestry, Mining and Energy Union: Slater & Gordon Limited

Counsel for Kevin Reynolds: Mr KS Bonomelli

Solicitor for Kevin Reynolds: Jeremy Noble