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.