Nelson v Cameron

7 Jones has denied supplying Fairley with an "endorsement sheet" in that or any other form. He has deposed that endorsement sheets "that I and other people supporting Julius Roe's candidature have used when campaigning out of working hours" were in a different form, two of them being prefaced by the words: "Campaign: Julius Roe for State Secretary in 2000. I am willing for my name to be used in support of Julius Roe in the campaign for State Secretary of the Victorian Branch of the Australian Manufacturing Workers' Union" 8 The third "endorsement form" which Jones said had been used by Roe's supporters bore the following preface: "I/we are aware that a election will be held during the first half of 2000 to decide the position of state secretary. At that election I/we will be supporting the canditure [sic] of Julius Roe and I/we are happy for my/our name(s) to be used on documents and publications etc. promoting the candidate Julius Roe." 9 Fairley also asserts that he was instructed by Roe to meet Ms Vallance, the Union's Occupational Health and Safety Officer who handed him "from the boot of her Union supplied car" 200 or 300 stickers in the form of a triangle bearing on each of its sides the legend "No Turning Back" and containing in the body of the triangle the expressions "Julius Roe, Unity In 2000, AMWU". Fairley further deposed that he was "constantly reminded and prompted" by Roe and Jones of the importance of his campaigning in the country for Roe and was instructed to visit District Committees of the Union under the guise of discussing tariff reductions, but in reality to promote Roe's candidature in the election. Fairley also asserted that, after it became apparent that Darren Nelson of the "Workers' First" faction was opposing the first respondent, Cameron, in the election for National Secretary of the Union, Jones and Roe instructed Fairley to extend his campaigning to support Cameron's candidature in that election. 10 In the week beginning 14 February 2000, Fairley decided to support "Workers' First" candidates in the forthcoming elections and, in particular, to support the candidature of Craig Johnston in the election for State Secretary and that of Darren Nelson in the election for National Secretary. According to Fairley, he told Roe, on a date which was not stated, of his decision and his employment with the Union was terminated by Jones and Cameron on 25 February 2000. Roe's recollection is that after receiving an urgent message from Fairley on 17 February, he spoke to him by telephone on 18 February and was told of Fairley's change of allegiance. Fairly also told him that he had a doctor's certificate and was going on sick leave. When Roe pressed for a meeting face to face, Fairley replied "No, its too late. I agreed to my name being used in a publication." The evidence of Jones was that, on 18 February 2000, he taxed Fairley with allegations that he, Fairley, had been canvassing support for his own prospective candidature against Cameron. According to Jones, Fairley denied the allegations and was instructed to give priority to the campaign against tariff reductions. On 21 February 2000, a medical certificate dated 21 February related to Fairley was forwarded to Jones, certifying that: "This is to certify that FRANK FAIRLEY attended this clinic today due to A MEDICAL CONDITION and is unable to attend work/school from 21/2/00 to 6/3/00 inclusive." 11 That certificate was accompanied by an application by Fairley for sick leave from 21 February to 6 March 2000. Thereupon, Jones attempted unsuccessfully to contact Fairley by telephone and left a message requesting Fairley to meet him in the Union office on 24 February. It appears that Jones had been unable to accept return calls from Fairley and telephone contact between the two was not made until 25 February when Jones asked Fairley whether he was coming in to work. Fairley replied that he was not and when he disclosed that he was then at Ferntree Gully Jones assumed that he was in that area for the purpose of campaigning in connection with the Union election. However, Fairley asserts that he was there to make arrangements in relation to nursing home accommodation for his mother. That assertion was made to Jones in the telephone conversation of 25 February but apparently was not believed. At all events, Fairley made it clear in the same conversation that he would not comply with Jones' direction to attend the Union office until the period covered by the medical certificate had expired. Jones then indicated that Fairley would be dismissed from his position with the Union. That indication was confirmed by a letter signed by Cameron and Jones and dated 25 February 2000 in the following terms: "The purpose of this letter is to advise you your employment with the Australian Manufacturing Workers Union is terminated from today (25th February, 2000). The reason upon which the union has made this decision has been your unsatisfactory work performance, including but not limited to, unauthorised absence refusal/failure to follow directions issued. You are required to return all property of the union in your possession immediately." 12 The publication to which Fairley had lent his name was headed "To all AMWU Shop Stewards and Members". It contained a photograph of Fairley identifying him as "Former State Secretary AMWU". It also contained somewhat smaller photographs of Johnston and Nelson who were identified respectively as "Metal Division Secretary and Workers First Candidate for State Secretary AMWU" and "Metal Division Organiser and Workers First candidate for National Secretary AMWU". The accompanying text was as follows: "Dear fellow AMWU members, I am writing to thank all AMWU members and shop stewards who have supported me and the Workers First Team over the last year and a half. As you would be aware I resigned from the position of State Secretary late last year. I was very proud to be part of the team that has given the AMWU back to members and made our union strong again. However due to a number of personal and family reasons I decided to resign from the high pressured post of State Secretary. The fact that I was constantly undermined by National Secretary Doug Cameron and Acting National President Julius Roe also contributed to my decision to resign. Those of you who know me know that it was never my desire to hold such a powerful position. I only took up the post to put workers first in our union. I remain 100% committed to keeping our union strong and united behind Craig Johnston and the Workers First Team. I will continue to serve the AMWU cause in any way I can. Devious employers and their treacherous lackeys will try to use my resignation to split the AMWU. They will use rumours and lies to undermine our union. We can't let them weaken us. Only a strong and united AMWU will secure decent wages and conditions. With Howard's GST and interest rate hikes, every worker needs decent pay rises this year. We can't afford to be weak. I would like to urge members from all AMWU divisions to stand united behind the Workers First Team and vote for Craig Johnston for AMWU State Secretary and Darren Nelson for AMWU National Secretary in the April 2000 election. Yours in unity, (sgd) Frank Fairley Former State Secretary AMWU." 13 After the termination of Fairley's employment, Roe recommended to Jones that Glen Thompson be appointed in Fairley's place. Thompson was in fact appointed and commenced work on 6 March. He was believed by both Jones and Roe to be a supporter of Roe and Cameron in the forthcoming elections. He was the convenor of the group known as the "Real Rank and File Group" which has been supportive of Roe and Cameron. However, Jones has deposed that on Thompson's commencing work he was instructed not to "campaign in the elections as part of this project process" and that he could not "electioneer during Union worktime". Despite that instruction, a leaflet was mailed out to Union members under the auspices of the "Real Rank and File Group" which recited: "THE TIME TO STAND UP FOR A STRONG AND UNITED UNION THAT IS NOT DOMINATED FACTIONAL AND OUTSIDE INTERESTS IS NOW. WE HAVE MADE DECISIONS AT REAL RANK & FILE MEETINGS TO SUPPORT JULIUS ROE IN THE ELECTION FOR STATE SECRETARY OF THE VICTORIAN BRANCH. WE ASK ALL MEMBERS TO HELP IN THE ELECTION CAMPAIGN. PLEASE CONTACT GLEN THOMPSON WHO IS CONVENOR OF OUR GROUP AND HE WILL BE ABLE TO ADVISE YOU HOW YOU CAN HELP. CONTACT NUMBERS FOR GLEN ARE: 0419 689 932 0419 571 232 9379 3787 YOURS IN UNITY Stephen Dodd" 14 The first telephone number on that leaflet was a number connected to a mobile telephone supplied to Thompson for use in his work on delegation in connection with the "cost downs" and anti-tariff reductioncampaigns. The other two numbers were those for Thompson's private mobile and home telephones. 15 Another factual issue has been raised by allegations made by David Fenn, a quality assurance inspector employed by Hella Australia Pty Ltd ("Hella"), a manufacturer of automotive components, including headlights. Mr Fenn deposed that Mr Curak, a shop steward at Hella for the Union, had arranged for Roe to address a meeting of members at Hella in the latter part of March about the effect of tariff reductions in the motor vehicle industry. Fenn attended the meeting at which he said Roe was accompanied by Mr Ormsby, a Union organiser, whose responsibilities include the Hella plant. 16 The meeting was held with Hella's permission during working hours and, according to Fenn, occupied between 45 minutes and an hour. The first 20 minutes, he said, were taken up by an address by Roe on tariff reductions. Then Curak urged members to vote for Roe in the forthcoming elections and, according to Fenn, at some point Roe said words to the effect that if he were to lose the election he would not have a job whereas his opponent would still have a job if he were unsuccessful. 17 Roe has deposed that he addressed the meeting for between 15 and 20 minutes on the Union's "Campaign 2000", tariff reductions and the "cost downs" issue and answered questions. He denied saying anything in support of his own candidature in the election but acknowledged that Ormsby and Curak had briefly spoken urging members to vote for him. That evidence has been corroborated by Mr Curak who felt that he himself had spoken for about ten minutes in support of Roe and Mr Ormsby had spoken to similar effect for about two minutes. It further appears that on 29 March Roe attended a similar meeting at the premises of Dura (Asia-Pacific) in Mentone at which Ormsby also spoke in support of his candidature. 18 On behalf of the applicants, it was submitted that final orders should be made in terms of the interim orders made when the rule nisi was granted on 24 March 2000. Those interim orders were in these terms: "1. By the Respondents refraining from using or permitting any other person to use the Union's property, funds or resources to support and/or promote and/or oppose any candidates in the election for offices of the Union currently being conducted by the Australian Electoral Commission ("the election"). 2. That in implementing the decision of the National Council on 12 December, 1999 the First, Second and Third Respondents take all steps necessary to ensure that the Fourth Respondent or any other person placed on delegation as stated in that resolution not use any of the Union's property funds resources to support and/or promote and/or oppose any candidates in the election for offices of the Union currently being conducted by the Australian Electoral Commission ("the election")." 19 In support of the making of those orders, Mr Staindl of Counsel for the applicants submitted that the Court should infer that Thompson had been appointed on delegation to campaign for the election of Cameron and Roe. The principles governing the implication arising from the rules of a registered organisation that its resources are not to be used to support or promote a candidate or a group of candidates or to defeat another candidate or group of candidates during the conduct of an election to offices within the organisation have been elaborated in a line of authority which includes Valentine v Butcher (1981) 51 FLR 127, Scott v Jess (1984) 3 FCR 263, Tanner v Maynes (1985) 7 FCR 432, Darroch v Tanner (1987) 16 FCR 368 and Buchanek v Jones (1989) 34 IR 102. 20 I have not been persuaded that I should draw the inference to which I have just referred. To explain why I have reached that conclusion it is appropriate to examine each of the alleged facts which have been claimed to give rise to that inference. I preface that examination by saying that, in certain respects, the applicants' case depended solely on acceptance of the evidence of Mr Fairley who was a distinctly unimpressive witness. There were significant inconsistencies in his account of his need for appointment on delegation, of the extent of his campaigning on behalf of Roe and later Cameron, and his receipt of electioneering material allegedly put out in the interests of Roe. In the circumstances, I have been unable to accept any of his evidence as establishing a relevant fact unless that fact was uncontroverted or corroborated by other oral or documentary evidence. 21 Counsel for the applicants pointed first to the circumstances of Mr Fairley's appointment on delegation, including the fact that it was to be made through the Vehicle Division of the Union despite the intention that the campaign was to be a cross-divisional one and the non-disclosure by Jones and Cameron, when National Council authorised the appointment on 15 December 1999, that they had Fairley in mind for the delegation. As well, reliance was placed on Fairley's resignation as State Secretary of the Victorian Branch having occurred in circumstances which suggested his disaffection for the "Workers First" faction led by Johnston and Nelson and his readiness to support Roe in opposition to them. 22 I accept that Fairley was anxious to ingratiate himself with Jones and Cameron in order to secure the appointment on delegation and that, in order to do so, he created the impression that he would be an ally in the forthcoming election campaign and a useful source of intelligence about the electoral strategies of "Workers First". Those considerations doubtless disposed Jones and Cameron to appoint Fairley as a perceived sympathiser in the same way they were later disposed to appoint Thompson in his place. However, they do not entail the conclusion that the predominant, or even a contributing, purpose for Fairley's appointment was to enable Fairley to campaign on behalf of Roe during working time and at the Union's expense under cover of pursuing the "cost downs" and anti-tariff reduction campaign. 23 Militating against that conclusion is the history which led to the resolution of National Council of 15 December 1999. That history strongly suggests that the Union was genuinely committed to the "cost downs" and anti-tariff reduction campaign and I do not regard the silence of Jones and Cameron as to the identity of the proposed delegate or the failure of National Council to inquire into that matter as tending significantly the other way. Moreover, there is evidence that Fairley, despite his assertion that he was instructed by Jones not to worry about the "special project" as it was not important or about the report required in March "as that job had already been done", actually carried out significant identifiable activities in connection with the "cost downs" and anti-tariff reduction campaign. On the other hand, there is no evidence, apart from some scattered references in his own testimony, that he engaged in any electioneering activity on behalf of Roe or Cameron. He claims not to have secured a single signature on the endorsement sheet referred to in para 6 above but, curiously, was never asked in the seven weeks he was on delegation by Jones, Cameron, Roe or anybody else in the same interest, to give any account of his electioneering activity on their behalf. 24 For reasons explained above, I am not satisfied that Fairley was supplied by Ms Vallence with a large number of stickers endorsing Roe's candidature. However, even if his evidence on that matter be accepted, it is consistent with an intention that, as a perceived supporter, he would campaign in his own time on behalf of Roe, and does not betoken an arrangement that he was to devote all, or a substantial part, of his working time to electioneering. 25 Counsel for the applicant also pointed to the circumstances of Fairley's dismissal from the delegation as reinforcing the inference for which he contended. However, I regard those circumstances as more consistent with a perception by Jones that Fairley had unequivocally identified himself with "Workers First" and would not thereafter devote himself wholeheartedly to the "cost downs" and anti-tariff reduction campaign. That perception would have been reinforced by the omission from the medical certificate of any specified ailment, Fairley's telling Roe on 18 February before the event that he had procured a medical certificate and the fact that, on 25 February, Fairley was well enough to be driving in Ferntree Gully on the other side of Melbourne from his home but was unable to attend at Jones' office to discuss his need for sick leave. I do not exclude the emphatic revelation of Fairley's apparent change of allegiance as a factor in his dismissal but that is no more supportive of the inference for which Mr Staindl contended than the fact, noted in para 22 above, that his perceived support for Roe influenced his appointment on delegation. 26 Nor do I regard the appointment, to replace Fairley, of a committed Roe supporter in Thompson or the reference to a Union mobile telephone number on the document described in para 13 above as supportive of the inference which the applicants seek to establish. I accept the evidence of Thompson and Roe respectively that the reference to that number occurred without his knowledge or consent. In any event, I do not regard that reference as tending to establish an intention by Jones, Roe or Thompson that the latter would devote all, or a significant part, of his exertions on delegation to campaigning in the Roe-Cameron interests. 27 The second basis on which the applicants pressed for final orders in the terms set out in para 18 of these reasons was what occurred at the meetings at the Hella premises on 28 March and the Dura (Asia-Pacific) plant on 29 March. In broad terms, I accept the evidence given on behalf of the respondents about what happened at those meetings. In particular, I prefer that evidence in relation to the Hella meeting to that of Mr Fenn. I consider that his account was moulded to some extent to conform with a hearsay version given to the applicants' solicitors by Ms Pope based on an informal discussion which she had with Mr Fenn and which he later conceded contained some inaccuracies. As well, Mr Fenn conceded under cross-examination that because the meeting was over a month ago he had "some" but not a clear recollection of it and may be wrong about some aspects. 28 I find that Roe attended at the Hella plant on 28 March pursuant to arrangements made with management some weeks before by Curak, the shop steward. The purpose of that visit and the meeting which Roe addressed was to alert Hella employees to the "cost downs" and Campaign 2000 issues. Although Ormsby, the Union organiser for the Hella plant, attended whilst on annual leave with the intention of enlisting support for Roe's re-election as State Secretary, I regard it as inherently improbable that Hella management would have acquiesced the conduct at a meeting for something like 45 minutes of working time for predominantly electioneering purposes. I find that Roe addressed the meeting for approximately half its duration on the "cost-downs" and tariff issues in relation to which it was called and did not refer to his own candidature in the forthcoming election. References of that kind were made briefly by Ormsby, and more extensively by Curak, who also responded to questions from the floor of the meeting. Roe remained present throughout the meeting before moving, at its conclusion, to discuss the tariff and related issues with Hella management. A similar procedure was followed at the subsequent meeting at Dura (Asia-Pacific) except that only Ormsby spoke in support of Roe's candidature. 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. As Dunphy J said in Holmes v Riordan (1955) 86 CAR 180 at 195: A feature of the case presented on behalf of the applicant was an attempt to demonstrate, through lengthy cross-examination of the respondent, that advantage had been taken by Riordan of his position as Branch Secretary to use certain of his salaried staff and the office premises and equipment to further the successful conduct of his election campaign. ....... A careful review of the transcript demonstrates that Riordan admitted that certain paid officials did help his electoral ambitions by rendering assistance in a number of ways, but his uncontradicted testimony was that these acts were performed after office hours or during periods of special leave. In this regard Riordan clearly stated that similar concessions would have been granted to any officer of the Union wishing to assist a member of the opposition if requests to that effect had been made. But the plain position is that no such request had been forthcoming. I can see no basis for attack on this particular ground, for if it were a valid proposition it would mean that acceptance of a paid position on a union staff automatically bars a union member from taking any active interest in his own or some other member's candidature. As long as an officer voluntarily exercises his right to assist a candidate, and his functions and duties to his employer are not adversely affected as a consequence, he should be entitled to take as active an interest in an election as an ordinary member of the union. Likewise, the use of union premises and equipment, if freely available to any applicant, is not, in my opinion, objectionable providing such use is more or less inevitable as a consequence of the election itself. The respondent's evidence on the point indicates that little was done on the Union premises other than the copying by his supporters, of portions of the electoral roll and as the applicant clearly never made a request for similar use there was no denial to him of similar facilities. As I have stated previously herein, it must be obvious that such a function is an inevitable consequence of the holding of an election and the proper and probably the only place for such work to be performed is in the union office either during office hours or outside such hours under supervision. These questions involve matters of degree and if the suggestions made by applicant's counsel during the course of these proceedings had been supported by evidence the result might have been different." 30 Similarly regarding the issues in the present case as matters of degree, I do not consider that any aspect of the use of the services on delegation of Fairley or Thompson or anything which occurred at the meetings at Hella or Dura (Asia-Pacific) infringed the implied prohibition which the applicants have invoked. 31 For these reasons the rule nisi will be discharged. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate: Dated: 2 May 2000 Counsel for the Applicant: Mr D Staindl

Date of Hearing: 26, 27, 28 April and 1 May, 2000