R v Gray; Ex parte March

History of the organisation 10 AMACSU is an organisation of employees registered under the Act. It is an amalgamated organisation. It came into existence on 1 July 1993 following the amalgamation of three other Unions: · the Australian Municipal Transport Energy Water Ports Community and Information Services Union ("ASU"); · the Federated Clerks Union ("FCU"); and · the Federated Municipal and Shire Council Employees Union ("MEU"). 11 ASU had itself come into existence, in Victoria, on 1 July 1991. It consisted of two branches: · the Victorian Services and Authorities Branch; and · the Energy Branch. 12 The Victorian Services and Authorities Branch was initially formed from the former Municipal Officers' Association ("MOA") Victorian Branch, the Technical Services Guild ("TSG") Victorian Branch, and the Australian Transport Officers' Association ("ATOF") Victorian Branch. 13 In 1996 the Energy Branch of AMACSU, which was a branch of the Union operating only in Victoria, and representing mainly employees of the State Electricity Commission of Victoria and its successors, and the Victorian Services Authorities Branch resolved to merge. On 16 September 1998 the merged Branch came into existence. It was known as the Victorian Services and Energy Branch. 14 As a result of the merger the Branch comprised the following Industry Divisions: · Local Authorities · Energy · Information Technology · Ports · Social and Community Services · Shipping and Trade · Water · Transport.

The AMACSU Rules 15 The following Rules are of particular relevance to this application: · Rule 11 - Branch Industry Divisions "a. Within Branches, members may be allocated to Industry Divisions. b. Where Branch Rules provide for Industry Divisions, members shall be allocated to Industry Divisions by the Branch Executive or Executive Council of the Branch Committee of Management, according to their employment." · Rule 18 - Subscriptions "a. A member shall pay to the Union either an Annual Subscription in advance or a payroll deduction subscription. b. The National Executive may determine by resolution, a benchmark or recommended annual subscription and each Branch may set an annual subscription higher or lower than that National Executive resolution. c. However such Branch determinations shall not be determinative or necessarily taken into account by the National Executive in determining the level of capitation of each Branch. d. Where a Branch sets a subscription rate different than that prescribed as the benchmark figure put forward by the National Executive, the Branch Secretary shall inform the National Secretary in writing of the amount set. e. Subscriptions may be paid by yearly, half yearly or quarterly payments, or by such other payment periods as may be prescribed by branches in their rules, or by salary deduction, or by transfer from an account at a financial institution. f. Payment of subscriptions by payroll deduction may be made where a member had authorised an employer to deduct the subscription from the members salary, and the employer has agreed to make such deduction, and regularly submit the subscription to the Union or a Branch thereof. g. The Branch Executive may, in special circumstances waive subscriptions and or arrears of subscriptions. The Branch Executive may delegate this power to the Branch Secretary, provided that the Branch Secretary shall report all waivers to the Branch Executive. h. Associate Members shall pay an amount equal to twenty percent of the full-time adult subscription applying in the Branch to which such member is attached. Where more than one such subscription applies, the adult subscription determined by the Branch Executive." · Rule 23 - Unfinancial Members "a. A member owing annual subscriptions or fines or levies for a period of 3 months after they first become due shall be unfinancial. b. A member who elects to pay payroll deduction subscriptions shall be deemed to be unfinancial, should the member's authority to deduct such subscriptions from salary be withdrawn, from 30 days after such withdrawal of authority. Provided that the provisions of paragraph a. herein shall apply in respect to any outstanding annual subscriptions of a member who was paying annual subscriptions prior to electing to pay payroll deduction subscriptions. Should the employer refuse to make pay roll deductions of Annual subscriptions or fines or levies the union shall advise the member in writing of such refusal by the employer and extend to the member a period of three (3) months grace after the annual subscription or fines or levies first became due if at that time the subscription or fine or levies remain owing the member shall be unfinancial. …" · Rule 41.c.vi. - Procedures at Elections "c. The procedures to be followed in all elections held pursuant to this rule shall be as follows: … vi. For the purpose of an election, the books of each Branch shall be deemed to have closed on the last day of the month immediately preceding the date of calling of nominations, and only members shown in the records of the Branch on that date as financial shall be eligible to vote in the election, and to have a ballot paper forwarded to them. Each Branch Secretary shall, when required by the Returning Officer, or no later than thirty days after the close of nominations provide to the Returning Officer, and to the National Secretary a certified list of members eligible to vote, showing the name and the residential or postal address appearing in the Branch records in respect of each eligible member."

The Victorian Services and Energy Branch Rules 16 Also relevant to this application are the Rules of the Victorian Services and Energy Branch, in particular: · Rule 3 - Allocation of Members "The Branch shall have Industry Divisions. Every member attached to the Branch, and every employee of the Branch, shall be allocated by the Branch Executive to one of the following Industry Divisions: Local Authorities, Energy, Information Technology, Social and Community Services, Shipping & Travel, Water and Transport." · Rule 7 - Branch Employees "The Branch Executive may employ such persons for the purposes of carrying out these rules as the Branch Executive thinks proper. Such employees shall be employed upon such terms and conditions as the Branch Executive may prescribe from time to time. The Branch Executive shall allocate each employee to an Industry Division. The allocation of duties and responsibilities to employees shall be the responsibility of the Branch Secretary."

Other Union Rules 17 The Information Technology Division has its origins in the now superseded Rules of the ASU. Rule 6.c.i. of those Rules provided that members would be allocated to the Information Technology Division if their employer was an Information Technology employer. Where an employer had some information technology employees, but was not itself an information technology employer, those employees were to be allocated to another relevant division in accordance with the character of the employer's identity.

The Energy Division of the Victorian Services and Energy Branch 18 The Energy Branch was established by a memorandum of agreement approved by the Branch Executives of both the Energy Branch and the Victorian Services and Authorities Branch on 24 July 1996. Pursuant to this agreement all AMACSU members in Victoria who were in the former Energy Branch became members of the Energy Division.

The Key Legislative Provisions 19 It is necessary to set out, in detail, the provisions in the Act which govern the conduct of inquiries of this type. 20 Section 218 provides: "218 Application for inquiry Where 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 Court into the matter." 21 Sections 223 relevantly provides: "223 Action by Court (1) At an inquiry the Court shall 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. … (3) If the Court finds that an irregularity has happened, the Court may, subjection to subsection (4), 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 Industrial Registrar 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. (4) The Court shall 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." 22 The term "irregularity" is defined in s 4(1) of the Act 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;" 23 In R v Gray; Ex parte March (1985) 157 CLR 351 Gibbs CJ observed at 367-8: "According to the Oxford English Dictionary "irregularity", in its relevant sense, means "want of conformity to rule; deviation from or violation of a rule, law, or principle … deviation from what is usual or normal". The notion of an irregularity, in relation to an election, involves the idea of some departure from some rule, established practice or generally accepted principle governing the conduct of the election." 24 See also Re Collins; Ex parte Hockings (1989) 167 CLR 522 at 525, 526 and 531; and In the matter of an application by Morrison for an Inquiry relating to an election for office in the Automotive, Food, Metals, Engineering, Printing and Kindred Union, Food and Confectionary Division [2000] FCA 1896 at pars 8-17 per North J. 25 It is in the light of these provisions and of the Rules that I now turn to consider Mr Jacomb's contentions in relation to each of the two forms of irregularity which he submits may have affected the outcome of the election.

The "unfinancial members" contention 26 In July of this year Mr Jacomb obtained from AMACSU a document which set out the names of those members of the Branch who had been considered by the Union as having been eligible to vote in the election for the Information Technology Division which had been conducted in June. In addition to identifying those members considered eligible to vote, the document also identified their individual employers, the level of subscription fees they were required to pay, the method by which those fees were to be paid, and the balance said to be owing as at the date the document was produced. 27 From this document the applicant prepared a spreadsheet containing the names of forty-three members who, he claimed, had voted in the election, and who he contended had been unfinancial and therefore ineligible to vote. 28 The applicant's methodology in arriving at this conclusion appears to have been as follows. He first assessed the annual level of subscription fees which each member was required to pay. He compared that figure with the balance shown on the document produced by the Union. He then made appropriate adjustments for any contributions which had been made during the period March to June 2000. If the net result was positive, the member was regarded as financial and eligible to vote. If the net result was negative, the member was regarded as unfinancial and not eligible to vote. 29 The Union contended that Mr Jacomb's methodology could not be relied on to produce an accurate assessment of whether or not, in accordance with the Rules, a particular member had been financial as at the critical date, 31 March 2000. 30 Perhaps more fundamentally, the Union contended that Mr Jacomb's complaint that the forty-three members identified by him as having been unfinancial was misconceived. It submitted that upon a proper construction of the Rules, those members had not been unfinancial. 31 The Union drew attention to the fact that all bar one of the forty-three members were listed as meeting their subscriptions by payroll deductions being taken from their salary by their employers. It submitted that Rule 23.a., upon which the applicant principally relied, could not be read in isolation. While it was true that this rule provided that a member owing annual subscription fees for a period of three months after that sum first became due was deemed to be unfinancial, the rule had to be read in context with Rule 23.b. Pursuant to this latter rule a member who withdrew his or her authority to deduct subscriptions from their salary was deemed to be unfinancial from thirty days after such withdrawal of authority. Where an employer refused to make payroll deductions of an annual subscription, special rules applied. In these circumstances the Union was required to advise the member, in writing, of the fact of the refusal. The Union was also required to extend to the member a period of three months' grace after the annual subscription first became due. It after that period of grace, the amount remained owing, the member would be unfinancial. 32 The Union submitted that there was no evidence to suggest that any of the forty-three members identified by Mr Jacomb as "unfinancial" had withdrawn his or her authority to deduct subscriptions from salary. Nor was there any evidence that any of the employers had refused to make payroll deductions, as distinct from having failed to make them on time. There was no evidence that the Union had advised any of these forty-three members in writing of any such refusal on the part of an employer. It followed that the three month period of grace had not commenced, and could not, therefore, have expired. 33 In my view the Union's contentions regarding the status of the forty-three members alleged to have been unfinancial must be accepted. It would be wrong to read Rule 23.a. in isolation. The Rules make specific provision for the circumstances in which those of its members who pay their subscriptions by payroll deduction may be rendered unfinancial. It would be wrong to conclude that a member could be disenfranchised merely because that member's employer has been tardy in ensuring that payroll deductions are made. The conditions under which a member may be rendered unfinancial are carefully formulated. Those conditions were not met in the present case. 34 If, contrary to my view, the Rules did operate in the manner for which Mr Jacomb contends there would be a real doubt, in my mind, as to whether they would be valid. In that regard I refer, in particular, to s 196 of the Act. 35 It follows that I am not persuaded, upon the whole of the evidence, that the forty-three members of the Union who are identified by Mr Jacomb as having been unfinancial at the time of the election were, in fact, unfinancial. Mr Jacomb's first ground of complaint must therefore be rejected.

The wrongful exclusion contention 36 Mr Jacomb submitted that there were sixty-one members of the Union who ought to have been enrolled as being eligible to vote in the election, but whose names had been omitted from the list of names provided by the Branch to the Australian Electoral Commission. 37 The sixty-one members were said to fall into four distinct groups. These were: · members employed by the Metropolitan Fire Brigade ("the MFB") · members employed by the County Fire Authority ("the CFA") · members employed by IBM Global Services Group ("Global") · other information technology workers. 38 Of the sixty-one members so identified by Mr Jacomb, twenty-nine were said to be employees of the MFB, nine employees of the CFA, twenty-one employees of Global, and two "other information technology workers". 39 Mr Jacomb submitted that an examination of the history of the Union, going back to the time of the amalgamations which brought it into existence, would demonstrate that traditionally Union officials with primary responsibility for information technology, were assigned, within the Union structure, to look after the interests of those employees who were employed within what has come to be described as the "fire services industry". That was true of all members of the Union who were employed within the MFB and the CFA except for those who were engaged in active fire fighting. Mr Jacomb submitted that it was a long-standing ASU and AMACSU practice that any member employed by an employer in the information technology industry would be allocated to the Information Technology Division of the Union, or the part of the Union that was its predecessor. 40 One difficulty confronting Mr Jacomb in relation to this contention is the fact that employees of the CFA have, for a very long time, been allocated to the Local Authorities Division. Indeed, CFA employees were on the roll for the election to that division which was conducted in 1999. 41 Mr Jacomb was perhaps on stronger ground in relation to employees of the MFB. It emerged during the course of this inquiry that, in clear breach of the Rules, those employees had not been allocated to any of the divisions within the Branch. The Union acknowledged that there had been an oversight in this regard. The problem had been rectified in November of this year when, as a result of Mr Jacomb's application, the situation had come to light. On 15 November 2000 the MFB employees were allocated by the Executive of the Branch to the Local Authorities Division. 42 Mr Jacomb relied heavily upon the evidence of Mr Guiseppe Cerritelli, a Union organiser who had formerly been an employee of AMACSU. He had been assigned by the Branch to a variety of areas of responsibility throughout his years of employment. Originally he had been engaged to recruit prospective members from the information technology industry. Subsequently he had been assigned areas of responsibility in transport, water, shipping and travel. Significantly, he had never been assigned any areas of responsibility in the Local Authorities Division. 43 Mr Cerritelli said that his responsibilities had included looking after the interests of fire services employees, other than those engaged directly as fire fighters. His said that it had been the custom and practice within the Branch for fire services matters to be reported to the Information Technology Division. He said: "The fire services seem to have already been allocated to the IT area and I was merely continuing the tradition, or the customer practice if you use an industrial term, of reporting those matters to the IT Division and asking that Division then to make recommendations or to pass resolutions in respect to industrial matters." 44 Mr Cerritelli said that his predecessor, Mr Reg Myers, who had for many years been the Information Technology Industrial Officer, had also had responsibility for fire services. He produced the voting roll for the election for the Local Authorities Division in 1999. He said that none of the employees of the MFB had appeared on that roll. 45 When cross-examined on behalf of the Union, Mr Cerritelli agreed that Mr Myers had formerly been a senior official in the deregistered TSG, and that he had, while acting in that capacity, enrolled persons employed by the MFB as members of the TSG. This had occurred prior to the first amalgamation in 1991. Those employees had serviced or repaired business equipment and computers. After the amalgamation Mr Myers had sought to expand the membership of the Union by endeavouring to recruit additional members who would not ordinarily have been eligible for membership of the TSG. 46 The overall effect of Mr Cerritelli's evidence was to provide some support for Mr Jacomb's contention that there was a custom or practice within the Union of treating MFB and CFA employees as being, for certain purposes, within the Information Technology Division. The practice seems to have been informal, and to have been adopted, in large measure, as a matter of convenience. 47 It is clear that neither the MFB nor the CFA can properly be described as employers engaged in the provision of Information Technology Services. There may be a small number of employees within each of those organisations who perform duties which can properly be characterised as falling within the field of information technology. However, that does not affect the general nature of the business carried out by those organisations. 48 The Union called evidence from the Branch Secretary of the Victorian Services and Energy Branch, Mr Russell Atwood, to rebut some aspects of Mr Cerritelli's evidence. Mr Atwood explained the background and history of the involvement of the MFB and CFA within the structure of the Union, and in particular within the Information Technology Division. He noted that after Mr Cerritelli had left the Union, his information technology responsibilities had been allocated to Mr Mark Karlovic while his MFB and CFA responsibilities had been allocated to Mr Peter Moxham. Mr Moxham had nothing whatever to do with the Information Technology Division. The CFA had continued to be allocated to the Local Authorities Division, as it always had been. The MFB employees had not been allocated to any division, and, as indicated, this had been an oversight which had since been rectified. 49 When asked to explain why, after the oversight had been detected, the MFB employees had been allocated to the Local Authorities Division Mr Atwood said: "The MFB is a statutory authority very similar in structure to the CFA and the organisations and the local authorities, so the flavour of the MFB is statutory local authority and therefore it was allocated for those reasons." 50 Mr Atwood acknowledged that the allocation of employees to particular divisions within the Branch was not an exact science. He agreed that there were grey areas in which it was difficult to know how a particular group of employees should be classified. 51 I accept the evidence given by Mr Atwood concerning the history of the Union. I accept also his evidence concerning the reasons why employees within the MFB and CFA had been looked after by Union officials within the Branch whose primary responsibilities lay in the field of information technology. The nine employees of the CFA have, at all relevant times, been allocated to the Local Authorities Division. They were on the roll for the election to that division in 1999. There is no reason, in principle, why employees of the MFB should be treated any differently from employees of the CFA. It makes good sense for the twenty-nine employees of the MFB to be allocated to the Local Authorities Division, and there is nothing to suggest any ulterior purpose on the part of the Union in having allocated them in that way. There is also nothing to suggest that such an allocation in any way contravenes the Rules. Whatever the history of these employees within the Union may have been, there is no basis for the suggestion that the failure to include them in the roll for the Information Technology Division ballot constituted an irregularity of a kind which could lead this Court to set aside the election. 52 The position regarding the twenty-one employees of Global may perhaps be viewed somewhat differently. Global is in the information technology business. These twenty-one employees are, on any view, information technology workers. Ordinarily one would expect to find them allocated by the Branch to the Information Technology Division. They are, however, allocated to the Energy Division. 53 In order to understand why that is so it must be appreciated that an agreement was reached some years ago, while these employees were employed by the State Electricity Commission of Victoria, that they would be allocated to the Energy Division. After the State Electricity Commission was privatised, and some of its functions outsourced, the position of these particular employees became somewhat anomalous. The agreement remains in place, however, and no matter how peculiar it may seem to allocate information technology employees to the Energy Division rather than the Information Technology Division, the evidence is that this has been done pursuant to that agreement. I am not persuaded that there has been demonstrated any irregularity in relation to the retention of these twenty-one employees within the Energy Division. 54 I should indicate that even if I had been persuaded that the sixty-one persons identified by Mr Jacomb as not having been on the roll had been wrongly deprived of their right to vote in this election, I would not have considered it appropriate to interfere with the result. Mr Jacomb lost to Mr Wright by a margin of twenty-seven votes. It appears that approximately thirty-nine per cent of those eligible to vote in the election did so. Even assuming that a greater percentage than this of the sixty-one persons had voted, that would still mean that there would have been perhaps an extra thirty votes cast. There is nothing to suggest that all of those votes would have gone to Mr Jacomb. It follows that even if, contrary to my primary finding, these sixty-one members had been wrongly disenfranchised, the requirements of s 223(4) of the Act would not be met. The result of the election would not, as a matter of practical reality, have been affected by the irregularity: see Re Patterson; Re Association of Railway Professional Officers of Australia (1987) 19 IR 373 at 383 per Gray J; Re Australian Public Service Association, NSW Branch; Ex parte Johnston (1989) 31 IR 257 at 265-266 per Wilcox J; Re Transport Workers Union of Australia, New South Wales Branch; Ex parte Edwards (1990) 33 IR 436 at 458 per Wilcox J; Re Australian Timber and Allied Industries Union; Ex parte Black (1991) 39 IR 106 at 116-120 per Ryan J; and Parker v Amalgamated Society of Carpenters and Joiners of Australia (1992) 43 IR 248 at 252-254 per Wilcox J. 55 In effect, in order to succeed in this application, Mr Jacomb would have to establish not just that the sixty-one employees whom he identified as having been excluded from the roll were wrongly disenfranchised, but also that the forty-three employees whom he identified as unfinancial ought not to have voted. 56 For the reasons set out above, the evidence falls far short of making good that contention. The appropriate order in the circumstances is that the application be dismissed. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg .

Counsel for the Applicant: Mr W.R. Jacomb appeared in person