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 .