Re Election for Office in the Construction, Forestry, Mining and Energy Union; Ex parte Sutton [2002] FCA 971

EX TEMPORE REASONS FOR JUDGMENT 1 This is an inquiry into an election for the office of National Assistant Secretary of the Construction, Forestry, Mining and Energy Union ("CFMEU") pursuant to s 219 of the Workplace Relations Act 1996 (Cth) ("the Act"). I have been familiar with this matter since 28 May last, and I have had the benefit of comprehensive written and oral submissions from counsel. As I have reached a conclusion it is best that I give judgment immediately rather than adjourn to prepare fuller reasons, as uncertainty as to election to an office of the CFMEU should be settled as soon as possible. 2 The office of National Assistant Secretary is a national office, and election is governed by cl 16 of the Rules of the CFMEU, the most important parts of which are as follows: "16 - Election of National Officers (i) The National Secretary, National Assistant Secretary and National President shall be elected by and from the National Collegiate, namely the delegates to all of the Divisional Conferences of the Union and the ballot for such positions shall be a secret postal ballot of delegates to all Divisional Conferences conducted, the necessary changes being made, in accordance with Rule 17 of these rules. Provided that, for Divisions with more than one Divisional Branch, excluding FFTS Union Division, each Division shall be represented by at least one Officer. Further provided that, for Division [sic] with more than one Divisional Branch, excluding FFTS Union Division, each Division shall hold at least one position of Joint Vice President as follows: * Joint Vice President (Construction and General Division) * Joint Vice President (Forest and Forest Products Division) * Joint Vice President (Mining & Energy Division) Further provided that, each Division, prior to the calling for nominations, shall decide its nominees for the above positions by resolution from that Division's National Conference. Further provided that the Principal Officer of the FFTS Union Division shall be a National Senior Vice-President and shall be and remain a member of the National Executive and the National Executive Committee. Further provided that the Construction & General Division Senior Vice-President (Builders Labourers) shall be a National Senior Vice-President and shall be and remain a member of the National Executive and National Executive Committee. Further provided that the Construction & General Division Senior Vice-President (former National Secretary of the OPDU) shall be a National Senior Vice-President and shall be and remain a member of the National Executive and National Executive Committee. All full-time officers of each Division, not otherwise elected to any of the foregoing positions, shall be and remain members of the National Executive Committee. …" 3 On 6 March 1998 Mr John Sutton had been declared elected to the office of National Assistant Secretary. On 4 March 2002 the National Secretary of the CFMEU wrote to the Deputy Industrial Registrar in the following terms (omitting formal parts): "1. Officers in respect of which an election is required under Rules 15 and 16 of the National Rules for the following positions: · National President · National Secretary · National Assistant Secretary 2. Reasons for election: · The term of office of the current office holders expires in 2002, sub rule 15(ii). 3. Offices with the same name: · See 1. above 4. Electorate: · Sub rule 15(ii) - National Collegiate, which is the "totality of delegates from all Divisions to each Divisional Conference, as defined in Rule 5. 5. Period of nomination: · Nomination to open Monday 22nd April 2002 · Nominations close Wednesday 1st May 2002 6. Voting System: · Postal ballot by above Collegiate Electorate · Conducted: · Opening Monday 20th May 2002 · Closing Wednesday 29th May 2002." 4 On 19 April the Returning Officer appointed to act on behalf of the Australian Electoral Commission pursuant to Div 4 of Pt IX of the Act wrote to the National Secretary of the CFMEU including the following: "Relevant rules of the Union Sub-rule 16(i) of the rules states that these offices shall be elected by and from the National Collegiate which is defined in that sub-rule as "the delegates to all of the Divisional Conferences of the Union". Accordingly, I propose to post an election notice and a nomination form to each of the present Delegates to the Union's Divisional Conferences on the opening date for nominations given below. I understand, from the rules and from a conversation today with Mr Rick Fowler of your office, that the Union's current Divisions are: · Construction and General Division · Forest and Forest Products Division · Mining and Energy Division · FFTS Union Division Election timetable I wish to confirm the following dates for the election, which were discussed with Mr Fowler today: Nominations open 23 April 2002 Nominations close 10 May 2002 (12 noon) and, if a ballot is required, Ballot opens 29 May 2002 Ballot closes 14 June 2002 (12 noon) 5 The Returning Officer issued an Election Notice dated 23 April 2002 in the following form: "CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION ELECTION NOTICE Workplace Relations Act 1996 Nominations are called for: National President National Secretary National Assistant Secretary · Written nominations, which comply with the rules of the Union may be lodged from 23 April 2002 and must reach me not later than 12 noon on Friday, 10 May 2002. · A candidate may withdraw his or her nomination up to, but not later than, 12 noon on 17 May 2002. · A nomination form appears on the reverse side of this Notice. · Additional nomination forms are available from my office and from the Union's national office. NOTE: Candidates may include with their nomination a statement or joint statement not exceeding 200 words in accordance with Rule 16 and paragraph 17(iii)(h) of the Union's rules. HOW TO LODGE NOMINATIONS By Hand: Australian Electoral Commission, Industrial & Commercial Elections Branch, Level 3, 24 Campbell Street, SYDNEY 2000 By Post: GPO Box 529, HAYMARKET NSW 1239 By Fax: (20) 9212.7336