Walker, in the matter of an election for an office in Victorian Branch of... [2014] FCA 1109 | Case summary

REASONS FOR JUDGMENT 1 By an originating application dated 7 October 2014 and returnable today, Mr Walker has applied pursuant to s 200 of the Fair Work (Registered Organisations) Act 2009 (Cth) (the Act) for an inquiry into an irregularity which he claims has occurred in an election currently being conducted for the position of Victorian Branch Secretary of the Victorian Branch of the Australian Rail, Tram and Bus Industry Union (the Union). 2 Section 201 of the Act provides as follows: Where: (a) an application for an inquiry has been lodged with the Federal Court under section 200; and (b) the Court is satisfied that there are reasonable grounds for the application; the Court must fix a time and place for conducting the inquiry, and may give such directions as it considers necessary to ensure that all persons who are or may be justly entitled to appear at the inquiry are notified of the time and place fixed and, where the Court fixes a time and place, the inquiry is taken to have been instituted. 3 The determination of the issue raised by s 201(b) is urgent including because the election Mr Walker seeks to challenge has commenced and ballot papers are due to be distributed soon. If an inquiry were to be instituted, it would need to be conducted expeditiously. 4 Mr Walker contended that I should be satisfied that there are reasonable grounds for his application and that I should fix a time and place for the conduct of an inquiry. He contended that I should be satisfied that there are reasonable grounds that an irregularity has occurred in relation to the election. The term "irregularity" is defined by s 6 of the Act and includes a breach of the rules of a registered organisation. In essence, what is alleged by Mr Walker is that in breach of the rules of the Union, the Returning Officer for the election has wrongly accepted the nomination of Ms Luba Grigorovitch in the election for the position of Branch Secretary of the Victorian Branch of the Union. 5 Mr Walker alleges that Ms Grigorovitch is ineligible to stand for election to a position in the Union because she is not a member of the Union. He alleges that at the time that she purported to join the Union and was accepted as a member, she was ineligible because she was not then employed in any employment covered by Rule 4 (the eligibility rule) of the Union's rules (the Rules). 6 In his affidavit in support of his application of 7 October 2014, Mr Walker relevantly deposed, on the basis of hearsay, that: (1) Ms Grigorovitch commenced employment with the Union on 22 June 2010; (2) The membership records of the Union show that Ms Grigorovitch first joined in February 2012; and (3) Ms Grigorovitch resigned her membership of the Union on 23 February 2012 and rejoined on 27 February 2012. 7 In his affidavit, Mr Walker essentially asserted that on neither of the first or second occasion upon which Ms Grigorovitch purported to join the Union was she eligible to do so, because she was then not employed in any employment covered by the Union's eligibility rule. Although not expressly stated, the suggestion made by Mr Walker's affidavit was that throughout the whole relevant period, Ms Grigorovitch was and remained solely employed by the Union. 8 When Mr Walker's application was called on, Ms Grigorovitch sought to appear. She was represented by counsel. Counsel for the Returning Officer and counsel for the Union also sought to appear on behalf of their clients. There was no objection to that course from Mr Walker. Although the question raised by s 201(b) is commonly determined in the absence of all persons who may have an interest in whether any inquiry should be instituted, I took the view that I should hear all of the persons who sought to appear. 9 Ms Grigorovitch filed and sought to rely upon an affidavit affirmed by her on 8 October 2014. Relevantly, she deposed that: she is the current Secretary of the Victorian Branch of the Union; she first began employment with the Union in a part-time position on 22 June 2010 in the position of Industrial, Campaigning and Women's Officer in the Victorian Branch. That position became a full time position in November 2010; on 2 February 2012, the Branch Divisional Committee of the Administrative, Supervisory, Technical and Professional Branch Division (the AST&P Division) resolved to appoint her to the full time paid position of Branch Divisional Organiser; on 8 February 2012, the Victorian Branch Executive resolved that she should be appointed to the full time paid position of Branch Divisional Organiser; on 22 February 2012, she resigned from her position of Industrial, Campaigning and Women's Officer with effect on that day, and that resignation was acknowledged by the Victorian Branch Secretary in writing. As at that time, she had not taken up the position of Branch Divisional Organiser in the AST&P Division; on 21 February 2012, she received an offer of employment with VicTrack in the position of Senior Officer 6, to commence on 23 February 2012. She accepted that offer and commenced employment with VicTrack on 23 Feburary 2012. A letter exhibited to her affidavit from VicTrack and addressed to her dated 21 February 2012 referred to her fixed term employment contract. It stated, relevantly, that VicTrack was pleased to offer her employment in a limited tenure position performing clerical duties within VicTrack. The letter said the employment would be for a period of two weeks from 23 February 2012 until 8 March 2012. The letter also stated that the terms of her employment would be governed by the VicTrack Enterprise Agreement 2009-2012. It further stated that the classification for the position offered was Senior Officer 6 with a commencement salary of $87,369 per annum. The place of employment was specified as Level 8, 1010 La Trobe Street, Docklands, 3008. The letter in question was signed by Carmel Parker, Human Resources Adviser; by a letter of 23 February 2012, she resigned her membership of the Union; her fixed-term employment with VicTrack expired on 8 March 2012; VicTrack is the public authority responsible for the management and maintenance of railway tracks and associated lands in the Victorian railway system; VicTrack had been established as a public entity by s 118 of the Transport Integration Act 2010 (Vic) (the TI Act). The primary object of VicTrack as identified in s 119(1) of that Act is: …to act as the custodial owner of the State's transport-related land, infrastructure and assets consistent with the vision statement and the transport system objectives. VicTrack is a "transport corporation" within the meaning of s 120(3) of the TI Act and its directors must be appointed by the Governor in Council on the recommendation of the Minister after consultation with the Treasurer; she completed the corporation induction course with VicTrack on 23 February 2012. A copy of the completion certificate for that course was produced; and on 27 February 2012, during her employment with VicTrack, she applied for membership of the Union. A copy of her application was produced. 10 Ms Grigorovitch also produced a copy of what she deposed to be her payslip from VicTrack. That document relates to the fortnight which ended on 10 March 2012. It records the gross payment of $3014.03 by reference to an hourly rate of $44.0647 for 68.24 hours of work. 11 Ms Grigorovitch then deposed that on 9 March 2012, she commenced employment with the Union as Victorian Branch Divisional Organiser in the AST&P Division. She stated that she did that in accordance with the decision of the Branch Executive of 8 February 2012 to which I have earlier referred. 12 A copy of her letter of offer of appointment with the Union was produced. That document relevantly stated that Ms Grigorovitch was being offered a position with the Union as a Branch Divisional Organiser, effective Friday 9 March 2012. Although not immediately relevant to the matters I need to determine, Ms Grigorovitch also deposed to the fact that on 13 March 2013, she was appointed to fill the casual vacancy in the office of Branch Divisional President and Delegate from the AST&P Division to the Divisional Council. These were honorary positions and she continued her employment as the paid Victorian Branch Divisional Organiser. 13 On 13 November 2013, the Victorian Branch Executive resolved to appoint Ms Grigorovitch to the position and office of Victorian Branch Secretary with effect from 8 February 2014 to fill a casual vacancy arising in that position. Ms Grigorovitch also produced a membership profile printed from the records of the Union as at 2 October 2014 which, in relation to her membership, records her membership contributions. 14 Mr Walker did not oppose the reliance sought to be made by Ms Grigorovitch upon her affidavit. No application was made for Ms Grigorovitch to be cross-examined. 15 Ms Grigorovitch relied on her affidavit to establish that she validly joined the Union on 27 February 2012. She asserted that at that time, she was employed by VicTrack in employment covered by the Union's eligibility rule and, namely, employment in or in connection with the railway industry in Victoria. Mr Walker sought to rely upon Ms Grigorovitch's affidavit to raise challenges to her eligibility for membership of the Union not raised in his affidavit. I will outline those matters shortly. 16 It is necessary to set out those of the rules of the Union that are relevant to the issues raised. Rule 4 deals with eligibility for membership, and rule 4(1)(ii) relevantly provides: "an unlimited number of employees employed in or in connection with the Railway…Industry or industries governed and controlled directly by the Governments of…the States of…Victoria…or indirectly by such Governments or any of them through commissions, boards, managers, directors and other means and also all railway systems in the Commonwealth of Australia owned and controlled by private persons or companies ……. provided that, except as provided in Sub-Rules 4(3), 12(3) and 12(4), a person shall only be eligible to remain as a member while he/she continues to meet one or other of the eligibility criteria specified in the foregoing paragraphs". 17 Rule 4(3) states: Notwithstanding the proviso to Sub-Rule 4(1), a person who is admitted to membership pursuant to the provisions of Rule 10 and who subsequently is elected as a paid Office Bearer of the Union or becomes an employee of the Union, shall be entitled to remain as a member while holding such Office or engaged in such employment. 18 Rule 12 is a membership purging rule. Rule 12(1) states: Except as provided in Sub-Rules 1 2(3) and 12(4), only members who continue to meet the eligibility criteria specified in Sub-Rule 4(1) of these Rules or who fall within the provisions of Sub-Rule 4(3), shall be entitled to remain as members. 19 Rule 10(4) of the Rules relevantly provides that a person's membership of the Union commences on and from the date on which the application for membership is received. On the basis of Ms Grigorovitch's evidence, I would infer that the application for membership faxed by her to the Union on 27 February 2012 was received on that day. 20 I now turn to consider each of Mr Walker's challenges to Ms Grigorovitch's membership of the Union. I do so on the basis that at this stage, I need only be satisfied that there are reasonable grounds in support of Mr Walker's contention that an irregularity has happened in relation to the impugned election. In that respect, I am assisted by the following observations made by French J in relation to a predecessor provision to s 201(b) of the Act. In Re Post; Re Election for Offices in Transport Workers Union of Australia, Western Australian Branch (1992) 40 IR 162, French J said at 166-167: The question for the Court mandated by s 219(b) of the Industrial Relations Act 1988 is whether it is satisfied that there is reasonable ground for the application. It will not be so satisfied if the grounds relied upon could not, even if made out, constitute "an irregularity in relation to an election for an office in the organisation". The question whether there is such an irregularity lies at the heart of this jurisdiction. Nor will it be so satisfied if the allegations of fact relied upon in the application do not at least offer good grounds for suspicion that there has been such an irregularity. The Court will not entertain an application of a speculative nature based upon the applicant's opinion that there has been irregularity unless that opinion rests upon some substantial factual foundation. Necessary conditions to establish the requisite state of satisfaction can be multiplied. It is harder to state what is sufficient to satisfy the Court beyond the words of the section itself which require an evaluative judgment at this preliminary stage. 21 Mr Walker contended that Ms Grigorovitch was not employed in employment covered by the eligibility rule because on the evidence, employment at VicTrack was not necessarily employment in or in connection with the railway industry in Victoria. 22 No evidence was relied upon by Mr Walker to support that contention. As Mr Walker carried the onus of persuasion on that issue, and particularly in circumstances where Ms Grigorovitch's evidence established, at least on a prima facie basis, that VicTrack operates in the railway industry, I am not satisfied that this challenge raises a reasonable ground in support of the proposition that an irregularity has happened. 23 Mr Walker then contended that there is a reasonable basis for supposing that the employment at VicTrack relied upon by Ms Grigorovitch was not genuine employment and was a mere device. In support of that contention, Mr Walker pointed to the unusual nature of the two week fixed term tenure of the employment and the artificiality raised by the timing of it in the context of Ms Grigorovitch's employment at the Union. Mr Walker also, in this respect, contended that I should infer that Ms Grigorovitch did not perform any duties in relation to any employment at VicTrack. That inference should be drawn, it was said, because no specific evidence was given in Ms Grigorovitch's affidavit of the performance by her of any duties. 24 I will deal with the last point first. I am not persuaded that in the circumstances, the inference contended for by Mr Walker is available. At the time Ms Grigorovitch affirmed her affidavit, she had no notice that the genuineness of her employment at VicTrack was under challenge and no discernible reason to provide a response to Mr Walker's affidavit more detailed as to her employment in the railway industry than the detail that she actually gave. 25 On the evidence, including that Ms Grigorovitch completed an induction at VicTrack and was paid over $3000 by a public authority, if any inference is to be drawn, it is that Ms Grigorovitch did perform work for VicTrack in the course of the employment which her unchallenged evidence deposed to. 26 I accept that on the evidence, an inference is available that in early February 2012, Ms Grigorovitch was concerned about the validity of her membership of the Union and that with a view to standing for office in the Union, she took deliberate and calculated steps to temporarily discontinue her employment at the Union so that she could take up employment that would facilitate the making of a valid application by her for membership of the Union. 27 It may further be inferred that VicTrack was both conscious of, and co-operated in, facilitating Ms Grigorovitch's eligibility-based motive for taking up employment with it. Whilst the employment may have been a device for assisting Ms Grigorovitch to validly join the Union, there is no "substantial factual foundation" to raise a reasonable basis in support of the proposition that, in truth, there was no employment between Ms Grigorovitch and VicTrack. 28 The hallmarks of a sham of the kind discussed by French J in Re Election for Office in Transport Workers Union of Australia, Western Australian Branch (1992) 40 IR 245 at 254 have neither been demonstrated nor suggested by the evidence I have before me. To the contrary, evidence of a legally binding contact has been produced, and the very substantial payment made to Ms Grigorovitch could not be described as a gratuity. 29 The short-term and temporary nature of an employment, or the fact that it has been obtained for the sole intention of gaining eligibility, is not indicative of an absence of an employment, as the cases referred to by Gray J at 24 of Re Application By The Transport Workers' Union of Australia (1992) 37 FCR 16 exemplify. 30 I am not satisfied that reasonable grounds have been made out by Mr Walker for the proposition that Ms Grigorovitch's employment by VicTrack was not an employment for the purposes of the Union's eligibility rule. 31 Lastly, Mr Walker challenges the validity of Ms Grigorovitch's membership on the basis that, if she validly became a member, she did not remain a member after she left VicTrack's employment on 8 March 2012. It will be recalled that on the very next day, Ms Grigorovitch's employment by the Union in the position of Victorian Branch Division Organiser commenced and that employment with the Union (in various positions) has continued. 32 Ms Grigorovitch relied on her continuing employment with the Union as a basis for avoiding the purging of her membership which would otherwise have occurred by reason of Rule 12 and the proviso at the end of Rule 4(1). 33 Rule 12(1) specifically exempts from the purging effect of the Rules those members who fall within the provisions of Sub-Rule 4(3). Ms Grigorovitch contended that as from 9 March 2012, and by operation of the proviso at the end of Rule 4(1) and the terms of Rule 4(3), her membership of the Union continued. 34 Mr Walker contended that in the interval between Ms Grigorovitch ending her employment with VicTrack on 8 March 2012 and the commencement of her employment with the Union on 9 March 2012, Rule 12 had the effect of purging her membership of the Union. In support of that contention, it was said that the terms of Rule 4(3), when read with Rule 12, do not contemplate any interval between a person being employed in the employment specified by Rule 4(1) and the employment with the Union referred to in Rule 4(3). It was suggested that if it were otherwise, a person who left eligible employment under Rule 4(1) for, say, a five-year period would remain a member simply because the person "subsequently" becomes an employee of the Union. That, it was said, could not have been the intention of Rule 4(3). 35 The clear intention of Rule 4(3), and many rules like it which are commonly found in union rules, is to permit rank and file employee members of a union to retain their membership upon taking up office or employment in the union. That objective could not be sustained if a day's interval between industry employment and union employment was a source of disqualification from continuing membership. That no such result was intended in relation to the rules of this Union is, in my view, unarguable. 36 As counsel for Ms Grigorovitch contended, by reference to the Macquarie Dictionary, the word "subsequently" does not necessarily mean "occurring or coming later or after". It can also mean "following in order or succession". When the term "subsequently" is used in that way as, in my view, it is in Rule 4(3), the absurd result that Mr Walker's counsel sought to exploit is avoided, and the obvious intent of the clause is clear. 37 There is no basis for the narrow construction of the eligibility rule for which Mr Walker contends. That is particularly so in circumstances where the eligibility rules of a trade union are to be broadly construed: Construction, Forestry, Mining and Energy Union v CSBP Limited (2012) 212 IR 206 at 48 per Keane CJ, Siopis and Rares JJ. 38 For those reasons, I am not satisfied that there are reasonable grounds for Mr Walker's application. I will make an order dismissing the application. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.

Walker, in the matter of an election for an office in Victorian Branch of the Australian Rail, Tram and Bus Industry Union [2014] FCA 1109

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