Ww - ¥ "el ve 56/74 © 74 IN THE FEDERAL COURT OF AUSTRALIA ' TASMANIA DISTRICT REGISTRY No. 1 of 1979. INDUSTRIAL DIVISION - IN THE MATTER of the FDDERATED LIOUOR and ALLIED INDUSTRIES EMPLOYEES USTON OF AUSTRALIA, an Organisation of employces under the Conciliation and Arbitration Act 1904 AND IN THE MATTER of an application by CHRISTINE ELLLUN HUXTABLE, NICHOLAS JOEN SHERRY and MICHAEL AlFD for an inquiry into elections in the Tasmanian Branch of the organisation. CATCHWORDS. Industrial law - Application for inquiry into elections in an organisation conducted under section 170 of Conciliation and Arbitration Act - alleged irregularities - interpretation by returning officer of rule prescribing qualifications for office - gratituous advice - nominations accepted in accordance with rules but contrary to previous advice - whether reasonable ground for application - meaning of "irregularity" - time election commenced - whether applicants deprived of right to nominate -— dutics of Returning Officer. Conciliation and Arbitration Act ss.4, 133(1)(c), 140, 159, 165 and 170. 26/¢/ 74 IN THE FEDCRAL COURT OF AUSTRALIA TASMANIA DISTRICT REGISTRY No. 1 of 1979. INDUSTRIAL DIVISION IN THE MATTER of the FPEDLDRATED LIQUOR and ALLIED INDUSTRIES EMNPLOYSES Ulicny OF AUSTRALIA, an Organisation OL employees under the Conciliation and Arbitration Act 1904 AND IN THE MATTER of an application by CHRISTINE ELLEN HUXTABIS, NICHOLAS JOHN SHERRY and MICHALL AIRD for an Inquiry into elections in the Tasmanian Branch of the organization. NORTHROP J. REASONS FOR JUDGMENT 26 April, 1979. In April 1978, Kevin James Ogle, in his capacity as an officer of the Australian Electoral Office, Hobart, as the Returning Officer, commenced, pursuant to s.170 Conciliation and Arbitration Act 1904, as amended, the Act, to conduct elections in the Tasmanian Branch of the Federated Liquor and Allied Industries Employees Union of Australia, the Union, an organisation of employees under the Act, for the office of President, the office of Vice- President, the office of Guardian, the office of Trustee (2), the office of Committee of Management (8), the office of Organiser (2), and the office of Federal Council representative (2). The rules of the Union provided detailed procedures by which the elections were to be conducted, The procedures applicable to the election of the offices, other than that of the office of Organiser, are contained in Branch Rule 5. The applicants did not pursue their claim with respect to the election for the office of Organiser and no further reference need be made thereto. The office of Federal Council representative is to be conducted pursuant to the procedures contained in Branch Rule 5 by reason of Federal Rule 6. The details of Branch Rule 5 are set out in my reasons for judgment in Lovell & Ors v. The Federated Liquor and Allied Industries Employees Union of Australia, 10 November 1978, and need not be repeated. It is sufficient to say that the Returning Officer conducted the ~ 2. 2. elections for the offices in the Tasmanian Branch according to the procedures contained in Branch Rule 5. By the required advertisements published on 12 April 1978, the Returning Officer called for nominations. The advertisements stated that the nominations must be in accordance with the rules of the Union and had to reach the Returning Officer at a specified address not later than 12 noon on 15 May 1978. The Returning Officer received one nomination only for the office of Guardian. With respect to each of the other offices, more nominations were received than the number of vacancies to be filled, and so the Returning Officer conducted the elections for those offices in accordance with the rules of the Union. The elections were completed on 14 July 1978 and the Returning Officer declared the results of the elections. Each of the applicants is a member of the Union and the Tasmanian Branch thereof. None of the applicants nominated for any of the offices for which elections were held. On 8 January 1979 each of the applicants, pursuant to s.159 of the Act, lodged with the Industrial Registrar an application dated 19 December 1978, 19 December 1978 and 21 December 1978 respectively claiming that there had been an irregularity 1n or in connection with the elections for the offices in the Tasmanian Branch of the Union and seeking an inquiry by the Court into the matter under Part IX of the Act. On 24 January 1979, the Industrial Registrar, pursuant to s.159(4) of the Act, referred the applications to the Court and thereupon the inquiry was deemed to have been instituted. In passing, it 1S noted that the applications were made six days only before the end of the period of six months commencing on the gate of the completion of the elections, s.159(5) (b) of the Act. It 1s not necessary to consider whether the election for the office of Guardian had been completed when the sole nomination for that office was accepted by the Returning Officer as valid. 3. The particulars of the irregularities alleged by each of the applicants in each of their applications were identical and are as follows:- " PARTICULARS OF ALLEGED IRREGULARITIES (1) The Returning Officer publicized an incorrect interpretation of Branch Rule 4 in so far as that Branch Rule applied to the election herein. (2) The Returning Officer by incorrectly interpreting the Branch Rule excluded members of the Union from nomination who would otherwise have nominated. (3) The Returning Officer after the closure of nominations accepted neminations from candidates contrary to the interpretation of Branch Rule 4 enforced throughout the period during which nominations were received and could be received." Branch Rule 4 of the rules of the Union is S "4, - QUALIFICATIONS FOR OFFICE, COMMITTIE AND BRANCH REPRESENTATIVES. All Officers, members of the Management Committee, representatives of Council, representatives to the A.C.T.U. and Trades Hall Council shall be financial members for twelve calendar months immediately prior to nomination. All officers and representatives as prescribed in this rule shall remain a financial member or forfeit all positions he or she holds. Notwithstanding the foregoing paragraph on and after lst May, 1978 all officers, members of the Management Committee, representatives of Council, representatives to the A.C.T.U. and Trades Hall Council shall be members for a continuous period of 24 months immediately prior to nomination and who have not been in arrears of contribution during that pericd. All officers and representatives as prescribed in this rule shall, in the event of owing arrears of contributions forfeit all positions : he or she holds," The second paragraph of Branch Rule 4 came into effect on 21 June 1977 being the date upon which the Registrar gave his Certificate under s, 139(4) of the Act. After the date upon which nominations closed, the Returning Officer initially considered the nominations of five persons with respect to three of the 4. offices were defective on the ground that each of those five persons did not satisfy the requirements of the second paragraph of Branch Rule 4. No evidence was given whether the Returning Office gave notice of his finding that the nominations were defective, s.133(1)(c) of the Act, but within a short time of the closing of nominations, the Returning Officer re-considered the matter and accepted as valid each of the nominations of each of those five persons. In the result, the Returning Officer did not reject any nomination as being invalid. In Lovell & Ors. v. The Federated Liquor and Allied Industries Employees Union of Australia, supra, in proceedings taken under s.140 of the Act, the Court found that the second paragraph of Branch Rule 4 contravened s.140(1) of the Act as it then was. The Court, in the exercise of the powers conferred by s.140(6) of the Act, adjourned those proceedings for the purposes of giving the Union an opportunity to alter its Rules. In the conduct of the elections in the Tasmanian Branch of the Union, the Returning Offacerdid not apply the second paragraph of Branch Rule 4, but this occurred some months before the Court published its reasons in Lovell & Ors. v. The Federated Liquor and Allied Industries Employees Union of Australia, supra, ; - When an inquiry has been instituted, pursuant to s.165 of the Act, the Court: "shall inquire 1unto and determine the question whether any irregularity has occurred in or in connexion with the election, and such further questions concerning the conduct and results of the election as the Court thinks necessary." Where an application for an inquiry in respect of elections conducted under s.170 of the Act has been instituted, the Court is not required to proceed with the inquiry unless 1t 1s satisfied that there is reasonable ground for the application, 8.159(4) (b). Whenthe inquiry came on for hearing 1t soon became apparent that the applicants intended to call a number of witnesses in an attempt to prove facts to support the grounds stated in their applications. Before proceeding with the 5. 5. inquiry, the Court has to be satisfied that there is reasonable ground for the application. Accordingly, the persons appearing at the inquiry agreed to make submissions on this preliminary issue on the basis of agreed assumed facts, being facts which the applicants would need to establish by evidence if the Court was satisfied that there was reasonable ground for the application. For the purposes of submissions on the preliminary issue, the following statement of assumed facts was agreed. 1. That Mr. BurgesS was at all relevant times the state secretary of the union. 2. That the returning officer informed Mr. Burgess that he was applying the two paragraphs of Branch Rule 4 to the election, 3. That the three applicants and three other unidentified persons enquired of Mr. Burgess as to the qualifications to be required by the returning officer. 4. The three applicants had intended to nominate for office or offices in the election if they were qualified to do so. 5. Mr. Burgess informed the three applicants and the three other unidentified persons that the returning officer would require two years financial membership of the union. 6. The three applicants as a result of such information did not nominate for office or offices in the election. 7. Mr. Burgess instructed Clarke and Doherty (being collectors with the Union) to advise members that the returning officer would require two years financial membership of the union. 8. Clarke and Doherty so advised a number of unidentified members of the union of the above. 9. After the close of nominations the returning officer rejected the nominations of 5 persons on the ground that they were not financial members of the union for two years prior to the opening of nominations. 10. Several days later the returning officer accepted as valid the nominations previously rejected. ' The first issue that arises is to determine what rule of the Union should have been applied by the Returning Officer 1n deciding whether a nomination was valid or not. An essential part of any election is the calling for nominations. Normally an election begins not later than the 6. time at which nominations are called, and the rules of the organisation which are then in operation are the rules which normally are to be applied with respect of the conduct of that election, see Egan v. Maher (1978) 20 A.L.R. 421 per Evatt J. at pp.466-7 and per Northrop J. at p,483-4. In the elections, the subject of this inquiry, the Returning Officer called for nominations on 12 April 1978. On that date, the second paragraph of Branch Rule 4, although having come into effect, could not have any operation since on its face it was to apply on and after 1 May 1978, being a date after the commencement of the elections. There is nothing to support the view that the second paragraph of Branch Rule 4 which came into operation after the elections had commenced should apply to 'those elections. If it did apply, the result would follow that members elaqible to nominate for office under the first paraqraph of Branch Rule 4 could become ineliqible to nominate at a time after a nomination had been made. A rule which had that effect might well be contrary to the provisions of s.140(1) of the Act, The first paragraph only of Branch Rule 4 was the Rule to be applied by the Returning Officer in deciding whether a person was eligible to nominate for an office specified in that paragraph. In the result, the Returning Officer applied the first paragraph of Branch Rule 4 and so it is not necessary to consider this matter further. The issue remaining to be decided on the preliminary issue, 1S whether the facts assumed for the purposes of submission are capable of constituting an irregularity within the meaning of that word when used in s.165 of the Act. The word "irregularity" is defined in the ShorterOxford Dictionary 23 Ea. 1972 reprint as "the quality or state of being irregular; something that 1s iurregular", In the same dictionary, the word "irregular" is defined in relation to things as "not in conformity with rule or principle, contrary to rule; disorderly in action or conduct, anomalous, abnormal". In the Act by s.4, except where otherwise clearly intended, the word "irregularity" has the following meaning: "'Trregularity' in relation toa an election or ballot, includes a bieach of the Rules of an organisation or of a branch of an organisation, and any act omission or other means whereby the Te full and free recording of votes by all persons entitled to record votes, and by no other persons,, or a correct ascertainment or declaration of the results of the voting 1s, or is attempted to be, prevented or hindereg". This provision does not give a definitive meaning to the word "irregular" but extends the meaning, if necessary, to include specific matters. In the present case, the facts assumed for the purpose of submission on the preliminary tssue-> cannot constitute an irregularity within the statutory extended meaning of that word. There has been no breach of the rules of the Union or its Tasmanian Branch. There has been no act or omission whereby the full and free recording cf votes by all persons entitled to record votes, and by no other persons, or a correct ascertainment or declaration of the results of voting is, or is attempted to be, prevented or hindered, In the present case, on a finding of facts most favourable to them, the applicants, relying on advice given by the Returning Officer and which in the result was wrong, did not nominate for any of the offices for which the elections were to be held. In support of his submission, Counsel for the applicants submitted that the word "irregularity" should be construed as meaning "any action that has the clear effect of depriving a person of his right to nominate for an office in an election." Even if this meaning is adopted it cannot be said that the advice given by the Returning Officer via the agency of the Branch Secretary, deprived the applicants or any of them or any member of the Tasmanian Branch of the Union of his right to nominate for an office. Assuming that the applicants came within the first paragraph but not the second paragraph of Branch Rule 4, then if any of them had nominated for an office, the Returning Officer would have accepted the nomination as being valid. In support of his submissions, Counsel for the applicants relied upon a number of cases decided by the Cowmonwealth Industrial Court. None of those cases are of & assistance in determining the preliminary issue. Those cases concern instances where a returning officer had not complied with the rules of an organisation or where the rules were silent and a returning officer had failed to take steps to ensure that members had a reasonable opportunity to nominate for office or to have knowledge of a meeting at which the election was to take place or where confusion could arise from the fact of issuing ballot papers at the one time with respect to two separate and distinct elections. In the present case the rules of the Union are not silent on any aspect of the election relating to the calling for and acceptance of nominations for offace. There were no gaps to be filled and the Returning Officer complied with the rules. An election within an organisation must be conducted in accordance with the rules of the organisation. Section 170A of the Act is an enabling section empowering a returning officer to take such action and give such directions as he considers necessary in order to ensure that no irregularities occur in or in connection with the election or to remedy any procedural defects in the rules which appear to him to exist. In the present case there was no need for the Returning Officer to take action or give directions under s.170A and he did not purport to take action or give Girections under s.170A. It may have been unwise for the Returning Officer to give gratituous advice, being advice wnich subsequently he did not act upon, but this cannot be construcd as action taken or directions given under s.170A of the Act. In this respect, he was in the same position as any other person giving advice to the applicants. The applicants are not alleging any irregularities arising from the fact that the Returning Officer applied the first paragraph only of Branch Rule 4. They are not attacking the validity of any of the rules of the Union. They are saying that they accepted the advice given by the Returning Officer and therefore did not nominate for office. A Returning Officer is not authorised by 9. the Act to give advice, his duty is to conduct the elections in accordance with the rules of the organisation, complemented when necessary, by the exercise of the powers conferred by s.170A of the Act. The Act enables a member of an organisation to apply to the Court for an order declaring a rule of an organisation contravenes s.140(1) of the Act. Apart altogether from any proceedings or orders made under s,140 of the Act, an irregularity 1n or in connection with an election occurs when a returning officer relies upon a rule which contravenes s.140(1) of the Act. In an inquiry under Part IX of the Act an applicant is free to call evidence and make submissions to show that a rule relied upon by a returning officer contravened s.140(1) of the Act at the time it was relied upon, This occurred in Lovell v. The Pederatced Liquor and Allied Industries Employees Union of Australia, supra, where in respect of the inquiry under Part IX (Matter V. No. 18 of 1978) I said at p.22-23: "The Returning Officer rejected each of the nominations of the claimants and of Mrs. Nevanlinna on the grounds respectively that cach candidate did not comply with the conditions contained in Branch Rules 4 and 10(b), respectively, relating to the qualifying period of membership of the Union. The Returning Officer rejected the nominations of Mr. Janjis on the ground that he was not a financial member of the union. In addition he rejected the nomination of Mrs. Nevanlinna on the ground that one of her nominators, Mr. Janjis, was not a financial member of the Union. For the reasons already stated, Branch Rules 4 and 10(b), insofar as each requires a specificd period of menber- ship of the Union, financial or otherwise, continuous or otherwise, as a condition of eligibility to nominate as a candidate for office, contravenes s.140(1) of the Act. For the same reasons those Branch Rules contravenad s.140(1) of the Act at the time the Returning Officer, in rel1ance on them, rejected the nominations of the claimants and iirs. Nevanlinna, Applying the principles referred to in Allen v. Townsend, it follows, that the Returning Officer cannot rely upon those parts of Rules 4 and 10(b) to support his rejection of the nominations. Accordingly, unless there are other grounds invalidating the nominations, the rejection of the nominations amount to irregularities within the Act," The reference in that passage to Allen v, Townsend is to the following extract from the joint judgment of Evatt and Northrop JJ. appearing in (1977) 31 F.L.R. 431 at p.481 : ",..It is open to a party in proceedings under - 10 10, s.141 of the Act, or for that matter in any proceedings in any court where the matter may be an issue, to claim that a rule of an organisation contravenes the provisions of s.140(1) of the Act and if upheld a party to those proceedings cannot rely upon facts dependent upon the validity of that rule. In legal proceedings of this kind, the invalidity arising from a non-compliance with the requirements of s.140(1) of the Act results from the Operation of that subsection itself and the invalidity does not depend upon an order having been made in proceedings instituted under the provisions of s.140 of the Act. Any order made in proceedings other than in proceedings instituted under s.140 of the Act 1s binding upon the parties to those proceedings only and operates on preceding facts. An order so made has no effect similar to an order made in proceedings instituted under 5.146 of the Act which order operates as from the date of its making and thereafter affects and 1s binding upon all persons; generally, see Shearer's case (1960) 103 C.L.R.368." A member of an organisation must decide for himself whether to nominate for an office or not. He must look to the rules of the organisation. If he considers he is eligible to nominate, and he desires to nominate, he should nominate irrespective of any expressions of opinion by a returning officer or any other person. The returning officer thereafter is under a duty to accept or reject the nomination in accordance with the rules of the organisation. The action by a returning officer in either accepting or rejecting the nomination provides a foundation for an inquiry under Part IX of the Act. If the Court finds that a returning officer relied upon the wrong rule, or upon a rule which was contrary to s.140(1) of the Act, the Court may conclude that an irregularity has occurred. Thereafter the Court has wide powers to make orders rectifying the irregularity, s.165 of the Act. Advice given by a returning officer prior to the close of nominations cannot, on the assumed facts agreed for the purpose of the preliminary issuc, constitute an irregularity within the meaning of s.165 of the Act. The Court finds that under s.159(4) (b) of the Act, there 1s no reasonable ground for the applications. 11. oo iL Accordingly, the applications are refused. The Court, for the reasons given on 3 April 1979 at the conclusion of the hearing, in the exercise of the powers conferred by s.168(2) of the Act certifies that the applicants acted reasonably in making the application for the inguiry. LT eentify that this and the for | WEE CONE aes aie a rue copy of the pi eds & Py 1 t 1 U of the Reason= tor Tudgment hesem Honourable Mo. Justive Korot Poaglr sowie Dated: 20 Amr 9 no 01) ER INTENT }