% Il iE CEDERAL COURT OF AUSTRALIA ) ) INDUSTRIAL DIVISION ) No. 30 of 1979 ) ) NEW _SOUTEH WALES DISTRICT REGISTRY IN THE MATTER of the conciliation and Arbitration Act, 1904 AND IN THE MATTER of an application under s.141 of the said Act BETWEEN JOSEPH KANAN Applicant AND M.A. HAWKINS and NOEL BATTESE Respondents / DATE OF'ORDER: 14 September, 1979 WHERE MADE: Sydney JUDGE MAKING ORDER: J.B. Sweeney J. THE COURT ORDERS THAT: The respondents and each of them perform and observe the rules of the Australian Postal and Telecommunications Union by refraining from using the property, including the building owned by that Union and including any other resources and machinery and staff of the New South Wales branch of the Union to support, promote or defedt candidates or influence voters in the current election being conducted in the New South Wales branch of the Union. IN THE FEDERAL COURT OF AUSTRALIA ) ) INDUSTRIAL DIVISION ) No. 30 of 1979 ) ) NEW SOUTH WALES DISTRICT REGISTRY IN THE MATTER of the Conciliation and Arbitration Act, 1904 AND IN THE MATTER of an application under s.141 of the said Act BETWEEN JOSEPH KANAN Applicant AND M.A. HAWKINS and NOEL BATTESE Respondents 14 September, 1979 J.B. SWEENEY J. JUDGMENT: I propose to deliver my oral judgment in this matter. I would have preferred more time. JI would have preferred to wait until the transcript is available, but neither more time nor the transcript would have altered the views I have formed. They will show their effect, I suppose, in the completeness of my reasons, perhaps in the lack of elegance ef some of the phraseology, but since the election is in progress I have thought it proper to give 'judgment as soon as possible. The application I have before me is one under s.141 of the Conciliation and Arbitration Act, 1904. It is brought by Mr. Kanan, who 1s a member and indeed an organizer of the New South Wales Branch of the Australian Postal and Telecommunications Union ("the Union"). The respondents are Mr. M.A. Hawkins and Mr. Noel Battese, who are also members of that organization and are the Secretary and President respectively of the New South Wales branch of the union. There is an election pending in at least the New South Wales branch of the union and that appears to be contested by at least three, possibly four, groups. one of the groups seems to be known as the Kanan group, one as the Battese/Hawkins group, pre as the Rondell group and it is possible, though not clear, that there is a fourth set of candidates supported by Mr. Slater, the General Secretary of the Union. The dispute concerns the rules of the union and the order sought is in the following terms: 1. That the respondents perform and observe the rules of the Australian Postal and Telecommunications Union and refrain from using the property and resources of the New South Wales branch of the union so as to support, promote or defeat various candidates for office as a group of nominees or persons who choose or are chosen for office. 2. That the respondents perform and observe the rules by reimbursing the amount of $255 personally to the funds of the New South Wales branch of the Union. The matter concerns primarily the issue of a circular of 9 August, 1979, bearing that date and issued on or about that date. Before I proceed to discuss the circular, I think I should set out the position of the rules as I see them. I accept the decision stated in Short v. Wellings 72 C.A.R. 84 in a particular passage at page 87 where it was there stated by the then Court of Conciliation and Arbitration: "The branch rules provide for the election of officers and members of its Committee of Management. Although there is no specific rule against the use of the resources and funds of the organization for the support of particular candidates at any such election, to use the property and resources of the branch for such a purpose would deny the right of such candidates as were not to be supported by the organization, its committee of Management, its several authorities, its resources or funds, to the freedom and equality in their candidature to which the election rules imply they are entitled. The funds and resources of the organization belong as much to them and their supporters as to their opponents and theirs." A not dissimilar statement appears in a recent judgment of this court in Lyons v. Deegan, delivered on 22 June, 1978. The Court was there dealing with a referendum canducted indeed within this same union. Mr. Hawkins was one of the respondents to that application. In that referendum there was an allegation that an advice on how to vote in the refer- endum, urging a yes vote, had been included in envelopes with ballot papers. The Court then stated, looking at this question by reference to considerations of principle: "Wwe consider 1t plain that there is a duty on the part of the returning officer pursuant to rules such as rule 21 and indeed in all cases in which a free vote of members is sought for the purpose of ascertaining the opinion of memberS, that the returning officer should consider himself as an official at arms length from those members of the organization having any interest in the vote going one way or the other, so that in all aspects of the machinery for the taking of the vote, the taking of a free vote is achieved uninfluenced by any propaganda in the machinery." Reference was also made to a judgment of Mr. Justice Dunphy in Holmes v. Riordan (86 C.A.R. 180). In that case his Honour, among other things, was dealing with a publication issued by the union during the course of an election. A direct attack on the financial standing of the union had been made in/propaganda issued by one of the candidates. The alie- gation appears to have been made in terms that the union was bankrupt. The union replied to that by a circular to ali members, the bulk of which dealt with the finances of the union and a small portion of which, I think his Honour said two inches out of 24 column inches, urged a vote for the respondent Riordan. His Honour refused to make an order, but as I read the judgment he regarded the issue of the leaflet as contrary to rules, but refused to make an order because of the time which had elapsed. That view is supported by the fact that his Honour ordered the successful respondent to pay a portion of the applicant's costs. I do not regard the judgment of his Honour as an authority in any way in conflict with Short v. Wellings. The position then, as I see it, is that although there is no express rule in the rules of the union forbidding the issue by a secretary of a pamphlet, such as the one in this case, or prohibiting the use of the machinery, funds and resources of the union in an election campaign, that such a prohibition is to be implied. The fact that a free vote of members is important is to my mind emphasised by the changes made to the Act, particularly that setting out the need to encourage the democratic partici- pation of members in the affairs of an organization. Looking at the circular to which objection is taken, it deals with matters under a number of sub headings. 'The first is termed Disruptive Election Propaganda and consists of an attack on what are claimed to be four groups of people who benefit by the removal of the existing officials of the New South Wales branch. The second portion, under the heading Tie-ups, contains an alle gation that these groups are allied in some way and Geclares that the fourth group which would profit by the removal of the New South Wales executive are the two commissions, presumably the Postal commission and the Telecommunications Commission. The next part is headed Anti Union Slant and deals with briefly certain industrial disputes it claims the branch was involved in and the fourth portion is headed The Never Dead and is a criticism of unnamed people who were said to benefit by various smear sheets which had been issued. The circular is, to my mind, clearly electioneering material, the effect of which would be to lead to a belief that the groups headed by Kanan, Rondell and possibly Slater, should not receive votes, but the existing leadership should be returned in the ballot. Attempts were made to justify the circular and Mr. Hawkins in his affidavit said that it was the position that a number of documents attacking the union had been issued. He said they led to doubts being possibly raised as to the financial position of the branch and the part it had played in certain disputes. However, it must be said that there is no mention at all in the circular of the financial position of the branch. Indeed, some examples which were said to be the smear sheets were tendered before me and none of them contain any attack on the financial position of the branch. While it may be the position that a secretary is entitled or perhaps obliged to reply to an attack on the financial position of his branch, that was clearly not the case here and I regard the efforts made to justify the circulars as failing completely and not being an honest account of the reasons why it was issued. The evidence is that the circular was produced, having been written by Mr. Hawkins, by the union employees, presumably the clercial staff who typed it and used office machinery to reproduce it and used office envelopes to enclose copies cee addressed to the representatives and that union money was used to pay for the stamps when it was sent out. The circular was despatched to all members of the union and I have not the remotest doubt that those representatives were intended to and in the main will bring the circular to the notice of the members. The question that arises is whether that is an action in breach of the rules. I think one need only consider the position in a general election to find the answer. If in a general election a matter of days before the election commenced, a government used public moneys and public civil servants to produce a propaganda leaflet and despatched it, using public moneys, through the post to all electors, then there would be not the remotest doubt that that action would be completely condemned. Such an election would not be regarded as a democratic election. I regard the issue of the leaflet in these circumstances as a breach of the rules and that in itself would, in my view, be sufficient to make it proper to make an appropriate order so far as Mr. Hawkins is concerned. There are some other matters to which I wish to refer. When the matter was before me on 3 September last, undertakings were given on behalf of the respondents in these terms that seen = nee ee eee they would not use their positions within the union or the funds or machinery or employees of the union for the purpose of distributing any material which directly or indirectly urges voting for a particular person or group or against a particular person or group. The fact is that on that same day a group of some fifteen persons, including it appears five organizers or officers of the union, were engaged in placing in envelopes material dealing with, particularly I think Mr. Battese, which could only be regarded as assisting indirectly at least his election. The explanation given is that on 27 August or thereabouts it was found that a room which had previously been used at the Trades Hall was not available at weekends, except on payment of overtime to the cleaner, and it was then decided to rent the fifth floor of the union building for use at least for this task on this day. An affidavit by Mr. Wilson was filed, I think on 10 September, and his affidavit was that by mistake he went to that fifth floor and saw there a temporary organizer engagéd in the work of placing leaflets in envelopes. When the matter came on for hearing after Mr. Wilson's evidence, evidence was called for the respondents in reply to that by a Mr. James. Some question arose whether his evidence was hearsay or not. In any event, this is a question which is dafficult to settle without access to the transcript, but whether hearsay or not I think it proper to take it into account. This Court has already held in Gordon v. Carroll 27 F.L.R. 129 that in matters of this nature it should not be bound by the strict rules of evidence and when one considers the question of the availability of evidence, regard must be had to the decision of the High Court in Walker v. Walker 57 C.L.R. 630 particularly the passage at page 637. In those circumstances I turn to Mr. James' account. This was that a lease, the lease to which I referred earlier, was arranged between a Miss Gordon and Mr. Battese. His further evidence was that he, and presumably the other organizers and officers, had taken days off their work with leave, but without pay, on this day. It seems a little improbable that any organization would be able to do without five officers during the whole of the day. Be that as it may, the fact is that pay was not deducted from him on the particular Monday, 3 September which was pay day, nor was it deducted on the subsequent pay day. His evidence is that the cashier drew his attention to the fact that she failed to deduct the pay and said she would do it on the next occasion. Mr. Battese was not called nor was Mr. McKenzie nor was the cashier. In those circumstances I can only say that the story is one which is inherently improbable and I am unable to accept it. I am satisfied then that Mr. Hawkins did issue a leaflet in breach of the rules and in breach of his duty as secretary. 10. So far as Mr. Battese is concerned, he played his part. He appeared by counsel appearing for both him and Mr. Hawkins and an attempt has been made to justify the circular. The circular was not only produced, as I have said by union labour and use of union machinery, but the stamping of it, the cost of $255 was paid for by the union. Mr. Hawkins' evidence was that Mr. Battese was counter-signatory on most cheques and probably he was the counter-signatory on this cheque. The document was not produced and, as I have said, Mr. Battese gave no evidence. - There has been then a use of union staff, a use of union funds, a use of union machinery and a use of union property to advantage certain candidates, who include the two principal officers and to seek the defeat of their opponents. It is Obvious that any governing body in a union, as indeed any government anywhere, regards itself as best calculated to Manage the affairs of the union or government and regards others as less competent; but it 1s clearly not entitled to use its position and to use the resources in the manner in which they have been used in this case. IT am satisfied then that in the case of each respondent I should make an order pursuant to section 141 and I propose to make it in these terms: that the respondents and each of them perform and observe the rules of the Australian Postal and Telecommunications Union by refraining from using the = ape awe il. property, including the building owned by that union and including any other resources and machinery and staff of the New South Wales branch of the union, to support, promote or defeat candidates or influence voters in the current election being conducted in the New South Wales branch of the union. That leaves the question of the repayment of the $255. An undertaking was given on the directions hearing that if I found against the two respondents that money would be repaid. I am prepared to allow an opportunity for that to be done and in dadition to making the order {[ have indicated, I will stand the matter over generally, reserve leave to the claimant to have the matter restored to the list on seven days notice to the Court and the other parties. If the repayment is not made that step may be taken and I will consider the question of further orders then. This matter stands adjourned on those terms.