INDUSTRIAL LAW - orders corgenuenr upen rerlain slectiens being declared void - balay Conciization and Arbitestion Act, es 4 TRANSPORT KOAFER PITTGERALD J. BRISHANE 41 OCTOBER 1983 EN THE PeCEFAL ut ) QUEENSLAND DISTR ' OLD. O2 GF 1983 (NQUSTRIAL DiVISToN Iw THE METTEF of the Toneiirationm anc Arpitration Aer AND IM THe Mat CHARLES PONSALS, RODNEV NEWTON, JAMES POTTER, tor an in the TRANGPapr yn F C act RERS UNION ot AUSTRALIA Uist AND IN THE MiATTEF af 2 Reference of such applications ty 2 'ial Recristrar to the Pederal Court of Auetrallia OP DEP JIDSE MAKING OPDER: PLUZGEDAIT J. DATE OF QPDEP: Z1 GCTORER i583 WHERE MADE: ERTSBANE 1 The Court declares that the wersons declare elected in March 1983 te the offices of Branch Additional Federal Counc1llorg, Franch industrial kese Officer, Branch Qeeraniser iToewich sub-branch), Brancn Croaniners (Bry-oane eun-aranch), Beanch Committeemen, Bei¢rcane Sub-ceanach Laalteran, Erzsbane Sub-branch Vice-Chairsman, Brizhane fub-branch Secretary and Brisbane cUb-branch Comnittéeren te the Oueensland Branch of the Transoort Aerkea:s Upron of Buskraiza were not validly; tw A iy fa ? ay mm Tv reya ny rs ia ofot cr of os ip ta fe ch c c a] ot Ly wv tu {4 wz a) aty P- th ct ry w ry =] 3) ae iD Transport Workers Union oF Australia, wncluding the timetabis provided for ip o3uch 6 6cules, subject to the . The Cou: orders that che election in respece of Branch Oreanizers he conducted as an electicn for seven duties within that dub-Erascn cy as airacted by the Eranch ts o fog a me q owKB N i)ad fi ui hy a avt Secretary and an elertion tut are hea 4, The Cott oeders that until tne new election is fa) the percons declared elected in March 1982 co the ezfices yererreg to in paragraph 1 hecect hold and he deemed to have nela at ail times 3ince then the respective ertices ta which they were (b Cd ) ) ) declared elected; luvick hald office as er to carry out ze omithin the Bvaisbane svicn Sub-Eranch as by che Brancn £& within 7" cays John Cuarles Penhae a Branch Sreanti id f he notify the Branch ny that ne desires ta e ard cundertakes ct9 Gare for the arffice of the new election: Hach of Gregory Jonn Pay, Trevor Roaney Newton. and Cearge Allan Goold hold office asa fa nicer and carry out orvenizational duties within tre Brisbane Sub-Erancn ay reasonacly directed by the Branch Secretary provided that within 7 davs from the date hereof tify ry in writing al S ch office and candidate for ec in the new Gregory Jchn Ray nold the office of a Branch Committeeran reoresenting the Bricoane Sub-Pranch rroviaed that within 7 days from tne date nereof he notify the Branch 'Cecretary ir writarg that he desir cc nh office and un canaidate foc E Committeeman Sub-Branch in ana Lawrence of a Brisbane m wo SS Da provided that da herect he SCreTaAryY In vELELnS ew suen office and as a candidate for yisbane Sub-Branch ey election Court Srrery thes upon conple*ion of the ed to be uelr, the peztons deciared elect es the subvert of such elections hold offi elections ed to each declared elected in March 1982. . 6. The Court Orders that the rules of tne Queensland Branch ef the Tranepert Workare Urion of Auetealia be modified for che curposes of the new eslecrtione ta the extent rade necessary by on The Court crases thet a cory of this Order be served on the Industyrzal Peosreteer. a Whe Court criare che Solicitors For tue cendered pub not unti. after aqe_lecation ¢ be held in accoréance inn these oecers. The Caust oracst: coat all cagte of ane incidental ta the Ww a receedinegs herein be reserved. > ti im o5 oc < iT fa] iyrad q v ' ay porrd moe ne. IN THE FEDERAL COURT OF AUSTRALTA QULENSLAND DISTRICT FRCISTHY INDUSTRIAL DIVISION OLD. O02 QF 1983 ewww IN THE MATTER of the Cone Arbitration Act riiation ard AND IN THE re FA CHARLES FENAAL yen lcation by JOHN BREGODY JCHN REY, TREVOR RODNEY NOWTON L EDWARD WAFD snd PONALD JAMES POTTER, for ar Treuryy into an Electicn in the TRANZPOPT WISKECS WINTON OF AUSTRALIA AND IN THE MATTED of a Reference of such appilcations by the Industrial Registrar to the Federal Court cf Australia FITSGBERALD J. 21 OCTOBER 1983 FEASONS FuR JUDGMENT The bacuercund reo these procesdines appeaca in ceasors fer judgmen: which T deliveree on ld Cctcbher 1982 on which date the Court declared vo1d electrons comeleted ain March 1983 to certain offiess cn the Queersland Branch of the Transport Workers' Union cf Avstialia. Fuartner argument took place before ta me yesterday concerning ordere sought by the applicant pursuant te sub-s. 16503) of tne Ceneiiiation and Arbitration A 2 4 ck 1924 ("the Act"). Steten oriefiy, Tne present contest conrzerns substantially whether oersone wha heid office wrior to the voice electrons completed in Mech 13°3 a2 persons declarec elected in these void elections cheuld hold office pending the fresh elections, which are likely t. ce completei in March next year. Waatever cavese © f-lior ic is plain that the result will not be satisfac cory te everyone. lt 25 necessary for me to try to have regard for the interes. cf the Branch members, at least as wuch as the interests of the cival candidates, and tc A fa) w or It6 Eat) i] oO oc ~ ies iDree tz te m4 ix = u fu m ie]Dp tr ar]3 ba) ia cr w kb ix) uw fa (9) rh wr aa i)Dre] oO cr te'G encourage wisconduct an Unien electrans in the expectation that a win even Ey urprcper means will glace the vistors in a superior eosition for any re-election orcered; ~o deubt there are advantages in the moscossion of office in such contests. oa Finally, I think 16 12 wmnpertant in the concext of elections such as these, in which the vival candidates formee comveting teans, to create so far as 12 feasible a situation in which each can, *%¢ L c » rs ra an extent, control and supervise the cther, partic: y perhaps An additional Pe ry c Wt at Q fr im rmis) + = 1s 'Ty wt fa c ry n 1) Wr against anv woatential p benefit of such a covrze may be te aecrease the vossibility that there will be ancothe: miscarriage of the electoral pracess leading to further seplication th Bs 'D in we} m ny Tv a rr the elections which remain to ke conducted. I wae asatigfied that che result of the elections completed in March if8? may have been affected by irregularity and that in all the circumstances, 1t was appropriate to declare the electrons in auestion void. I wade no finding that tne recult of the electrore was affected by iursegularity ard the material avallable to me would not have permitted such a finding except by way of spertulation. Accordingly, it is, in my opinion, appropriate not to ignore the views of the general body cf the members of the Branch 2f the Union as reflected by their voting, while remembering that theirr voting may neve been improperly swayed, at least where ag here the margins between successful and unsuccessful candidstes were im all cases, in the context of the numbers of votes cast, quite substantial. s in these proceedings were aware of the particular matter of complaint which was at least the grincipal reason for the declaration that the elections rare vold during the ceurse of the elections, but they did nothing until after the elections had taken place and they had been defeated and indeed did notaina then for a considerable ceriod. Further, despite the terms of Branch Sub-rule 33(q) which cn one view provides for ancurbent office bearecs to continue ir office until their successors are declared elected, there seems little reason to reinstate at this point a prior incumbent tho did not recontest a particular office. That occurred in respect of & majority of the offices. The nominations which are received in respect of the elections now to be held cauld cast @ quite different complexion on this aspect of Hi rs4 v id mr the matter, whicn yera as of very considerable significance. In the at*emetsc acplication of the above notions, the outcome in respect of many of the offices is largely a matter of course because after iuneumkents did net stand. TI will deal only with the emceptiarns oO Tar 4s concerns the election of three adaitional federal counciliors, the only ircumbent who stood but was not elected was one Foy Leslie Linccoin. i have decided that he should not he appointed to hceid office until the next election is declared for anumber cf reasons. He was defeated by a very substantial margin by the third ct the successful candidates and, of course, dy an even greater warcgin by each of the other two, The cositian is not an cffice within the Branch so much as an office to reoresent the Branch feterally. And, it does not seem bo me appropriate, in the circumstances o* this case at least, toa take any ateo which might involve interference with the operation of the Union itself. and not merely the Branch, or any modification of the Union = rules. Gregory Jcthn Fav vas the oaniy incumbent Branch committeeman rerre bane fub-Pranch who stood for election and was not onsider that he should be added as a Branch committeseman representing the Brisbane Sub-Branch until the deciaration cf tne next electicn. The margin by which he was defeated was ¢1iogrificarnt but not ensenous and the pcsition in question is imeorcant, net least because his presence asa Branch committeeman +2 "ys vesenting tne Rrisbane Sub-Eranch vv1li assist to balance the Branch Committee of Management which, prior to the void electicns cecmmieted in March 198?, was controlled by the team which was unsuccessful in these elections. balance Tam alse of 'the cpinion that John Victor Fioyd and Laurence Conn Turner, the only incumbent Brisbane Sub-Branch Committeemen prior te the void elections corpleted in March 1983 whe umsuccessfully contested these elections for such office should be added as Brisbane Sub-Branch commiiteemen until the completion of the elections now to be held. The position in relation to Branch organizers 15 more difficult. The Brarch organizer (Tpswich Sub-Branch) prior toa the void election completed in March 1983 was John Charles Penhallurick. Me Penhaliurich did not contest that pasition. Rather Donald Lynald Barden, who was not an incumbent organizer contested that positisn on behalf of the Ward/Potter team, Mr Barcen was defeated by a significant bat not a great margin by tne candidate for the other team, My Tenhallurick stood for tm election as one of the 7 Branch crgarnicer: (Brisbane Sub-Branch). mK ut Three other members oF the Ward'Potte ean, Cregorcy Jchn Ray, So,.g6 aAiian Goold who also stood tar election as Eranch Jtcanitzers 'Brisnene Sub-Branch) had heen Branch organizers (Beisrane Sub-Pranch? prirog to the void elections. The marein by which all four were defeated by the seventh of the successful candidates was similar and, although significant, was not great. These are vitally important positions. All else aside, Branch organizers are paid employees of the Union. Further, there is no ccubt but that, in the course of their duties, Branch organizers necessarily come in contact with the rank and tile members of the Branch. If Messrs Penhallurick, Ray, Newton ana Gocld are not Branch organizers in "4 cr the period leading up to the ne election, they are likely to pe disadvantaged. Further, some at least of Messrvs Penhallurick, Ray, Newton and Goold are sresently either unemployed or in temporary employment. ia] a ca iY Dp a ther hand, I was told that 1 is an expensive business to emplov a Branch organizer and that to add Branch organizers would strain the funds of the Branch. On balance, aithouch not witheut some hesitation, I have decided that Mesers Pennallurick, Ray, Newton and Goold should held positions as Hranch organizers until the completion of the next election, but subject te certain conditlons. They will be under the control of one of the leaders of the rival team, Mr Hughie Cohn Williars, who must hovever act reasonably towards ™ them in his role as Eranch Secretary. ach should only be given the position if he 71sches 1t; Toy example one or nore of them may wich not to tesminete any existing employment. Further, each he intends # hy He cr ue ba] oO to iy) b Lat rou" acr should only be given the positio to contest the vosition in the election which must now be held. The form of the orders which I progfose to make in o spect of all who are to hold office at this time will only be that each holds office until the next election or earlier ocder. If at any time 1t 15 thought appropriate, appiication can be made for the variation of the orders. It may be that after nominations have ciosed some differences in the situation will make such an application appropriate or it may well be that a different conclusion would be avpropriate if the material upen which the Court was yesterday asked tc act contained detailed anformatier by way of proper evidence rather than, as matters rresentiy stand, somewhat broad assections from the Bar table. is y I certify that this andthe & preceding pages are a true copy of the reasons for judgment herein of His Honour Mr Justice Fitzgerald s eccletel " Daceonr Associate co? Dated 2 Octady r, /9 £32 x rod on bes "