In the Matter of an appplication by Freda Bogar for an Inquiry relating to an election for offices in the Automotive, Food, Metals Engineering, Priniting & Kindred Industries Union, Food & Confectionary Division [1998] FCA 1259

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 166 of 1998

IN THE MATTER of an application by

FREDA BOGAR for an Inquiry relating to an election for offices in the

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION, FOOD AND CONFECTIONERY DIVISION

JUDGE(S): NORTH J

DATE OF ORDER: 28/08/98

WHERE MADE: MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT In the light of the shortness of time that has been available to prepare these reasons for judgment, I intend to read them. This is an application for an inquiry into the election for the office of Federal Secretary of the Food and Confectionery Division of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (the Union). The ballot closed on 19 May 1998. The hearing of the inquiry occurred on Friday, 21 August 1998. The Federal Secretary is to take up office on 1 September 1998. It is important that the parties know the result of the inquiry before that date. For that reason, I am delivering judgment today. It is less comprehensive than if there had been more time available. There were two candidates for election. The applicant was the unsuccessful candidate, and Mr Noel Treharne was the successful candidate. Mr Borenstein of counsel appeared on behalf of the applicant. Mr Treharne and the Union (the respondents) were granted leave to appear. They were represented by Mr Haylen QC and Ms Rudland. The returning officer appeared and was represented by Mr Godwin. Mr Borenstein claimed that there were two irregularities in the election for the Federal Secretary of the Division. I turn to consider the question of the first irregularity. Together with the election of the Federal Secretary of the Division, an election for the office of Tasmanian Regional Secretary of the Division was conducted. Mr Treharne nominated for the latter office and was declared elected unopposed on 6 March 1998[BB1]. Rule 3 concerns the National Conference. Rule 3(8) provides: "No member shall be entitled to nominate in any election for more than one position which would entitle the successful candidate to sit on the National Conference." It was common ground that both the Federal Secretary of the Division and the Tasmanian Regional Secretary were entitled to sit on the National Conference. Counsel for the applicant submitted that the acceptance of the nomination of Mr Treharne for the position of Federal Secretary of the Division was in breach of r 3(8) and, thus, an irregularity in the election. Counsel for the respondents argued that the Rules made a special provision for the holding of both the office of Federal Secretary of the Division and Regional Secretary. Rule 3(8) had to be read subject to r 47(12)(n). This rule forms part of the special enabling rule designed to accommodate the amalgamation of the Automotive Metals & Engineering Union and the Confectionery Workers' & Food Preservers' Union. Rule 47(1) provides: "Subject to the transitional provisions contained in Rule 48, the provisions of this Rule shall apply notwithstanding anything elsewhere contained in these Rules." Rule 47(12)(n) provides: "Notwithstanding anything provided elsewhere in these rules, the Federal Secretary, Food and Confectionery Division, may also occupy the office of Regional President or Regional Secretary provided that he or she shall occupy one of those offices on an honorary basis." Mr Haylen observed that r 47(12)(n) is a rule dealing with the specific matter of dual office holding and should, therefore, prevail over the general provisions of r 3(8). He also pointed to other parts of r 47 which recognise the dual office holding. Thus, r 47(6)(aa) provides: "Provided that where the Federal Secretary - Food and Confectionery Division also holds the office of Regional Secretary the relevant Regional Council shall elect one of its number as a substitute for the Regional Secretary." In answer, Mr Borenstein drew attention to r 47(31) and (32). These provisions are contained within the enabling rule and provide for the election of Food and Confectionery Division delegates to the National Conference. Rule 47(31) requires the State Returning Officer to conduct elections every four years for elections, inter alia, of Food and Confectionery Division delegates to the Divisional Conference, who are also the Food and Confectionery Division delegates to the National Conference. Rule 47(32) provides that the election is to be conducted in accordance with Part A of r 2 and r 3(6). Rule 3(6), which is part of the National Conference rule, commences with subrule (a) as follows: "Subject to this Rule the delegates to the National Conference from the Food and Confectionery Division shall be the Regional Secretary and Regional Delegates to the Divisional Conference of the Food and Confectionery Division." Mr Borenstein contended that the opening words incorporate the provisions of r 3(8). Consequently, the special enabling rule itself contemplated the operation of r 3(8). He also pointed to r 48(4) which provides: "Where the honorary position of Federal Secretary, Food and Confectionery Division/Assistant National Secretary, is held by a person holding the office of Regional Secretary, Food and Confectionery Division, that person shall hold office as a National Conference delegate by virtue of his/her office as Assistant National Secretary. The branch of which the person is Regional Secretary shall be entitled to elect an alternate delegate to National Conference in lieu of the Regional Secretary. Where the Regional Secretary ceases to hold the dual positions, he/she shall resume office as a delegate to National Conference by virtue of holding the office of Regional Secretary." This rule deals with the special situation of dual office holding during the transitional period, to ensure that the one person does not exercise two votes on the National Conference. Mr Borenstein argued that the existence of r 48(4) demonstrates that r 3(8) had a general application. If r 3(8) did not prohibit the dual office holding, there would have been no need for r 48(4). He also relied upon the decision of the Full Court of the Industrial Relations Court of Australia in Campbell v Bogar, 3 July 1996, unreported, which was concerned with the same rules and the question whether the Federal Secretary of the Food and Confectionery Division was a full-time position. Rule 5(2) with which the decision was concerned provides that: "The National President, the National Secretary, Assistant National Secretaries and National Organisers shall be full-time National officials who shall be elected in accordance with these Rules and subject to the provisions of r 48.4." The Full Court considered the operation of r 48(4), which has been set out earlier in these reasons. The Court noted: "The primary purpose of rule 48(4) is to establish a regime identifying the basis upon which people are or might be elected as delegates to National Conference. The only rational connection between rule 5(2) and rule 48(4) is if the reference to 'honorary position,' modifies the status of the office of Assistant National Secretary/Federal Secretary, Food and Confectionery Division otherwise conferred by rule 5(2). Unless the concluding words of rule 5(2) are otiose, that is their intended effect." The Full Court held that the operation of r 48(4) was limited to the transitional period. The interaction between r 3(8), then r 3(7), and r 48(4) was then addressed as follows:[BB2] "Rule 3(7) provides: 'No member shall be entitled to nominate in any election for more than one position which would entitle the successful candidate to sit on the National Conference.' Rule 3(2) provides that the National Conference shall consist of members of National Council, which includes the Assistant National Secretary Food and Confectionary Division: see rule 5(1)(d). Rule 3(6)(a) provides that the delegates to the National Conference included the Regional Secretary. Thus the combined effect of rule 3(7), (3) and (6)(a) is to prohibit a person nominating for the office of both Regional Secretary and Assistant National Secretary Food and Confectionery Division. The position Mr Ryan was in at the time the transitional rule took effect was one that under the rules could not be replicated after 1 September 1994. That is, a person could not be elected to the office of Regional Secretary and also the office of Federal Secretary, Food and Confectionery Division. One of the purposes of rule 48(4) was to ensure that the effect of the apparent disconformity between the occupation of the offices by Mr Ryan arising from the transitional rule and the provisions of rule 3(7) was dealt with. That is, those offices could be occupied by Mr Ryan during the transitional period with provision made for representations of the Victorian Branch by an alternate delegate on the National Conference but on the basis that when, by the transitional rule, they were no longer occupied by him from 1 September 1994, the rules more generally would operate. That the rules operate in this way points clearly to rule 48(4) having only a limited life." It is probable that the reference to r 3(3) in the above passage should be a reference to r 3(2). The decision of the Full Court is clear authority that r 3(8) prohibits a person nominating for the offices of Federal Secretary of the Division and Regional Secretary of the Division outside the transitional period. The Court then turned to the effect of r 47(12)(n) and the question whether it rendered the office of Federal Secretary a full-time office. At page 11, the Court continued:[BB3] "However the status of the office of the Federal Secretary does not depend only on the construction of rule 5(2) having regard to rule 48(4). It is also necessary to consider rule 47(12)(n). It is to be remembered that rule 47 is to apply notwithstanding any other rules, including rule 5, though subject to the transitional provisions. If, properly construed, rule 47(12)(n) rendered the office of Federal Secretary, Food and Confectionery Division a full-time one then rule 5 (2) would yield to rule 47 (12) (n). That would be so because rule 48(4) did not, apart from the incorporation of it in rule 5(2), confer on that office a particular status. Rule 48(4), in terms, simply assumed the status. It is to be remembered that rule 47(12) in its entirety concerns the office of Federal Secretary, Food and Confectionery Division. However rule 47(12)(n) does not confer on the offices named in it an identified status. It assumes that a status is conferred on the offices elsewhere in the rules and its purpose is simply to ensure that the one occupant of both offices cannot assert a right, for example, to a salary in relation to both offices. The rules do not expressly deal with the status of the offices of Regional President or Regional Secretary." Similarly, r 47(12)(n) does not confer on the office a capacity for that office to be held with another office. It assumes that this ability derives from elsewhere in the rules. The rule does not deal expressly with the capacity to hold dual positions. Mr Haylen criticised this reasoning on the ground that it gives r 47(12)(n) an operation in the transitional period. He contended that the overall structure of the rules suggests that matters pertaining to the transitional period are found in the transitional rule, r 48. It is true that there is some curiosity about the location of r 47(12)(n) in the enabling rule. It would have fitted more logically in r 48. The draftsperson may have been concerned, however, for the sake of completeness and certainty, to consolidate all the rules relating to the office of Federal Secretary whether the provisions were limited to the transitional period or not. In my view, the construction applied by the Full Court in Campbell v Bogar should be applied in this case. Rule 47(12)(n) does not confer on the Federal Secretary of the Division an ability to occupy the office of Regional Secretary. It assumes that ability, which is conferred elsewhere. It is conferred in r 48(4) and is limited to the transitional period. The same drafting process can be seen in r 47(6)(aa). There, the draftsperson was concerned to deal with all matters concerning the Food and Confectionery Division Conference. The rule deals with a situation which could only arise in the transitional period. Nonetheless, the draftsperson included the provision in the enabling rule, rather than in the transitional rule. Again, this is a recognition of the limited dual office holding contemplated by r 48(4). Thus, there has been an irregularity in relation to the election of Mr Treharne to the office of Federal Secretary of the Food and Confectionery Division, in that his nomination was accepted in breach of r 3(8). Counsel for the applicant argued that there was a further irregularity, namely, a breach of r 2A(12)(aa), which provides: "A person elected to any of the offices of National President, National Secretary, Assistant National Secretary, National Organiser, State Secretary, State President, Assistant State Secretary and State Organiser shall (1) not at the same time hold another full-time office in the Union." When Mr Treharne nominated for the position of Federal Secretary of the Division, he held the full-time position of State Organiser, Tasmania. Rules such as r 3(8) identify the matters which effect the validity of a nomination. Rule 2A(12)(aa) does not expressly relate to nominations. In my view, Mr Treharne was entitled to nominate for the office of Federal Secretary, and if elected, relinquish his position as State Organiser before his term as Federal Secretary commenced on 1 September 1998. There was no irregularity in this respect. As a result of the one irregularity found, one of the two contenders in the election was not entitled to be a candidate. In these circumstances, the irregularity affected the result. The Court has power, under s 223(3)(a) of the Workplace Relations Act 1996, to declare the election void. Mr Haylen submitted that the Court has a discretion not to make such a declaration, but simply to terminate the inquiry leaving Mr Treharne in office. Mr Borenstein, on the other hand, urged the Court to make that declaration and, further, to declare the applicant elected. He pointed out that Ms Bogar applied at an early stage to have the election stopped pending the determination of this inquiry and, when that failed, she incurred the expense of contesting the first election. The most important considerations in the exercise of discretion in this inquiry are that the rules of the Union should be observed and the members should be given a proper opportunity to express their wishes. Those considerations persuade me to declare the election of Mr Treharne void and to order a new election. I will stand the matter over to allow the applicant to bring in short minutes of orders necessary to effectuate these conclusions. The matter may also be mentioned to me at a convenient time to the parties, to make further orders in relation to the conduct of the election and to take account of what is to happen in the interim. I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice North