Inquiry relating to elections for offices in the Construction, Forestry, Mining & Energy Union, FFTS Union Division; re Skourdoumbis [2001] FCA 1885

FEDERAL COURT OF AUSTRALIA

Inquiry relating to elections for offices in the Construction, Forestry, Mining & Energy Union, FFTS Union Division; re Skourdoumbis [2001] FCA 1885

IN THE MATTER OF AN APPLICATION BYLEO SKOURDOUMBIS FOR AN INQUIRY RELATING TO ELECTIONS FOR OFFICES IN THE FFTS UNION DIVISION OF THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

V 287 of 2001 GRAY J 10 DECEMBER 2001 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 287 of 2001

IN THE MATTER OF AN APPLICATION BY LEO SKOURDOUMBIS FOR AN INQUIRY RELATING TO ELECTIONS FOR OFFICES IN THE FFTS UNION DIVISION OF THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

JUDGE: GRAY J

DATE OF ORDER: 10 DECEMBER 2001

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT the inquiry instituted by application filed on 20 April 2001 be terminated.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 287 of 2001

IN THE MATTER OF AN APPLICATION BY LEO SKOURDOUMBIS FOR AN INQUIRY RELATING TO ELECTIONS FOR OFFICES IN THE FFTS UNION DIVISION OF THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

JUDGE: GRAY J

DATE: 10 DECEMBER 2001

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The question raised before me this morning is whether I should enlarge the time fixed by reg 62(1)(b) of the Workplace Relations Regulations ("the Regulations") for commencing an inquiry into an election pursuant to s 218 of the Workplace Relations Act 1996 (Cth) ("the Act"). On 20 April 2001 the applicant, Leo Skourdoumbis, filed in the Court an application pursuant to s 218. The application relates to two elections in the FFTS Union Division ("the Division") of the Construction, Forestry, Mining and Energy Union ("the Union"). 2 The first election was the election for Divisional Branch Delegates to the Divisional Conference. According to the application, the result of that election was declared on 6 October 2000. The second election to which the application related was the election for Divisional President, two Divisional Vice-Presidents, Divisional Secretary, Assistant Divisional Secretary, and two additional Divisional Executive Members. That election was said to be in progress. 3 The application came before me, pursuant to s 219 of the Act and O 48 of the Federal Court Rules, for the fixing of a date on which the inquiry would begin and for the giving of directions as to the persons on whom the notice of the application should be served. On looking at reg 62(1), I found that the subregulation read as follows: "An application under section 218 of the Act for an inquiry into an election may be made: (a) at any time on or before the day on which the result of the election is declared; or (b) not later than 3 months after that day; or (c) on a later day allowed by the Court." 4 The provision differed from the one with which I had been familiar. It was amended to its current form by a regulation that came into operation on 16 September 1999. By a transitional provision, it applies to any election the result of which is to be declared after 16 September 1999. It therefore applies to the first of the elections referred to in the application. The provision replaced by the current reg 62(1) provided for a blanket six-month time limit following the declaration of the result of an election. No provision was made for the Court to enlarge the time. 5 I note that the Court was not consulted when reg 62 was amended, in relation to the effect of the amendment on the Court's procedures. The amended regulation makes it difficult to deal with an application received outside the three-month time limit. If there is no material indicating that the Court should exercise its power under reg 62(1)(c) by allowing the application to be made on a later day, then it is difficult for a judge to reach the conclusion required by s 219(b) of the Act that there is reasonable ground for the application. On the other hand, if there is such material, it seems to me to be wrong that a judge should reach that conclusion without giving the prospective parties an opportunity to be heard. 6 In the circumstances that were before me, I resolved the dilemma about the lateness of the application in relation to one of the two elections by appointing a date for directions and by reserving to all of the parties or prospective parties for later argument the question of an enlargement of time. This seemed to me to be the only way out of the dilemma created by the current form of reg 62. Because this application related to two elections, it seemed to me to be appropriate that I should appoint a day and thereby commence the inquiry whilst reserving the position in relation to the earlier of those two elections. 7 I approach the issue before me on the basis that the regulation-maker has decided that, in general, the time limit for the commencement of an application of this kind should be three months. That is to say, it should be reduced from the period of six months that was applicable earlier, but there should be some latitude allowed by giving to the Court a discretionary power to permit a later application. 8 Mr Skourdoumbis swore an affidavit on 19 April 2001, which deals with the question of the lateness. He is the Assistant Secretary of the Victorian Branch of the Division ("the Victorian Branch"). He was elected to the position in October 2000 and took up office, as did all those elected, on 1 January 2001. Michael Haritou was at the same time elected as Branch Secretary of the Victorian Branch. According to Mr Skourdoumbis, Mr Haritou has been absent from work since January 2001 and has been submitting medical certificates in respect of his absence. Mr Skourdoumbis has had to take on the duties of the Branch Secretary during his absence, and Mr Skourdoumbis is not familiar with that function. There has been a considerable degree of concern on the part of the Branch Committee of Management about possible misuse of Victorian Branch funds by Mr Haritou and others, and Mr Skourdoumbis has had to deal with that. It has taken up a considerable proportion of his time and has resulted in other proceedings in this Court. 9 On 20 March 2001, Lou Kyriacou, who was the Divisional Secretary of the Division, resigned from that position and from others that he held. Mr Haritou was also the Assistant Divisional Secretary of the Division and would normally be the person to carry out the duties of the Divisional Secretary. Because of Mr Haritou's absence and Mr Kyriacou's resignation, Mr Skourdoumbis became concerned as to how the Division would operate. He sought legal advice shortly after Mr Kyriacou's resignation and then became aware of the possibility of an irregularity in the election of the Divisional Conference Delegates, the result of which was declared in October 2000. His solicitors asked him to track down records of the divisional office relating to the returns of branches as to membership numbers. Because of Mr Kyriacou's absence, this took some time and it was not until shortly prior to the filing of the application that Mr Skourdoumbis was able to establish that there were no such returns readily available from the divisional office. 10 In the meantime, Mr Haritou sent a notice convening a meeting of the Divisional Conference for 26 April 2001. This caused Mr Skourdoumbis to seek other legal advice and led to a search of the file in the Industrial Registry relating to the Union. On 17 April 2001, Mr Skourdoumbis's solicitors received relevant documents from the Industrial Registrar, including a letter dated 17 August 2000 from Mr Haritou to the Industrial Registrar, indicating the number of members said to be attached to each branch of the Division. As a result of the receipt of this information and further legal advice, Mr Skourdoumbis formed the view that the method of calculating the number of delegates elected to the Divisional Conference had been contrary to the rules of the Union and the Division. He instructed his solicitors that he wished to challenge the results of those elections. 11 The application raised two irregularities in relation to the election, the results of which were declared on 6 October 2000. The first of those irregularities concerned the calculation of the number of delegates to be elected. It appears from the material that, if the figures supplied to the Industrial Registrar by Mr Haritou were correct, then in accordance with the rules the Victorian Branch should have been called upon to elect one delegate fewer than the number in fact elected. At the very least, it is strongly arguable that that irregularity occurred.