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. 12 The second irregularity was also based on the membership figures in Mr Haritou's letter of 17 August 2000. That letter disclosed that the Victorian Branch had 6341 members, the New South Wales Branch 809 members, the Queensland Branch 382 members, the South Australian Branch 1504 members and the Tasmanian Branch 159 members. As Mr Skourdoumbis construes the rule as to the number of conference delegates, this would result in the Victorian Branch having four delegates, the New South Wales Branch two, the Queensland Branch one, the South Australian Branch two and the Tasmanian Branch one. Mr Skourdoumbis contends that this results in the Victorian Branch having almost 69 per cent of the membership of the Division but only 40 per cent of the voting strength of the delegates on the Divisional Conference. In other words, the remaining branches whose membership totals 31 per cent of the membership of the Division would in conjunction be able to control the voting on the Divisional Conference and to outvote the delegates from the Victorian Branch. Mr Skourdoumbis therefore contends that the Divisional Conference that was elected in October 2000 has been elected under rules that contravene s 196 of the Act, by imposing on the members of the Victorian Branch conditions, obligations or restrictions that, having regard to the object of the Act and the purposes of the registration of organisations under the Act, are oppressive, unreasonable or unjust. Counsel for Mr Skourdoumbis advanced a well-established line of cases suggesting that too great an imbalance between membership numbers of different branches of an organisation on its national deliberative body, when compared with the respective membership numbers of those branches, can result in the rules contravening s 196(c) of the Act. 13 In relation to the first of the alleged irregularities, counsel for Mr Skourdoumbis conceded that there was not a high degree of importance to be attached to the irregularity, the effect of which was to provide the Victorian Branch of the Division with one more conference delegate than it should have had. It may be that the situation has now been resolved as a result of Mr Kyriacou's resignation. No attempt has been made so far to replace Mr Kyriacou on the Divisional Conference. As he was one of the Victorian delegates, this means that there are currently only four Victorian delegates to the Divisional Conference. That number accords with Mr Skourdoumbis's construction of the rules. If some step were to be taken to replace Mr Kyriacou as one of those delegates, then such a replacement would have to be by way of election. The point could then be taken in relation to any such election that it was an irregularity to conduct it at all, because it would result in too great a number of Victorian Branch delegates. It is true that this proposition takes no account of the actual identity of the delegates elected and there may be some importance attached to that. It does seem to me, however, that the overall importance of that issue ought not to weigh heavily in the consideration of an enlargement of time for the commencement of the inquiry. I note that it was only in relation to this alleged irregularity that Mr Skourdoumbis, in his affidavit of 19 April 2001, gave an explanation of the delay in commencing the proceeding. 14 It appears that something like the present imbalance of membership numbers between branches of the Division has existed for some years, probably since March 1993 when what was formerly an organisation registered under the Act amalgamated with the Union and the Division was created. It does seem to me that, if no complaint about such an imbalance had been made prior to the time when Mr Skourdoumbis acted in April, the case for enlarging the time in relation to that irregularity is not strong. Counsel for Mr Skourdoumbis contended that his client has a very strong case in relation to that alleged irregularity. It is certainly a case that might warrant the Court examining it but it could not be said that it was as strong as counsel for Mr Skourdoumbis argued. In particular, there is a provision in the rules which, on the face of it, appears to be reasonably generous, for a referendum in order to allow the members to have their say in relation to matters considered by the Divisional Conference. 15 The major factor that leads me to discount this alleged irregularity heavily, however, is that the same point in relation to the rules is raised in other proceedings that are currently before me. It is true that it will be litigated in those other proceedings on a prospective basis and not on a basis that would invalidate the past election. Having regard to the clear policy underlining reg 62(1) in its present form, it does seem to me that there is a need to give great weight to the question of finality in relation to elections within organisations. 16 For these reasons, I would not be disposed to exercise the power under reg 62(1)(c) of the regulations in relation to the past election. 17 The other irregularities alleged in the application concern the election of the divisional officers of the Division. It appears that the process for such an election is a collegiate one and that the college is the Divisional Conference. The officers are elected by and from the membership of the Divisional Conference. One of the irregularities alleged in relation to that matter was the improper constitution of the Divisional Conference. In other words, the same two irregularities that were alleged in relation to the election of the Divisional Conference are alleged to create an irregular college for the election of divisional officers. The other irregularity alleged concerned the calling of the meeting of the Divisional Conference for 26 April 2001. That date is now well past. The meeting did not take place, and so no election for the divisional officers was conducted at a meeting on that date. Indeed, no meeting of the Divisional Conference has taken place and no election has been conducted so far for the divisional officers. 18 It therefore appears that, if such a step were to be taken, it would be open to Mr Skourdoumbis to institute an inquiry with respect to the election if and when it is to be held. I do not think that the provisions of the Act relating to inquiries into elections have the effect that a proceeding can be instituted and, as it were, held against the day when some step is taken in relation to an election. Nor do I think it is permissible for the Court to be invited to determine that irregularities would exist if steps were taken to conduct an election. 19 The fact is that the compliance or non-compliance of the rules with s 196(c) of the Act will be determined in the near future in other proceedings. If it is determined in favour of Mr Skourdoumbis, the result will probably be an adjournment of the proceeding to permit the Union to make what changes it sees fit to its rules to eliminate any vice which is determined to exist. In those circumstances, if the election for divisional officers were to proceed in the meantime, a new inquiry could easily deal with the issue if that were necessary. 20 For those reasons, it seems to me that there is no significant point to be determined in relation to the application for an inquiry in relation to the second election. The inquiry which was commenced when a date was fixed for directions should be terminated forthwith. The order that I make, therefore, is that the inquiry instituted by application filed on 20 April 2001 be terminated. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate: Dated: 21 December 2001 Counsel for Leo Skourdoumbis: Mr H Borenstein SC with Mr W Friend Solicitor for Leo Skourdoumbis: Maurice Blackburn Cashman Counsel for the Construction, Forestry, Mining & Energy Union: Mr D Staindl Solicitor for the Construction, Forestry, Mining & Energy Union: R L Whyburn & Associates Counsel for Michael Haritou, Bradley Parker and Gregory Colin Williams: Mr S Howells with Ms G Hubble Solicitor for Michael Haritou, Bradley Parker and Gregory Colin Williams: Gill Kane & Brophy Counsel for James Robert Emery, Stephen Rowe and David Kirner: Mr D Langmead Solicitor for James Robert Emery, Stephen Rowe and David Kirner: Duncan Basheer Hannon Alexander Findlay appeared in person Date of Hearing: 10 December 2001 Date of Judgment: 10 December 2001