FEDERAL COURT OF AUSTRALIA Halfpenny, in the matter of an application for an inquiry relating to an election for an office in the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (Food and Confectionery Division) [2003] FCA 550 IN THE MATTER OF AN APPLICATION BY BRONWYN HALFPENNY FOR AN INQUIRY RELATING TO AN ELECTION FOR AN OFFICE IN THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION (FOOD AND CONFECTIONERY DIVISION) V 700 OF 2002 NORTH J 2 MAY 2003 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIAN DISTRICT REGISTRY V 700 OF 2002 IN THE MATTER of an application by BRONWYN HALFPENNY for an inquiry in relation to an election for an office in the AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION (FOOD AND CONFECTIONERY DIVISION) JUDGE: NORTH J DATE OF ORDER: 2 MAY 2003 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. the election inquiry is terminated. THE COURT CERTIFIES THAT: 1. the applicant acted reasonably in applying for the inquiry pursuant to section 343(1) of the Workplace Relations Act. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIAN DISTRICT REGISTRY V 700 OF 2002 IN THE MATTER of an application by BRONWYN HALFPENNY for an inquiry relating to an election for an office in the AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION (FOOD AND CONFECTIONERY DIVISION) JUDGE: NORTH J DATE: 2 MAY 2003 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 On 1 October 2002, an application was made by Bronwyn Halfpenny (the applicant) for an inquiry (the inquiry) under section 223(1) of the Workplace Relations Act 1996 (Cth) (the Act). The inquiry concerns an election (the election) held on 22 July 2002 for the offices of Federal President and Federal Executive Members of the Food and Confectionary Division (the Division) of the Automotive Food Metals Engineering Printing and Kindred Industries Union (the AMWU). The applicant is an AMWU member attached to the Division and is the Regional Secretary of the Victorian region of the Division. 2 The basis of the inquiry is an alleged irregularity in the conduct of the election. The election was held at the Division Conference. Rule 56.6(b) of the AMWU's rules sets out the formula for calculating the voting power to be given to regional delegates to the Division Conference and to the Regional and Federal Secretaries. The applicant alleges that each delegate was given one vote of equal weight instead of the weighted voting power calculated in accordance with the s 56.6(b) formula. 3 Orders were made in the inquiry on 17 October 2002 that the AMWU, the Australian Electoral Commission and the unsuccessful candidates, namely, Deborah Quarrel, Ann Urquhart, David Crawley, Noelene de Gray and Paul Hobson, be served with the application for the inquiry and be given notice of the time and date fixed for a directions hearing. On 9 December 2002, the AMWU and the returning officer, Mr Dixon Lee, were granted leave to appear in the inquiry. 4 On 13 December 2002, an application for validation orders under section 258 of the Act was made by Jennifer Dowell, the Federal Secretary of the Division, and the AMWU. Such orders would validate the acts of the Division Federal Executive since the election, in the event that the Court found that an irregularity in the conduct of the election had occurred. 5 On 6 March 2003, orders were made by consent in the validation application that a notice be placed in the April issue of the "Australian Manufacturing Worker", the official publication of the AMWU. The notice informed AMWU members of the election inquiry and the application for validation and invited them to object to the proposed validation orders at the next directions hearing. 6 The form of that notification was specified in the order as follows: "On 24 July 2002 [sic] an election was conducted by and from members of the Food and Confectionery Division Conference of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ('AMWU') and on 24 July 2002 Anne Urquhart was declared elected to the office of Division Federal President, Michelle Burgess was declared elected to the office of Division Vice-President and Bronwyn Halfpenny, Deborah Quarrell and David Crawley were declared elected to the office of member of the Division Federal Executive. An election inquiry has been instituted in the Federal Court of Australia alleging that an irregularity occurred in the conduct of that election. The Federal Secretary of the Food and Confectionery Division and the AMWU had made application to the Court seeking Orders validating the election if it is determined by the Court that an irregularity has occurred. The Orders, if made, will have the effect of validating the acts of the Division Federal Executive done since the said election when the persons named above as being elected to the described offices attended and participated in the meetings and decisions of the Division Federal Executive. Any member of the AMWU or other persons having dealings with the AMWU who allege that the making of such Order or Orders by the Court would do a substantial injustice to them may attend and make application to the Court to be heard at the hearing for directions in relation to the matter at 10.15am on 2 May 2003 at the Federal Court of Australia, 305 William Street, Melbourne." 7 The applicant and the AMWU now apply to the Court under section 223(5) of the Act for an order that the inquiry be terminated. Section 223(5) clearly gives the Court power to make such an order. An example of such an exercise of the power can be found in the judgment of Ryan J In the matter of an application by Kevin Maher Under Section 218 of the Workplace Relations Act in relation to Elections in National Construction Branch of the Australian Workers' Union (unreported, Industrial Relations Court of Australia, Ryan J, 5 May 1997). 8 In my view, this is an appropriate case for the power to terminate the inquiry to be exercised. Mr Pearce, who appeared as counsel for the AMWU, informed the Court that notice of the validation application and today's directions hearing was given to the AMWU members in accordance with the Orders of 6 March 2003. I conclude from the public notification that members of the AMWU in the Food and Confectionary Division have notice not only of the validation application but also of the inquiry. The hearing of the validation application was called outside the courtroom, and no person appeared. 9 Mr Pearce relied on the fact that the order for termination of the inquiry is sought by consent of all the participants in both the inquiry and in the election, which is the subject of the inquiry, namely, Ms Halfpenny, the AMWU and, all members of the Division Conference who were the voters in the election. He submitted that it was an unusual situation that all the 'voters' in the particular election agreed to the termination of the inquiry, and that this was a formidable issue in favour of the exercise of discretion in the present case. I agree with that submission. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate: Dated: 9 July 2003 Counsel for the Applicant: Mr S Moore Solicitor for the Applicant: Maurice Blackburn Cashman Counsel for the Respondent: Mr J Pearce Solicitor for the Respondent: Taylor & Scott Counsel for the Returning Officer: Mr J Herd Solicitor for the Returning Officer: Australian Government Solicitor Date of Hearing: 2 May 2003 Date of Judgment: 2 May 2003