Re Keily; Re Transport Workers Union (Victorian Branch) [1995] IRCA 290

CATCHWORDS INDUSTRIAL LAW - UNION ELECTIONS - INQUIRY - alleged irregularities - Rules of Union - eligibility of nominated candidates - whether election inquiry relating to certain offices should be terminated where candidates alleged to be ineligible for Union membership - real question of eligibility to be investigated - termination of inquiry where no real possibility that election result would have been affected. Re Ferguson; Re Australasian Meat Employees' Union (WA Branch) (1986) 17 IR 208 Re Noack; ex parte Vehicle Builders Employees' Federation of Australia (SA Branch) (1987) 18 IR 100 Industrial Relations Act, 1988 s 223(4) RE KEILY; RE TRANSPORT WORKERS' UNION (VICTORIAN BRANCH) VI 95/1297 CORAM: RYAN J PLACE: MELBOURNE DATE: 29 JUNE 1995

IN THE INDUSTRIAL RELATIONS COURT ) ) OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) No VI 1291 of 1995 IN THE MATTER OF AN APPLICATION BY CHRISTOPHER KEILY FOR AN INQUIRY IN RELATION TO AN ELECTION FOR OFFICES IN THE TRANSPORT WORKERS' UNION OF AUSTRALIA (VICTORIAN BRANCH) CORAM: RYAN J PLACE: MELBOURNE DATE: 29 JUNE 1995 MINUTE OF ORDERS THE COURT ORDERS: 1. That the inquiry be terminated in respect of the election for the following offices in the Transport Workers' Union of Australia (Victorian Branch): . Branch Secretary/Treasurer . Branch Trustee. 2. That the inquiry into the election for the following offices in the Transport Workers' Union of Australia (Victorian Branch) be adjourned for further directions before Ryan J on a date to be fixed: . Branch Organizers . Branch Committee Members. NOTE: Settlement and entry of orders is dealt with in O 36 of the Rules of the Industrial Relations Court of Australia.

IN THE INDUSTRIAL RELATIONS COURT ) ) OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) No VI 1291 of 1995 IN THE MATTER OF AN APPLICATION BY CHRISTOPHER KEILY FOR AN INQUIRY IN RELATION TO AN ELECTION FOR OFFICES IN THE TRANSPORT WORKERS' UNION OF AUSTRALIA (VICTORIAN BRANCH) CORAM: RYAN J PLACE: MELBOURNE DATE: 29 JUNE 1995 REASONS FOR JUDGMENT RYAN J: On 9 May 1995 I made orders terminating the inquiry in respect of elections to the offices of Branch President, Branch Vice-President, Federal Councillors and Branch Industrial Research Officer within the Victorian Branch of the Transport Workers' Union (the "Union"). On that day I pronounced reasons for those orders. I then indicated that I would consider my judgment in respect of the remaining offices which had been the subject of the inquiry instituted by Mr Keily on 25 January 1995. 1. OFFICE OF BRANCH SECRETARY/TREASURER The first of the remaining offices was that of Secretary/Treasurer within the Victorian Branch of the Union. A challenge was made to the eligibility of Mr Noonan and Mr Driver to stand as candidates in the election for that office. The grounds relied on in support of the application suggest that Mr Noonan had been a full-time member of the Victorian WorkCare Appeals Board until November 1992 after which he had been appointed an organizer within the Victorian Branch of the Union. Mr Noonan does not dispute those allegations but contends in an affidavit sworn 7 February 1995 that in February 1994 he was appointed to fill a casual vacancy in the office of Secretary/Treasurer of the Victorian Branch of the Union and was acting in that office when nominations closed for the election. That assertion has not been disputed in subsequent affidavits filed in support of the application. However, it is common ground that for the first year of the period of three years before the close of nominations, Mr Noonan had been engaged in a full-time occupation which precluded him from eligibility for membership. On that basis, Mr Liversidge of Counsel for the applicant contended that Mr Noonan had been rendered ineligible to be a candidate by r 22 of the Rules of the Union which, so far as is relevant, provides: "(a) (I) That subject to Rule 63(14) in respect of the New South Wales Branch a person shall not be eligible to nominate for any office in the Union or any Branch or Sub-Branch of the Union unless, at the date of close of nominations for election to such office he or she is:- (i) a financial member of the Union, and (ii) either is employed in the industry in connexion with which the Union is registered and in respect of such employment is entitled to membership of the Union pursuant to Rule 4, or is a person holding office as Federal Secretary, Federal Assistant Secretary, Branch Secretary, Branch Assistant Secretary (where existing) Branch Industrial Research Officer or Organiser (whether elected or appointed) or as organiser appointed by Federal Council or Federal Committee of Management. (a) (II) That subject to Rule 63 (14) in respect of the New South Wales Branch a person shall not be eligible to hold or retain any office in the Union or any Branch or Sub-Branch of the Union unless at all times of holding the office, he or she is: (i) a financial member of the Union, and (ii) either is employed in the industry in connexion with which the Union is registered and in respect of such employment is entitled to membership of the Union pursuant to Rule 4, or is a person holding office as Federal Secretary, Federal Assistant Secretary, Branch Secretary, Branch Assistant Secretary (where existing) Branch Industrial Research Officer or Organiser (whether elected or appointed) or as organiser appointed by Federal Council or Federal Committee of Management. (b) Subject to para (a) hereof a person is eligible to hold the office of - (i) Federal President; Federal Vice-President; Federal Secretary; Federal Assistant Secretary; or (ii) Branch President; Branch Secretary; Branch Assistant Secretary (where existing) Branch Industrial Research Officer; or (iii) Organiser (whether elected or appointed); if he is a financial member of the Union continuously for the previous three years and is financial at the time of his nomination for election (or appointment as the case may be) but not otherwise."