An application under s 218 of the Industrial Relations Act 1988 by Ms S Baillie for an inquiry in relation to an election for offices in the Automotive Food Metals & Engineering Union, Vehicle Division, Victorian Region & An application by Ms G Tierney for a declaration under s 260 of the Act & An application by Ms S Baillie for a declaration under s 257 of the Act [1995] IRCA 560

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) IN THE MATTER OF An application under s.218 of the Industrial Relations Act 1988 by Ms. S. Baillie for an Inquiry in relation to an election for offices in the Automotive Food Metals & Engineering Union, Vehicle Division, Victorian Region. (Matter No. VI 5015/94) An application by Ms. Gayle Tierney for a declaration under s.260 of the Act. (Matter No. VI 95/1269) An application by Ms. S. Baillie for a declaration under s.257 of the Act. (Matter No. VI 95/1592) REASONS FOR JUDGMENT 29 SEPTEMBER 1995 KEELY J. There are three matters before the court, which were heard together. Matter No. VI 5015/94, filed on 24 November 1994 under s.218 of the Industrial Relations Act 1988 (Cth) ("the Act"), is an application by Ms S Baillie ("the applicant") for an inquiry into an election for offices in the Automotive, Food, Metals and Engineering Union ("the AFMEU"). On 22 November 1994 the returning officer declared that Ms G Tierney ("the respondent Tierney") was elected to the offices of Regional Secretary, Vehicle Division Victorian Region/Assistant State Secretary Victoria ("the offices"). Matter No. VI 95/1269 is an application by the respondent Tierney, seeking a declaration under s.260 of the Act, the details of which appear in paragraph 9 of her contentions, which is set out later in these reasons. Matter No. VI 95/1592 is an application by the applicant, Ms Baillie, for a declaration under s.257(1) of the Act that the application of s.256 "to the act of Ian Jones in purporting to enrol Gayle Tierney as a member of the [VBEF] on 4th July 1989 . . . would do substantial injustice". The Vehicle Builders Employees Federation ("the VBEF") amalgamated with the Metals & Engineering Workers' Union on 8 February 1993 to form the AFMEU. The AFMEU on 8 February 1995, the first day of the final hearing, stated that it did not wish to make any submissions to the court. The irregularity alleged by the applicant was that Ms Gayle Tierney, whose nomination for election to the offices had been accepted, was not eligible to be a member of the VBEF or a member of the AFMEU and accordingly was not eligible to nominate for election to the offices. The contentions The respondent Tierney in her contentions admitted each of the following contentions of fact and law by the applicant, filed on 23 December 1994: "1. The Applicant is and was at all material times a member of the Automotive, Food, Metals and Engineering Union ("AFMEU"). 2. The Vehicle Builders Employees Federation of Australia ("VBEF") was registered as an organisation of employees pursuant to the Conciliation and Arbitration Act 1904 on the 5th January 1917 under the name, The Australian Coach, Motor Car, Tram Car, Wagon Builders, Wheelwrights and Rolling Stock Makers Employees Federation. 3. On the 8th February 1993 the VBEF amalgamated with the Metals and Engineering Workers' Union ("the amalgamation") and thereupon was deregistered. 4. The Metals and Engineering Workers' Union is now named the AFMEU. 5. In August 1993 the Returning Officer, Australian Electoral Commission ("AEC") called for nominations for a election to (amongst other offices) the offices of Regional Secretary, Vehicle Division Victorian Region/Assistant State Secretary Victoria ("the offices") of the AFMEU. 6. Ms Gayle Tierney was nominated for an election to those offices. 7. The AEC Returning Officer accepted Ms Tierney's nomination to those offices. 8. The applicant was the only other nomination for an election to those offices. 9. The AEC conducted the election for those offices between 28 October and 18 November 1994. 10. On 22 November 1994 Mr Neil Manning, Returning Officer AEC declared that Ms Tierney had been elected to those offices. . . . 12. At all material times prior to the amalgamation the VBEF eligibility Rule was the Constitution Rule in Section 1 of the VBEF Rules." The respondent Tierney denied each of the following contentions by the applicant: "11. At all material times after the amalgamation the part of the AFMEU eligibility Rule which was relevant for election to offices was Rule 1E of the AFMEU Rules. . . . 13. Prior to the amalgamation Gayle Tierney was not eligible for membership of the VBEF because at the time she was admitted to membership: (a) she was an employee of the VBEF which employment did not make her eligible to become a member of the VBEF pursuant to its eligibility Rule, and (b) she was not otherwise eligible to become a member of the VBEF. 14. In the VBEF Rules the expression "together with any persons appointed as officers of the Federation" in the VBEF Constitution Rule did not extend eligibility for membership to any person who did not hold an office as an officer within the meaning of the VBEF Rules and Gayle Tierney was not such a person. 15. Gayle Tierney's purported appointment as Secretary of the VBEF in or about December 1992 or January 1993 and her purported occupancy of that office thereafter did not then or thereafter make her eligible for membership of the VBEF and did not on amalgamation or thereafter make her eligible for membership of the AFMEU. 16. After the amalgamation Gayle Tierney was not eligible to be a member of the AFMEU. 17. In the alternative to paragraph 16 if Gayle Tierney was eligible to be a member of the AFMEU she was not eligible for membership pursuant to Rule 1E of the AFMEU Rules. 18. At the time of closing of nominations for election to the offices Gayle Tierney had not been a member of the AFMEU for not less than 3 years immediately proceeding that time as she had not been validly admitted to membership of the VBEF and was therefore not entitled pursuant to Rule 37(4) of the AFMEU Rules to have any period of membership of the VBEF prior to the amalgamation counted as membership of the AFMEU. 19. By reason of paragraphs 13 to 18 above Gayle Tierney was not eligible to be nominated for election to the offices." The respondent Tierney also filed the following contentions, which were denied or not admitted by the applicant: - "3. On 4 July 1989 the First Respondent completed an application for membership of [the VBEF]. Particulars The application for membership is in writing and is in the possession of the Second Respondent. 4. On 4 July 1989 the Branch Secretary of the Victorian Branch of the VBEF completed the certificate endorsed on the First Respondent's completed Application Form. Particulars The certificate completed by the Secretary of the Victorian Branch of the VBEF is in writing and endorsed on the application form referred to in the previous paragraph and is in the possession of the Second Respondent. 5. On 4 July 1989 the First Respondent was eligible for membership of the VBEF because she was: (a) a person appointed as an "Officer" of the VBEF within the meaning of that expression in the Constitution Rule in Section 1 of the VBEF Rules. Particulars The First Respondent was appointed as an Industrial Officer in the Victorian Branch of the VBEF on or about 26 June 1989. Full particulars of the duties and responsibilities attaching to that position are contained in paragraph 12 to 25 of the Affidavit of Ian Douglas Jones sworn and filed herein. (b) an employee engaged in or usually engaged in the process, trade or business connected with or incidental to the manufacture, assembling or repairing of carriages, carts, wagons, trucks, railway cars, tram cars, motor cars, motor cycles, side cars, aircraft and other vehicles used in air transit and all other vehicles or parts thereof and whether in wood and/or metal, and/or other material. Particulars The First Respondent was engaged as an Industrial Officer in the Victorian Branch of the VBEF from on or about 3 July 1989. That employment was in a process, trade or business connected with or incidental to the matters described as the trade of vehicle building in the Constitution Rule in Section 1 of the VBEF Rules as at 4 July 1989. . . . [At the hearing Ms Tierney's counsel stated that sub-paragraph (b) was not pursued.] 6. In the premises by reason of the operation of Rule 20 of the VBEF Rules the First Respondent was at all material times between 4 July 1989 and 8 February 1993 a member of the VBEF and is now a member of the Second Respondent. 7. Further or alternatively, the act of the Secretary of the Victorian Branch of the VBEF on 4 July 1989 admitting the First Respondent to membership of the VBEF is taken to have been done in compliance with the Rules of the VBEF pursuant to Section 256 of [the Act]."