In the matter of an application by Hossein Chizari for an Inquiry relating to an election for officers in the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, Vehicle Division - Victorian Region [1995] IRCA 594

CATCHWORDS INDUSTRIAL LAW - amalgamation of REGISTERED ORGANISATIONS - union rules - transitional provisions - UNION ELECTIONS - whether organisation had to hold elections for two or four State Organiser positions - resolution of State Council to abolish two State Organiser positions - validity of State Council's resolution - effect of the resolution on the election Industrial Relations Act 1988 s215 Roughan v Day and Others (1991) 32 FCR 581. Egan v Maher and Others [No. 1] (1978) 35 FLR 197, 229-230 Re Mellor's Application (1987) 17 FCR 120 No. VI 5039 of 1995 IN THE MATTER of an Application by: HOSSEIN CHIZARI for an Inquiry relating to an election for officers in the AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION, VEHICLE DIVISION - VICTORIAN REGION Marshall J Melbourne 8 November 1995

IN THE INDUSTRIAL RELATIONS) ) COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) No. VI 5039 of 1995 IN THE MATTER of an Application by: HOSSEIN CHIZARI for an Inquiry relating to an election for officers in the AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION, VEHICLE DIVISION - VICTORIAN REGION JUDGE: Marshall J PLACE: Melbourne DATE: 8 November 1995 ORDER THE COURT ORDERS THAT: 1. The inquiry is terminated. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS) ) COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) No. VI 5039 of 1995 IN THE MATTER of an Application by: HOSSEIN CHIZARI for an Inquiry relating to an election for officers in the AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION, VEHICLE DIVISION - VICTORIAN REGION JUDGE: Marshall J PLACE: Melbourne DATE: 8 November 1995 REASONS FOR JUDGMENT BACKGROUND The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ("the organisation") is an organisation of employees registered pursuant to the Industrial Relations Act 1988 ("the Act"). The applicant is a member of the organisation. The organisation is divided for administrative and industrial representation purposes into various divisions. One such division is the Vehicle Division ("the division"). In turn the division has four constituent geographical regions one of which is the Victorian Region ("the region"). The division came into being as a result of amendments to the rules of the organisation consequent upon an amalgamation between the organisation (then known as the Metals and Engineering Workers Union ("MEWU")), and the Vehicle Builders Employees Federation ("VBEF"). Upon that amalgamation the organisation was called the Automotive, Metals and Engineering Union ("AMEU"). Subsequent amalgamations have resulted in the current name of the organisation being adopted to reflect the nature of the various organisations with which the organisation has amalgamated. Upon the amalgamation of what then was the MEWU and the VBEF, transitional provisions were added to the rules of the organisation to facilitate such amalgamations. Rule 45 of the rules of the organisation provided for the establishment of the division. The intention of the rule was to, as nearly as practically possible, translate the former VBEF into the division. The various former State Branches of the VBEF essentially became Regional Branches of the organisation. Rule 45.14(a)(v) provides that:- "(a) In each region, there shall be constituted a Regional Council which shall consist of:- ... (v) Such number of State Organizers - Vehicle Division as may be determined by State Council in accordance with Rule 23; ..." The organisers form the Regional Council together with the Regional President, two Regional Vice-Presidents, the Regional Secretary and the Regional Assistant Secretary. Pursuant to Rule 45.14(b) the Regional Council conducts and manages the business of the division within the Victorian region. Rule 23.1(b) of the rules of the organisation provides that:- "Each State may have as State officials such number of State organisers as may be determined from time to time by the State Conference subject to the approval of National Council and/or Conference." The Victorian State Conference of the organisation consists of various State officers including delegates from the division. Rule 19.4(b) provides that:- "The delegates to the State Conference from the Vehicle Division shall be elected in accordance with the provisions of rule 45." State Councils are established in each State of the Commonwealth. Each State Council is the committee of management of the organisation in the respective State concerned. Under Rule 22.2 it is empowered "... subject to the powers of the State Conference, National Conference and the National Council [to] generally direct the work of the Union in the State, [and] carry out particular responsibilities allocated to it under these rules ...". Rule 20.4 provides that: "The State Council may at any time refer any matter to members of the State Conference for vote by post." Rule 46 is headed "Transitional Rule", it effectively provides that upon the amalgamation between VBEF and AMEU certain named officers in the VBEF shall hold certain corresponding offices in the organisation. In so far as it affected organisers formerly engaged in the Victorian Branch of the VBEF the relevant Schedule in Rule 46 provided as follows:- "VEBF Victorian Branch Office in AMEU Expiration of Office Organizers State Organizers - Vehicle Division S.R. Ballie (sic) 31.12.94 [should be Baillie] D. Hardie 31.12.94 P. Difelice 31.12.94 vacant 31.12.94 (vacated by Heaphy) A. Calyvopoulos 31.12.95 N. Long 31.12.95 M. McCormack 31.12.95 Organizers - Allocated State Organiser - to sub-branch Vehicle Division allocated to Local Committee Russell Gardiner 31.12.95" An election was conducted in 1994 to fill the offices which expired on 31 December 1994. Four persons were elected each for four year terms as State Organisers in the division for the region. The organisation in mid 1995 advised the Industrial Registrar of the need to conduct a ballot for the offices of two further State Organisers. A decision was taken by the organisation to seek to fill two offices only, taking into account that A. Calyvopoulos and M. McCormack had resigned and/or abandoned their offices and that in practice there were only six State Organisers in the division for the region. On 21 July 1995, the Australian Electoral Commission ("AEC") called for nominations for the two offices of State Organiser. Nominations opened on 11 August 1995 and closed on 1 September 1995. It was intended by the AEC to conduct a ballot, if necessary, between 28 October 1995 and 20 November 1995, with the successful candidates taking up their respective offices on 1 January 1996. On 29 September 1995 the applicant filed in the registry an application for an inquiry into the election for the State organisers and for another election for "State Conference Delegates - Vehicle Division, Victorian Region". On 24 October 1995 the Court made an interim order that no further steps shall be taken in the conduct of the elections for the offices the subject of the inquiry. The matter was listed for hearing on 3 November 1995. On 18 October 1995, some six days prior to the making of the interim orders, the State Council of the organisation resolved effectively to abolish the two vacant offices of State Organiser. The validity of that resolution was challenged by the applicant in the inquiry. At the hearing Mr Borenstein, of counsel, appeared for the applicant. Mr Haylen QC, together with Mr Wallace of counsel, appeared for the organisation. Mr Bell, of counsel, appeared for the AEC. At the commencement of the hearing the Court was invited by all parties to terminate the inquiry in so far as it dealt with the election for State Conference delegates. Agreement was reached as to the appropriate number of delegates for which an election was required to be conducted. The evidence before the Court showed that the consensual position of the parties was soundly based. The AEC undertook to take appropriate action pursuant to s215(1)(b) of the Act. A revised timetable for that election was agreed on between the parties. The Court commends the parties for their sensible and time saving resolution of that issue. However, an active dispute remained between the applicant and the organisation as to whether two or four State Organiser positions were required to go to ballot with a view to the successful candidates taking up office on 1 January 1996. As the applicant and the organisation are each concerned that a decision in this matter be delivered with expedition such that an election on a revised timetable is conducted as soon as possible for either two or four organisers, there is little point in recording all of the submissions put to the Court by counsel. The issues requiring determination are set out below. THE VALIDITY OF THE STATE COUNCIL RESOLUTION In my view the State Council was empowered to make the resolution which it made on 18 October 1995. The proper construction of the rules is that Rule 45.14(a)(v) enables State Council to determine how many State Organisers there shall be in the Vehicle Division. Such a determination cannot effect the abolition of an office during the currency of its term but can have the effect that, after the completion of the terms of the four offices that expire on 31 December 1995, there shall be only two State Organisers from the Vehicle Division elected to hold office for four years from 1 January 1996. The operation of Rule 23.1(b) is modified by the provisions of Rule 45 which "...apply notwithstanding anything elsewhere contained in these Rules.". As modified by Rule 45.14(a)(v), Rule 23.1(b), properly construed, empowers State Council to determine the number of organisers in the Vehicle Division "... subject to the approval of National Council and/or National Conference". It is common ground that National Council has approved the resolution of State Council. I reject the submission of Mr Borenstein that the reference to "State Council" in Rule 45.14(a)(v) is a typographical error which should read "State Conference". I find that the resolution of 18 October 1995 operated to reduce the number of State Organiser positions to six. An issue then arises as to whether the resolution is effective to ensure that an election is only conducted for a further two State Organiser positions or whether it cannot affect the current election and therefore comes into operation at a later time, perhaps on 1 January 2000. THE EFFECT OF THE RESOLUTION ON THE ELECTION Mr Borenstein contended that the resolution if valid, abolished two offices in circumstances where the membership of the division in the region had a right to insist that they be filled. To the extent that the resolution was retrospective, I do not believe that any injustice was thereby created. The policy position of the National Council adopted at a meeting held in December 1994 was not to fill vacant positions. Whilst that position in all probability did not reflect the legal obligations of the organisation it was a policy position which was not dissented from by the Regional Council which has chosen not to fill the vacancies concerned. The Regional Council is a body elected to represent the interests of the membership of the division in the region. In my view, as Mr Haylen QC submitted, the position in this matter is analogous to the position before the Full Court of the Federal Court of Australia in Roughan v Day and Others (1991) 32 FCR 581. As in that case "the justice of the situation" in this matter is against the proposition that the State Council resolution should not have retrospective effect. That is, if retrospective effect is the correct way to analyse the effect of the resolution upon the electoral requirements of the division in the region. As no ballot had been conducted for State Organisers, it is arguable that there was no act upon which the resolution impacted to take away rights that had accrued. But assuming that such rights had accrued in the membership of the organisation to elect four organisers in the instant circumstances, it is my view that no injustice arose as a result of the State Council resolution which required that an election only be conducted for two offices as the AEC had planned on advice from the organisation. I do not believe that Egan v Maher and Others [No. 1] (1978) 35 FLR 197 stands in the way of the conclusion expressed above. Mr Borenstein relied on a passage in the judgement of Evatt J in that matter at 229-230 which culminated in the conclusion that:- "... It is the essence of a democratic election that such rules are so known and remain unaltered after the election commences." In this matter the only election that has been called is an election to fill the offices of Messrs Long and Gardiner which expire on 31 December 1995. The rules governing that election have not been altered by the resolution. Rather the resolution has forestalled the basis for the contention that the other two offices of State Organiser which expire on this coming New Years Eve should be continued and also be the subject of an election. Similarly, Re Mellor's Application (1987) 17 FCR 120 ("Mellor") provides no assistance to the applicant. That matter involved the striking down by the Federal Court of Australia of resolutions made by a committee of management of a branch of an organisation. The resolution in Mellorretrospectively sought to make certain persons eligible to vote who were not otherwise entitled to vote in accordance with the timetable set down by the Court for the closing of the rolls in relation to a fresh ballot. In that matter various unjust consequences ensued. See especially at 124, per Gray J. I therefore hold that no irregularity has happened in relation to the election for the offices of two State Organisers in the division attached to the region. An election can be conducted for those offices in accordance with an agreed timetable as soon as is practicable. ORDER: The order of the Court will be: 1. The inquiry is terminated. I certify that this and the preceding 9 pages are a true copy of the Reasons for Judgment herein of his Honour Justice Marshall. Associate: Date: 8 November 1995 Counsel for the Applicant: Mr H Borenstein Solicitor for the Applicant: Slater & Gordon Counsel for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union: Mr W R Haylen QC Mr J Wallace Solicitor for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union: Taylor and Scott