Battese, in the matter of an election for an office in the Communication Workers' Union of Australia Postal and Telecommunications Branch, NSW v Battese [1996] IRCA 169

DECISION NO: 169/96 CATCHWORDS INDUSTRIAL LAW - INQUIRY - evidence of electoral fraud - whether an order should be made declaring each of the elections void and that fresh elections should be held - "irregularity" - whether there were irregularities in or in connection with the election - "by means of" Industrial Relations Act 1988: Part IV Division 5, ss 215(1), 215(2), 223(3), 223(3)(b), 223(4) and 315 Trade Practices Act 1974: s82 Conciliation and Arbitration Act 1904: s170A Re Gray; Ex parte Marsh (1985) 157 CLR 351 Re Collins; Ex parte Hockings (1989) 167 CLR 522 Re Carter; Re Federated Clerks Union of Australia, Victoria Branch (No. 1) (1989) 32 IR 1 Re Federated Liquor and Allied Industries Employees' Union of Australia; Ex parte Huxtable (1979) 40 FLR 418 Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514 Re Penhallurick (Application for an Inquiry into an Election in the Transport Workers' Union of Australia) (1983) 51 ALR 589 In the matter of an Application by Pullen for an Inquiry into Elections in the Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1990) 98 ALR 699 Carney v Matthews & Ors, Wilcox CJ, 27 March 1995, unreported Sheen v Fields Pty Ltd (1984) 51 ALR 345 Samuels v Flavel (1970) SASR 256 R v Jenkins: Ex parte Morrison (No. 2) (1949) Argus LR 468 Parker v Amalgamated Society of Carpenters and Joiners of Australia (1992) 43 IR 248 Re Carter; Re Federated Clerks Union of Australia (No. 2) (1989) 32 IR 30 No. NI594 of 1994 IN THE MATTER OF AN ELECTION FOR AN OFFICE IN THE COMMUNICATION WORKERS' UNION OF AUSTRALIA POSTAL AND TELECOMMUNICATIONS BRANCH, NEW SOUTH WALES MOORE J SYDNEY 10 MAY 1996

IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) No. NI 594 of 1994 ) NEW SOUTH WALES DISTRICT REGISTRY ) BATTESE Applicant IN THE MATTER OF AN ELECTION FOR AN OFFICE IN THE COMMUNICATION WORKERS' UNION OF AUSTRALIA POSTAL AND TELECOMMUNICATIONS BRANCH, NEW SOUTH WALES JUDGE: Moore J PLACE: Sydney DATE: 10 May 1996 REASONS FOR JUDGMENT The Court is presently dealing with one aspect of an inquiry conducted under Division 5 of Part IX of the Industrial Relations Act 1988 ("the Act"), into elections held in 1994 in the Communication Workers Union of Australia ("the organisation") as it was then called. The elections were for the offices of Branch President, Branch Secretary, Branch Assistant Secretary and Branch Organiser, for which there were twelve vacancies, in the NSW Postal and Telecommunications Branch of the organisation. More than one candidate was nominated for each office. Ballot papers were forwarded by post on 1 July 1994 to most, but not all, members who were entitled to vote and the ballot closed on 29 July 1994. The elections were conducted by the Australian Electoral Commission. The parties to the inquiry are the applicant, Mr Noel Battese, Mr Allan Jarman who was the successful candidate for the office of Branch Secretary and, initially, Mr Jalal Natour who was the successful candidate for the position of Branch Assistant Secretary. Natour died during the course of the inquiry and, as a consequence, Mr Jim Metcher successfully sought leave to be made a party to the inquiry. The incomplete election to fill the casual vacancy arising from Natour's death is itself the subject of an inquiry, the outcome of which will depend on the outcome of this inquiry. Other parties are Mr Quentin Cook, who was an unsuccessful candidate for the position of organiser in the Branch elections, the Australian Electoral Commission and the organisation. During the inquiry affidavit evidence from a document examiner, Mr Paul Westwood, was filed by the applicant which established that at least 879 ballot papers were or are likely to have been, filled in by a limited number of individuals. This evidence was not put in issue. Indeed Jarman and Metcher filed affidavit evidence from another document examiner, Mr Christopher Anderson, which corroborated the evidence of Westwood. While there was one contentious aspect of the analysis of Westwood and Anderson, it was common ground that it disclosed widespread electoral fraud. As will be apparent shortly, it is of some significance that a large number of the members voting in the elections were postal workers engaged in the handling of mail in New South Wales. Members in the Branch were directly involved in the dispatch by mail of the ballot material, which included the ballot papers, to the members who were to vote. Members were also involved in handling return mail to the returning officer. This included both completed ballot papers and ballot papers which had not been claimed by the addressee. Thus the inquiry proceeded on the basis that there was proven and widespread electoral fraud and that irregularities had arisen in the course of the elections. The principal issue in the inquiry, at least between the applicant and Cook on the one hand and Jarman and Metcher on the other, was whether any order should be made under s223(3) of the Act, having regard to the provisions of s223(4), declaring each of the elections void and ordering fresh elections. It was agreed by all parties that the Court should deal with that issue and, if necessary, a further hearing could be held to determine what orders should be made. However the irregularities alleged by the applicant and Cook were not limited to those arising from or relating directly to the electoral fraud. It is convenient to deal with specific allegations of irregularity and in the course of doing so describe the relevant evidence and to indicate what findings of fact are made. Significant parts of the relevant evidence was uncontentious and will appear as a factual narrative. I will indicate where there is conflicting evidence about material facts and approach the matter on that basis. For reasons of economy, I will not identify all parties making submissions on particular matters, though all submissions have been considered. One class of irregularities concern the operation of the relevant rules of the organisation governing branch elections. The rule central to these proceedings is rule 69 which is set out in full as a schedule to this judgment. It can be seen that it establishes a comparatively complex procedure for the dispatch and receipt of ballot papers which may have its origins in rules adopted by the Australian Postal and Telecommunications Union ("APTU") in 1983. The APTU is, as a result of amalgamations, a part of the organisation. Material presently before the Court suggests that the procedures were adopted to deal with the difficulties in conducting a secret postal ballot of postal workers evident in proceedings in 1983 in the Federal Court of Australia before St John J. I now deal with the irregularities alleged and related matters. Breach of Rule 69(d)(iv)(A) - Form of forwarding envelope Rule 69(d)(iv) provides that members entitled to vote are sent their ballot paper and related material and return the ballot paper in a way that involves the use of a number of envelopes. The ballot paper itself is in an unexceptional form which I will describe in more detail later. When it is completed by a voter it is to be folded and inserted into an envelope. That envelope is marked "ballot paper only": see rule 69(d)(iv)(A)(4). That envelope is inserted in another envelope described as a security envelope which the voter should sign and record on it his or her name and address: see rule 69(d)(iv)(A)(3). Once the voter has placed the ballot paper inside the "ballot paper only" envelope and placed that envelope in the security envelope, the security envelope and its contents is then placed into a third envelope. The third envelope is a business reply paid envelope identifying the returning officer as the addressee and his or her address. See rule 69(d)(iv)(A)(2). I will refer to this third envelope as the return envelope. The prefatory words of rule 69(d)(iv)(A) require these various envelopes, together with the ballot paper and voting instructions, to be sent to each member entitled to vote, in an "envelope (that) has as few distinctive characteristics as possible". That envelope is to be forwarded by pre-paid post to the member. I will refer to this envelope as the forwarding envelope. It was submitted on behalf of the applicant that the forwarding envelope in these elections failed to satisfy the criterion of having "as few distinctive characteristics as possible". The factual foundation for this submission is twofold. Firstly, on the envelope was printed an address used by the returning officer for the return of unclaimed mail. That is, forwarding envelopes sent to members through the post which were returned by the recipient as not having been claimed by the member to which it was sent. The following is a facsimile of the forwarding envelope and what is presently relevant is the address in the top left corner: If undeliverable, return to POSTAGE Box 3333 Southern Suburbs Mail Centre NSW 2215 PAID AUSTRALIA