FEDERAL COURT OF AUSTRALIA
INDUSTRIAL LAW – registered organisation– elections – whether an irregularity happened – entitlement to vote dependent on being a financial member – whether payments of entrance fees, subscription, levies or fines were “not more than three months in arrears” – proper construction of that provision – whether unfinancial members on electoral roll – whether such members voted – whether electoral roll contained persons not validly admitted to membership – two organisations seeking to achieve commonality of membership – whether rules of each organisation (providing a “deeming” process tailored to that end) were observed – whether that process could be repeated in respect of persons who had previously objected – whether persons applying for membership of one union who indicated on application form unwillingness to join the second union had voted at elections for office bearers in the second union – whether rules permitted waiver of subscriptions for members on leave without pay and the like – whether relevant irregularities – some irregularities involved deregistered union - whether irregularities could or should be validated – whether any other irregularity happened – whether results of elections may have been affected – whether all or any of the elections should be declared void.
Industrial Relations Act 1988 (Cth), ss 118A, 202, 205(1), 261(2)
Workplace Relations Act 1996 (Cth), ss 4(1), 222(3)(b), 223(1),(4), 256, 257, 258, 260
Egan v Harradine (1975) 6 ALR 507 referred to
Kelly v Amalgamated Metal Workers’ and Shipwrights’ Union (1981) 56 FLR 124
referred to
Robert Bob-Mack Re: Election in Australian Workers Union (1982) 24 AILR 368
referred to
Cook v Crawford (1982) 62 FLR 34 applied
Re McGee (1992) 41 IR 27 followed
Ransley v Australian Public Service Association (1985) 12 IR 55 applied
R v Gray; Ex parte Marsh (1985) 157 CLR 351 referred to
Geneff v Peterson (1986) 19 IR 40 applied
Re Healey (1992) 40 IR 110 referred to
Clayton’s Case (1816) 1 Mer 572 at 608-610; 35 ER 781 at 792-794 referred to
Airservices Australia v Ferrier (1996) 137 ALR 609 at 625 referred to
Tierney v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union
of Australia (1996) 137 ALR 312 referred to
Rennie v Bunn (1997) Industrial Relations Court of Australia Decision No.
93/97 referred to
APPLICATION FOR AN INQUIRY RELATING TO AN
ELECTION IN THE COMMUNITY & PUBLIC SECTOR
UNION, WESTERN AUSTRALIAN BRANCH - SPSF GROUP
MARGARET JEAN FORBES and TERRENCE JOSEPH DALY v.
COMMUNITY AND PUBLIC SECTOR UNION, WESTERN
AUSTRALIAN BRANCH – SPSF GROUP
No: WI 1503, 1504 and 1505 of 1996
CARR J
PERTH
8 SEPTEMBER 1998
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IN THE FEDERAL COURT OF AUSTRALIA |
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WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION |
wi 1503 of 1996 WI 1504 of 1996 WI 1505 of 1996 |
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APPLICATION FOR AN INQUIRY RELATING TO AN ELECTION IN THE COMMUNITY & PUBLIC SECTOR UNION, WESTERN AUSTRALIAN BRANCH – SPSF GROUP
APPLICATION BY MARGARET JEAN FORBES IN RELATION TO AN ELECTION FOR THE OFFICE OF BRANCH PRESIDENT No. wi 1503/96
APPLICATION BY terrence joseph daly IN RELATION TO AN ELECTION FOR THE OFFICE OF BRANCH SECRETARY No. WI 1504/96
APPLICATION BY terrence joseph daly IN RELATION TO AN ELECTION FOR THE OFFICE OF BRANCH ASSISTANT SECRETARY No. WI 1505/96
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THE COURT ORDERS AND DECLARES THAT:
[Orders made on 23 September 1998 after written and oral submissions].
1. Each of the elections for the office of Branch President, Branch Secretary and Branch Assistant Secretary of the Community and Public Sector Union, SPSF Group, Western Australian Branch (“the Branch”), the results of which were declared on 31 July 1996, is void.
2. The persons purporting to have been elected to the abovementioned offices have not been elected.
3. The consequences of any invalidity in relation to:
(a) the admission to membership of the Branch (by the process initiated by letters dated 18 November 1994 and 13 March 1996) arising out of the fact that, as at those dates, Rule 19(k) of the rules of the Civil Service Association referred to the State Public Services Association rather than the Branch;
(b) the admission into membership of the Branch of seven of its employees, identified by reference in the reasons for decision published on 8 September 1998;
be and are hereby negatived.
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4. The Industrial Registrar be directed to make arrangements for new elections (“the new elections”) to be held as soon as practicable and that they include the calling of fresh nominations for the offices the subject of these inquiries.
5. The electoral roll for the new elections be compiled in accordance with the reasons for decision published on 8 September 1998
6. In applying the definition of “financial member” for the purposes of those elections regard be had only to arrears of payment arising by non-payment since 1 July 1994.
7. Pending the new election of the Branch President Diane Robertson occupy the office of Branch President for all purposes of the Rules.
8. Pending the new election of the Branch Secretary David Alexander Robinson occupy the office of Branch Secretary for all purposes of the Rules.
9. Pending the new election of the Branch Assistant Secretary Toni Beverley Walkington occupy the office of Branch Assistant Secretary for all purposes of the Rules.
10. Whatever persons are declared by the returning officer to have been elected to each of the offices in the new elections commence to hold the respective offices on the 29th day after the day on which the returning officer declares the results of the new elections.
11. It is hereby declared that irregularities within the meaning of section 342(2)(d) of the Workplace Relations Act 1996 occurred in relation to the election the subject of these inquiries being the irregularities specified in the reasons for judgment published on 8 September 1998.
12. Each of the parties has liberty to apply on not less than 48 hours written notice to the other parties.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY general division |
wi 1503 of 1996 WI 1504 of 1996 WI 1505 of 1996 |
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JUDGE: |
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DATE: |
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PLACE: |
FINDINGS AND REASONS FOR DECISION
Introduction
These are three inquiries by the Court into claims that there have been irregularities in relation to the elections for the three offices of Branch President, Branch Secretary and Branch Assistant Secretary respectively of the Community & Public Service Sector Union - SPSF Group, Western Australian Branch (“the Branch”). On 24 February 1997 a judge of the Industrial Relations Court of Australia made certain orders which have been treated by all concerned as having instituted the inquiries, following three applications (each filed on 20 December 1996) seeking such inquiries. The Federal Court of Australia was vested with jurisdiction over the matters as from 26 May 1997. In summary, the applicants allege that the electoral roll used for each of the Branch elections for the above positions was inaccurate and irregular with the result that many people who voted in the elections (the results of which were declared on 31 July 1996) were, for various reasons discussed below, not entitled to vote. The applicants say that such circumstances amounted to sufficient irregularity for the elections to be declared void. They seek a declaration to the effect that the three persons purporting to have been elected to the above offices (each for a period of four years), were not so elected. They ask also for directions for new elections to be held. The inquiries were conducted simultaneously in relation to each of the three elections, so I shall henceforth refer to the proceedings as “the inquiry”. Some 2600 pages of documentary evidence were tendered at the inquiry, in a sequence which presented some difficulties at the hearing and also in their assimilation. The transcript ran to 467 pages. Accordingly, to assist the reader, I have incorporated into these reasons as many cross-references to the exhibits and transcript as conveniently possible.
Factual Background
As its name suggests, the Branch is a branch of a federal union, the Community and Public Sector Union - SPSF Group (“the CPSU”), which represents persons employed in the public sector. It is necessary to describe some fairly recent events in the evolution of that Union.
At all material times there has been (and still is) a union called the Civil Service Association of Western Australia Inc (“the CSA”). Members of the CSA are principally employed in the public sector by the State of Western Australia and its agencies. Until 1 July 1994 there was another union representing State public sector employees in Western Australia. That was the State Public Services Federation (“the SPSF”). There was also a union called the Public Sector Union (“the PSU”) which represented employees of the federal government. Each of those unions (other than the CSA) had a national organisation which included State branches. Since 1991 there has occurred a process of what has been described in these proceedings as “harmonisation”. On 4 October 1993 an agreement between the CSA and the SPSF WA Branch was approved under s 202 of the Industrial Relations Act 1988 (Cth) and s 71 of the Industrial Relations Act 1979 (WA). The terms of that agreement provided, among other things, that those persons elected as branch officers of the SPSF WA Branch would hold the corresponding offices in the CSA. As the applicants in this matter have pointed out, that agreement did not result in a merger of the two organisations. But at about the same time the respective rules of the two unions were amended to provide for members of the CSA to become members of the SPSF. One method so provided (and which figured prominently in these proceedings) was known as “the deeming process” which is described in further detail below. However, there was an amalgamation between the SPSF and the PSU. That occurred on 1 July 1994 when all SPSF members became members of what had previously been the PSU but which on that date was re-named the Community and Public Sector Union - SPSF Group (“the CPSU”). The SPSF was de-registered with effect from the same date. The CPSU Rules included rules similar to those of the former SPSF providing for CSA members to become members of the CPSU. In the meantime, between 29 October 1992 and 13 March 1996 the General Secretary, at the relevant times, of the CSA (who was also the Branch Secretary of the SPSF and later the Branch Secretary of the CPSU WA Branch) activated the deeming process by which it was intended that members of the CSA who had not already become members of the SPSF (and later the CPSU), but who were eligible to do so, were to become members of the latter organisation. The manner in which that process was carried out is a matter central to the disposition of this inquiry. I return to that matter below. But first I shall describe what took place at the time of the abovementioned elections.
The Elections
At the time of the abovementioned elections there were 18,590 persons on the electoral roll of the Branch. The votes of 4,879 persons were counted, representing some 26.25% of the persons on the electoral roll. Election to the office of Branch President was decided by only one vote, of Branch Assistant Secretary by only seven votes and of Branch Secretary by one hundred and thirty nine votes. The applicant in application WI 1503 of 1996, Mrs Margaret Jean Forbes, had nominated for the position of President and was the candidate who came second in that election. The applicant in applications WI 1504 and 1505 of 1996, Mr Terrence Joseph Daly, stood for the offices of Branch Secretary and Branch Assistant Secretary and was the runner-up in each of those elections. The first respondents to the application are Ms Diane Robertson, Mr David Robinson and Ms Toni Walkington who were the successful candidates for the offices of Branch President, Branch Secretary and Branch Assistant Secretary respectively. They were jointly represented at the inquiry. The federal council of the CPSU filed written representations going solely to matters of construction and law. The returning officer undertook to abide by any orders which the Court might make, but otherwise took no part in the proceedings other than to swear a formal affidavit which was tendered by the applicants. No other person took part in the inquiry.
The Statutory Framework
The role of the Court under s 223(1) of the Workplace Relations Act 1996 (Cth) (“the Act”) is to inquire into and determine the question whether an irregularity has happened in relation to the elections, and such further questions concerning the conduct and results of the election as the Court considers necessary. Section 4(1) of the Act relevantly defines “irregularity” in relation to an election as including:
“(a) a breach of the rules of an organisation or branch of an organisation; and
(b) an act or omission by means of which:
(i) the full and free recording of votes by all persons entitled to record votes and by no other persons; or
(ii) a correct ascertainment or declaration of the results of the voting;
is, or is attempted to be, prevented or hindered.”
Section 223(4) of the Act relevantly provides that the Court shall not declare an election or any step taken in relation to an election to be void or declare that a person was not elected unless the Court is of the opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have happened, the result of the election may have been affected by irregularities.
Did Irregularities Happen in Relation to the Elections?
The complaints of irregularity fell into three broad categories, namely:
. whether the deeming process (referred to above) by which members of the CSA became members of the SPSF and CPSU had been properly carried out. [The relevant rules in that regard were, during the course of the proceedings, referred to as “the deeming provisions” and I shall continue to use that description];
. whether unfinancial members had voted in the elections; and
. whether persons had voted in the elections who were either not eligible for membership or in respect of whom there were defects in their application for membership.
THE DEEMING PROVISIONS
The First Deeming Notice (29 October 1992)
In relation to this complaint I make the following findings of fact. On 29 October 1992 Mr Mark Smith in his dual capacity as General Secretary of the CSA and Branch Secretary of the SPSF (WA Branch) wrote (under the letterhead of the CSA) to all members of the CSA who were not already members of the SPSF, but who were eligible for such membership. In that letter Mr Smith said that the CSA was moving towards a formal merger with the SPSF. He referred to what he perceived as the advantages of such a merger and pointed out that over two-thirds of CSA members were also SPSF members. He also stated that it was necessary that there be common membership of the two unions. The letter concluded with the following paragraphs:
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The purpose of my letter is to inform you about these important issues and notify that I intend to apply for membership of SPSF on behalf of eligible CSA members on Monday, 23 November 1992. This application will include yourself unless you instruct me otherwise beforehand.
Membership of the SPSF is available at no cost to members of the CSA. If you resign from the CSA, you may still retain membership of SPSF but would then be required to pay subscriptions directly to SPSF. You may resign from the SPSF by notifying the Branch Secretary in writing that you have ceased to be eligible for membership, or if still eligible for membership, by giving not less than three months’ notice of resignation to the Branch Secretary. Any membership dues are payable until the date of resignation. This is the same process that currently applies to CSA membership.
If you want any further information, please do not hesitate to call me. The intention of this action is to ensure that you don't inadvertently lose industrial and membership rights. The choice still remains yours and I have provided the tear-off slip below to assist you if you decide not to become a member of SPSF.
I strongly encourage you to take up SPSF membership because by doing so can you (sic) be assured of full industrial protection and participation in the affairs of the CSA and SPSF. If you are happy to be enrolled into the SPSF there is not (sic) need to contact me. You will become a member automatically.”
The tear-off slip was addressed to Mr Smith as a form which provided “I [given names, surname and membership number] do not wish to become a member of SPSF” and a space for insertion of a signature and completion of the date. It would seem that when Mr Smith sent that letter he was relying on the provisions of an amendment to the Rules of the SPSF whereby Rule 6A was inserted into those Rules. One version of Rule 6A had been lodged with the Australian Industrial Registry on 22 October 1992. It would appear that that version did not become the subject of a certificate under s 205(1) of the Industrial Relations Act 1988 (Cth). Section 205(1) relevantly provided that an alteration of the rules of an organisation did not take effect unless particulars of the alteration had been lodged in the Industrial Registry and a registrar had certified the matters referred to in that subsection. A modified version of Rule 6A received such a certificate on 2 March 1993. I shall return below to some of the precise terms of Rule 6A. In summary, Rule 6A provided a mechanism whereby, after giving not less than six weeks notice, an “Associated Body” (which was defined in the rules of the SPSF as including the CSA) could apply on behalf of, relevantly in this matter, members of the CSA for those persons to become members of the SPSF. On 16 February 1993 there was a meeting of the Branch Committee of the SPSF. It is common ground that there was not a quorum at that meeting. However, item 6.2 of the minutes of that meeting read as follows:
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It was moved Mark Smith, seconded Clinton Floate, that the 6479 applications for membership be accepted upon the ratification of the Federal Rule change.
CARRIED”
On 19 May 1993 there was a further meeting of the Branch Committee of the SPSF. There was a quorum at that meeting. The relevant portion of the minutes of that meeting read as follows:
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It was moved Gillian Kaub, seconded Dave Robinson that the minutes for February 16, 1993 be ratified.
Carried
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3. Business Arising
Further to 6.2 of the February 19 [the date is an obvious typographical mistake] minutes Frank Furey advised that as of March 3, 1993 the 6,479 applications (sic) for membership are now SPSF members.”
It would appear from the evidence of Mr David Robinson (who was then Branch Assistant Secretary of the SPSF) who was present at that meeting, and whose evidence I accept on this point, that there was never a list of these 6,479 persons. To the extent that they were identifiable, such identification came about by the following process. At the time when Mr Smith sent out his letter of 29 October 1992 the CSA’s computer generated the names and addresses of 6,557 members who, though being eligible for membership of the SPSF, had not joined that union. A copy of that letter was sent to each of those persons. As the extract from the minutes of the (inquorate) Branch Committee meeting of 16 February 1993 set out above discloses, 78 recipients of that letter objected to joining the SPSF. That left 6,479 on whose behalf Mr Smith apparently applied to the SPSF for membership. It would seem that those involved in this exercise were content not to identify the individuals who comprised the 6,479 non-objecting CSA members. I infer that this view was adopted because it was simpler to identify them en bloc by reference to the CSA membership roll and by exclusion; the exclusion being twofold namely those who were ineligible to be members of the SPSF and those who had sent Mr Smith their objections. It would appear that those involved felt that there needed to be some formal acceptance of the applications made on behalf of the 6,479 members. Normally, one would expect this to be the case. However, Rule 6A sub-paragraph D relevantly provided that such a person
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That sub-paragraph, in my view, contemplates that there would be a written application on behalf of such CSA members. I infer from the minutes of the meeting of 16 February 1993 that Mr Mark Smith was taken as having made an oral application on behalf of the 6,479 members of the CSA referred to in those minutes. Sub-paragraph C of Rule 6A provides that no error omission or want of form in connection with any such person’s application for or admission to membership shall invalidate membership under the rule. If Rule 6A sub-paragraph D required a written application then, in my view and subject to the other matters referred to below, Rule 6A sub-paragraph C would have saved the oral application made by Mr Smith from being invalid for not being in writing.
It is necessary for me to make a further factual finding before I turn to the respective contentions of the parties. Sub-rule B of Rule 6A provides:
“B. An application for membership of the Union in respect of a member of an Associated Body may be made on behalf of such person by the Associated Body of which he/she is a member in accordance with the rules of that body.” (Emphasis added).
I would construe that sub-paragraph as requiring there to have been, at the time of the application on behalf of the 6,479 CSA members, a provision in the rules of the CSA enabling an application to be made on behalf of its members by the CSA for membership of the SPSF.
Such a provision was to be found in Rule 20(l) which provided:
“l. The General Secretary may apply for membership of the State Public Services Federation for and on behalf of any Association member who is eligible for membership of the Federation provided that on each occasion that such an application is intended to be made the General Secretary shall write to the member advising:
(i) of the financial obligations arising from membership of the Federation, and
(ii) the circumstances and the matter (sic) in which a member may resign from the Federation, and
(iii) that the application will be made on specified date (sic) unless the member instructs the General Secretary otherwise.”
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The Applicants’ Contentions in Respect of the Process Commenced on
29 October 1992
The applicants submitted that the letter dated 29 October 1992 was misleading in its reference to a formal merger of the CSA and the SPSF. The two organisations were, so it was put, going to remain separately registered under State and Federal legislation. The Branch Council of the SPSF (WA), so the applicant submitted, and the CSA Council could not legally become one and the same body. Furthermore, there was never any suggestion at that stage that CSA members would lose industrial or membership rights if they did not become members of the SPSF. It was misleading, so the applicants argued, to make such a statement in the letter of 29 October 1992.
The next contention advanced by the applicants was that the SPSF rules had not been changed to authorise this procedure as at 29 October 1992; that change did not occur until 2 March 1993 when Rule 6A was registered. The applicants then submitted that there were two further defects in the letter dated 29 October 1992. First the applicant pointed to the date specified in the letter (23 November 1992) as the date upon which Mr Smith intended to apply for membership of the SPSF on behalf of the recipients of that letter. That date (being only 24 days from the date of the letter) was not less than six weeks after the date of the letter as required by Rule 6A(D)(a). Furthermore, so it was submitted, the letter did not notify its recipients that if a written objection were received within one month of its date then no application would be made on the recipient’s behalf.
The First Respondents’ Contentions in Relation to the Procedure Initiated on 29 October 1992, and my Reasoning in Relation to the Respective Contentions
The first respondents contended that if there had been any irregularity then the Court should exercise its powers of validation conferred by ss 256-258 of the Act. I shall return to that subject below. The first respondents contended that the applicants had not pursued their allegation that the letter of 29 October 1992 was misleading. They referred to the fact that Mr Robinson was not cross-examined on this point after Mr Daly had admitted that at all relevant times the CSA believed (and had advice to the effect) that it could join with and amalgamate with the SPSF. In fact the applicants did press this point (see paragraphs 61, 62 and 65 of their outline of closing submissions). In my view, the reference in the letter of 29 October 1992 to the fact that the CSA was “moving towards a formal merger” with the SPSF was not a relevantly misleading statement of what the CSA was doing at that time. I accept the evidence that it had received advice that this could be done, that there was a resolution in favour of such a merger put to a ballot of the CSA members which was passed by 76% of those who voted (see p 70 of the transcript) and that the CSA was “moving towards” such a formal merger (albeit that it did not realise at the time that this was not legally possible). The reference to the two bodies becoming effectively one and the same was conditioned on the previous reference to the merger. I do not consider that these statements were relevantly misleading. Nor do I find sufficient evidence that those involved in carrying out the deeming exercise did not intend to ensure that the recipients of the letter of 29 October 1992 had their industrial and membership rights protected. Insofar as the applicants rely upon the letter dated 29 October 1992 as being misleading, I reject their submissions.
So far as the question of compliance with the requirement that the date of application specified in the letter should have been not less than six weeks after its date, the first respondents simply relied on the statutory validating provisions referred to above. It is self-evident that the date specified by Mr Smith in his letter dated 29 October 1992 was far less than six weeks after its date. I find that the letter did not comply with Rule 6A(D)(a) in that regard. I now turn to the matter of whether anything done by Mr Smith in purported compliance with that rule in October 1992 could have any legal effect, given the fact that the rule was not registered until 2 March 1993.
In closing submissions on behalf of the first respondents, their counsel Mr P L Harris (Mr P M Nisbet QC who led him at the evidence-taking stage of the inquiries having since become Judge Nisbet of the District Court of Western Australia) contended that so long as the procedural requirements set out in Rule 6A had been complied with, then it did not matter whether that rule was in force at the time of compliance. There was nothing in Rule 6A, so he submitted, which suggested that the notification provided by the letter of 29 October 1992 had to occur before that rule was certified, although he conceded that until certification the rule was “not operative”. Mr Harris was unable to cite any authority for that proposition. The CPSU (i.e. the federal body) was also unable to do so, although it made a written submission to like effect. I do not accept the submissions. As I have mentioned above, s 205(1) of the Industrial Relations Act 1988 (Cth) relevantly operated to preclude Rule 6A taking effect until certification on 2 March 1993. If the submissions were correct, it would involve giving effect to Rule 6A in October/November 1992 by requiring a recipient of the letter dated 29 October 1992 who did not wish to become a member of the SPSF to send in an objection within one month of its date. In my view, the recipient of such a notice who knew that the rule had not been certified and who knew the relevant statutory provision, would most probably have taken the view that Mr Smith had no right, at that time, to initiate the procedural steps later to be provided by Rule 6A whereby members of the CSA would become members of the SPSF. I think the recipient would have been quite right. Subject to the application of any statutory validating provisions, I do not think that the application for membership on behalf of the 6,479 CSA members had a valid foundation, because no valid notice was given of it as required by Rule 6A(D).
As I have mentioned, there was no quorum at the meeting of the SPSF Branch Committee on 16 February 1993 which purported to accept the application for membership made by Mr Smith on behalf of the 6,479 CSA members. The absence of a quorum at such a meeting has the result in law that there is no meeting and any business transacted in the absence of a quorum is invalid - see Joske’s “Law andProcedure at Meetings in Australia”(8th ed) p 30 and the cases there cited. In those circumstances, I consider that the resolution of the Branch Committee at its meeting on 19 May 1993 (which I have set out more fully above) “... that the minutes for February 16, (sic) 1993 be ratified.” did not change the position. The position was, in my opinion, that the whole process had not been properly initiated and there was nothing to ratify. All of this is subject to the application of any statutory validating provision. In view of the conclusion which I have reached on that matter (see p 52 of these reasons) it is not necessary for me to consider the first respondents’ submissions concerning the effect, if any, of the Branch resolution of 19 May 1993.
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The Deeming Notice of 14 April 1994 - Factual Findings
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“In February 1993, CSA members voted overwhelmingly in favour of the CSA joining the SPSF.
. . .
However, our membership records indicate that you are not a member of the SPSF. The purpose of this letter is to advise you of these changes and to notify you that I intend to apply for membership on behalf of eligible CSA members on Monday, 23 May 1994. You will be included in this application unless you instruct me otherwise beforehand.”
Mr Robinson’s evidence was, and I accept it, that of the recipients of that letter some 79 members objected to the course which he proposed in it. As a result of their objections, they were not recorded as members of the Branch of the SPSF.
The Applicants’ Contentions in Respect of the Process Commenced on
14 April 1994
First, the applicants contended that the 14 April 1994 letter was misleading because the CSA was always going to remain a body separately registered from the SPSF. For the reasons which I have set out above in relation to the deeming notice of 29 October 1997, I reject that submission.
Next it was submitted that, in breach of Rule 6A(D)(c), the recipients of the letter were not advised that if they objected within one month then no application would be made on their behalf. As can be seen from the passages from the letter, which I have set out above, Mr Robinson told its recipients that they would be included in the application unless they instructed him otherwise “beforehand”. The word “beforehand” can only refer to the date in the immediately preceding sentence, namely, Monday 23 May 1994. The recipients of the letter were thus given more than one month in which to send in their objections. Notwithstanding that the provisions of the sub-rule upon which the applicants rely (which refer to “within one month”), I consider that, upon its proper construction, the sub-rule would be satisfied by a letter which gave more than one month in which to make an objection.
The next question is whether the application (which Mr Robinson in his letter foreshadowed would be made on 23 May 1994) was ever received by the SPSF. It will be recalled that Rule 6A(D) operated so that, upon receipt of such an application, those of the recipients of the 14 April 1994 letter who had not objected would be taken to have become members of the SPSF. The applicants contended that there was no evidence that such an application was received in respect of the recipients of the 14 April 1994 letter. In cross-examination (p 395-396) Mr Robinson said that it was his understanding, subject to looking at the Rule, that there was no need to make an application at all. He confirmed that he had not made a formal application “... in the sense of a motion to council.” Mr Robinson was not re-examined on this point; i.e. the point whether any application from him was received by the SPSF following the notice constituted by the 14 April 1994 letter. I am left, so far as the evidence is concerned, in the position where I do not have sufficient evidence to determine whether or not such an application was or was not received. In Re McGee (1992) 41 IR 27 at 35 Keely J observed that there was no onus on the respondents to that inquiry to show that they were employed “in the industry”. [The applicants claimed, as one of their particulars of irregularities, that the respondents were not so employed.] His Honour then said:
“It may be that there is no formal onus of proof on an applicant where, as here, the court is conducting an inquiry. However, the applicant has claimed, under s 218, that irregularities have occurred, and has given particulars of those irregularities as including the acceptance by the returning officer of the nominations of each of Messrs Keily, Price, Lancaster and Power. The Court is required by s 223(1) of the Act to “inquire into and determine the question whether an irregularity has happened in relation to the election”. In this inquiry the Court cannot find that any of those alleged irregularities has “happened” unless it first finds, on the balance of probabilities on the evidentiary material before it, that the relevant respondent was not at the material time, “employed in the industry” within the meaning of r22.”
I propose, respectfully, to follow the same approach as that taken by Keely J. I am not satisfied, on the evidence before me, that on the balance of probabilities there was no application received by the SPSF for membership on behalf of those of the recipients of the 14 April 1994 letter who had not objected to becoming members of the SPSF.
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The applicants submitted that persons who were eligible for membership of the SPSF pursuant only to an agreement entered in the register in accordance with s 202 of the Industrial Relations Act 1988 (Cth) were not persons who were eligible for membership of the SPSF under Part 2 of Chapter A of the rules of that organisation. I was not cited any authority for that proposition. As I see it, the question is a matter of construction of Rule 6A when read with the provisions of s 202 of the Industrial Relations Act 1988 (Cth). In my opinion, the whole purpose of s 202 was to enable agreements to come into force whereby members of a State union (in this case the CSA) who were ineligible under the eligibility rules of (in this case) the SPSF were made eligible to become members of that organisation - see s 202(1) when read with the definitions in s 202(13). The agreement of 26 August 1993 which was the subject of Deputy President Acton’s direction of 4 October 1993 had the effect, in my opinion, of making the 96 CSA members eligible for membership of the SPSF within the meaning of the expression “eligible for membership” in Rule 6A(A). That sub-paragraph starts with the words “notwithstanding any other provision of these Rules or of those of any Branch, ...”. In that context, and given what I consider to be the obvious statutory purpose of s 202, there is no reason for reading narrowly the expression “eligible for membership” in the manner contended for by the applicants.
Senior Deputy President Reardon’s decision of 23 March 1993, in summary, was to order that the Health Services Union of Australia (“HSUA”) would have the right to represent certain specified groups of employees in the health industry to the exclusion of the SPSF having that right, unless those persons were employed as an officer under and within the meaning of the Public Service Act 1978 (WA). The question is whether those orders had the effect of rendering any members of the CSA ineligible for membership of the SPSF as at 23 May 1994 and, if so, whether any of those persons were recipients of the letter of 14 April 1994? The first question again involves the proper construction of the relevant rules (including Rule 6A), this time when read with s 118A of the Industrial Relations Act 1988 (Cth) and the orders made on 23 March 1993. I can find nothing in Part 2 of Chapter A of the Rules of the SPSF or in s 218A (nor did counsel refer me to any such provision) which rendered ineligible for membership of the SPSF those persons who were employed in the relevant sectors of the health industry who were the subject of the orders made on 23 March 1993. I find that this specific particular of irregularity “did not happen” [to track the language of s 223 of the Workplace Relations Act 1996 (Cth)].
The Deeming Notices of 18 November 1994 and 13 March 1996 - Factual Findings
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The Applicants’ Contentions in Respect of the Processes Commenced on 18 November 1994 and 13 March 1996 Respectively, and my Reasoning in Relation to the Respective Contentions
The applicants contended that each of these deeming notices was misleading in stating that the Civil Service Association/State Public Service Federation had formally merged with the Public Sector Unions federally and further stating that the Branch Council of the CPSU and the CSA Council had effectively become one and the same body. In my view, those statements were not relevantly misleading. It will be recalled that on 1 July 1994 all SPSF members became members of what had previously been the PSU but which on that date was renamed the Community and Public Sector Union - SPSF Group. The SPSF was de-registered with effect from the same date. To describe that process as a merger is not, in my opinion, relevantly misleading in the context of urging CSA members to join the CPSU. Likewise, it will be recalled that on 4 October 1993 an agreement between the CSA and the SPSF WA Branch was approved under s 202 of the Industrial Relations Act 1988 (Cth) and s 71 of the Industrial Relations Act 1979 (WA). The terms of that agreement provided, among other things, that those persons elected as branch officers of the SPSF WA Branch would hold the corresponding offices in the CSA. It would appear that even after 1 July 1994 (when the SPSF was de-registered) the composition of the Branch Council of the CPSU and that of the CSA was substantially identical. In those circumstances, I do not consider that it was misleading to describe those councils as having “effectively become one and the same body”. Once again, the applicants objected that the above notices were in breach of Rule 6A(D)(c) in not advising the recipients that if a written objection to the Secretary was received within one month of the letter then no application on his/her behalf would be made. For the reasons which I have given above in relation to an identical objection to the letter of 14 April 1994, I reject this submission. The same applies to the applicants’ submissions that there was no evidence that such applications for membership were received and accepted by the CPSU Branch as a result of these two deeming notices. I refer again to my reasons above in relation to the 14 April 1994 letter.
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The Applicants’ Further Objection to the Deeming Notices of 14 April 1994,
18 November 1994 and 13 March 1996
The applicants contended that the process provided for by Rule 6A could not be “repeated over and over again in relation to the same persons as a part of a war of attrition”. They contended that, properly construed, that rule can only be used once for each person.
I note that there is no express restriction to that effect in Rule 6A. Should such a restriction be implied? I do not think that there should be any such implied restriction. It might well be that a CSA member, having previously objected to the deeming process being applied to him or her, might change his or her mind upon receipt of a further notice. There is evidence of one member (Mr Frank De Cinque) doing just that (see transcript p 245). Furthermore, between the exercise of sending out a notice to invoke Rule 6A on one occasion and a subsequent giving of similar notice there might be a considerable increase in the membership of the CSA. In those circumstances, I can see no basis for implying a restriction of the type referred to. Not only would it deprive former objectors of the opportunity of reconsidering and changing their minds but it would be to treat them in a discriminatory manner on each such occasion compared to the manner in which newer members of the CSA were treated in that regard. That is, they would be excluded from joining the SPSF (later the CPSU) via the deeming process.
If it is permissible, in construing Rule 6A, to have regard to its counterpart in the rules of the CSA [Rule 20(l)], then I think that supports the above reasoning. In my view it is permissible to have regard to Rule 20(l) for that purpose. The evidence is that the rules of the two unions were amended at much the same time for the purpose of introducing the deeming provisions. Rule 20(l) in its terms is clearly consistent with a particular member being the recipient of more than one notice of an intention to apply on his or her half for membership of the SPSF. The use of the words “on each occasion” does not compel such a conclusion, but is consistent with it. For these reasons I reject this further objection.
WHETHER UNFINANCIAL MEMBERS VOTED IN THE ELECTIONS
The Rules
Rule 44 of the CPSU - SPSF Group at the time of the elections in 1996 relevantly provided as follows:
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A. The entrance fees, subscriptions, levies and other fees payable by members of the Group shall be paid to the Secretary of the Branch to which the member belongs.
B. The entrance fees, subscriptions, levies and other fees payable by members of the Group may be paid:
(i) at the office of the Branch;
(ii) to a collector authorised by the Branch Secretary;
(iii) by an authority for deduction from salary and payment to the Branch Secretary;
. . .
E. All subscriptions shall be paid in advance.
. . .
G. A member whose payments of entrance fees, subscription, levies or fines are not more than 3 months in arrears shall be a financial member.” [Emphasis added].
Rule 10B of the Rules provided:
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Rule 57 relevantly provided:
“57. - CONDUCT OF ELECTIONS
A. The election of the holder of each office within the Group shall be -
(i) an election at which all financial members, or all financial members included in such Branch section or other division or in such class as is appropriate having regard to the nature of the office are subject to reasonable provisions with respect to enrolment, eligible to vote; ...
. . .
E. For all purposes relating to elections conducted under these rules the financial membership of persons eligible to nominate persons to offices within the Group, to accept nomination for election to those offices and to vote in any such election shall be ascertained as follows:
. . .
(ii) Those persons who are financial members of the Group as at seven (7) clear days prior to the commencing date from which such members may vote in an election under these rules shall be eligible to vote in such an election.
(iii) A roll of financial members eligible to vote in an election or elections under those rules shall be prepared as at thirty (30) clear days prior to the date upon which nominations for the office or offices the subject of the election or elections are to open.
(iv) A supplementary document shall be prepared comprising those persons who have become financial members between the date of preparation of the roll referred to in paragraph (iii) hereof and the date that is seven (7) clear days prior to the commencing date upon which such members may vote in an election or elections and that document shall be added to the roll referred to in paragraph (iii) hereof as comprising the roll of persons eligible to vote in that election or those elections.
(v) A further supplementary document shall be prepared comprising those persons who have ceased to be financial members between the dates referred to in paragraph (iv) hereof and the names of the persons on that document shall be deleted from the roll referred to in paragraph (iii) hereof and shall not be eligible to vote in the election or elections for which that roll was prepared.”
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Applicants’ Contentions
The applicants contended that there was a large number of persons who were not financial members of the Branch on the electoral roll who should not have been on that roll and were not entitled to vote. They contended that the Branch has misinterpreted Rule 44G and has also misapplied it.
The applicants contended, in particular, that the Branch has wrongly interpreted Rule 44G as meaning that if the last date upon which a member paid his or her subscription fell within the preceding three months then that person was a financial member. So far as the application of Rule 44G is concerned, the applicants contended that, quite apart from the above interpretation, the Branch has wrongly treated certain categories of members as being financial members. Before considering those contentions I shall proceed to find the facts.
Factual Findings
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. new members where payroll deductions had not yet been received;
. financial members who had given notice of resignation but who remained employed in the public sector and who were required to pay three months subscriptions from the date of such notice;
. members on leave without pay; and
. life members employed in the public sector.
The Walkington Memorandum was tabled at a meeting of the SPSF Branch Council held on 13 October 1993. The minutes of that meeting show that a resolution was put, seconded and duly carried that the Walkington Memorandum be accepted.
It is common ground that, despite the fact that the SPSF ceased to exist on 1 July 1994, the principles reflected in the Walkington Memorandum have been applied in the elections for office bearers in the SPSF W.A. Branch and (since 1 July 1994) in the CPSU - SPSF Group WA Branch. There does not appear to have been any formal resolution of the Branch to authorise this practice.
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The First Respondents’ Contentions
To assist in understanding the problem I set out below (again) Rule 44G:
“44G A member whose payments of entrance fees, subscription, levies or fines are not more than 3 months in arrears shall be a financial member.”
The first respondents contended that Rule 44G could have a number of different interpretations. They contended that the reference to “three months in arrears” could mean any of the following:
(a) a total of three months arrears, no matter how long accumulated; for example over ten years of Branch membership;
(b) three months in any one financial year or some other finite period such as two, three, four or five financial years; or
(c) three months continuously before the closing date of the roll, no matter what the previous subscription history may have been.
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Applicants’ Contentions
The applicants contended that Rule 44G should be construed as providing that a member whose liability for any payments in respect of entrance fees, subscription, levies, or fines continues for more than three months without that liability being fully met, is not a financial member. The applicants cited Rennie v Bunn (1997) Industrial Relations Court of Australia Decision No. 93/97. [In fact, the correct citation is Good v Bunn, being application NI 96/2100 which was a separate matter within a series of proceedings decided by Ryan J in reasons published on 27 March 1997.] At the relevant point in those reasons his Honour had to consider whether Rule 26(ii) of the SPSF Group Rules was oppressive as allowing fee increases to occur, and the method of preserving financial status to change, without notice to members. His Honour (at 31-32) said this:
“I consider that this alternative argument is met in part by the provisions of r.44G which, as I have already indicated, prevents a member from becoming unfinancial until his or her fees or subscriptions have been in arrears for more than three months. If, contrary to the conclusion reached in the proceedings in Rennie v Bunn (above), the Federal Council resolution of November 1995 had taken effect according to its terms, even a member required to pay the maximum subscription of $185.04 per annum monthly in arrears from 1 December 1995 would not be more than three months in arrears and therefore unfinancial, until, at the earliest 1 March 1996. In that time it is reasonable to assume that some responsible officer of either or both the SPSF Group and the relevant Associated Body would have advised the member of his or her impending loss of financial status.”
I accept, respectfully, the assessment made by Ryan J in the example given in the above passage. However, the example given is, in my opinion, only one way in which a person might cease to be a financial member. Being more than three months in arrears continuously in the lead up to an election would be a paradigm case of lost financiality. But I see no reason why a person who had previously fallen into, say, four months of arrears in subscriptions and then resumed paying subscriptions should somehow cease to be four months in arrears before reducing those arrears to not more than three months. I regard that as a very clear case of continuing unfinanciality. What then of a member who failed to pay two months of subscriptions, but had resumed payment of monthly subscriptions thereafter? Would such a member cease to be financial when more than three months had passed since the earliest of the two unpaid monthly subscriptions fell due? I think that the answer to that particular question depends upon whether the member appropriated all or any of the subsequent payments to a particular month or whether, failing such appropriation, the Branch can be seen expressly or impliedly to have done so. The relationship between the member and the Branch can, I think, be characterised properly as a continuing relationship of debtor and creditor; a “running account” – see Airservices Australia v Ferrier (1996) 137 ALR 609 at 625. In the absence of any such appropriation, each payment will be deemed to have been applied to the debt which fell due earliest: Clayton’s Case (1816) 1 Mer 572 at 608-610; 35 ER 781 at 792-794. In the situation of two months of subscriptions (and indeed not more than three months) the absence of any appropriation might mean, in relation to subscriptions (putting aside for the moment entrance fees, levies or fines), that even though the first default might have occurred, say, two years ago, the member would still remain a financial member. That would be because it would not be possible to point to any particular default in payment which was more than three months “old”. There was no evidence of any express appropriation by any members or by the Branch. It might have been contended that by treating a member as being financial if there had been any subscription payment in the immediately preceding three months, the Branch was impliedly appropriating any such payment to the latest payment which fell due. I doubt whether that would be a proper implication. My impression is that the Branch in adopting that policy was not concerned with matters of appropriation. The applicants relied upon the use of the term “subscription” in the singular as being “telling”. They contended that if a member missed a fortnightly subscription payment and that particular subscription remained unpaid for more than three months, then that person became unfinancial. I would not attach such importance, for that purpose, to the use of the singular expression. Generally in Rule 44 there is reference to subscriptions in the plural. Where there is reference to subscription in the singular (for example in sub-paragraph E) there is interchangeable reference between subscriptions and subscription. In my view, the approach taken by the Branch of treating a member as being financial (regardless of his or her previous subscription history) so long as there had been one payment of a subscription during the immediately previous three months period is simply wrong. Properly construed in relation to subscriptions, I think that Rule 44G enables a member to remain a financial member provided that he or she is not more than three months in arrears with any payment of subscription or subscriptions, being subscriptions which have not been the subject of a valid waiver or remission. Such a construction accommodates and enables consistent treatment of the other debit items referred to in Rule 44G, namely, entrance fees, levies or fines. If any of these debts can, on the facts of the running account and taking into account any appropriation, be seen to be more than three months “old” then the member is, in my opinion, not a financial member. (That is, unless they have been the subject of a valid waiver or remission). I think that some support for that construction can be obtained from the fact that Rule 44G speaks of “more than 3 months in arrears” not “more than 3 months of arrears”.
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“(iii) Fix and from time to time vary the entrance fees and Branch union subscriptions payable by candidates for membership and members of the Group attached to the Branch provided that at no time shall Branch union subscriptions be less than the national union subscriptions or capitation dues;
(iv) Impose levies on members attached to the Branch;
(v) Remit entrance fees, subscriptions, levies fixed or imposed under this Rule;
(vi) Disburse or authorise the disbursement of monies from the Branch Fund for any purpose within the objects of the Union;”
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“(c) fix and from time to time vary the entrance fees and subscriptions payable by candidates for membership and members of the SPSF Group attached to the Branch;
(d) impose levies on members attached to the Branch
(e) waive in whole or part any fees, subscriptions and levies.”
The applicants contended that sub-rule 13(iii) of the federal rules and in particular the proviso in that sub-rule that Branch union subscriptions shall not be less than the national union subscriptions or capitation dues meant that the Branch Council cannot remit subscriptions in a manner which brings them below the level of those national union subscriptions or capitation dues.
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The evidence satisfies me that the Branch has consistently applied the policy reflected in the Walkington Memorandum as accepted by its predecessor, the SPSF. I find that, for the purposes of preparing the roll for the 1996 elections, the Branch treated as financial members those persons who fell within the four categories referred to in the Walkington Memorandum which I have set out above, including members on leave without pay and the like. In so doing, I consider that they validly waived the subscriptions of persons falling into those categories. I accept the first respondents’ submission that the SPSF Branch resolution of 13 October 1993 was preserved by the amalgamation provisions of the Workplace Relations Act 1996 – see s 253U when read with the definition of “instrument” in s 234. Whether they properly applied that waiver (for example by properly identifying those members who were on leave without pay separately from those members who had simply stopped paying subscriptions) is another matter to which I return below.
The question then arises whether, in interpreting Rule 44G by treating a member as being financial (regardless of his or her previous payment history of subscriptions levies or fines), the Branch can be said to have waived those subscriptions? That is, by treating a member as being financial if that member had made a payment of a subscription within the immediately preceding period of three months even if that member had subscriptions which were more than three months in arrears (i.e. more than three months “old”), did that amount to a waiver of those subscriptions?
In assessing whether that constituted a waiver, I have taken into account the Branch’s policy of not pursuing members for payment. However, in my view there was no such waiver. The first respondents did not contend that there had been. The result is that there may well have been members on the electoral roll at the time of the elections who, although treated by the Branch as being financial members, were not financial members. I turn below to the evidence in order to attempt an assessment of how many persons fell into that category as at 30 May 1996. But first I shall deal with the first respondents’ contention on the matter of estoppel.
Estoppel
The first respondents submitted, that it was “strongly arguable” that the Branch would be estopped from denying financiality of these members, after its long-standing practice of treating them as being financial members, without at least sending them a warning. Mr Harris referred to the following passage in the reasons for judgment of Ryan J in Good v Bunn (at 30):
“The point about notice of termination of an agreement of the kind contemplated by SPSF Group r.44B(v) is partly met by the operation of par. G of r.44 which prevents a member from becoming unfinancial until his or her fees and subscriptions are more than three months in arrears. Moreover, if notice of an event causing or threatening the loss of financial status is not given to a member by the officer responsible for the collection of fees and subscriptions, the organization may be estopped from denying financiality. However, it is unnecessary to explore that question further in these proceedings.”
I have reviewed the evidence of the extent to which the Branch’s interpretation of financiality was made known or represented to its members, thus forming the first limb of any such estoppel. In essence (see pp 334, 357-359) this comprised the publication of the Branch Council minutes of 13 October 1993 in the CSA Journal. There was no evidence from any member to the effect that he or she had read those minutes and, in reliance upon their contents, had acted or refrained from acting in any particular way, such as not paying subscriptions. In those circumstances, I do not consider that a proper factual basis has been made out for the first respondents’, somewhat tentative (see p 409) estoppel submission.
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Mr Daly’s evidence [see his affidavit sworn 18 July 1997] was that he caused a limited inspection of the Branch’s computer membership database to be conducted and that the Branch had provided him with copies of subscription records for the period 28 February 1996 to 30 May 1996. He inspected those documents and said that he identified at least 75 persons who voted in the election but, on his case, were certainly not financial members as at 30 May 1996. Mr Daly exhibited a list of those persons which he said comprised three categories, as follows:
(a) 24 persons who did not pay any subscriptions between 28 February 1996 and 30 May 1996;
(b) 34 persons who paid all of their subscriptions which fell due during the abovementioned period but whose payments of subscriptions were still more than three months in arrears;
(c) 17 persons whose subscriptions were more than three months in arrears but who made some but not all payments of the subscriptions which fell due during the abovementioned period.
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Ex A2
p235
Ex A2
p89
The Tait Memorandum
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Ex A2 p235 |
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Ex A2 p89 |
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In cross-examination it emerged that Mr Tait used a different test or definition for financial membership on each such occasion. It is not quite clear from the evidence just
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“The question is those unfinancial members were carried through February, March, April, May beyond the election? They were still on your books? --- There were unfinancial members on our books. I don’t know how many there were.
A significant number though because you kept including them in your total membership figures, didn’t you? --- There is always certainly a reasonable number, yes.
Yes, and you pay capitation fees for them to, don’t you? --- We do.”
Mr Robinson’s evidence at p 369 of the transcript was as follows:
“… As I understand it, in May of 1996 there were quite a few persons or members on the CPSU, WA branch membership roll who were unfinancial members? ---- There certainly would have been a number who were unfinancial, yes.
There were about 700 of them? --- Yes. Without looking at the figures, there would have been a number, certainly.
Yes, and they remain on the membership register? --- They do or they did then, yes.”
Mr Freddie Hong Ho Tan gave evidence. Mr Tan is a certified practising accountant who was formerly the accountant for the Branch. From Mr Stewart’s memorandum of 1 July 1993 it can be seen that Mr Tan was concerned as early as mid-1993 about the accuracy of the membership figures. The first respondents mounted a fairly vigorous attack on Mr Tan’s credibility. I should say that I formed a favourable impression of Mr Tan as a witness. I thought that he gave his evidence as fully and as truthfully as he could. To the extent that there were any inconsistencies in his evidence, I was not prepared to use them as a basis for disbelieving Mr Tan. Mr Tan’s evidence (pp 144-145) was that as at May 1996, based on his statistical analysis, his view was that there were approximately 18,000 members paying subscriptions. Mr Tan’s evidence was that this figure of 18,000 included both financial and unfinancial members (pp 169, 226-227). By financial members he meant members who had paid subscriptions at any time during the immediately preceding three months period. In cross-examination (p 187) there was the following exchange:
“How close is your approximation to the real thing? Is it out by as many as 1,000? --- No, it can never be.
500? --- In fact it will never be out that much, sir.
Well, how much is it out? --- Well, I would say less than 2%, 5% variation. That’s the maximum, sir.”
A 2-5% variation from 18,000 is, of course, 360 to 900, but allowance must be made for the pressure of cross-examination, even for accountants. Taking 2% plus or minus as the measure, the result would be a figure of between 17,640 and 18,360 members. On the basis of the wider possible variation of 5% the range would be between 17,100 and 18,900.
It is not possible for me to find precisely how many unfinancial members were on the electoral roll as at 30 May 1996. However, after taking into account:
. the Branch’s definition of a financial member;
. the figure of 621 unfinancial members shown in Exhibit A8 (prepared by Mr Tait on 5 September 1995)
. the corresponding figure of 709 in the Tait Memorandum of 14 February 1996,
. the figure of 18,356 members upon which the capitation fees were based in May 1996 (and which Mr Robinson admitted included unfinancial members);
. Mr Tan’s evidence;
. the fact that (contrary to the first respondents’ evidence) there was no audit of membership numbers – as Mr W M Clarke, the Branch’s auditor, made clear (p 317-318); and
. the Branch Council minutes of 30 October 1996, which showed the numbers of financial members as at 30 September 1996 (admittedly some 4 months later) as being 17,955 of which 17,515 were actually paying subscriptions.
I find that it was more likely than not that as at 30 May 1996 the Branch’s electoral roll included a very substantial number of members who were not financial members. It is very difficult to quantify the extent of such error but my assessment is that there were about 18,000 financial members of the Branch as at 30 May 1996 i.e. about 600 less than appeared on the electoral roll.
The Tait Memorandum disclosed a further 513 members under the heading “Financial but Not Paying Subs”. They were described as follows:
“Life members 13
PRD [Payroll Deductions] not Started 49
LWOP [Leave Without Pay] 448
Workers Comp 3”
The undisputed evidence was that only one life member voted. She was Mrs Forbes. Mrs Forbes was unquestionably entitled to vote. In cross-examination of Mr Daly it emerged that the second sub-category of the above group comprised members who had authorised their employer to start making subscription deductions from their pay, but in respect of whom those deductions had not commenced. It also included new members whose employer had not yet begun making deductions and thirdly members who had transferred from one government employer to another where the latter employer had not yet commenced deductions. There was no evidence to identify the 49 members in this sub-category as at 14 February 1996. There was no evidence either of how many members fell into this sub-category as at 30 May 1996. Nor was there any evidence of how many, if any, of the members falling into this sub-category had subscriptions which were in arrears for more than three months. I infer that by the very nature of this sub-category, it would be extremely unlikely for the delay in payroll deduction to extend over a period of more than three months. I am not satisfied that any members whose payroll deductions extended beyond that period found their way on to the electoral roll. In relation to members on leave without pay, subject to the matter (an important one) of how they came to be so categorised, I have already given my reasons why I consider that the Branch was entitled to waive payment of their subscriptions and accordingly to treat those members as being financial members. That leaves the three members shown in the Tait Memorandum as being on workers compensation payments as at 14 February 1996. The state of the evidence of how many members fell into this sub-category and were on the electoral roll at the time of the elections is as scant as I have mentioned in relation to the members whose payroll deductions had not started. I accept the first respondents’ evidence that members on workers compensation were treated in the same way as members on leave without pay i.e. their subscriptions were waived during the period of such disability. I think the Branch was entitled, for the reasons set out above, to waive such subscriptions. If they did so for these 3 members as at 30 May 1996 (and the evidence does not establish this) then they were, in my opinion, entitled to do so. I accept the first respondents’ submission that to the extent that the Branch Council waived payment of subscriptions by members on leave without pay and the like they can be treated as doing so in accordance with the resolution of the SPSF Branch Council of 13 October 1993. The undertaking, mandate, instruction, authority or order embodied in that resolution is, in my opinion, an instrument to which Division 7 of Part IX of the Workplace Relations Act 1966 applies and, in accordance with s 253U, after 1 July 1994 it continues in full force and effect as if any reference in it to the SPSF (whether express or implied) were a reference to the CPSU.
Whether Members who were treated by the Branch as being on Leave Without Pay were in fact on such leave?
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Public Hospital Board Employees and Employees of Perth Dental Hospital
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The Applicants’ Contentions
At the hearing, counsel for the applicants conceded that the reference to 37 such persons might have been a typographical error. The inquiry was eventually conducted on the basis that the relevant number contended for by the applicants was 31, although counsel for the applicants prepared two documents for final submissions – one referring to 31 such persons and the other referring to only 21 irregularities. I shall treat the complaint as referring to 31 persons who voted at the elections. The applicants contentions were as follows:
. neither the CSA nor the Branch had constitutional coverage for employees of Public Hospital Boards established under the Hospital & Health Services Act 1927 (WA);
. by virtue of Deputy President Reardon’s decision of 23 March 1993 under s 118A of the Industrial Relations Act 1988 (Cth) (referred to at p 17 above) and by virtue of CPSU Chapter A General Rules, Part II, Section 1, Exclusion (x) (cc) neither the SPSF nor (later) the CPSU had constitutional coverage of employees of such Public Hospital Boards;
. further, as a result of a decision of the Full Bench of the Western Australian Industrial Relations Commission, delivered on 2 April 1996, the CSA has not had constitutional coverage for employees of such Public Hospital Boards or the Perth Dental Hospital;
. since the period commencing on or about 1 July 1995 employees of the Western Australian Health Department who were eligible for membership of the CSA and CPSU Branch have been transferred in their employment so as to become employees of Public Hospital Boards (now called Health Services) and pursuant to both the rules of the CSA and the Branch were not eligible for membership of either the CSA or the Branch; and
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In paragraphs 119 and 120 of their final written submissions, the applicants made factual assertions in relation to some nine of the individuals in Mr Robinson’s list.
First Respondents’ Contentions
The first respondents contended that all 31 of the persons listed in Mr Daly’s list fell within Clause 8(c) of Chapter A of the CPSU Eligibility Rule and Rule 6A of Chapter C of the CPSU-SPSF Group Rules. They submitted that in the case of the five employees of the Perth Dental Hospital, all employees of that hospital were covered by an enterprise agreement made between the CPSU on behalf of its membership, on the one hand, and the Board of Management of the Perth Dental Hospital and the Commissioner of Health, on the other hand, which had been registered in the Industrial Relations Commission of Western Australia under s 4(1) of the Industrial Relations Act 1979 (WA). In those circumstances, so the first respondents contended, the CPSU had exclusive industrial coverage. The first respondents referred to the fact that the applicants called only three witnesses in the list of hospital employees. Each of those witnesses had, so it was put, given evidence that at the time of joining the CSA (in respect of two of those witnesses) and the Branch (in the case of the third witness) they were employed in a field covered by the Constitution Rule of the CSA and the Branch respectively. In those circumstances, so it was submitted, unless the relevant rules otherwise provided, a person who was eligible to join the Branch could remain a member notwithstanding a change in employment which would render that member ineligible to join if joining afresh. The first respondents contended that there was no provision in either set of rules whereby a member, upon ceasing to be eligible according to the Constitution Rule, thereafter ceased to be a member. This was said to be “entirely in keeping” with s 261(2) of the Industrial Relations Act 1988 (Cth). The first respondents relied upon the decision of Gray J in Ransley v Australian Public Service Association (1985) 12 IR 55 at 64 where his Honour said:
“There is a long line of authority to the effect that a member of an organisation who, by reason of a change in his or her occupation, ceases to fall within the categories of persons eligible to belong to the organisation, does not thereby automatically cease to be a member, unless the rules of the particular organisation so provide. [Numerous authorities cited].
I was not taken to any rule either of the CSA or the CPSU which provided that a member who ceased to be eligible to become a member by reason of a change of employment thereupon ceased to be eligible to remain a member. Nor have my, somewhat limited, searches of the rules disclosed any such provision. I accept the evidence of the three witnesses in this category, called by the applicants, as to their respective employment at the time when they joined either the CSA or the CPSU. Under the principle referred to in Ransley they remained members, despite the matters relied upon by the applicants and summarised above. In relation to the other members of this group (i.e. those who were not called to give evidence) there is a conflict between, on the one hand, Mr Daly who asserts that these persons were employees of Public Hospital Boards and, on the other hand, Mr Robinson’s evidence that all except two of the persons in the list were either paid by the Western Australian Health Department or the Perth Dental Hospital in respect of both of whose employees the CSA, on the first respondents’ case, had constitutional coverage. The two exceptions were Mr Langford and Ms Hansson who, so Mr Robinson deposed, had left the Health Department before 30 May 1996 without notifying the Branch. Mr Robinson’s evidence was that both those members continued paying subscriptions with Ms Hansson not resigning until January 1997 and Mr Langford continuing to pay subscriptions at least until 14 April 1997. In cross-examination (at p 72) part of Mr Daly’s evidence was as follows:
“Now, those 31 persons that are named in TJD12 – did you examine their membership application forms? --- Not to my knowledge.
Do you know by whom these persons were employed when they first joined the CSA, the SPSF, or the CPSU, as the case may be? --- I couldn’t comment, no.
Well, you don’t know? --- no?”
I am not prepared to infer (particularly in view of the evidence from the three witnesses to which I have just referred) that all or any of the remaining members in this category were ineligible to join either the CSA or the CPSU at the time when they did so. Accordingly, it is not necessary to traverse the various other arguments raised by the applicants. In any event, had I reached a different conclusion in relation to this allegation, it would not have affected the outcome of this inquiry. That is because I consider that the irregularities otherwise identified were sufficient to require the relief which I propose to order.
CSA Staff
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Mr Daly, in his statutory declaration of 20 December 1996 exhibited a list of eight persons being employees of the CSA. The list also set out what the applicants claimed, and the first respondents’ did not dispute, was a job description for each person. Those job descriptions were as follows:
. Office Secretary/Secretary to the Branch Secretary;
. 2 Publicity Officers;
. Administration Manager;
. Acting Information Services Manager;
. 2 Recruitment Officers; and
. Assistant Accountant
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“The exclusion agreed with the FCU limits staff eligibility to those staff not eligible to join the FCU. The FCU claim all purely clerical/keyboard staff up to and including Level 2. This means that Workplace Liaison Officers, Research Officers, Industrial Officers, Professional and Senior Managerial Staff are eligible to join the CSA.”
Mr Robinson’s evidence was that he and Mr Furey were present when the side-deal was negotiated, at the Western Australian Industrial Relations Commission hearing, with the representative of the Federated Clerks’ Union. In his affidavit, Mr Robinson suggests (at para 10.1.1) that the Full Bench of the Western Australian Industrial Relations Commission was made aware of this agreement. I have examined the transcript of proceedings and, while there is a reference to the exclusion which is reflected in the new Rule 6(e)(2), there is no reference to the side-deal.
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I accept that there was such a side-deal and that, notwithstanding the provisions of the respective rules of the Federated Clerks’ Union and the CSA, the former body refrained from soliciting members being employees of the CSA above level 2 clerical. However, in my view, the legal position is governed by the provisions of the rules as registered under the respective statutes. Thus applying Rule 6(e)(2) according to its terms, seven of the persons in Mr Daly’s list were not eligible for membership of the CSA, did not have the benefit of the agreement registered under s 202 and should not have voted. There was no dispute that they had voted.
The second limb of the first respondents’ response to this complaint was to rely on s 256 of the Workplace Relations Act 1996 (Cth) as validating any relevant irregularity. As this section is relied upon by the first respondents as having the effect of validating many of the acts which the applicants claimed to be invalid, I shall deal with this matter below.
Membership Application Forms
The applicants claimed (and Mr Daly’s evidence was to this effect) that they had inspected copies of application forms for membership of the CSA and had ascertained that at least 376 persons who voted in the election had indicated, when joining the CSA, that they did not wish to join the SPSF (later the CPSU) WA Branch. The evidence starts with paragraph 55 of Mr Daly’s affidavit of 13 June 1997.
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However, assessing the evidence on both sides, as best I can, I make the following findings:
1.
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2. Of the persons in that list, those who joined the CSA before October 1992 (when the first round of the deeming exercise started) were probably sent the first deeming notice. It is likely that the Branch thereafter treated all but the 20 persons referred to immediately below as having been deemed into membership of the Branch.
3.
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4. Of those 20 persons, 12 later received the deeming notice dated 14 April 1994 in the second round of the deeming process. Some of those persons objected in writing once again, but it is not possible to ascertain precisely the number who did so i.e. who had objected twice but whose name appeared on the electoral roll on 30 May 1996 and who voted.
5.
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6. I find it impossible to assess precisely how many persons out of the 345 of the 376 persons listed by the applicants under this heading of complaint voted in the election when they were not eligible to do so. I have formed the impression (and I so find) that, subject to the effect, if any, of the respective deeming notices, they would number about 300. I reached this approximate figure by applying a discount of about 15% to the figure of 345. To a very considerable extent this complaint overlaps with the applicants’ attack on the first deeming notice, in respect of which I have found in their favour. The same applies in respect of those members who objected in Rounds 3 and 4 of the deeming process upon receiving the notices dated 18 November 1994 and 13 March 1996. I think, in all the circumstances, it would be appropriate to deal with this category under the heading of the challenge to the deeming notices rather than as an entirely separate matter. Nevertheless, as part of my eventual overall assessment of what should be the outcome of this inquiry, I have had regard to the findings which I have made above.
As a further part of this challenge, the applicants adduced evidence of 31 persons who joined the CSA after November 1992 (when the deeming-into-membership process started) but who did not join the SPSF and who had not been sent a deeming notice. They also adduced evidence that those 31 persons voted. At the inquiry Mr Robinson gave
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evidence
that the Branch had searched the files for the application forms in respect of
these 31 identified CSA members. The 31
members had been identified by Mr Daly and copies of their original application
forms were annexed to his affidavit of 14 May 1998 (annexure TJD39). Mr Robinson produced further applications
signed by 16 of these 31 persons. In
each case, these were applications for membership of the SPSF signed separately
(and subsequently) to the documents exhibited by Mr Daly in the bundle which
comprised annexure TJD39. I am satisfied
that each of the 16 persons, out of the 31 identified by Mr Daly, duly made
applications for membership of SPSF and were admitted to such membership. The seventeenth member whose application form
was part of Ex R15 (Ms Aileen Lewis) appears to have sent in a membership form
only as a means of re-starting her subscriptions after returning from maternity
leave. I accept the evidence that Ms
Lewis was already a member and that the copy of her application for membership
dated 22 September 1993 which can be seen in both Ex. A2 at p 50 and in Ex R15
(in which the section relating to the SPSF is left blank) should not be taken
as indicating that Ms Lewis did not wish to join the SPSF when she joined the
CSA. The date upon which Ms Lewis joined
the CSA does not appear from the evidence.
Mr Daly’s affidavit of 14 May 1998 was filed virtually on the eve of the
commencement of the inquiry. The first
respondents were able to come up with 17 (out of 31) complete answers, in the
form of subsequent membership applications and the like, to this particular
allegation. I regard that as quite a
high percentage, given the time available.
I accept that portion of Mr Robinson’s evidence (at p 337) that these 20
application forms were part of a large number of such forms sent to CSA members
in 1993. The forms were sent out under
the cover of a letter in which the CSA urged those members who had not yet
become members of the SPSF to do so. It
pointed out that some 97% of CSA members had already elected to become members
of the SPSF, that no payment was required in addition to the CSA fees currently
being paid and referred to the fact that the form could be returned postage
paid. It those circumstances, I consider
that it would be quite likely that a considerable number of CSA members would
have responded by filling in the form to join the SPSF and returning it post
paid to the CSA. In those circumstances,
I am not prepared to find that the 14 members whose application forms could not
be found did not in fact respond in the same way as the 17 persons whose
application forms could be found.
Wrong Forms
In paragraph 1(i) of the applicants’ particulars of alleged irregularities they claim that “a large number” of persons who have been treated as Branch members since 1 July 1994 and who “would have been included” on the electoral roll have never properly been “joined into” the Branch. This is put on two bases. First, because the form which they filled out was incorrect in that it referred to the de-registered Union, the SPSF, rather than the CPSU. Secondly, in some cases prospective members crossed out the CPSU part of the membership application form or in some other way indicated that they wished only to be members of the CSA.
The applicants have not quantified the number of members said to be involved under this category of complaint. In cross-examination (at p 197), Mr Daly acknowledged that he could not identify the number of persons involved. The applicants relied on an acknowledgment by Mr Robinson, in his affidavit sworn 14 April 1997, that some old SPSF membership application forms continued to be used after the amalgamation of 1 July 1994, despite efforts made to prevent this happening. Mr Robinson was unable to quantify the number of members so admitted. He referred to what might be regarded as mitigating circumstances. These included the fact that there was within the CPSU a clearly identifiable group, acknowledged by the rules of the new body as being the “SPSF Group”. A member joining the Branch would be joining the SPSF Group within the CPSU. Then he referred to the fact that members usually signed a payroll deduction authority which resulted in the membership subscription being paid to the Branch. Furthermore, each new member was sent material which acknowledged joinder of the CPSU together with an information pack concerning the rights and privileges attached to such membership. In my view, the applicants have not established a relevant potential irregularity under this heading. To start with, there is insufficient evidence about how many such forms were used. Secondly, I consider that the use of such a form falls within Rule 6D of the CPSU-SPSF Group Rules. That rule relevantly provides that no error, omission or want of form in connection with any person’s application for or admission to membership shall in itself invalidate membership. If I am wrong in those conclusions, then in my view the forms in question comprise instruments and, in particular, instruments to which Division 7 of Part 9 of the Workplace Relations Act 1996 (Cth) applies and are thus validated by s 253U of that Act. Insofar as Mr Winter’s application form falls under this category, I have dealt with that matter above.
Whether any Statutory Validating Provisions apply to the Potential Irregularities Identified Above?
It is convenient, at this stage, to summarise the potential irregularities which I have identified in my reasons above. They are as follows:
1. That the deeming notice of 29 October 1992:
(a) was given at a time before the relevant rules became effective;
(b) provided too short a period in which the recipients could object; and
(c) was dealt with as an application for membership on behalf of 6,479 CSA members at an inquorate meeting of the SPSF Branch Committee on 16 February 1993.
2. That the deeming processes initiated by the letters of 18 November 1994 and 13 March 1996 were not authorised by the then current CSA rules (i.e. the point being that those rules referred to the State Public Services Federation and not the CPSU).
3. That 50 persons who voted were specifically identified as being unfinancial members.
4. That the electoral roll included about 600 members who were not financial members.
5. That an unquantified number of the approximately 400 members who were treated as being on leave without pay and the like, whose subscriptions were waived and who were thus included on the electoral roll as financial members, may well not in fact have been on leave without pay and the like, because the Branch had no system for checking those circumstances.
6. That seven CSA staff members who voted were not eligible for membership and had never been so eligible.
In relation to the first of the abovementioned matters, the first respondents and the CPSU federal body submitted that s 256 of the Workplace Relations Act 1996 validates the admission to membership of the 6,479 CSA members who were sent the first deeming notice. Section 256(1) relevantly provides that, subject to s 257, after the end of 4 years from the doing of an act by persons purporting to act as a collective body of a branch of an organisation and purporting to exercise power conferred by or under the rules of that organisation or branch or by a person holding an office or position in that organisation or branch and purporting to exercise power conferred by or under the rules of the organisation or branch, the act shall be taken to have been done in compliance with the rules of the organisation or branch. Section 256(3) makes it clear that the validation worked by s 256(1) applies to an act done before the commencement of s 256. Time is reckoned back from the date of judgment: Cook v Crawford (1982) 62 FLR 34. The applicants contended that s 256 ceases to operate when an organisation is deregistered. They submitted that as the SPSF was deregistered on 1 July 1994, there was no organisation in relation to which an act can be validated. The applicants relied fairly heavily for that submission on the decision of a Full Court of the Industrial Relations Court of Australia in Tierney v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union of Australia (1996) 137 ALR 312. That case was concerned with s 260 of the Workplace Relations Act 1996 which relevantly provides that where a person eligible for membership of an organisation applies to be admitted as a member of the organisation and has, up to a time within one month before the application, acted in good faith as and has been treated by the organisation as a member, the person is entitled to be admitted to membership and to be treated by the organisation as though the person had been a member during the period referred to in s 260(1)(b). Section 260 confers powers on the Court to make appropriate orders. By a majority (Spender and Ryan JJ, Moore J dissenting) the Court held that the term “the organisation” in s 260 referred to an organisation currently registered under the Act. In my opinion, on the question of the application of s 256, Tierney’s case can be distinguished. It is clear that the decision of the majority was based on the use of the definite article “the” preceding the word “organisation” and the fact that the jurisdiction under s 260 was enlivened by an application to the Court (see p 314). In those circumstances the majority held the word “organisation” could not be given any different meaning from that ascribed by s 4 of the Act which provides that “‘organisation’ means an organisation registered under this Act”.
In my view, s 256, although having some similarity with s 260, has a relevantly different operation. The purpose of s 256 can be seen as being to validate certain acts after the end of four years from when they were done. It does no violence to s 256 to require only that the organisation be registered at the time when the relevant acts were done. In those circumstances, Parliament can be seen to have decreed that after the end of four years that act shall be taken to have been done in compliance with the rules of the organisation or branch. The validity of an act done on behalf of an organisation which subsequently becomes deregistered may be called into question in all manner of proceedings. I see nothing in s 256 or in the relevant context which requires a construction which would exclude the operation of the section where an organisation has been deregistered after the doing of the act in question. Nor can I discern any policy reason why that should be the case. In that regard I respectfully agree with the view expressed by Gray J in relation to the predecessor of s 256 in Geneff v Peterson (1986) 19 IR 40 at 76 where his Honour said:
“In my view, s 171F, which is a remedial provision, should be allowed a generous area in which to operate. It would be unwise to adopt a narrow construction of the requirement that an act, to be validated, must be done in the purported exercise of the power conferred by or under the rules of an organisation or Branch. The purpose of the section is to relieve organisations of the burden of having their past administration examined in minute detail, and of old invalidities having continuing consequences. For these reasons, in most cases, an act done by a purported governing body or purported official will be held to fall within the section.”
In the alternative, the applicants submitted that if s 256 applied, there was no rule at the relevant time in this matter in relation to which the act could then be validated. This was a reference to the fact that Rule 6A did not (as I have found) come into “existence” (as the applicants submitted) or (as I have held) into effect until 2 March 1993. The applicants cited two decisions, Egan v Harradine (1975) 6 ALR 507 and Robert Bob-Mack Re: Election in Australian Workers Union (1982) 24 AILR 368. Egan was a decision of the Full Court of the Australian Industrial Court in which consideration was given to s 171F of the Conciliation and Arbitration Act 1904 (Cth) which, for present purposes, can be regarded as a predecessor of s 256. In that case, it is true that the Court held that if there were no rules of a branch or an organisation then the section could not operate (see p 543). Although Evatt J in Robert Bob-Mack followed Egan, his Honour’s decision in that case does not assist the applicants’ submission. The evidence in this matter shows that the SPSF had rules at the relevant time concerning admission to membership, quite apart from Rule 6A. This was not a situation in which there were no rules. Mr Mark Smith and the other office bearers involved in 1992 and 1993 were purporting to exercise powers under the rules of the SPSF to admit certain eligible CSA members into membership of the SPSF. Consistent with the authorities, s 256 should not be read narrowly as confining the purported exercise of power to any particular rule when it stipulates that the relevant act “shall be taken to have been done in compliance with the rules of the organisation or branch”. Finally, the applicants submitted that s 256 “does not deal with membership and cannot be construed as validating an invalid grant of membership or of deeming an ineligible person to be a member of an organisation”. For that proposition the applicants cited Re Healey (1992) 40 IR 110, a decision of O’Loughlin J. I can see nothing in the reasons for that decision which supports the proposition advanced by the applicants on this point. Nor can I see anything in s 256 or its context which would require that section to be read down in the manner contended.
I think I should consider whether s 257 would operate to prevent s 256 validating the first deeming exercise. Section 257 relevantly provides that the Court, if satisfied that the application of s 256 would do substantial injustice, having regard to the interests of the organisation, its members, creditors or persons dealing with it, shall by order declare accordingly. The relevant effect of such a declaration would be that s 256 does not apply. I do not consider that, having regard to the interests referred to above, the application of s 256 would do substantial injustice. On the contrary, I think that it would do substantial justice. Only 81 recipients of the first deeming notice sent in written objections. My assessment is that very few such recipients would have disregarded the notice on the basis of the fairly technical defect which I have identified earlier in these reasons. I think it is reasonable to infer (as I do) that an almost overwhelming majority of those CSA members who were sent the first deeming notice wished to be included as members of the SPSF under the deeming process. Accordingly, I decline to make a declaration under s 257. The deeming process initiated on 29 October 1992 is thus validated by s 256 of the Workplace Relations Act 1996. In those circumstances, it is not necessary to consider what effect, if any, the Branch resolution of 19 May 1993 may have had.
The second set of defects summarised above occurred more recently than the 4 year period referred to in s 256. The problem is that while Rule 19(k) of the CSA Rules authorised Mr Robinson, as General Secretary of the CSA, to apply on behalf of its members for membership of the State Public Services Federation, that body had ceased to exist. In my opinion, that provides a classic situation for the application of s 253U of the Workplace Relations Act 1996. That subsection relevantly provides that an instrument to which Division 7 of Part IX applies has effect in relation to acts, omissions, transactions and matters done, entered into or occurring on or after the amalgamation day (in this matter 1 July 1994) as if a reference in the instrument to a de-registered organisation were a reference to the amalgamated organisation. The term “instrument” is widely defined in inclusive terms by s 234 of the Act. In my view, it would certainly include the rules of the CSA. I appreciate that the relevant amalgamation is that which involved the CPSU and the SPSF. I consider that the CSA Rules fall within the definition, in s 234, of an “instrument to which this Division applies”, because there is within that document a relevant reference to a de-registered organisation – see sub-paragraph (c) of the definition. Thus the relevant rule of the CSA must, for the purposes of deciding whether the CPSU validly admitted 125 persons into membership under the CPSU Rules, be read as referring to the amalgamated organisation i.e. the CPSU. If I am wrong in that regard, then I would have no hesitation in making a declaration under s 258 negativing the consequences in law of this specific invalidity which I have identified. The first respondents sought such a declaration (see p 13 of their outline of closing submissions). I will, as a matter of precaution make such a declaration, which I consider to be an appropriate order – see s 258(3). The invalidity stems from an obvious oversight in failing to amend Rule 19(k) by substituting a reference to the CPSU in lieu of the reference to the SPSF. In my opinion, it was the obvious intention of all concerned that the CSA Rules and the CPSU Rules, to the extent that they referred to the de-registered union were to be read as referring to the CPSU. I am satisfied [in terms of s 258(5)] that such an order would not do substantial injustice to the Branch, any member or creditor or any persons having dealings with the Branch.
I shall deal with the third and fourth of the abovementioned matters together. These problems arose out of the circumstance that the Branch had, on my view, misinterpreted Rule 44G which, it will be recalled, defines “a financial member”. The first respondents contended that the Court should make a declaration of validity under s 258 of the Workplace Relations Act 1996. Relevant to the exercise of the Court’s discretion, so it was put, was the fact (which I find was proved on the evidence) that each of the applicants was a member of the Western Australian Branch of the SPSF at the time when the Walkington Memorandum was accepted and that Mr Daly, in particular, had moved the motion to that effect at the Council Meeting of the Western Australian Branch of the SPSF held on 13 October 1993 (see pp 34-35). The first respondents relied on the fact that neither Mrs Forbes nor Mr Daly took any exception to the acceptance of the Walkington Memorandum. The first respondents submitted that it was “difficult to imagine the withholding of a declaration of invalidity as causing either of the applicants any injustice in this regard”. I do not think that these factors personal to the applicants weigh particularly heavily in favour of the exercise of a discretion under s 258 to validate the Branch’s misinterpretation of the definition of financial member and the validation of the inclusion of such a large number of unfinancial members on the electoral roll. [I should stress that I am not here referring to the Branch’s decision to remit (forgive) payment of subscriptions by members who were in fact on leave without pay and the like. I have held that the Branch is entitled to do that. Such members should not be categorised as being “in arrears”.] The Branch as a whole, and indeed the public, have an interest in the integrity of that electoral roll. I have taken into account the roles played by Mrs Forbes and Mr Daly in relation to this particular aspect, but I do not think that it is just to make a declaration of validity: cf (in a slightly different context) Kelly v Amalgamated Metal Workers’ and Shipwrights’ Union (1981) 56 FLR 124 at 150. In other words, I am not satisfied that a validating order would not do substantial injustice to the Branch or any member [s 258(5)]. The same applies, in my view, to the fifth item mentioned above, namely the unquantified number out of approximately 400 members who were treated as being on leave without pay or the like but (due to the absence of any proper checking system) may well not in fact have been on leave without pay or the like. In view of what I consider to be very substantial deficiencies in the electoral roll at the time of the elections, I do not think that it would be proper or appropriate to make a validating order. The integrity of the electoral roll was, in my opinion, very significantly compromised.
In relation to the 7 CSA staff members who voted but were not eligible for membership and had never been eligible for membership of the Branch, I would make an order validating their votes. I refer to the circumstances of the side-deal with AMACSU which I have described above. The practical implementation of that side-deal did not, in my view, have any legal effect because it was not reflected in the rule as registered by the Commission. The Branch may well care to consider attending to that formality, if it has not already done so.
The result is that the irregularities arising out of (a) the Branch’s incorrect interpretation of Rule 44G and (b) the unquantified number out of approximately 400 members who were treated as being on leave without pay or the like but (due to the absence of any proper checking system) may well not in fact have been on such leave or the like, remain irregularities duly found. In my view, those irregularities, either individually or when considered together, constituted an “irregularity in relation to an election” within the meaning of the Act. They resulted in well over six hundred and possibly as much as a thousand members being on the electoral roll who should not have been. I think that what occurred would fall within the ordinary meaning of the word “irregularity”. The definition of “irregularity” in s 4(1) is intended to comprehend anything that would ordinarily be described as an irregularity as well as those things specifically included in that subsection: R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 365. Furthermore, in my opinion, the irregularities would fall within the inclusive statutory definition contained in s 4(1) as either a breach of the rules or an act or omission (failure to remove from the electoral roll) by means of which both the full and free recording of votes by all persons entitled to record votes and by no other persons and a correct ascertainment or declaration of the results of the voting was hindered, or both.
Section 223(4) of Workplace Relations Act 1996 relevantly provides that the Court shall not declare an election to be void or declare that a person was not elected, unless it is of the opinion that, having regard to the irregularity found and any circumstances giving rise to a likelihood that similar irregularities may have happened, the result of the election may have been affected by irregularities. The Court must be satisfied that there is a “real possibility” that the result may have been affected: Re FCU; Ex parte Brophy (1987) 78 ALR 561. In my view, given the numbers involved with the irregularities and the relatively close margins shown in the results there was a real possibility that the result of each of the three elections challenged may have been affected by the irregularities which I have identified relating to unfinancial membership. I appreciate that the respective margins differed (1, 7 and 139 votes) but my conclusions apply to each of the three elections.
Conclusion
After weighing up all the circumstances of this matter I have come to the conclusion that the course most beneficial to the Branch and its members [see Re AJA; Ex parte Nicholson, Federal Court of Australia, Wilcox J, 16 November 1990 at 16-17] would be to declare all three elections void and order new elections to be conducted. I am conscious of the costs involved but I consider that these are outweighed by the importance of having these three senior officers democratically elected on the basis of an electoral roll which comprises, so far as humanly possible, only those members who are financial members. That will include those who are or were at any relevant time in fact on long service leave without pay and the like to the extent that the Branch has decided to remit their subscriptions.
I have given consideration to the difficulties which the Branch may face in tracing through its records to check whether any member on the electoral roll may have a payment which is now more than three months in arrears and is thus an unfinancial member who is ineligible to vote. Although I have found that there are back-up tapes of membership records, there is also considerable doubt, on the evidence, concerning the accuracy of those records. I think that it would be in the interests of justice to make an order that the reckoning only go back for a reasonable period of time. I think that about 4 years would suffice. I will exercise the power conferred by s 223(3)(d) of the Workplace Relations Act 1996 to make such an order.
For the foregoing reasons I consider that there should be orders along the following lines:
1. A declaration that each of the elections for the office of Branch President, Branch Secretary and Branch Assistant Secretary is void.
2. Declarations that the persons purporting to have been elected to those offices have not been elected.
3. Declarations negativing the two sets of invalidities which I have held should be the subject of such a declaration.
4. Arrangements be made for new elections.
5. The electoral roll for those elections be compiled in accordance with these reasons.
6. In applying the definition of “financial member” for the purposes of those elections, regard be had only to arrears of payment arising by non-payment since 1 July 1994.
7. That all parties have liberty to apply.
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I certify that this and the preceding fifty-nine (59) pages are a true copy of the Reasons for Judgment of Justice Carr |
Associate:
Dated: 8 September 1998
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Counsel for the Applicants: |
Mr A L Drake-Brockman and Mr L Clark |
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Solicitor for the Applicants: |
Messrs Dwyer Durack |
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Counsel for the Respondent: |
Mr P M Nisbet QC and Mr P L Harris |
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Solicitor for the Respondent: |
Messrs Ilbery Barblett |
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Date of Hearing: |
18-22 May, 27 May, 8 July 1998 |
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Date of Judgment: |
8 September 1998 |
