FEDERAL COURT OF AUSTRALIA

Kelly, in the matter of an application for an inquiry in relation to an election for an office in the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Branch of the Australian Municipal, Administrative, Clerical and Services Union [2011] FCA 416

THE COURT ORDERS THAT:

1.    Pending further order of the Court, the Australian Electoral Commission by its appointed returning officer take no further steps in connection with the conduct of the election for the office of Branch Secretary of the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Branch of the Australian Municipal, Administrative, Clerical and Services Union, and in particular, the dispatch of ballot papers for the election for the position.

2.    Upon notification of the date allocated by the Registry to this matter, the parties have leave to approach the Docket Judge’s Associate with a view to obtaining an earlier return date.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    The applicant, Mr Graeme Kelly, applies for an inquiry relating to the election for the position of Branch Secretary of the New South Wales Local Government Clerical Administrative, Energy, Airlines and Utilities Branch (the Branch) of the Australian Municipal, Administrative, Clerical and Services Union (the Union). There were two nominations for the position of Branch Secretary, Mr Kelly and Mr Allan Veney. The ballot papers for the election have already been prepared and are due to be sent out tomorrow, that is, 20 April 2011. Mr Kelly alleges that certain irregularities have taken place with regard to the election and seeks interim orders that no further steps are to be taken in the conduct of the election.

2    On 18 April 2011 I gave Mr Kelly leave to serve the originating process on both the Australian Electoral Commission (the Commission) and Mr Veney. Orders were made for the service of Mr Veney both by way of email and in person. On 18 April 2011, an email was sent to Mr Veney’s email address and was successfully relayed. No response to that email has been received by Mr Kelly. Service was also attempted in person on 18 April 2011. The process server spoke to Mr Veney and informed him that she had papers in respect of this application. However, no service in person was effected as Mr Veney said that he would not be home that evening and therefore would be unable to receive the papers. Messages have since been left on Mr Veney’s mobile phone, but there has been no further response from him.

3    I am satisfied that it is appropriate to proceed with the application for interim relief in the absence of Mr Veney. The Commission has appeared and has made some submissions of assistance to the Court. The Commission does not consent to or oppose the orders sought.

The ISSUE

4    Mr Kelly identifies a number of irregularities in the conduct of the election for the position of Branch Secretary of the Branch of the Union. In substance, however, the application relates to a single issue, which is whether Mr Veney is eligible to stand for the position of Branch Secretary. Mr Kelly contends that Mr Veney is not eligible to stand for the position as he is not eligible to be a member of the Union at this point in time.

5    In his affidavit, Mr Kelly states that Mr Veney was a former paid organiser of the Union who was dismissed from that relevant employment on or about 18 March 2006 and has, to Mr Kelly’s knowledge, left the industry covered by the Union. Mr Kelly says that, to his knowledge and that of officials of the Branch, Mr Veney has not worked in any calling covered by the Union since he left his employment with the Union.

Termination of Mr Veney’s membership OF THE UNION

6    Nominations for the election of office holders in the Branch closed on 30 March 2011. On this date, the Branch was advised that Mr Veney had been nominated for the position of Branch Secretary. By letter dated 1 April 2011, Mr Kelly, as Branch Secretary, wrote to Mr Veney giving him written notice pursuant to rule 30(b) of the Union Rules that consideration would be given by the Branch Executive meeting of the Branch of the Union scheduled for 18 April 2011 as to whether or not Mr Veney was eligible for membership of the Union under the Union Rules. The letter noted that if the determination was made at that meeting that Mr Veney was not eligible, there may be a direction from the Branch Executive to strike Mr Veney’s name off the Register of Members. The letter also set out the basis upon which there was a belief that Mr Veney was no longer eligible to be a member of the Union.

7    Mr Veney responded to Mr Kelly by letter dated 18 April 2011. While that letter contained a number of observations as to Mr Veney’s history with the Union and his previous employment, there was no assertion at all in that letter that Mr Veney was eligible to be a member of the Union as at that date. Rule 30 of the rules of the Union (the Rules) relevantly provides:

a. Each Branch Secretary shall from time to time as directed by the Branch Executive

strike off the Register of Members the names of all members who satisfy the following criteria;

…

ii. Any or all members who have ceased to be eligible for membership under Rule 5 of these rules.

iii. Notwithstanding anything in these rules, if the Branch Executive is satisfied that a member has ceased to be eligible under the rules of the Union to be a member of the Union, by reason of ceasing to work in the industry or industries specified in Rule 5 or otherwise, the Branch Executive may declare that such person shall cease to be a member of the Union…

b. The Branch Secretary shall give a member fourteen days’ notice in writing to the member’s last address shown on the Register of Members of the intention to strike the name off the Register.

c. Any member whose name has been so removed from the Register shall thereupon cease to be a member of the Union or to have any of the rightful privileges of membership.

8    By reason of the notice to which I have already referred, rule 30(b) of the Rules has been complied with in that Mr Veney was given 14 days notice in writing to his last address of the intention to strike his name from the Register of Members.

9    On 18 April 2011, acting pursuant to the Rules, the Branch Executive of the Branch of the Union declared that Mr Veney had ceased to be a member of the Union and struck his name from the Registry of Members. Mr Kelly relies, in particular, upon rule 30(a)(iii) of the Rules as providing the basis for this resolution. By letter dated 18 April 2011, Mr Kelly wrote to the Commission informing it of the contents of the resolution. Mr Kelly invited the Returning Officer of the Commission to declare him elected unopposed as Branch Secretary on the grounds that Mr Veney was no longer entitled to stand as a candidate in the election since he was no longer a member. The Commission has declined to declare Mr Kelly elected unopposed as Branch Secretary and proposes to open the ballot on 20 April 2011.

The Application

10    An application may be made to the Court for an inquiry under s 200(1) of the Fair Work (Registered Organisations) Act 2009 (Cth) (the Act) by a member of an organisation registered under the Act where the member claims that there has been an irregularity in relation to an election for office in the organisation or a branch of the organisation. Section 6 of the Act relevantly defines “irregularity” in relation to an election or ballot as including ‘a breach of the rules of an organisation or branch of an organisation’.

11    Section 201 of the Act sets forth the circumstances in which an inquiry is to be conducted and provides, inter alia, that the Court must be satisfied that there are reasonable grounds for the application. In Re Killesteyn (Application for an Enquiry in Relation to Election for Offices in the Australian Salaried Medical Officers' Federation (Qld)) (2009) 261 ALR 730, Flick J considered the preconditions for the holding of an inquiry and the level of satisfaction that the Court must reach. As his Honour pointed out at [25]:

The level of satisfaction required is that prescribed by the legislature; namely, the Court must be satisfied that there are reasonable grounds for the application being made.

12    Those reasonable grounds do not, for example, encompass an application of a speculative nature based only on an opinion of an irregularity, unless the opinion rests upon some substantial factual foundation (Re Post; Election for Offices in Transport Workers Union of Australia (WA) (1992) 40 IR 162 at 166 per French J).

13    Section 166(2) of the Act provides that a person is not entitled to remain a member of an organisation if the person ceases to be eligible to become a member and the rules of the organisation do not permit the person to remain a member. That is the situation in the present case.

14    I am satisfied that there are reasonable grounds for the application before the Court. The basis for an irregularity has the substantial factual foundation that the Union has passed the resolution that precludes Mr Veney from standing for the position of Branch Secretary by reason of his ineligibility for membership. I note that Mr Veney was given the opportunity to present to the Union a basis upon which he was eligible for union membership and has not done so.

15    Section 204(1) of the Act allows the Court to make interim orders where an inquiry into an election has been instituted. In particular, pursuant to s 204(1)(a), the Court is empowered to make ‘an order that no further steps are to be taken in the conduct of the election’. Turning to the question of whether the ballot should go ahead, I note that, if it were to go ahead, there would be significant cost not only to the taxpayer by reason of the involvement of the Commission, but also to Mr Kelly who, I am informed, would want to forward to members of the Union, at the least, information concerning his candidacy. In addition, there could be confusion on the part of members of the Union who receive a ballot paper containing the name of a candidate who may not be eligible for the position of Branch Secretary. In addition, if Mr Veney is not entitled to be a candidate and the only candidate is Mr Kelly, it may be that no ballot will be necessary at all.

16    No specific detriment has been identified either by Mr Kelly or by the Commission if the interim order sought by Mr Kelly is made. The only matter that has been raised is the need to have this matter finally resolved before national elections for the Union take place, but the date for those elections has not yet been set.

17    It follows that I am satisfied that it is appropriate to grant Mr Kelly the interlocutory relief claimed. I propose to make the order sought in the application as elaborated upon in Mr Kelly’s written submissions.

Associate:

Dated:    28 April 2011