FEDERAL COURT OF AUSTRALIA

Kelly, in the matter of 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 (No 3) [2011] FCA 564

THE COURT DECLARES THAT:

1.    Mr Allan Veney is not eligible for appointment to the position 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.

THE COURT ORDERS THAT:

2.    The Application is otherwise dismissed.

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    This proceeding has previously been before the Court: Kelly, in the matter of an application 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 (No 2) [2011] FCA 490. The facts there stated need not now be repeated at any length.

2    For present purposes it is sufficient to note that Mr Kelly has made an application under s 200 of the Fair Work (Registered Organisations) Act 2009 (Cth) (the “Registered Organisations Act”). On 5 May 2011 an inquiry was instituted in accordance with s 201. The inquiry arises out of an election that is to be held for the position 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 (the “Union”). Nominations for that position closed on 30 March 2011. Two nominations were received – one being for Mr Kelly and the other for Mr Allan Veney.

3    Mr Kelly claims that “there has been an irregularity” in relation to that election. He claims that Mr Veney is not eligible to be elected as his name was purged from the Register of Members in accordance with a resolution passed by the Branch Executive on 18 April 2011.

4    The “inquiry” that had been ordered on 5 May 2011 was held on 19 May 2011. Mr Veney on that occasion sought leave pursuant to s 205(1) of the Registered Organisations Act to appear. That leave was granted and he was, by virtue of s 205(2), thereafter taken to be a party to the proceeding.

5    Given the fact that the original timetable for the closing of the ballot was to have opened on 20 April 2011 and closed on 11 May 2011, it is obviously desirable that the present reasons for decision be published as soon as practicable so that the position of Branch Secretary may be resolved expeditiously. Although further time may otherwise have been desirable to address some of the issues that arose during the course of the “inquiry”, a conclusion has been reached that – irrespective of whether or not “there has been an irregularity” – Mr Veney is not eligible to be elected. Left to another occasion is the resolution of other issues that were canvassed during the course of the hearing.

6    The present application is to be resolved by reference to the rules of the Union.

The Union Rules

7    Notwithstanding some debate as to whether attention should be directed to the State Rules or the Federal Rules of the Union, it was ultimately common ground that the matter could be resolved by reference to such Rules as were relied upon by the Applicant together with such further reference as was made by Mr Veney to the State Rules.

8    And, subject to the potential application of s 171A of the Registered Organisations Act, it was also understood to be common ground that as at the date that nominations closed, Mr Veney was eligible under the Rules of the Union to be nominated for the position of Branch Secretary.

9    If attention be confined to the Rules of the Union, the division between the parties was not whether Mr Veney was eligible to be nominated, but rather whether he was thereafter eligible to be elected to the position of Branch Secretary. Ineligibility, it was said on behalf of the Applicant, arose by reason of a resolution having been passed by the Branch Executive of the Union on 18 April 2011 that Mr Veney’s name was to be removed from the Register of Members.

10    It should, perhaps, be noted in passing that although the only other candidate nominated for the position of Branch Secretary was Mr Kelly, and although Mr Kelly is the Applicant in the present proceeding, he took no part in the deliberations of the Branch Executive when the resolution was passed on 18 April 2011. Mr Kelly stated that he “recused [himself] from that meeting so that the Executive could debate the issue”. That statement was not questioned. No issue was raised by Mr Veney as to the role played by Mr Kelly in the present proceeding.

11    In support of this contention primary reliance was placed by the Applicant upon Rule 30(c). That rule, in its entirety, provides as follows:

30 - PURGING OF THE REGISTER

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:

i.    All members owing subscriptions fines or levies for a period of 52 weeks or more, provided that members so struck off shall not be free from liability for arrears due.

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. Where such persons owe money to the Union they shall be liable to pay immediately all subscriptions, levies, and fines due and owing to the Union, and, in default of payment, may be sued for any outstanding amounts.

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.

d.    Any such person shall be liable to pay all such contributions, subscriptions, dues, fines or levies and any other monies due to the Union up to the date of the removal of the member’s name from the Register.

It was said to be implicit – but not explicit – that Rule 30(c) had the effect that once Mr Veney’s name was removed from the Register of Members, he was no longer entitled to be elected as Branch Secretary. Once a person’s name had been removed from the Register, the rule itself stated that that person ceased to be a member and it was submitted that only members could occupy a position such as Branch Secretary.

12    If ineligibility to be elected was not exposed by Rule 30(c) itself, the implication that Mr Veney was not eligible for election to the position of Branch Secretary was said by the Applicant to be also supported by such other Rules as Rules 23(d) and 27(l). Those Rules provide as follows:

23 – UNFINANCIAL MEMBERS

…

d.    An unfinancial member shall not be entitled to any of the rights and privileges of membership including the right to hold or continue to hold office or to participate in any ballot of members of the Union or to vote or speak at any meeting of the Union.

Part V – MEMBERSHIP

27 – ADMISSION

1.    Associate Membership.

i.    Any member of the Union who ceases to be eligible for membership, may, upon application to the Branch Secretary, become an Associate Member.

ii.    An Associate Member shall pay such subscription as specified in Rule 19.

iii.    An Associate Member shall not be entitled to vote in any election or ballot conducted within the Union, or to nominate any persons to hold any office within the Union, or to hold any office within the Union, but shall otherwise receive such benefits of membership of the Union as may be determined from time to time by National Conference, National Executive and Branch Executive.

iv.    An Associate Member who becomes eligible for membership of the Union shall not be entitled to remain an Associate Member and shall revert to the status of full membership.

v.    An Associate Member may resign membership of the Union in accordance with Rule 32.

13    Although Rule 30(c) may potentially expose some limited ambiguity, the terms of the Rule are considered to be sufficiently self-apparent – only members can be elected to positions within the Union. Any ambiguity, however, is resolved by Rule 23(d) and Rule 27(l)(iii). If an “unfinancial member” is not eligible “to hold office” and if an “associate member” is not “entitled … to hold any office within the Union”, the conclusion is inescapable that a person who is no longer a member of the Union is equally not eligible to hold office.

14    Such reliance as was placed by Mr Veney upon Rule 4(1)(e) and (f) and Rule 4(2) of the State Rules do not support any contrary conclusion. No reliance was placed by Mr Veney upon these Rules in the submission he made on 18 April 2011 to the Union in opposition to the then proposal to remove his name from the Register of Members. And, even if it be assumed that Rule 47 conferred a right of appeal applicable to the decision taken to remove his name from the Register, that Rule does not dictate any contrary conclusion. Other than an assertion by Mr Veney that he was awaiting the resolution of the present inquiry, Mr Veney had not in fact instituted any appeal. Indeed the assertion itself may be questioned in circumstances where Rule 47(4) requires an appeal to which that Rule applies to be made within 14 days and where the decision to remove his name from the Register was taken on 18 April 2011 and where the inquiry itself was only instituted on 5 May 2011. The decision to grant interlocutory relief, however, was made much earlier – on 19 April 2011. What the position may have been had there been an extant appeal that was available as a means of challenging a decision of the present kind need not be resolved.

15    The submissions of the Applicant as to the correct construction of Rule 30(c) are thus accepted.

The Role of the Aec – Sections 171A and 193

16    The position of the Australian Electoral Commission was that its task was confined to conducting an election in accordance with the Rules of the Union. Once the Commission had been provided with a Nominations Report by the Union which certified both Messrs Kelly and Veney to be “eligible to be candidates”, there was little the Commission said could be done other than to leave it to the candidates to resolve any question of eligibility which thereafter arose. In the face of uncertainty as to the correct construction of (in particular) Rule 30(c), the Commission maintained that its task did not extend to resolving that ambiguity.

17    Prior to 18 April 2011 the role pursued by the Commission could not be questioned. Prior to that date, it had received the nominations of both Messrs Kelly and Veney and a decision to purge Mr Veney’s name from the Register of Members had only then been foreshadowed. Whether or not it should have taken a different position thereafter may be open to question.

18    In adopting the position that it did, the Commission placed reliance upon s 193 and, in particular, s 193(1)(a). Section 193(1) provides as follows:

Provisions applicable to elections conducted by AEC

(1)    If an electoral official is conducting an election, or taking a step in relation to an election, for an office or other position in an organisation, or branch of an organisation, the electoral official:

(a)    subject to paragraph (b), must comply with the rules of the organisation or branch; and

(b)    may, in spite of anything in the rules of the organisation or branch, take such action, and give such directions, as the electoral official considers necessary:

(i)    to ensure that no irregularities occur in or in relation to the election; or

(ii)    to remedy any procedural defects that appear to the electoral official to exist in the rules; or

(iii)    to ensure the security of ballot papers and envelopes that are for use, or used, in the election.

The extent of inquiries that should be made by the Commission, and its power (for example) to go beyond the certification of eligibility provided by the Union, may well be difficult to resolve. Given the terms of s 193(1)(b), however, it may be queried whether the role of the Commission is as confined as submitted by the Commission. Even s 193(1)(a) may not confine the role of the Commission in the manner suggested.

19    The role of the Commission, and indeed the eligibility of persons whose names have been removed from the Register of Members of unions, may only be complicated by s 171A. That section provides as follows:

Cessation of membership if member is not an employee etc.

(1)    If a person is a member of an organisation and the person is not, or is no longer:

(a)    if the organisation is an association of employers – a person of a kind mentioned in paragraph 18A(3)(a), (b), (c) or (d); or

(b)    if the organisation is an association of employees – a person of a kind mentioned in paragraph 18B(3)(a), (b), (c) or (d); or

(c)    if the organisation is an enterprise association – a person of a kind mentioned in paragraph 18C(3)(a), (b), (c) or (d);

    the person’s membership of the organisation immediately ceases.

(2)    Subsection (1) has effect despite anything in the rules of the organisation.

This provision was characterised on behalf of the Applicant as a “super purging rule”. It was described in the Supplementary Explanatory Memorandum as a “legislative ‘purging’ rule”. In the present proceeding, it was claimed on behalf of the Applicant that Mr Veney did not fall within s 18B(3). Mr Veney rejected that submission and claimed he was “an independent contractor” for the purposes of s 18B(3)(c).

20    These competing submissions as to s 171A, however, need not presently be resolved. Irrespective of any reliance placed upon s 171A, it is concluded that the Rules of the Union make Mr Veney ineligible for election to the position of Branch Secretary.

21    Also left unresolved is whether the Commission should have determined for itself whether Mr Veney was ineligible for election to that position, even if its attention was confined to the application of the Rules and did not extend to s 171A. Given the mandate imposed by s 193(1)(a) that an election “must comply with the rules of the organisation”, it may be that the Commission must itself form a view – irrespective of whether or not there is ambiguity or uncertainty.

Conclusions

22    The Rules of the Union, it is concluded, render Mr Veney not eligible for appointment to the position of Branch Secretary.

23    Irrespective of whether or not “an irregularity has happened” as yet within the meaning of s 206(1), it is concluded that a declaration should be made as to his ineligibility. To not grant such relief, would be to not “completely and finally” determine the very matter in dispute: Federal Court of Australia Act 1976 (Cth), s 22. To not grant such declaratory relief would only be an encouragement to a “multiplicity of proceedings”: cf. Edwards v Santos Ltd [2011] HCA 8, 275 ALR 489.

24    Although unnecessary to express any concluded view, it may be doubted whether the decision in Jones, in the matter of an application for an inquiry relating to an election of an office in the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (SA Branch) [2004] FCA 462 is any authority supporting a conclusion that s 200(1) extends to an “irregularity” that has not as yet “happened”. Lander J was there dealing with an irregularity that had “happened”, namely the acceptance of a nomination for a position in respect to a person who was not eligible for election. In the present proceeding it was common ground that Mr Veney was eligible to be nominated for the position of Branch Secretary but became ineligible once his name had been removed from the Register of Members.

25    Although the Applicant sought more extensive declaratory relief, including an order or declaration that “an irregularity has occurred”, that “the acceptance by the returning officer of the nomination… is invalid” and that “the returning officer declare Mr Graeme Kelly is elected to the position”, it is not considered that such further relief is either appropriate or necessary. It was ultimately understood to be the position of the Commission that a declaration as to Mr Veney’s ineligibility would thereafter place the Commission in the position whereby it could make such decisions as may be necessary to give effect to the conclusion of the Court.

26    Accordingly, only a declaration will be made that Mr Allan Veney is not eligible to be elected to the position of Branch Secretary. An order should also be made otherwise dismissing the Application.

ORDERS

27    The Court Declares That:

1.    Mr Allan Veney is not eligible for appointment to the position 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.

The Court Orders That:

2.    The Application is otherwise dismissed.

Associate:

Dated:    27 May 2011