FEDERAL COURT OF AUSTRALIA
White, in the matter of an election for an office in Transport Workers’ Union of Australia, Queensland Branch [2019] FCA 2131
ORDERS
THE COURT ORDERS THAT:
1. The election inquiry be terminated forthwith.
2. There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
COLLIER J:
1 On 2 and 3 September 2019, the Court sat as a Court of Inquiry (inquiry) into alleged irregularities in the 2018 Transport Workers’ Union of Australia Queensland Branch Elections (E2018/141) (election). The inquiry followed an application by Mr Darren White, a member of the Transport Workers’ Union (TWU) and delegate of the Queensland Branch, filed 11 March 2019 pursuant to s 200 of the Fair Work (Registered Organisations) Act 2009 (Cth) (FWRO Act), claiming irregularities in the following terms:
The TWU used, or allowed to be used, its property and resources to help the Your Transport Workers’ Team (YTWT) against a rival election team, Team Driven.
TWU officers supporting YTWT exercised of a right of entry under the Fair Work Act 2009 (Cth) to enter work sites.
A local ballot box was put into place at the Surfside Buslines site at Tweed Heads, with a note instructing members that the ballot box was able to be used, where the Australian Electoral Commission (AEC) had not directed or authorised its use.
A local ballot box was put in place at the Sunbus site in Townsville, where the AEC had not directed or authorised its use.
There was a failure to maintain an accurate register of TWU members, and the register of members included a number of persons who were not eligible members or whose membership details were not up to date.
2 The following background facts were not in dispute:
Nineteen officer positions were up for election including Branch President, Branch Vice President, Branch Secretary, Branch Assistant Secretary and two Branch Trustees.
The applicant, Mr White, nominated for the office of Branch Secretary, and as part of a team which was nominating candidates for all offices up for election. The name of his team was “Team Driven”.
Mr Pierluigi Biagini (also known as “Peter Biagini”) nominated for the office of Branch Secretary. Mr Biagini campaigned as part of the YTWT. YTWT fielded candidates for all offices in the Branch.
Nominations for office in the Branch opened at 12.00 pm (AEST) on 11 September 2018.
Nominations for office in the Branch closed at 12.00 pm (AEST) on 2 October 2018.
The ballot opened at 12.00 pm (AEDT) on 12 November 2018.
The ballot closed at 12.00 pm (AEDT) on 30 November 2018.
The election period was the period between the opening of nominations at 12.00 pm (AEST) on 11 September 2018 and the close of ballot at 12.00 pm (AEDT) on 30 November 2018.
The following members of the YTWT held the following offices in the Branch prior to and during the election period:
• Mr Brad Wyatt was Branch President
• Mr Biagini was Branch Secretary
• Mr Adam Carter was Branch Assistant Secretary
The result of the election was that candidates from the YTWT were successful in all positions.
3 The following members were nominated by Team Driven as candidates:
Branch President: Mr Greg Eaves
Branch Vice President: Mr Mick White
Branch Secretary: Mr Darren White
Branch Assistant Secretary: Mr Brad Hampson
Branch Trustee: Mr Gary Taylor and Ms Amanda Lawson
Branch Committee or Management Member: Mr Peter Seage, Ms Wendy Saunders, Mr Barry Levey, Mr Brett Perry, Mr Brad Hixon, Ms Sonja May, Mr Jimmy Doyle, Mr Henry Adsett, Mr John Dale and Mr Phil McPherson
National Councillor: Mr Gary Taylor and Ms Wendy Saunders
Female National Councillor: Ms Amanda Lawson
4 The following members were nominated by YTWT as candidates:
Branch President: Mr Brad Wyatt
Branch Vice President: Mr Neil Conway
Branch Secretary: Mr Peter Biagini
Branch Assistant Secretary: Mr Adam Carter
Branch Trustee: Mr Mick Cardile and Mr Kent Wilkins
Branch Committee or Management Member: Mr Greg Delamotte, Mr James Wilkinson, Mr Stephen Hurndell, Ms Chyna Marsh, Mr Ian Buckingham, Mr Neville Wheeler, Mr Adam Winters, Mr Andrew Thomson, Ms Julianne Kingaby and Mr Nick Harris
National Councillor: Mr Terry Russell and Mr Guillaume Maze
Female National Councillor: Ms Sue Cleary
5 The declaration of results of the election were as follows:
Branch President: Mr Wyatt received 1,980 first preference votes and Mr Eaves received 659 first preference votes. Accordingly, Mr Wyatt was elected as Branch President.
Branch Vice President: Mr Conway received 1,972 votes and Mr White received 668 votes. Accordingly, Mr Conway was elected as Branch Vice President.
Branch Secretary: Mr Biagini received 1,983 first preference votes and Mr White received 660 first preference votes. Accordingly, Mr Biagini was elected as Branch Secretary.
Branch Assistant Secretary: Mr Carter received 1,984 first preference votes and Mr Hampson received 655 first preference votes. Accordingly Mr Carter was elected as Branch Assistant Secretary.
Branch Trustee: Mr Wilkins received 1,959 first preference votes, Mr Cardile received 1,934 first preference votes, Ms Lawson received 672 first preference votes and Mr Taylor received 658 first preference votes. Accordingly, Mr Wilkins and Mr Cardile were elected as Branch Trustees.
Branch Committee or Management Member: The total first preference votes for the candidates were as follows:
• Mr Harris – 1,961 first preference votes
• Ms Saunders – 667 first preference votes
• Ms Marsh – 1,958 first preference votes
• Mr Hixon – 668 first preference votes
• Mr McPherson – 646 first preference votes
• Mr Dale – 650 first preference votes
• Mr Thomson – 1,953 first preference votes
• Mr Perry – 661 first preference votes
• Mr Doyle – 671 first preference votes
• Mr Wilkinson – 1,943 first preference votes
• Mr Buckingham – 1,956 first preference votes
• Mr Wheeler – 1,955 first preference votes
• Mr Levey – 670 first preference votes
• Mr Delamotte – 1,946 first preference votes
• Ms Kingaby – 1,945 first preference votes
• Mr Adsett – 658 first preference votes
• Mr Seage – 665 first preference votes
• Mr Hurndell – 1,942 first preference votes
• Mr Winters – 1,952 first preference votes
• Ms May – 679 first preference votes
Accordingly, Mr Harris, Ms Marsh, Mr Buckingham, Mr Wheeler, Mr Thomson, Mr Winters, Mr Delamotte, Ms Kingaby, Mr Wilkinson and Mr Hurndell were elected as Branch Committee of Management Members.
National Councillor: Ms Saunders received 680 first preference votes, Mr Taylor received 658 first preference votes, Mr Russell received 1,960 first preference votes and Mr Maze received 1,934 first preference votes. Accordingly, Mr Russell and Mr Maze were elected as National Counsellors.
Female National Councillor: Ms Cleary received 1,964 first preference votes and Ms Lawson received 668 first preference votes. Accordingly, Ms Cleary was elected as Female National Councillor.
6 On 15 April 2019, I considered the originating application for inquiry relating to an election, filed by Mr White on 11 March 2019 pursuant to s 200 of the FWRO Act. After hearing the submissions of Mr White, I was satisfied that there were reasonable grounds for the application and that it was appropriate for the Court to conduct an inquiry. Pursuant to s 201 of the FWRO Act, I fixed a time and place for conducting the inquiry in the following terms:
1. An inquiry (Inquiry) into the election for offices in the Transport Workers’ Union of Australia Queensland Branch (the TWU), being election number E2018/141 conducted by the Australian Electoral Commission (AEC), is fixed to be conducted at 10.15 am on 11 June 2019 at the Sir Harry Gibbs Commonwealth Law Courts, 119 North Quay, Brisbane QLD 4000.
2. By 4.00 pm on 15 April 2019 the applicant is to serve a copy of these orders on the TWU and the AEC.
3. By 4.00 pm on 18 April 2019, the TWU is to cause to be published on its website:
a) a notice notifying members of the time and place fixed for the Inquiry and informing them that the affidavit material filed by the applicant as at the date of this order may be made available to them by the applicant upon request; and
b) the originating application (Form 85).
4. The Electoral Commissioner is to notify by letter or email, by 4.00 pm on 26 April 2019:
a) the TWU; and
b) the nominees in election number E2018/141;
of the time and place for the Inquiry, annexing the originating application (Form 85) and this order and informing them that the affidavit material filed by the applicant as at the date of this order may be made available to them by the applicant upon request.
…
6. On or before 4.00 pm on 17 May 2019, any person who wishes to apply for leave to appear before the Court at the Inquiry is to file and serve:
a) an application for leave to appear; and
b) any affidavit material on which the person intends to rely in support of the application and at the Inquiry if leave is granted.
…
7 Pursuant with these orders on 31 May 2019 the following parties were granted leave to appear in the proceedings as Interested Persons:
(1) Mr Pierluigi Biagini, at material times the Branch Secretary of the Queensland Branch of the TWU and a candidate for the office of Branch Secretary in the election;
(2) Mr Adam Carter, at material times the Branch Assistant Secretary of the Queensland Branch of the TWU and a candidate for the office of Branch Assistant Secretary in the election;
(3) Mr Bradley Wyatt, at material times the Branch President of the Queensland Branch of the TWU and a candidate for the office of Branch President in the election;
(4) The TWU; and
(5) The AEC.
8 Conduct of Mr Tom Pfund, an organiser for the Townsville and Mackay regions employed by the Queensland Branch of the TWU and a YTWT supporter was also relevant to this inquiry, and Mr Pfund gave both affidavit and oral evidence.
SUBSTANTIVE HEARING
9 Section 206 of the FWRO Act provides:
Action by Federal Court
(1) At an inquiry, the Federal Court must inquire into and determine the question whether an irregularity has happened in relation to the election, and such further questions concerning the conduct and results of the election as the Court considers necessary.
(2) For the purposes of subsection (1), the Court must determine whether an irregularity has happened on the balance of probabilities.
(3) In the course of conducting an inquiry, the Court may make such orders (including an order for the recounting of votes) as the Court considers necessary.
(4) If the Court finds that an irregularity has happened, the Court may, subject to subsection (5), make one or more of the following orders:
(a) an order declaring the election, or any step in relation to the election, to be void;
(b) an order declaring a person purporting to have been elected not to have been elected, and declaring another person to have been elected;
(c) an order directing the Commissioner to make arrangements:
(i) in the case of an uncompleted election--for a step in relation to the election (including the calling for nominations) to be taken again and for the uncompleted steps in the election to be taken; or
(ii) in the case of a completed election--for a step in relation to the election (including the calling for nominations) to be taken again or a new election to be held;
(d) an order (including an order modifying the operation of the rules of the organisation to the extent necessary to enable a new election to be held, a step in relation to an election to be taken again or an uncompleted step in an election to be taken) incidental or supplementary to, or consequential on, any other order under this section.
(5) The Court must 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 or may happen, the result of the election may have been affected, or may be affected, by irregularities.
(6) Without limiting the power of the Court to terminate a proceeding before it, the Court may, at any time after it begins an inquiry into an election, terminate the inquiry or the inquiry to the extent that it relates to specified matters.
10 Section 6 of the FWRO Act defines “irregularity” as follows:
irregularity, in relation to an election or ballot, includes:
(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; and
(c) a contravention of section 190.
11 Section 190 of the FWRO Act provides:
Organisation or branch must not assist one candidate over another
An organisation or branch commits an offence if it uses, or allows to be used, its property or resources to help a candidate against another candidate in an election under this Part for an office or other position.
Penalty: 100 penalty units.
12 As I noted earlier, the irregularities claimed by Mr White can be summarised by reference to four categories. These claims are further particularised in written submissions filed by Mr White.
13 In relation to the allegation that the TWU used, or allowed to be used, its property and resources to help the YTWT, Mr White alleges in summary that s 190 was contravened by:
The use of the Branch Van by Mr Biagini supporting the YTWT.
The use of Branch vehicles by union officials supporting the YTWT.
The campaigning by union officials supporting the YTWT over Team Driven at delegate training sessions and at various sites.
The alleged campaigning of union officials supporting the YTWT during “work time”.
14 Mr White, provided evidence in chief in the form of three affidavits dated 11 March 2019, 7 May 2019 and 18 July 2019. Additional evidence in support of the application was provided in:
Confidential affidavits dated 11 July 2019 and 1 August 2019
Further confidential affidavits dated 12 July 2019 and 1 August 2019; and
Affidavit of Ms Rebecca Smith dated 7 May 2019.
15 Ms Smith also gave oral evidence at the hearing.
16 Evidence on behalf of the First to Third Interested Persons was given by :
Mr Biagini (in affidavits dated 16 May 2019 and 5 August 2019)
Mr Wyatt (in affidavits dated 16 May 2019 and 5 August 2019)
Mr Pfund (in affidavits dated 16 May 2019 and 27 August 2019)
Ms Donna Clapham (in an affidavit dated 17 May 2019)
Mr James Dunne (in an affidavit dated 17 May 2019)
Mr Nathan Turner (in an affidavit dated 17 May 2019)
Mr Patrick White (in an affidavit dated 17 May 2019)
Mr Ben Segond (in an affidavit dated 21 May 2019)
17 Mr Biagini, Mr Wyatt and Mr Pfund all gave oral evidence at the hearing.
18 Evidence on behalf of the Fourth Interested Person was given by:
Ms Kay Stanley (in an affidavit dated 15 May 2019)
Mr Jon Clark (in affidavits dated 19 May 2019 and 29 August 2019)
Mr Biagini (in an affidavit dated 28 May 2019)
19 Evidence on behalf of the Fifth Interested Person was given by :
Mr Alan Jones (in an affidavit dated 17 May 2019) and
Mr Stephen Gillespie (in an affidavit dated 17 May 2019).
CONSIDERATION
20 In this case the issues raised for consideration are as follows:
1. Does the applicant bear the onus of establishing that an irregularity has occurred?
2. Did the actions of YTWT campaigners at the delegate training session at Murarrie on 10 October 2018 constitute an irregularity?
3. Did the actions of YTWT campaigners at the delegate training session at StarTrack Rockhampton on 2 November 2018 constitute an irregularity?
4. Did the conduct of YTWT campaigners at various sites breach s 190 of the FWRO Act?
5. Did YTWT’s use of the Branch Van and/or Branch vehicles constitute an irregularity?
6. Was an unauthorised ballot box used at the Surfside Buslines Site and/or the Sunbus Townsville Site? If so, did these actions constitute irregularities?
7. Was the members’ list accurate, so as to allow voting by eligible members in the election?
8. Did YTWT utilise work entry permits to enter worksites? If so, did this conduct constitute an irregularity?
9. If conduct did constitute irregularities, were the irregularities such that the result of the election may have been affected by the irregularities within the meaning of s 206(5) of the FWRO Act?
21 I will examine each of these issues in turn.
ISSUE 1: DOES THE APPLICANT BEAR THE ONUS OF ESTABLISHING THAT AN IRREGULARITY HAS OCCURRED?
22 The parties are in dispute as to whether the applicant carries the onus of satisfying the Court that pursuant to s 206(2) an irregularity has occurred.
23 In closing submissions, the applicant referred to the following comments of Finkelstein J in Thompson, in the matter of an application for an inquiry relating to an election for an office in the Automotive, Foods, Metals, Engineering, Printing & Kindred Industries Union, Victorian Branch [2000] FCA 745; (2000) 99 IR 225 at [25]:
In Re Magee; Re Inquiry into Elections for Offices within Transport Workers' Union and the Victorian Branch thereof (1991-92) 41 IR 27 at 35, Keely J expressed the tentative opinion that there "may be no formal onus of proof on an applicant where...the court is conducting an inquiry [into an election]". He went on to say, however, that the Court could not find that an irregularity had happened unless it was so satisfied on the balance of probabilities. In Re Bailey; Re Transport Workers' Union of Australia (Victorian Branch) (1997) 79 IR 1, Gray J took Magee to hold that an applicant did carry a burden to establish the requisite facts on the balance of probabilities. Gray J said (at 21):
"...those who wish to establish that irregularities have happened in relation to elections must at least bear an onus of producing evidence and that, on the whole of the evidence, the Court must be satisfied on the ordinary civil onus of proof that such irregularities have occurred, before it can make a finding to that effect."
I do not believe that an applicant carries any burden of proof either in the sense that the applicant is obliged to prove or disprove facts (sometimes referred to as a legal burden) or is obliged to adduce evidence in order to raise an issue (sometimes referred to as an evidential burden, but see Jayasena v R [1970] AC 618 as to the use of this expression). The only burden that an applicant must satisfy is to show that an inquiry should be instituted. S219 imposes that burden. In my opinion, once an inquiry is being undertaken the applicant carries no burden of proof. His interest is to see that a fair election has been held, but he is under no obligation to prove the case.
(Emphasis added.)
24 The applicant submitted that whilst the decision of Finkelstein J concerned s 223 of the Workplace Relations Act 1996 (Cth) (the predecessor to s 206 of the FWRO Act), there was no reason that the decision of Finkelstein J was not applicable.
25 Further, the applicant submitted that s 206(1) of the FWRO Act imposed an obligation of this Court to inquire into and determine the question of whether an irregularity had occurred. This placed a technical onus on the Court to determine the question on the balance of probabilities.
26 The First to Third Interested Persons and the Fourth Interested Person both submitted that the applicant bore the onus of establishing an irregularity on the balance of probabilities. The Court’s attention was referred to the decision of Reeves J in Nimmo, in the matter of an application for an inquiry relating to an election for an office in the Australian Education Union (NT Branch) [2011] FCA 38; (2011) 192 FCR 111, in particular at [28]:
While this does not directly resolve the interrelated question as to who, if anyone, bears the onus of proof, I consider it does so by implication. Since the civil standard of proof has now been adopted by the legislature for the purposes of this type of inquiry, in my view that clearly implies that someone has to meet that standard in the inquiry. As Gray J observed in Bailey, while these proceedings are in the nature of an inquiry, they must still be conducted as judicial proceedings (see at 21). I consider it follows the person who “claims that there has been an irregularity in relation to an election” under s 200(1) of the Act must at least bear the onus of producing evidence to satisfy the court that the irregularities he or she claims to have occurred did, in fact, happen. For these reasons, I respectfully agree with the observations of Gray J in Bailey set out above. I also note that in Re Jacomb (2000) 180 ALR 134; [2000] FCA 1891 (“Jacomb”), Weinberg J (at [9]) appears to have accepted that an applicant in a similar position to Mr Nimmo bears such an onus. I therefore reject Mr Nimmo’s counsel’s contention on this issue and hold that Mr Nimmo does bear the onus of producing evidence to satisfy me that the irregularities he claims occurred in relation to this election, did happen.
(Emphasis added.)
27 The position of Reeves J in Nimmo, namely that an applicant bears the onus of producing evidence to satisfy the Court that irregularities happened, was similarly adopted by Tracey J in Asmar, in the matter of an election for an office in the Victorian No 1 Branch of the Health Services Union (No 3) [2012] FCA 1289; (2012) FCA 1289 at [13]; Flick J in Gray, in the matter of an application for an inquiry relating to an election for an office in the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia, Electrical, Energy and Services Division [2012] FCA 1165 at [8] and Flick J in 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 (No 2) [2011] FCA 490 at [15].
28 No reason has been advanced demonstrating error in the principle articulated by Reeves J in Nimmo and subsequently followed by other Judges of this Court. While the Court is tasked by s 206 of the FWRO Act with inquiring into and determining whether an irregularity has occurred, this does not abrogate the general principle that a party bringing an action – in this case, the party claiming that there has been an irregularity in an election – bears the onus of producing evidence to satisfy the Court that an irregularity has occurred on the balance of probabilities.
29 It follows that I do not accept the submissions of Mr White on this issue. In this case, Mr White bears the onus of establishing that an irregularity has occurred in respect of the election.
ISSUE 2: DID THE ACTIONS OF YTWT CAMPAIGNERS AT THE DELEGATE TRAINING SESSION AT MURARRIE ON 10 OCTOBER 2018 CONSTITUTE AN IRREGULARITY?
30 It is common ground that, on 9 October 2018 and 10 October 2018, Mr Jon Clark, a Union Educator employed by the TWU, delivered a two day scheduled Tier 1 training course to TWU delegates at Murarrie, Queensland (Murarrie training course). It is uncontested that Mr Carter and Mr Wyatt attended part of the Murarrie training course. However it is only Mr Carter’s conduct at the course which is relevant in this context.
31 Mr Clark deposed that each year he creates a schedule setting out the dates on which he will deliver training. The training is then delivered according to the schedule subject to the availability of delegates and requests from the Branch. There is no suggestion by any party that the delegate training session was deliberately scheduled to coincide with the election period.
32 The First to Third Interested Persons submitted that Mr Carter spoke to the delegates in a short session on the second day, and that he spoke generally about the processes and importance of the upcoming election.
33 The applicant accepted that Mr Carter was present to address delegates, and indeed there does not appear to be a dispute as to the words Mr Carter used at the session. However the applicant alleged that Mr Carter took this opportunity to advocate for the YTWT in the upcoming TWU election. The applicant further submitted that, in Mr Carter advocating on behalf of the YTWT team, the TWU or the Queensland Branch was using, or allowing its property or resources to be used, to help YTWT candidates against Team Driven candidates in the upcoming election. The applicant claimed that this conduct constituted a contravention of s 190 of the FWRO Act, and therefore an irregularity within the meaning of s 6 of the FWRO Act.
34 The applicant has provided the Court with an audio recording on a USB stick of the relevant session on 10 October 2018. An affidavit dated 11 July 2019 was provided by a third party who deposed that he attended the Murarrie training course and made the audio recording of the discussions about the upcoming election. This affidavit was filed on a confidential basis and contained a transcript of the relevant recording.
35 An alternative transcript of this recording is also annexed to the affidavit of Mr Wyatt affirmed 5 August 2019. Mr Wyatt deposed that the transcripts were incomplete in that Mr Carter spoke to the delegates for a number of minutes prior to the recording commencing.
36 Although the transcripts do not vary to a significant degree, it is useful to extract them both in these reasons. The transcript attached to the affidavit of 11 July 2019 is as follows:
Carter: So it is run, actually the election is run by the government so [indistinct] all above board. This year Peter, myself as the assistant secretary and Brad as the president and the whole branch committee of management are going to be challenged by another team. [Voices]
There will be some questions.
Female Member: [indistinct] officers do?
Carter: Yes and at the end of the day you will get a vote, you can vote who you think will do the best job hopefully for your union. What I say is this is not a time where we should be looking for changes cos we have got plans for the future and if we don't have continuity in this branch and across the whole union those plans would be put in some jeopardy so when the time comes to vote, I'm hopeful that you will vote to reelect Peter Biagini myself and Brad and his team your transport workers team because the consequences are starting to think about the team that is running against us don’t have a year of experience as organisers amongst them, they tap themselves as being a [indistinct] team but that is all well and good but unless you have experience unless you got knowledge and knowledge is power as I said right at the start yesterday unless you got that knowledge experience you just going to be foundry so that would be a disaster for our union so one thing I will say about elections union elections is sometimes people don't vote, in fact more often then not they don't particularly when its not a critical election people won't view it as a time for change so they might go well Peter will be right we don't need to vote, On average about 30% of members vote in union elections what happens to the ballot papers they go in the bin, they sit on the fridge until six weeks after the due date this is where delegates can their roles are really important because delegates can remind about the people the importance of voting and help in that process get people to vote go through the list of members that you have and say have you voted, have you voted, have you voted and hopefully with having for Peter Biagini and your Transport workers team but as delegates it is really important you get members to vote because democracy is only work when people participate so get your members to vote. Does anyone have any questions about this?
Female Member: When are the other side going to come give their talk?
Carter: When?
Female Member: Yes? You have given yours and I don't know anyone and I might want to see other [indistinct] have to say I want them to come and give me a spill as well
Carter: They are not hanging about the office at the moment so
Female Member: Well that is not very democratic if they can't give me any words
Carter: There is democracy both sides get the list of members and the AOC gives us
Female Member: You have a very captive audience here so I would like to get a spill of what they have to say as I feel that you have come in and told us all about how great you are and Peter Biagini
Male Voice: I don't interrupt you so I didn't ask you so give me the same courtesy so all we are trying to do is let you know that this is a really important time think about when the ballots come out cos as Adam said a lot of people don't bother voting at all so you will be getting stuff in the mail from us you will be getting stuff in the mail from them they will explain their side and as Adam said there will be a contact number on that that you can ring up them and ask them to come to your workplace and they can talk to you, it is a free country
Female Member: [indistinct) message to go around [indistinct]
Male Voice: Been up to North Queensland, don't worry about that.
Male Voice: Is the appropriate term just for reference is it called team driven?
Yes
Male Voice: So that wanka in the ute climbing up on the bridge over there?
[Laughter, voices interrupting/talking in background]
You said that stuff [indistinct] out of his ute and all you can see is team driven and its covered in TWU things and everyone from my work who saw the ute there immediately oh the TWU is advertising they are advertising for us which in turn is bringing more attention to you not to them because a lot of people they don't know the other candidates names - they haven't looked
Male Voice: They shouldn't be doing what they are doing I mean we don't go TWU
Female Member: I have been involved in [indistinct] but why are they so bad?
Male Voice: All I said that they don't have any experience and they don't have a plan they don't have plan for the future like we do and I think that it would be quite harmful to the union if we changed forces midstream
Female Member: [indistinct] what do you think they motives are for running –
Male Voice: I can't speculate about their motives cos at the end of the day our rules are very clear if you are a member and you have had the requisite period of membership then you can put up your hand and run for any elective decision
[Voices interrupting/talking in background]
Male Voice: As Adam said in 2010 when Peter Biagini's team stood against and run the election Peter Biagin and the majority of our crew had been organisers for 25 plus years and Peter had run his own business, been a union organiser for a long long time and had been subbranch president all this sort of stuff these other guys haven't had any of that experience at all and in fact the guy who is standing for state secretary has been on our committee and management for eight years since 2010 and not once has put up his hand to be an organiser not once and we have been looking for people to be an organiser so you have to have some experience to run an organisation as big as this with as many members as we've got so that's what we
Male Voice: What I was explaining is the process, I've explained to you the importance of voting and as I said it's a democracy and you get to choose
Female Member: I don't have the information we need to know, I don't know
Male Voice: You will get it in the post
Male Voice: Can I add a little bit to this I did actually run when I was at the CPU I did run against them and what I did I got tied up with the other branch they come up and we did a tour of Queensland so as far as I'm concerned I think the others that are running against these guys have got the right to come and put their case forward, it is not for these fellows to bring them in here and hear there case.
Female Member: Where is the audience saying [indistinct] surely for a democracy transparency the other mob where they are, I don't know should be the same
Male Voice: Yeah they are saying it's not their job
Male Voice: Its not their job to do it
[Voices interrupting/talking in background]
Male Voice: Yeah but they have the right to go to your workplace cos I have done it.
Carter: The word we are trying to get across is as delegates it is important that you get members to participate in our democracy so that's the key point I want you to take away and when the time comes to vote and I'm sure you'll make your enquiries with the other team
Female Member: But I have no information so I can not
Carter: Well I'm sure you will get that information.
Female Member: I can't talk to them
Carter: I can't arrange that today so I think we will leave it there. Do you have anything to say about that?
[Laughter, voices interrupting/talking in background]
Male Voice: I wish you didn't come in [laughter]
Male Voice: I think what Adam is trying to get across is now is a pretty important junction in the history of the TWU we have to change of rules campaign going on with is a important one with the ACTU, we have the 20/20 campaign that is really really important to the future of everybody in this room and half of our members so that is what we are trying to tell you, we are telling you our point of view if you want to contact them
Female Member: [Yelling] I don't care
Carter: Well I'm telling you about the process
Female Member: [indistinct] tell us your members when we had the opportunity it’s like the liberal party saying god forbid 'we are the only party [indistinct] vote for us [indistinct – background noise]
Carter: Well I can't help you with that
Female Member: No when are they coming in
Carter: Apart from saying that they will send you in the post a whole lot of material and I'm sure I would be very surprised if this doesn't happen on the material the will have names of being able to contact.
Female Member: I want them to come and address me now like you are now from democracy
Carter: That's probably not going to happen is it
Female Member: And that's not a very general credit of process
Carter: Well that's your view
[Voices interrupting/talking in background]
Female Member: Well pretty blatantly obvious. I don't know who they are, I don't know who they are, but I think this is not a demographic transcript of process
[Voices interrupting/talking in background]
Male Voice: He's actually made the presence to turn up
[Voices interrupting/talking in background]
Female Member: I don't know who they are, I'm not defending them I don't know - I just like to have a bit of transparency if you are going to say vote for us, we are fantastic let them say - why politicians have that five minutes or three minutes on the television just pay to have a quick spill
Male Voice: I don't know what you heard but I didn't hear?
Female Member: I didn't hear anything
Male Voice: Hang on hang on hang on a sec, I don't know what you heard but I know what I heard. Adam didn't say vote for us, Adam said hopefully you'll vote for us
[Voices interrupting/talking in background]
There is a difference
are trying to find out how you vote is up to you, we are not going to be there when you fill it out so.
[Indistinct - noises in the background, voices interrupting/talking in background/ laughter]
(Errors in original.)
37 The transcript attached to the affidavit of Mr Wyatt is as follows:
Mr Carter: So it is run, the election is run by the Government. So it is all above board. This year Peter, myself as the Assistant Secretary and Brad as the President, and the whole Branch Committee and Management are going to be challenged by another team.
Ms Smith: (lndistinct)
Mr Carter: There will be time for questions.
Ms Smith: Indistinct ..officers do?
Mr Carter: Yes, at the end of the day you all get a vote. You can vote for who you think will do the best job hopefully for your Union
What I will say that this is not a time where we should be looking at changes because we have got plans for the future and if we do not have continuity in this Branch and across the whole Union those plans will be put in some jeopardy. So, when the times comes to vote, I am hopeful that you will vote to re-elect Peter Biagini, myself and Brad and his team Your Transport Workers' Team because the consequences don't bear thinking about.
The team that is running against us don't have a year of experience as Organisers amongst them. They tout themselves as being a rank and file team. Well that is all well and good, but unless you have got experience, unless you have got knowledge, and knowledge is power as I said right at the start yesterday, unless you have got that knowledge and experience you are just going to be floundering and so that would be a disaster for our Union.
So one thing I will say about elections, or Union elections, is sometimes people don't vote, in fact more often than not they don't, particularly when it is not a critical election. People won't view it as a time for change so they might think "oh well, Peter will be right so I don't need to vote". On average about 30% of members vote in union elections.
What happens to the ballot papers? They go in the bin, they sit on the fridge until six weeks after the due date. This is where Delegates can, where their roles are really important because Delegates can remind people about the importance of voting and help in that process. Get people to vote. Go through the list of members and say have you voted, have you voted, have you voted and hopefully having voting for Peter Biagini and Your Transport Workers' Team. As Delegates it is really important that you get them to vote because democracies only work when people participate, so get your members to vote.
Does anyone have any questions?
Ms Smith: When are the other side going to give their talk?
Mr Carter: When?
Ms Smith: Yes. You have given yours and I don't know anyone, and I am of the view that other people (indistinct) have to say. I want them to come and give me a speel as well.
Mr Carter: Well they are not hanging about the office at the moment so.
Ms Smith: Well that's not very democratic if they can't get give me any words
Mr Carter: Well there is democracy, both sides get the list of members that the AEC gives us.
Ms Smith: You have a very captive audience here so I would like to get a feel of what they have to say because I feel that you guys come in and tell us all about how great you are and Peter Biagini is and that
Mr Carter: Well, I am telling you about the process.
Ms Smith: (Indistinct) tell us your members when we have had an opportunity, it is like the Liberal party saying god forbid we are the only party (indistinct) so vote for us (indistinct). So I want to hear what the other side has to say.
Mr Carter: Well I can't help you with that.
Ms Smith: No when are they coming in.
Mr Carter: All I can say is that they will send you ..
Ms Smith: I want to speak to them.
Mr Carter: A whole lot of material and I am sure, I would be very surprised if this does not happen, on their material they will have names of their contact.
Ms Smith: I want them to come in and address me now like you are now for democracy.
Mr Carter: That's probably not going to happen is it?
Ms Smith: And that's not a very democratic process.
Mr Carter: Well that's your view.
Ms Smith: Well pretty blatantly obvious. I don't know who they are, I don't know who they are but I think this is not a democratic transparent process.
Male: He's actually made the presence to turn up.
Mr Carter: Well I do work in the office.
Male: I know that but..
Ms Smith: I don't know who they are, I'm not defending them I don't know. I just like to have a bit of transparency. If you are going to say vote for us, we are fantastic let them say - why politicians have that five minutes or three minutes on the television just pay to have a quick speel.
Mr Wyatt: Well I don't know what you heard but I didn't hear ...
Ms Smith: I didn't hear anything
Mr Wyatt: Hang on a second. I don't know what you heard but I know what I heard. Adam didn't say vote for us, Adam said hopefully you will vote for us. There is a difference.
Ms Smith: Same thing ??
Mr Carter: What I am explaining is the process, I have explained to you the importance of voting and ...
As I said it is a democracy and you get to choose.
Ms Smith: I don't have the information we need to know, I don't know.
Mr Carter: No doubt you will get it in the post.
Mr Nicholson: Can I add a little bit to this. When I was in the CEPU I did run against them, and what I did, I got tied up with the other Branch and they came up and we did a tour of Queensland. So as far as I am concerned I think the other mob that are running against these guys have got the right to come and put their case forward, it is not for these fellows to bring them in here and hear their case
Ms Smith: Where is the audience (indistinct). Surely for democracy transparency the other mob, whoever they are, I don't know should be the same.
Mr Nicholson: Yeah, but I am saying that it is their job to do.
Voices and talking
Mr Nicholson: Yeah, but they have the right to go to your workplace because I have done it.
Mr Carter: What I am trying to get across is that as delegates it is important for you to get members to participate in our democracy. That's the key point that I want you to take away and when the time comes to vote, and I am sure you will make your enquiries with the other team
Ms Smith: But I have no information so I can not
Mr Carter: Well I am sure you'll get that information
Ms Smith: I can't talk to them.
Mr Carter: Well I can't arrange that today. So, well I think we will leave it there. Do you have anything to say about that?
Male: You wish you didn't come in (laughter)
General laughter and talking
Mr Wyatt: Look I think what Adam is trying to get across is now is a pretty important juncture in the history of the TWU. We've got the Change the Rules campaign going on which is a really important one with the ACTU. We've got the 20/20 campaign that is really, really important to the future of everybody in this room and all our members, so that is what we are trying to tell you, we are telling you our point of view. You want to contact them.
Ms Smith: How long have you had these meetings?
Mr Wyatt: Well, okay, I don't interrupt you.
Ms Smith: I don't even care I just want ??
Mr Wyatt: Right, well I don't interrupt you so give me the same courtesy. So what we are trying to do is let you know that this is a really important time, to think about when the ballots come out because as Adam said a lot of people don't bother voting at all. So you will be getting stuff in the mail from us, you will be getting stuff in the mail from them. They will explain their side and, as Adam said, there will be a contact number of that that you can ring up them and ask them to come out to your workplace, and they can talk to you. It is a free country.
Ms Smith: Message to go around.(indistinct)
Mr Wyatt: Sorry?
Ms Smith: I haven't got a thing from them.
Mr Wyatt: They have been up in North Queensland, don't worry about that.
Male: Is the opposing team, just for reference called Team Driven?
Mr Wyatt: Yes
Male: So that that wanker in the ute on the bridge over there ..
Lots of laughter and indecipherable comments
Male: You said that stuff out of his ute and all you see is Team Driven and its covered in TWU things and everyone from my work who saw the ute there immediately with signs oh the TWU is advertising they are advertising for us which in turn is bringing more attention to you because a lot of people they don't know the other candidates names - they haven't looked.
Mr Carter: They shouldn't be doing what they are doing. I mean we don't go around in TWU ??
Ms Smith: I haven't been involved but why are they so bad?
Mr Carter: All I said is that they don't have the experience and they don't have a plan. They don't have a plan for the future like we do and I think that it would be quite harmful to the union if we change horses midstream.
Ms Smith: But given (indistinct) What do you think their motives are for running?
Mr Carter: I can't speculate about their motives because at the end of the day our rules are very clear. If you are a member and have had the requisite period of membership then you can put up your hand and run for any elected position.
(Indistinct)
Mr Wyatt: As Adam said in 2010 when Peter Biagini and his team stood against Hughie Williams and won the election, Peter Biagini and the majority of that crew had been Organisers for 20 plus years.
Male: Yeah that's a wealth of experience.
Mr Wyatt: Absolutely, Peter had run his own business, he had been a Union Organiser for a long, long time and he had been a Sub-Branch President, all this sort of stuff. These other guys haven't had any of that experience at all, and in fact the guy who is standing for State Secretary has been on a Committee Management for eight years, since 2010, and not once has he put up his hand to be an Organiser. Not once when we were looking for people to be an Organiser. So you have got to have some experience to run an organisation as big as this with as many members as we have got. That is what I am trying to point out. How you vote is up to you, you know. We are not going to be there when you're filling it out.
Mr Carter: So just in case (indistinct).
Applause
(Errors in original.)
38 In relation to the delegates training session on 9 to 10 October 2018, Ms Smith deposed in her affidavit dated 7 May 2019 as follows:
12. On 9 and 10 October 2018, I attended a 'TWU T1 training session' ('Training Session') at the Branch's Murarrie office.
13. I noticed that the Branch Assistant Secretary, Adam Carter was sitting at the back of the training room. I chatted with him briefly.
14. After breaking for lunch, Adam and Brad Wyatt, who I now know to be the Branch President, were invited by the trainer to give a presentation.
15. I have become aware that part of the presentation made by Adam and Brad was recorded and that a transcript of the recording is exhibit 'DW7' in the Affidavit of Darren White, filed 14 March 2019.
16. I have had the opportunity to review the transcript and confirm that I am the attendee identified as 'Female Member'. The transcript is an accurate reflection of what occurred at the Training Session.
39 Further evidence was provided in relation to the Murarrie training session. Relevantly, Mr Wyatt deposed in his affidavit affirmed 5 August 2019:
2. I refer to my affidavit sworn 16 May 2019 and in particular the paragraphs 4 to 6 of that affidavit. I also refer to paragraph 12 to 16 of the affidavit of Rebecca Smith sworn 7 May 2019.
3. I have listened to the recording of the delegates training session on 10 October 2019. This was the second day of the delegates training.
4. The recording is incomplete in that Adam Carter spoke to the delegates for a number of minutes before the recording commences.
5. I have identified the speakers on the audio recording as best I can. Annexed and marked "BW-2" Is a transcript of the recording which identifies the speakers that I am able to identify.
6. The only other speaker I could identify apart from Adam Carter, Ms Smith and myself is Ian Nicholson. Mr Nicholson is the delegate at Australia Post Northgate.
7. Listening to the recording has assisted me in recalling this particular session over the two-day period and the sequence of events during this session.
8. I recall that Adam was at the front of the training room and Jon Clark said something along the lines that Adam wanted to say something to members. I can't specifically recall what else Jon said.
9. I recall that Adam gave a general talk to the delegates in the period before the recording. He talked about the following:
• the Rules of the Union;
• the procedure for quadrennial elections provided for under the Rules;
• eligibility for voting;
• the importance of eligible members participating in the democratic processes provided for under the Union's Rules;
• the Australian Electoral Commission's role in running the election;
• the method by which voting is conducted;
• delegates were likely to be asked questions by members about the election;
• delegates having the information needed to be able to answer the questions;
10. When speaking about the Rules, I recall that Adam told delegates that only financial members would get a vote and that a list of all financial members is sent to the AEC. When talking about the voting method, I remember that he explained that the AEC would post out the ballot papers to the residential addresses of members who were eligible to vote and that if member's address details were not up to date there might be difficulties in receiving ballot papers.
11. I understood his talk to be about the delegates encouraging members to participate in the democratic process because there has been historically a very low turnout of members and explaining how the election process worked so delegates unfamiliar with elections might answer questions.
12. The only time that Adam made any mention of the teams in the election was when Ms Smith asked questions which is the point at which the recording commences.
13. I spoke up because Ms Smith had misunderstood what Adam was saying. She was saying that Adam's talk was about voting for our team. I understood him to be saying as part of his response to questions that hopefully members would vote for our team.
40 Under cross-examination, Mr Wyatt conceded that he was not on annual leave when at the training (transcript p 88 lln 23-26). Mr Wyatt also stated that his reference at the training to “the guy who’s standing for the state secretary” was in relation to the applicant. When questioned as to whether candidates were required to be organisers to become Branch Secretary, Mr Wyatt stated:
No. I was simply pointing out, as the recording said, that the other team didn’t have any experience as officials of the TWU.
(Transcript p 89 lln 14-15.)
41 Mr Clark’s unchallenged evidence was that Mr Carter gave an opening address to the delegates on 9 October 2019, in which he welcomed the delegates, introduced Mr Clark and spoke about the importance of training. Mr Clark also deposed that Mr Carter on 10 October 2019, gave a short presentation about the TWU’s Rules and the process for the election.
42 Mr Clark gave the following evidence in relation to the events which occurred at the delegates training:
…Mr Carter gave a short presentation about the Union's Rules and the process for the Election. I recall that he spoke about it being overseen by the AEC. During the presentation, a female Delegate asked Mr Carter a series of questions regarding the Election. Her questions were quite different to those that were generally asked by attendees, as set out in paragraph 7 above. She asked Mr Carter quite specific questions regarding her view that the Team opposing Mr Biagini and Mr Carter should be given an opportunity to speak to the attendees during training session as Carter was speaking to them about his Team. I don't recall the precise words she said. I do recall that she was quite persistent and forceful with her questions and as such, it appeared to me that she was trying to bait Mr Carter into saying something derogatory. I don't recall him doing so. Whist I do not recall the precise words he said, I recall that he said something about a challenge to him and Mr Biagini's Team, that everyone would be given an opportunity to vote on which team they wanted to lead the Branch and the need for the attendees, as TWU Delegates, to encourage members in their workplaces to vote in the Election.
43 Mr Clark was not required for cross-examination.
44 The same witness who gave the affidavit of 11 July 2019 also deposed in an affidavit dated 1 August 2019 that he was late to the meeting and did not record the meeting from the beginning. He noted that he “commenced recording at the time that I did as I walked from lunch and Mr Carter has began speaking about the election”.
45 This evidence is supported by the evidence of Mr Wyatt who deposes that in the period before the recording commenced, Mr Carter gave a general talk which addressed:
the Rules of the Union;
the procedure for quadrennial elections provided for under the Rules;
eligibility for voting;
the importance of eligible members participating in the democratic processes provided for under the Union's Rules;
the Australian Electoral Commission's role in running the election;
the method by which voting is conducted;
delegates were likely to be asked questions by members about the election;
delegates having the information needed to be able to answer the questions.
46 The witness in his affidavit of 1 August 2019 also deposed that Mr Carter spoke about:
The rules of the Union and the procedure for quadrennial elections provided for by the rules
The importance of all members participating in the democratic processes provided for under the Union’s rules because there is usually a very low participation rate in union elections.
The AEC’s role in running the election.
Delegates being likely to be asked questions by members about the election.
The role of delegates in encouraging members to participate in the election by voting.
47 The applicant alleged that the comments of Mr Carter demonstrated support for the YTWT and, because union resources were used to facilitate the session, the evidence substantiated, on the balance of probabilities, that an irregularity occurred.
48 In contrast, the First to Third Interested Persons submit:
• The Murarrie training course was organised and conducted by Mr Clark as part of his national, regular and structured training scheme and was not for any reason connected with the election.
• Mr Carter spoke to the delegates in a short segment on the second day. This was a general address about the processes and importance of the upcoming election.
• Mr Carter spoke about the rules of the TWU, the procedure and method for the election, the importance of member participation, the AEC’s role and other general matters.
• During this address, Mr Carter was interrupted by Ms Smith and asked a series of questions in relation to the election. This appeared to be an attempt to “bait” Mr Carter.
• In responding to Ms Smith’s questions, Mr Carter briefly expressed the view that he hoped YTWT would be re-elected.
• The purpose of the course was to deliver standard TWU training to new delegates. The information provided by Mr Carter in relation to the election was an important matter and delegates were provided with practical and important information.
• Mr Carter’s references to the teams in the election were very limited. His comments were incidental to the purpose of the address and were directly responsive to Ms Smith’s questioning.
• There was no irregularity because the Branch’s property and resources were not used to help one candidate over another.
49 Further, the TWU submitted that:
The session was part of a regular training course provided to delegates for purposes separate to the election.
Mr Carter spoke to the delegates about the TWU’s rules, the election process, eligibility for voting and the importance of members participating in the election.
No complaint could be made about Mr Carter speaking to the delegates generally about the election process.
To the extent that Mr Carter referred to the teams running in the election, he did so only briefly and only in response to questioning from Ms Smith.
In circumstances where the training was organised and conducted for reasons separate from the election, Mr Carter discussed the election to inform delegates of the process for the conduct of the ballot and any mention of the teams arose only from discussion, no use of the Branch’s property or resources to help one candidate could be said to have occurred.
There was no irregularity.
50 Further, and generally in relation to s 190 of the FWRO Act, the TWU submitted:
Section 190 only operates with respect of the use of property and resources “to help a candidate against another candidate in an election”. There must be both a “candidate” and an “election” before the section has operation.
This section is concerned with conduct in the course of an election and not with conduct in anticipation of an election or after it has been held.
Section 190 only applies where the calling of nominations for the relevant positions has occurred.
A contravention of s 190 will only occur, where the organisation’s property or resources have been used to help one candidate in circumstances where they have been denied or will be denied to another candidate.
Section 190 will not be contravened where property or resources of the union are available to all candidates or the candidate complaining of a contravention did not take steps to access the resources in question.
The prohibition on the use of resources does not go so far as to prevent existing office holders of an organization from campaigning for re-election and accommodates some advantages that necessarily flow from incumbency.
Not every technical or incidental action of a union official that might be characterised as involving the use of a union’s resources should be so characterised.
Section 190 creates an offence capable of being committed by the organisation (Union) or by a branch of the organisation. To establish a contravention it is necessary to demonstrate that resources or property have been used by the organisation or branch, or to demonstrate conduct by the organisation or branch which allows the use of its property or resources.
51 A similar position is adopted by the First to Third Interested Person who submitted:
Section 190 is directed to what the Branch of the Union has done or allowed to be done.
The Branch does things or permits things to be done by its official decision-making processes under its Rules.
For s 190 to apply, the applicant must establish that there was a candidate and election at the relevant times.
There is no reason to give the term “resources” any interpretation other than its natural and ordinary meaning. “Campaigning by branch employees” is not a resource of the Union.
52 As to whether comments at a union meeting by a candidate for election can constitute an improper use of union resources, and hence an “irregularity” within the meaning of s 6 of the FWRO Act, a case on point is Nelson v Cameron [2000] FCA 554; (2000) 98 IR 46. In that case Ryan J relevantly observed:
[28] I find that Roe attended at the Hella plant on 28 March pursuant to arrangements made with management some weeks before by Curak, the shop steward. The purpose of that visit and the meeting which Roe addressed was to alert Hella employees to the “cost downs” and Campaign 2000 issues. Although Ormsby, the Union organiser for the Hella plant, attended whilst on annual leave with the intention of enlisting support for Roe’s re-election as State Secretary, I regard it as inherently improbable that Hella management would have acquiesced the conduct at a meeting for something like 45 minutes of working time for predominantly electioneering purposes. I find that Roe addressed the meeting for approximately half its duration on the “cost-downs” and tariff issues in relation to which it was called and did not refer to his own candidature in the forthcoming election. References of that kind were made briefly by Ormsby, and more extensively by Curak, who also responded to questions from the floor of the meeting. Roe remained present throughout the meeting before moving, at its conclusion, to discuss the tariff and related issues with Hella management. A similar procedure was followed at the subsequent meeting at Dura (Asia-Pacific) except that only Ormsby spoke in support of Roe’s candidature.
[29] The implied prohibition on the use of an organisation’s resources in connection with an election campaign does not, in my view, extend so far as to preclude a salaried officer or employee from engaging, even incidentally, in electioneering during working hours. It is one of the inherent advantages of an incumbent seeking re-election that he or she will have opportunities for favourable exposure to the electorate by attending meetings, communicating with members, formulating or expressing policies on behalf of the organisation and exercising patronage in the making of appointments. There may also be circumstances in which to deny a salaried officer or employee a technical, or incidental, use of the organisation’s resources for electioneering purposes, as in the transport of campaign material in the organisation’s vehicle for distribution outside working time, would be to place that officer or employee at an unfair disadvantage. It is undesirable in the circumstances of the present case to attempt to define with any more precision what may amount to a technical or incidental use, in that sense, of an organisation’s resources. As Dunphy J said in Holmes v Riordan (1955) 86 CAR 180 at 195:
A feature of the case presented on behalf of the applicant was an attempt to demonstrate, through lengthy cross-examination of the respondent, that advantage had been taken by Riordan of his position as Branch Secretary to use certain of his salaried staff and the office premises and equipment to further the successful conduct of his election campaign. ....... A careful review of the transcript demonstrates that Riordan admitted that certain paid officials did help his electoral ambitions by rendering assistance in a number of ways, but his uncontradicted testimony was that these acts were performed after office hours or during periods of special leave. In this regard Riordan clearly stated that similar concessions would have been granted to any officer of the Union wishing to assist a member of the opposition if requests to that effect had been made. But the plain position is that no such request had been forthcoming.
I can see no basis for attack on this particular ground, for if it were a valid proposition it would mean that acceptance of a paid position on a union staff automatically bars a union member from taking any active interest in his own or some other member’s candidature. As long as an officer voluntarily exercises his right to assist a candidate, and his functions and duties to his employer are not adversely affected as a consequence, he should be entitled to take as active an interest in an election as an ordinary member of the union. Likewise, the use of union premises and equipment, if freely available to any applicant, is not, in my opinion, objectionable providing such use is more or less inevitable as a consequence of the election itself. The respondent’s evidence on the point indicates that little was done on the Union premises other than the copying by his supporters, of portions of the electoral roll and as the applicant clearly never made a request for similar use there was no denial to him of similar facilities. As I have stated previously herein, it must be obvious that such a function is an inevitable consequence of the holding of an election and the proper and probably the only place for such work to be performed is in the union office either during office hours or outside such hours under supervision. These questions involve matters of degree and if the suggestions made by applicant’s counsel during the course of these proceedings had been supported by evidence the result might have been different.”
[30] Similarly regarding the issues in the present case as matters of degree, I do not consider that any aspect of the use of the services on delegation of Fairley or Thompson or anything which occurred at the meetings at Hella or Dura (Asia-Pacific) infringed the implied prohibition which the applicants have invoked.
(Emphasis added.)
53 In Mcjannett, in the matter of an application for an inquiry in relation to an election for offices in the Construction, Forestry, Mining and Energy Union, Western Australian Branch (No 2) [2009] FCA 1015; (2009) 188 IR 156 at [100], Barker J agreed with the comments of Ryan J at [29] and added:
The conduct of persons such as union officials during an election, are almost bound to attract allegations of the type made by the applicant here, in that they may often find it difficult not to show some inclination to partial conduct. In my view, not every technical or incidental action of a union official that might be characterised as involving the use of union resources, should be so characterised. Questions of fact and degree arise.
(Emphasis added.)
54 The particular structure and phrasing contained in s 190 is clear, in that it is concerned with the activities of an “organisation or branch” in using or allowing its resources to be used to for campaigning purposes. In Asmar, in the matter of an Election for offices in the Health Services Union [2009] FCA 1294 (Asmar 1), Tracey J noted:
[16] The evidence relied on by the applicant supports the allegation that Union meetings were convened at some hospitals using notices on Union letterhead. Those meetings were attended by some Union employees who, although supposedly on leave, were said to be present on Union (as distinct from electoral) business. Those employees used the meetings to encourage members to vote for the Bolano team. Mr Bolano and other employees said to have been involved have not, as yet, denied that such conduct occurred. In fairness to them, it must be said that some of the affidavits on which the applicant relies were not served until late on 4 November 2009.
[17] Such conduct as is alleged, if it occurred, would have constituted contraventions of the directions given by Mr Vines. It does not, however, follow that such conduct constituted an irregularity for the purposes of the Act. It would only have done so had it given rise to a contravention of s 190. That could only have happened if the Union (or, possibly, the Branch) used or allowed its property or resources to be used to assist Mr Bolano and members of his team in the course of the election campaign.
[18] Counsel for the applicant accepted that neither the Union nor the Branch had used Union resources in convening and conducting the workplace meetings. She submitted, however, that the Union and/or the Branch had, nonetheless, allowed the property and resources of the Union to be used because action had not been taken to prevent the impugned conduct of the Union employees occurring. I do not accept these submissions. The evidence establishes that Mr Vines had taken reasonable steps to ensure that the Union’s property and resources were not used for electoral purposes. He issued clear directives requiring employee candidates to take leave during the campaign and not to use any of the Union’s property and resources to support their candidacy. If these directives were not obeyed it was no fault of Mr Vines and it cannot, in my opinion, be said that, by inaction, he allowed the alleged misconduct to take place.
55 The introduction of s 190 followed the enactment of the Workplace Relations Amendment (Registration and Accountability of Organisations) Act 2002 (Cth). The prohibition reflects the established principle that a union will contravene its rules if it uses its resources to promote one candidate over another. In Scott v Jess (1984) 3 FCR 263, Evatt and Northrop JJ found:
The reference to the objects of the Act as set out in s 2, and the detailed provisions contained in the Act and the Conciliation and Arbitration Regulations relating to the election of officers within an organization makes it clear that those elections must be conducted fairly, having regard to the interests of all members and of all candidates. Implicit in that concept of fair play is the principle that the officers exercising power within an organization shall not exercise that power to authorize the use of the resources of the organization to support or promote a candidate or a group of candidates or to seek to defeat a candidate or a group of candidates during the conduct of an election to offices within the organization. In the present case it is not necessary to determine what are the limits of the conduct of an election. For present purposes it is sufficient to say that the election commences at least at the closing of nominations for candidates for the election and continues at least until the close of the ballot for that election. If during the conduct of an election, officers of an organization expend the resources of the organization on conduct which tends to support or promote a candidate or a group of candidates at that election, directions may be given under s 141(1G) of the Act that they perform and observe the rules of the organization by refraining from so expending the resources of the organization
56 The Scott decision was referred to in Becker, in the matter of an application for an inquiry in relation to an election for offices in the Australian Education Union, Queensland Branch [2004] FCA 1534, where Cooper J noted at [20]:
As Evatt and Northrop JJ made clear in Scott v Jess, the prohibition of the use of the resources and funds of an organisation to support one candidate in an election in circumstances where they have been denied or will be denied to another was based on the same principle relating to the proper use of a power. Namely, that the power to deal with the funds granted under the rules was not a power granted for the impugned purpose: see 270 – 271 and the references to Short v Wellings at 87 – 88; Valentine v Butcher (1981) 51 FLR 127 at 138 – 139 and Re Penhallurick (1983) 51 ALR 589 at 595. The rationale is that the funds and resources of an organisation belong as much to one faction as another and all should be treated equally when and if resources are to be made available for election purposes. Further the powers are to be exercised fairly to ensure that all qualified candidates may stand for election on an equal footing.
57 I note that during the course of the hearing, Mr White referred to comments of Mr Wyatt at the Murarrie training session (for example, transcript pp 88-89). However in closing submissions no point was taken in respect of those comments of Mr Wyatt. Rather, the particular comments of Mr Carter of which the applicant complains for the purposes of this issue appear to be the following:
Ms Smith: (lndistinct)
Mr Carter: There will be time for questions.
Ms Smith: Indistinct .. officers do?
Mr Carter: Yes, at the end of the day you all get a vote. You can vote for who you think will do the best job hopefully for your Union
What I will say that this is not a time where we should be looking at changes because we have got plans for the future and if we do not have continuity in this Branch and across the whole Union those plans will be put in some jeopardy. So, when the times comes to vote, I am hopeful that you will vote to re-elect Peter Biagini, myself and Brad and his team Your Transport Workers' Team because the consequences don't bear thinking about.
The team that is running against us don't have a year of experience as Organisers amongst them. They tout themselves as being a rank and file team. Well that is all well and good, but unless you have got experience, unless you have got knowledge, and knowledge is power as I said right at the start yesterday, unless you have got that knowledge and experience you are just going to be floundering and so that would be a disaster for our Union.
So one thing I will say about elections, or Union elections, is sometimes people don't vote, in fact more often than not they don't, particularly when it is not a critical election. People won't view it as a time for change so they might think "oh well, Peter will be right so I don't need to vote". On average about 30% of members vote in union elections.
What happens to the ballot papers? They go in the bin, they sit on the fridge until six weeks after the due date. This is where Delegates can, where their roles are really important because Delegates can remind people about the importance of voting and help in that process. Get people to vote. Go through the list of members and say have you voted, have you voted, have you voted and hopefully having voting for Peter Biagini and Your Transport Workers' Team. As Delegates it is really important that you get them to vote because democracies only work when people participate, so get your members to vote.
58 In relation to these comments:
I accept the submissions of the First to Third Interested Persons and the TWU that the comments made by Mr Carter, in relation to the YTWT and Team Driven, were in the context of a much lengthier and more general address about the Union rules and election procedures.
On such evidence as is before the Court it appears that Mr Carter’s comments concerning the respective qualities of the competing teams were in response to direct questions from delegates, specifically Ms Smith.
There is no suggestion, or evidence before the Court, that Ms Smith’s questions were made to in any way assist in the promotion of the YTWT campaign, or were to facilitate comments of Mr Carter in support of YTWT, or that that there was any conspiracy about those questions between Ms Smith and Mr Carter to promote YTWT.
59 It follows that while union resources were used to facilitate the training session, I am satisfied that the relevant comments of Mr Carter were incidental to the training session within the meaning explained in Nelson.
60 Finally, as I already noted, there is no suggestion that the Murarrie training course was connected in any meaningful way with the upcoming election, such that it could be said that the TWU allowed the course to be used as a forum to facilitate campaigning by either team within the meaning of s 190. The Murarrie training course had been arranged for the purpose of facilitating and delivering structured and scheduled training to TWU Branch Delegates.
61 I am not satisfied that an irregularity occurred in relation to the Murarrie training course.
ISSUE 3: DID THE ACTIONS OF YTWT CAMPAIGNERS AT THE DELEGATE TRAINING SESSION AT STARTRACK ROCKHAMPTON ON 2 NOVEMBER 2018 CONSTITUTE AN IRREGULARITY?
62 The applicant alleges that officials of the union campaigned for YTWT at a meeting at StarTrack Rockhampton on 2 November 2018 (StarTrack Rockhampton meeting), during which Mr Biagini spoke negatively about Team Driven’s experience and advocated for YTWT.
63 The applicant has provided the Court with an audio recording of this meeting, the transcript of which was annexed to the affidavit dated 12 July 2019. This affidavit was filed on a confidential basis. The transcript read as follows:
Male Member: "As you know we've got an election coming up, Peter and Graham are part, well Graham is over there, are part of the team that are looking to be elected again. They've got a proven track record, there is another team that's come in that don't have a proven track record but that's the combination. You, who you vote for is up to you but Peter and Graham are here at the moment. We had Robert came up a couple of months ago and speak to us and we were in the smoko room".
Male Member: "Yes, explained it all".
Male Member: "Yes, explained it, so I don't need to explain it more to you".
Male Member: “No”.
Male Member: "But Peter might be able to give you a bit of a gist as to what's going on rather than me who knows little, but yeah. Basically throughout the industry people that matter".
Peter Biagini: "Alright thanks for that, we've got some posters there, it's just to remind people a ballot paper will end up in your letterbox from the 12th of November, that's only a couple of weeks away. Again democracy is good, it keeps everyone on their toes and makes sure everyone performs to their maximum. All I say to yous is have a look at the experience, really important, the team we put together, there's two people from StarTrack, Neil Conway works at the airport, he's an owner/driver/contractor, and we got Chyna from the Darry. They are on the Branch Committee of Management that runs the union, you got two StarTrack people representing StarTrack, I think that's important, the other team has nobody from there. We have waste, the other team has no one from waste. Toll, Ian Buckingham is a strong figure for Toll, been with toll for 30 odd years, a very strong delegate, he is on our team. Cash in transit, we have Steve that's part of the case in transit industry. Ports, we have James Wilkinson from ports. So I suppose what I'm trying to say to you is the union is, everyone should be represented. On the other side of the ticket, there is 19 positions, 11 of them are in two workplaces whereas our 19 are spread right across our industry. People like myself and Graham, we been members for 40 years. We started around the same time as organizers for 25 odd years. Takes a long time, it takes about four years for a delegate, and we got a few new ones, to became a reasonably good understanding delegate takes sometimes up to four years at least, let alone doing roles as secretary, assistant secretary. Your opposition, no of them have ever been an organizer before. So that's like you jumping in saying I think I can run this place, I'm gonna be the manager tomorrow, no training, no nothing, just gonna jump into it.
Male Member: "Probably go alright though".
Male Member: [overtalking and laughter)
Male Member: "Haven't got a hard act to follow, the little Gold Coast hunk".
Male Member: "Yeah, yeah".
Peter Biagini: "You'd probably do alright operationally, but when it comes to the legals, you know there is a lot of compliance issues and unions nowadays... "
Male Member: "Outsource it [unclear]".
Male Member: [laughter]
Peter Biagini: “... unions nowadays with the Registered Organisations Commission which is the watchdog that the federal government put in place, we have a lot of restrictions, and auditing, compliance we got to do and if you miss they hit you hard with fines. So there is a lot of all that sort of stuff. My own background, I used to be a PED driver just like you guys, at Freight Express. I started there when I was 17, and then I ran the first election 1983, honorary positions you know do the hard yards, and took a paid position 1994 as an organizer. I took over as Secretary 8 years ago, so I done a lot of years as an organizer first, so you learn a bit and that's where the other people, we are, I'm not gonna, we are running a good clean campaign and I'm not gonna be here bagging anybody but there is some real concerns I have with their motive, why they are doing this because the best way to, I feel, to take a role over in a organization is build your way up, show everyone that you can do it, and eventually, because we all move on, you know I've only got a few more years before I retire, Graham, these people prove themselves, they get support of the rest of the organization and they take over. And that way you don't disrupt the organization, its like throwing a hanger bomb in when you do the kind of thing they are doing at the moment.
Male Member: "Why do they want to take over?"
Peter Biagini: "Well, good question, I think there is a few people behind it that are ex-officials that I got rid of, and would I do that again, absolutely".
Male Member: "So they were a bit dodgy?"
Peter Biagini: "Yeah, well I think you would expect me as Secretary to make sure everyone works to their best ability, are skilled up, and are doing the right thing. And if they don't, I get rid of them. And, even in other states where there is also competitors, in Victoria, their competition are ex-officials because this is the only job that you can do, like if you got the sack from here you can't try and get that guy a job but with us oh it costs nothing to put a nomination in and run a campaign. They're disgruntled exofficials, and the guy running against me, Darren White, was our trustee, and we had a falling out with him because self-interest, we had $8 million invested, he's got a mate of his that runs an investment company and his mate comes in, was working at Macquarie's looking after investments, mate leaves and he wants us to follow his mate and he went to Aubernette and then Shaws and we said no mate, we don't do that, there is a proper process to go through. So, he took that as well I'll fix you up and run against you and that way he will get his own say. And he's got a couple of people on the Branch Committee of Management who have gone his way because they were friends of Bob Gizzard who was a bus organizer, at the end of the day he was an organizer for about 5 years and we made him redundant because as far as we are concerned he was not doing what we wanted for that part of the industry. We took it over, myself and another one of the officials, and now we got equal rates, we got $126 million off the government into a fund, and all the bus drivers in our area will be up on 26.21 by the end of this year funded by the government, that's going after the client, not going after the bus company because they are funded by Translink, the government, so we went after the government and we got that sorted. We want results for yous guys, and we'll do, make sure we got the right people to get those results. Alright".
64 A more comprehensive transcript was annexed to the affidavit of Peter Biagini dated 5 August 2019, and read as follows:
Peter Biagini: [Indecipherable] decent conditions and decent pay [Indecipherable]
So we have got these guys off for a couple of days. Twice a year we do a blitz from Brisbane to Cairns and we do a shuttle with the lead Organisers, you know go up to Wide Bay, Rockhampton, Townsville, Cairns, just to help out the Organisers in those areas and just [indecipherable].
Um a couple of things I want to talk about. I suppose first of all Star Track. I have got to say you have a new State Manager, Greg Smith, who is a good, decent bloke. I have got to say that. I don't say that about too many Managers. My only concern is the people above him. They are extremely difficult people. [names redacted] who were strike breakers that came out of England for TNT. Now they are overstaffed. They are difficult people. They are the ones that are introducing contractors. They just don't care. They break all the rules, but Greg Smith, the reason we know him, he was State Manager at NQX and he is actually one of these people that come up through the ranks, a forklift driver ended up the State Manager, understands the rules. I had a meeting with him a couple of weeks ago to raise these issues about contractors, and I could see he was concerned about what is going on, but what he can do about it is something else. Currently we are negotiating a National Contractors Agreement for the owner/drivers of Star Track and we are sending our Delegates from Brisbane down to Sydney and then negotiate that. But it does not cover the outside hire contractors, only the direct owner/drivers, and people like Boske, the State Government have set up a wage theft enquiry because the wage theft is rampant in all industries at the moment, and Toll was also using Boskes and we have got a couple of drivers, one particular one that stuck his neck out and we took him along with Maurice and Blackburn, Giri represented us in the legal area of taking them to the wage theft enquiry because Boske signs people up on a contract on flat rates as an individual contractor. They are employees. There is no workers' comp, no superannuation and the contract they have got with Boske and this particular member of ours is $24.50 flat rate and he was doing 60 odd hours a week on the $24.00. That is daylight robbery and we have strong clauses in the Toll Agreement where we are able to use the Toll Agreement to piss them off out of the business. We don't quite have that strong in the Star Track. We tried when we did the National Enterprise Agreement about a year ago, but
Speaker: Was that the first time we have had him, had Boske for a long time isn't it?
Speaker: I thought he was still with us because they run to Gladstone. [Indecipherable]
Speaker: Oh down in Gladstone, oh okay at this depot we haven't seen him
Peter Biagini: Yeah I am taking in general in the business. You know wherever they are I am just talking in general because I've seen one parked here. And not only [Indecipherable] there are plenty of others too. You know you have, who was parked over there before
Speaker: Biloela Couriers
Speaker: Who?
Speaker: Biloela Couriers
Peter Biagini: Yeah, God knows what they pay people you know, with the Toll Agreement we have any employees of outside hire they must pay them 10% above the award and where we don't have that in the Star Track Agreement, and that is mainly because the employees at Toll are strong enough to take action to demand it and the Star Track guys were and to [Indecipherable] the company used because [Indecipherable] they argue that the Federal Government put a public sector policy out for wages and conditions, and because you are part of Australia Post they use that against us and we did not have that strength to fight it. The point is that we are on top of that, the wage theft enquiry they have sent me a letter that they wrote to Boske, they had to explain why they were doing this sort of practice in the workplace and giving them an opportunity to explain themselves, but that wage theft enquiry is not finalised yet.
Speaker: Did that fellow lose his job?
Peter Biagini: He had left anyway, we found another job for him. Michael. He ended up somewhere else, but we have been looking after him. Naturally we are going to look after people that stick their heads out you know.
Graham Garrett: I don't understand though, that 24 bucks an hour flat do you then have to run a truck out of that? You have to fuel the truck...
Speaker: His own truck?
Graham Garrett: No.
Graham Garrett: He was like you boys. It is like Star Track said you get into one of our company trucks but you are now a sham contractor, alright. Provide an ABN number, we will give you 24 bucks but you have got to put fuel in the vehicle, your tyres... [Indecipherable]
Peter Biagini: Yeah, he worked out he was on $10.00 an hour.
Speaker: $10.00 an hour?
Peter Biagini: $10.00 an hour, he was working for $10.00 an hour.
Speaker: Because I just thought when you said $25.00 I thought [Indecipherable]
Speaker: It's only [Indecipherable] under what we get
Peter Biagini: How much do your casuals get paid here?
Speaker: $30.00.
Peter Biagini: $30.00?
Speaker: 30 odd.
Speaker: What I was saying is that 60 hours doing that you're not getting any overtime or anything.
Peter Biagini: No that's right, no time and a half, double time, no meal allowance, nothing. It is a real rort.
Speaker: Yeah it's disgusting.
Speaker: That's why we don't do it.
Peter Biagini: And as I said, you know, Change the Rules, this is a big issue, the union movement is pushing hard, run through the ACTU and our union is well and truly involved in that, our National Secretary, Michael Kaine, actually sits on the working committee to draft up the legislation to change the rules with the APTU, because the rules have got to be changed. The industrial relations system we are working under currently is broken, Enterprise Agreements are broken. We can't continue having wages a part of competition doing one Enterprise Agreement here, another one here, another one here, and the competition is whoever can pay the less wins the work, and you have got Direct Freight, you've got Followmont, all those that won't do an Enterprise Agreement. They want to pay, they say we are paying the Award, well the Award is only a safety net and you guys are 30% above that, so how eventually does your job security stay if eventually these people just constantly undercut you. And that is why people like Star Track and Toll Priority all that, they try and outsource it to find a cheaper ways so they can compete.
We want to get away from workplace by workplace bargaining, even though Star Track tell us we do National Agreements. We want to go sector by sector, a bit like it used to be in the 70s, 80s where you had an Award to cover the industry and that Award applied to everybody, and the Award was a living wage, it wasn't a safety net it was a living wage. That is where we want to get to. In fact that is why all the Enterprise Agreements we have been negotiating in recent times, all expire on the same date, June 2020, and what we are going to do June 20/20, we are going to put a simple claim on the companies, but we are also going to put that simple claim on the clients because at the end of the day it's the clients whether it is Apple or Coles or any of those majors that you got contracts you can't really break, they usually go "well mate you want to do our work you need to reduce your rates otherwise we go to the mob down the road". We want to make sure that if they go to the mob down the road well they are on the same pay rate so there no advantage. A lot of transport companies, small to medium size ones that have a business model on paying low wages, they won't survive because the ones that are going to survive are the ones that have got the [Indecipherable], the ones that do, have got workplace health and safety in place and the ones that are efficient. They should be the ones that survive, not the ones that have a business model of cheaper wages. So that is really important. We also want to give union officials the rights that they used to have to be able to go into workplaces and inspect times and wages. We used to have that back in the late 90s before John Howard and then they slowly took our rights away, and that's why wage theft is so high. Not only wage theft, superannuation. A lot of companies do not pay superannuation, where if we got that right to go to inspect the books and make sure they are paying it on time, otherwise we take them to the Fair Work and wage theft would be reduced. You know, that way the standard of our industry would be lifted. Every time we go and do an Enterprise Agreement, Toll, TNT, Star Track, any of them they go "mate we can't pay you any more, we're competing with all these other grubs that are paying 20% and 30% less. How do we compete?" So we recognise that and that is why we have got this plan of lifting the whole industry. Safe Rates. We have got a commitment by the opposition, Bill Shorten, to bring safe rates. What we call an industry watchdog, and that is to make sure clients don't screw companies into an unsustainable contract. I have seen, even Linfox once before, they had to go for and tender for a contract at Coles for instance, and they do that competitive online tendering. So it's like going to the fucking TAB, you are betting on trying to get this contract and before you know it they walk away and say we won it, now how are we going to do it at that rate. So, the first thing they do, who can we subcontract it out to do it. So wrong, the system is wrong. So they are some of the things that we want to change in it, clearing out wage theft and lift the standard of our industry. The opposition government has also committed, Bill Shorten has committed, same job/same pay. In other words, you know Qantas for instance, they got their employees, Qantas direct employees, then they start up a labour hire called Qantas Ground Handling Service, they do an EBA before they employ those employees, they are wearing Qantas shirts but are not actually working for Qantas, 20% wages less.
Graham Garrett: And doing the same job?
Peter Biagini: Working right beside the Qantas guys. And then they are going to compete with mobs like Aerocare that are only paying the Award. So same job, same pay should be, doesn't matter what colour your shirt is, where you are from, you're doing the same job in that workplace, everyone should be on the same pay rate. You can legislate that. Really important stuff to lift our industry.
So what we want to do today is, there are rallies all around the country in fact on the 23rd in Melbourne/Sydney, Melbourne had 150,000 to 160,000 workers turn up and rally, you might have seen it on the news. That was a big effort. Closed down the wharfs, the whole lot. Western Australia had theirs on the Thursday before, Queensland we have got ours in Brisbane on 20th November when we're getting people off the job. Youse guys can't attend those sort of things, but what we are asking youse guys to do is we got some billboards, we want you to hold them up supporting it, we take a photo of it, put it on Face Book, because politicians look at what the public are looking for out of the new legislation they are bringing in. And all unions are doing it so we are asking youse guys to join in on that, support Change the Rules, support an industry watchdog with Change the Rules, and a Road Safety Tribunal and that's great. We also have Matt here, and I thank Matt for turning up from Maurice and Blackburn, he operates out of Rockhampton, and at the end of the day Matt will have a few words to say as well about the benefits Maurice and Blackburn supports the TWU members in workplace injuries and accidents. It has become such a legalistic forum now that you might say we have outsourced it to the experts to make sure our members get properly represented. So we might have that photo first, and then I will do a bit of a wrap up.
Graham Garrett: Seeing as I am pretty photogenic I might get the Star Track trucks.
Speaker: I don't want my face, I'll hold it up but I don't want to have my face
Peter Biagini: Yeah, yeah, that's alright.
Speaker: [Indecipherable] That's because your aboriginal is it?
Speaker: Arh I'm sceptic about the internet that's all. Not of the union or anything.
Peter Biagini: Nah, I understand.
At this point a phone rings and [name redacted] has a short phone conversation with a person unknown while the rest of the Groups goes elsewhere for a photo opportunity.
Rodney Bembridge: As you know we have got an election coming up, Peter and Graham are part of the team that are looking to be elected again. They have got a proven track record, there is another team that have come in that don't have a proven track record, but that's the combination. Who you vote for is up to you, but Peter and Graham are here at the moment. We had Robert come up a couple of months ago and speak to us and we were in the smoko room I think and explained it, so I don't need to explain it more to you, but Peter might be able to give you a bit of a gist as to what is going on rather than me who knows little but yeah, basically throughout the industry people that matter.
Peter Biagini: Thanks for that. Look we have got some posters there just to remind people a ballot paper will end up in your letterbox from the 12th of November, only a couple of weeks away, again democracy is good, keeps everyone on their toes and makes sure everyone performs to their maximum. All I say to youse is have a look at the experience, it is really important, the team we put together, there are two people from Star Track, Neil Conway works at the Airport, he is an owner/driver contractor, and we got Chyna from the Darra yard. They are on the branch committee management that runs the union, you have got two Star Track people representing Star Track. I think that is important. The other team has nobody from there. We have waste. The other team has no-one from waste. Toll, Ian Buckingham is a strong figure for Toll being with Toll for 30 odd years, very strong Delegate. He is on our team. Cash in Transit - we have Steve that is part of the Cash in Transit industry ports - we have James Wilkinson from Ports, so I suppose what I am trying to say to you is the union is, everyone should be represented. On the other side of the ticket there is 19 positions, 11 of them are in two workplaces where our 19 are spread right across our industry. People like myself and Graham, we've been members for 40 years, we started around the same time as Organisers for 25 odd years, it takes a long time, it takes about four years for a Delegate, and we have got a few new ones, to become a reasonably good understanding Delegate. It takes sometimes up to four years at least, let alone doing roles as Assistant Secretary, Secretary. The opposition, none of them have ever been an Organiser before, so that is like you jumping in saying "I think can run this place, I am going to be Manager tomorrow", no training, no nothing, just going to jump into it.
Speaker: They could go alright though.
Peter Biagini: Yeah, yeah, probably do alright operationally, but when it comes to the legals, there are a lot of compliance issues and unions nowadays with the Registered Organisations Commission, which is the watchdog that the Federal Government put in place, we have a lot of restrictions and auditing, compliance that we have got to do, and if you miss they hit you hard with fines, so there is a lot of all that sort of stuff.
My own background, I used to be a PUD driver just like youse guys and for Ansett Freight Express. I started there when I was 17 and then I ran the first election in 1983, honorary positions, you know do the hard yards, and took a paid position in 1994 as an Organiser, and I took over as the Secretary eight years ago, so I have done a lot of years as an Organiser first. So you learn a bit, you know, and that it where the other people, we are running a good clean campaign, I am not going to be here bagging anybody, but there are some real concerns I have with their motive, as to why they are doing this because the best way, I feel, to take a role over in an organisation is build your way up, show everyone that you can do it and eventually, because we all move on, you know I have only got a few more years before I retire, these people prove themselves, they get the support of the rest of the organisation and take over, and that way you do not disrupt the organisation, you know, it's like throwing a hand grenade bomb in when you do the type of thing that is going on at the moment.
Speaker: Why do they want to take over?
Peter Biagini: Ah, well, good question, I think there is a few people behind it that are ex-officials that I got rid of, and would I do that again? Absolutely.
Speaker: They were a bit dodgy were they?
Speaker: Yeah, well I think you expect me as a Secretary to make sure everyone works to their best ability, are skilled up and are doing the right thing. And if they don't I get rid of them. And even in other States where there is also competitive, or in Victoria their competition are ex-officials. This is the only job that you can do, like if you got the sack from here you can't try and get that guy's job, but with us it costs nothing to put a nomination in and then you run a campaign. And then there are disgruntled ex-officials and the guy who is running against me, Darren White, was a Trustee and we had a falling out with him because self-interest. You know, we had eight million dollars invested and he's got a mate of his that runs an investment company, and his mate come in from working at Macquarie looking after investments, his mate leaves and he wants us to follow his mate and he went to Ord Minnett and then Shaws and we said no mate, we don't do that, you know, there is a proper process to go through. So he took that as well I'll fix you up and run against you and that way he will get his own say, you know, and he has got a couple of people on the Branch Committee and Management gone his way because they were friends of Bob Giddins who was a Bus Organiser, and at the end of the day he was an Organiser for about five years and we made him redundant because as far as we were concerned he was not doing what we wanted for that part of the industry, we took it over, myself and another one of the officials, and now we have got equal rates, about 126 million dollars off the Government into a fund, and all the bus drivers in our area will be up on $26.21 by the end of this year funded by the government. That is going after the client, not going after the bus company but they are funded by Translink, the government, so we went after that government and got that sorted. So we want results for youse guys. And we will make sure we have got the right people to get those results. Alright.
Speaker: Do you have much to do with the bus companies here in Rocky?
Peter Biagini: Yeah, ah, Sunbus up here, yes. They are, and this annoys me, we worked really hard to get this equal rate, they'll go up to the $26.21 and very little of them are union members. Just like your guys here. They will take all the benefits, part of changing the rules where we believe a part of the change if that the majority of the workplace gets the union rate to pay, they all pay, but at the moment there are no laws. Years ago youse guys are fairly young, years ago the Awards used to have a preference clause in it, preference of employment was to union members, and that is why our union membership was so strong in the 70s and 80s. Then, when they brought freedom of association, I am not totally against freedom of association, if a person doesn't want to be a member that probably should be his right, but if he is getting the benefits he has got to contribute to it, nothing is free in life is it, and part of changing the rules is to get a system in place where those people that benefit from the outcomes, youse guys must get annoyed, you pay your union fees for us to fight for you to get decent pay rates, then these guys go thank you guys. The way I look at it is like going to the pub, you are all sitting around having a shout and it comes to my turn, "oh I don't really believe in shouting" - you what, you just drank a beer that we brought for ya, now it is your turn. Same thing isn't it? And that is human nature, so we gotta change that. Matt. First of all, anyone got any questions?
Speaker: The reason I brought the buses up is I used to work for Youngs and I imagine it won't cover them.
Peter Biagini: No it won't, because they are not contracted to Translink.
Speaker: Yeah they are contracted to the Rocky Council.
Peter Biagini: Yeah, they are not contracted to Translink.
Speaker: Or the Queensland Transport.
Peter Biagini: But what we want to do is, we are just having a blue with Surfside down at the Gold Coast trying to get their agreement to expire in 2020, we are trying to get the majority of the industry to expire at the same time so we can do industry sector bargaining so those guys will get it. That, you know when you are a bit young, back in the late 70s and 80s I used to work at Ansett Freight Express we used to go all along [indecipherable]
[Name redacted] then has a phone conversation with a person unknown saying:
…
65 Mr Biagini gave evidence in relation to this meeting in his affidavits dated 16 May 2019 and 6 August 2019, in summary as follows:
On 2 November 2018, he attended the StarTrack Rockhampton site. He met with three members on the nature strip outside the worksite. He travelled to the site with the organiser for the Rockhampton area.
The last recorded section in the transcript concerned a long conversation. This conversation did not occur as part of the meeting and the meeting continued while this conversation took place. The last part of the meeting is not recorded on the audio recording.
He went on regional blitzes twice a year. If he was unable to attend, the Assistant Secretary attended. Organisers are sent up in relays to assist the regional organisers and sometime delegates would go around to workplaces with organisers to promote the TWU.
For the “end of year blitz”, there was a Christmas party and a general meeting. He would provide an update on everything that the Union was doing which was relevant to Union members such as State campaigns, national campaigns and political issues.
66 Under cross-examination, Mr Biagini elaborated on this evidence as follows:
HER HONOUR: All right. Mr Biagini, can you – I will allow this to continue on.
Mr Biagini - - -?---Yes.
- - can you answer Mr White?---Yes. Answering the question of a delegate whilst I was at that meeting about the difference between the two teams, and I did make reference that people have got to make a judgment on experience. The current people that were running your Transport Workers team had a whole range of experience, what I explained, and I said the – the opposition team had very little experience, in fact, never been organiser or that experience. And all I was relating is the facts to that meeting.
All right. Thank you.
MR WHITE: Thank you, your Honour.
…
Okay. Second question: on that day, was the union van .....?---On that day, yes.
Yes. It was. So you’ve stated, “Yes. We’ve – look here, we’ve got some posters”, so where did those posters come from?---Those posters that the organisers may have could have been in the van.
Could have been in the van?---Well, at the end of the day, as I said before, the organisers don’t take their own cars up. They’re not working 24/7, so they take their own belongings with them and if someone got some – you know, the stuff that you just showed in the photos, they may have it on their belongings, in their bag.
But once again, you said to all the union officials about the ROC - - -?---Yes.- - -
“Supposed to do it, supposed to do this, we’re supposed to, you know, there but”– so of course - - -?---No. But if they’re in their own time – as I said, if you’re going up for a week to Rockhampton, you’re in the van, so you haven’t got your own car, you’ve got your own bag with you, you’re not working 24/7, so if you’ve got some stuff in your bag that you want to carry with you, whether it’s election material or your shaving gear or whatever, that’s your business what’s in your bag.
Yes. But the election material shouldn’t have been in the van in the first place, shouldn’t it?---Well, again, they’re using that van as their own to travel around. You know, they’re using the van to travel around.
Yes?---To do both: to do their job and their personal stuff.
So you’re saying just then that every time that there’s a union meeting, straight after, there’s an election meeting?---No, no. I’m not saying that. With this material, I’ve never known this amount of material that went up anyway. This material might have been in their bag and somebody spread it around in the van and took a photo of it, I don’t know but it is possible, isn’t it?
So on that day, you’re up there with yourself and Graham Garrett and another senior organiser; were you on annual leave that day?---No, I wasn’t.
So you weren’t on annual leave?---Because I wasn’t campaigning.
So we will just go to the tape then - - -?---I was doing yard meetings, general meetings and I was asked a question at that yard meeting and I answered the question, then I went back into the yard meeting. If you look at that 30-odd minutes, I talked about all our campaigns, a whole range of union business, which is what I was up there for. Somebody asked me a question about the election, I give them a bit of an answer on that and then went back in to talking about buses and everything else.
So, under section 190 of the Act, it states, you know, one candidate put on the other candidate. You’ve gone through here that we’ve got Steve from the Ports – sorry, Steve was part of Cash-in-Transit candidate, James Brookinson was part of part of Ports, old Ian Buckingham, 40 years in the union movement, part of the thing?---Yes.
So that’s all candidates putting against – on top of my candidates, which you say that we – you’ve got to be four years or something to be an organiser and we’re not organisers when – well, I didn’t know I was – actually running for an organiser’s job; I was running for the - - -?---No. If you read that properly, what I said, takes about four years for a person to become a good organiser, let alone a State secretary or assistant secretary. It’s like an apprenticeship; it takes a good four years for a person to be confident, coming from a delegate to an organiser, which I did once. It takes a good four years.
…
So just back to it again, so it just seems that every time there’s a union blitz, campaign in the yards, do we – do you – it looks like we’re still having a yard meeting, then an election meeting straight after it?---They’re your words, not mine. As I said, I was going up to those regional blitzes, spending a day or two at the most – usually, it’s get up in the morning, get up to the destination, fly up in the morning, do some meetings through the day, do the general meetings, fly back the next day. We do those blitzes twice every year.
67 In re-examination, Mr Biagini deposed:
Right. And what can you say about whether you had an expectation that that question was going to be asked from Mr Bembridge?---No. No. No expectation at all. You never know at these meetings what questions could be asked.
(Transcript p 80 lln 9-11.)
68 The applicant submitted that the recording of the meeting at StarTrack Rockhampton ought properly be interpreted as containing comments that were disparaging of Team Driven. Should this interpretation be adopted, the applicant submitted it followed that the use of a Branch meeting to make such comments would be a breach of s 190 of the FWRO Act because:
(a) Mr Biagini was acting in the capacity of a paid official at the time;
(b) The meeting could not have occurred without the expenditure of union resources; and
(c) On the balance of probabilities, the Branch, through its officer Mr Biagini, did support one candidate over another at the StarTrack Rockhampton site.
69 In relation to these claims, the First to Third Interested persons submit:
First complaint – Attendances on Union Members…
47. StarTrack Rockhampton: On November 2018, Mr Biagini was in Rockhampton as part on [sic] a regular union bi-annual “regional blitz” in support of local organisers and delegates. The gathering occurred on the nature strip outside StarTrack Rockhampton. Mr Biagini spoke at length about a number of issues unrelated to the election including workplace issues at StarTrack, the negotiations for a National Contractors’ Agreement, rates of pay for contractors and the ACTU Change the Rules campaign. The meeting adjourned for a photograph for the ‘Change the Rules” campaign by the ACTU to return for a wrap up. A photo was then taken for the Change the Rules campaign. After the photograph was taken and when the wrap up was due, the events developed into an unstructured, informal, random “Q&A” session. Mr Bembridge, a co-delegate from StarTrack Rockhampton, asked an unexpected and unprompted question about the election. Mr Biagini responded to it, including by saying that Mr White was capable of running the union operationally, and to other questions and discussion unrelated to the election including about bus companies and other local matters of concern to union members including about Translink, Queensland Transport and the Rockhampton Council.
48. The short responses to specific questions did not involve the use of union resources or property to help Mr Biagini over any candidate. The resources were used for the union purpose of the regular regional blitz to engage with members in the regions and support organisers and delegates in those areas. They were not used for election purposes.
49. There is no irregularity.
70 The TWU submitted that:
The attendance of Mr Biagini at the StarTrack worksite at Rockhampton was part of a regular “regional blitz” undertaken to assist regional organisers and delegates and promote the union.
The purpose of Mr Biagini being in Rockhampton and attending the StarTrack site did not involve the use of union resources to help a candidate in an election.
Even if Mr Biagini referred briefly to his team and the election in answer to questions from persons present, no resources were thereby used to help him or any other candidate against another. Any resources used were used for union and not election purposes.
71 I accept that the presence of Mr Biagini at StarTrack Rockhampton on 2 November 2018 was for legitimate TWU business, in his capacity as Branch Secretary, and in the course of a “regional blitz” by the TWU reaching out to regional members. The use of TWU resources to convene such a meeting and provide senior officials to speak, for such a purpose, was unexceptional.
72 I also note from the transcript of the recording in evidence before the Court, that the comments of Mr Biagini referable to YTWT and Mr White followed comments of Mr Bembridge referring to the forthcoming election, and that Mr Biagini was “part of the team that are looking to be elected again (with) a proven track record (compared with)… another team that have come in that don’t have a proven track record.” However, and unlike the comparable circumstances where comments were made by Mr Carter at the Murarrie training course:
The extent of Mr Biagini’s comments at StarTrack Rockhampton went beyond a mere incidental response to the statements of Mr Bembridge;
Mr Biagini’s criticisms were lengthy;
Mr Biagini’s criticisms were detailed in their disparagement of rivals to his team, and specifically Mr White;
The comments of Mr Bembridge appeared to set the stage for Mr Biagini to make his comments (compared with the more confrontational approach of Ms Smith at Murarrie prior to the much briefer comments of Mr Carter).
73 To that extent, I am not satisfied that the comments of Mr Biagini at the StarTrack Rockhampton meeting fell into the category of incidentally engaging in electioneering in working hours as discussed in Nelson at [29]. It was reasonable for Mr Biagini at the meeting to discuss the forthcoming election and to encourage member participation in that election. It may well be that Mr Biagini simply allowed his enthusiasm to overtake his judgment in commenting at the StarTrack Rockhampton meeting. However the extent of his comments was such that, at the point where Mr Biagini spoke in detail of the advantages of YTWT over rival teams (and such persons as Mr White), the meeting became a vehicle for Mr Biagini and the YTWT team to promote their candidacy in the forthcoming election to the detriment of Mr White and his team.
74 Section 190 of the FWRO Act is contravened only where an organisation or branch uses, or allows to be used, its property or resources to help a candidate against another candidate in an election under the relevant Part of the statute for an office or other position. Issues relating to the use (or allowing the use) of union resources within the meaning of s 190 were examined by Tracey J in Asmar 1. As I have noted above, in discussing relevant facts in that case, his Honour observed:
17. Such conduct as is alleged, if it occurred, would have constituted contraventions of the directions given by Mr Vines. It does not, however, follow that such conduct constituted an irregularity for the purposes of the Act. It would only have done so had it given rise to a contravention of s 190. That could only have happened if the Union (or, possibly, the Branch) used or allowed its property or resources to be used to assist Mr Bolano and members of his team in the course of the election campaign.
18. Counsel for the applicant accepted that neither the Union nor the Branch had used Union resources in convening and conducting the workplace meetings. She submitted, however, that the Union and/or the Branch had, nonetheless, allowed the property and resources of the Union to be used because action had not been taken to prevent the impugned conduct of the Union employees occurring. I do not accept these submissions. The evidence establishes that Mr Vines had taken reasonable steps to ensure that the Union’s property and resources were not used for electoral purposes. He issued clear directives requiring employee candidates to take leave during the campaign and not to use any of the Union’s property and resources to support their candidacy. If these directives were not obeyed it was no fault of Mr Vines and it cannot, in my opinion, be said that, by inaction, he allowed the alleged misconduct to take place.
75 It is uncontroversial that Mr Biagini travelled to Rockhampton for the StarTrack meeting on 2 November 2018. Although in his evidence he does not specifically identify the TWU resources used in that visit (other than the potential use of a TWU van (transcript p 76 lln 10- 20), I consider it appropriate to infer that union resources at least in the form of funding for transport and accommodation were utilised in relation to that visit. Further, Mr Biagini was not on leave, and was using TWU time to attend and address the StarTrack Rockhampton meeting.
76 To that extent TWU resources were used for the StarTrack Rockhampton meeting at which Mr Biagini spoke.
77 As I have already noted in this judgment, Mr Biagini’s evidence was that he had, as Branch Secretary, in emails on 17 September 2018 and 12 November 2018, in his capacity as Branch Secretary, drawn the attention of all employees and elected officials of the Queensland Branch of the TWU to the terms of s 190 of the FWRO Act. I note the terms of the email of 17 September 2018, which were as follows:
Dear Staff Members
On 11 September nominations were opened for the upcoming TWU quadrennial elections. The opening of nominations marks the commencement of the election process. That process will conclude on 30th November when the results of the election are declared. The election is being run by the Australian Electoral Commission and will involve a postal ballot of eligible members.
Section 190 of the Fair Work (Registered Organisations) Act provides as follows:
…
This provision does not preclude employees from voluntarily providing assistance to a candidate so long as the duties and functions of the employee are not adversely affected as a consequence. However, volunteers should take care not to use union resources such as union phones and union vehicles in providing such assistance.
In the period from mid-October to late November, some officials will be taking leave so that they can freely engage in the election campaign either as candidates or as volunteers. However, it will be necessary to ensure that our members are well looked after during this period and for most employees, it will be business as usual.
If you have any questions about the elections then please direct them to myself or to Branch Assistant Secretary Adam Carter.
Regards
Peter Biagini | Queensland Branch Secretary
78 This email was evidently intended as a warning to union officials and staff members to refrain from using TWU resources in the proscribed manner. To the extent that the Branch Secretary of the TWU warned members about the terms of s 190, it appears that, like in Asmar 1, it could not be said that the TWU or the Queensland Branch formally “allowed” the TWU’s resources to be used for the benefit of the YTWT (or any other) election campaign.
79 However, the coincidence of such a senior union official as the Branch Secretary, Mr Biagini, speaking at a union meeting organised as part of a regional blitz of the TWU, and then using that opportunity to speak, at length, favourably about his own team’s candidacy and in disparagement of the other campaigning team, in circumstances where there is no evidence that such opportunity was made available to that other team, in my view constituted allowance of use by the TWU of its resources for that purpose.
80 To the extent that in this case, the Queensland Branch Secretary of the TWU used TWU resources for the benefit of the YTWT, the facts of this case are distinguishable from those the subject of consideration in Asmar 1. I am satisfied on the balance of probabilities that the TWU allowed the use of its resources for a purpose proscribed by s 190 of the FWRO Act.
81 I am also satisfied that, to this extent, the use of TWU resources to convene the StarTrack Rockhampton meeting constituted an irregularity within the meaning of s 6 of the FWRO Act.
ISSUE 4: DID THE CONDUCT OF YTWT CAMPAIGNERS AT VARIOUS SITES BREACH S 190 OF THE FWRO ACT?
82 In his submissions Mr White referred to an incident of 31 August 2018 where, during a meeting called by Mr Pfund at the TWU Branch’s Townsville office, Mr Pfund requested that delegates pledge their support to the YTWT, and provided YTWT election materials to delegates. Mr White relied on evidence of Ms Smith, a bus driver employed by Sunbus Townsville and a workplace delegate of the TWU Queensland Branch. In her affidavit of 7 May 2019, Ms Smith relevantly deposed that Mr Pfund spoke to the meeting about the upcoming Branch election and said words to the effect that:
(a) People were going to come on to the workplace and try and get membership lists;
(b) These people would steal membership lists from their cars, so keep the cars locked;
(c) These people were from a faction that wanted to take over the union; use it for their own purposes, and destroy the union;
(d) The team that had been running the union well for the previous eight years was running again; and
(e) They were to pledge their support that that team.
83 Mr White also specifically relies on incidents at the following training sessions and workplace sites (cumulatively: Sites):
On 28 September 2018, approximately 27 workplace delegates who were attending a training session at the Branch office were photographed wearing campaign material for the YTWT, and the photograph was published on the YTWT Facebook page.
On 16 October 2018, Mr Biagini attended on members at the NQX Intermodal site during working hours where he:
(a) Wore YTWT campaign material;
(b) Distributed YTWT campaign material; and
(c) Was photographed with members holding campaign material for the YTWT (which photograph was published on the YTWT Facebook page).
On 16 October 2018, Mr Carter attended on members at the Ceva Logistics site during working hours where he:
(a) Signed into the visitors register as a YTWT candidate alongside branch organiser Richard O’Sullivan, who signed in as a branch official;
(b) Wore the YTWT campaign material;
(c) Distributed YTWT campaign material;
(d) Was photographed with members holding campaign material for the YTWT (which photograph was published on the YTWT Facebook page).
On 17 October 2018, Mr Wyatt attended on members at the StarTrack Gold Coast site during working hours where he:
(a) Wore the YTWT campaign material;
(b) Distributed YTWT campaign material; and
(c) Was photographed with members holding campaign material for the YTWT (which photograph was published on the YTWT Facebook page).
On 22 October 2018, Mr Carter met union members employed by Qantas to discuss enterprise bargaining and campaigned for the YTWT.
On 22 October 2018, Mr Pfund attended on members at the Armaguard Townsville site during working hours where he:
(a) Wore the YTWT campaign material;
(b) Distributed YTWT campaign material; and
(c) Was photographed with members holding campaign material for the YTWT (which photograph was published on the YTWT Facebook page).
On 25 October 2018, Mr Pfund attended on members at a TNT site during working hours where he:
(a) Wore the YTWT campaign material;
(b) Distributed YTWT campaign material; and
(c) Was photographed with members holding campaign material for the YTWT (which photograph was published on the YTWT Facebook page).
On 25 October 2018, Mr Wyatt attended on members at a Cement Australia site during working hours where he:
(a) Wore the YTWT campaign material;
(b) Distributed YTWT campaign material; and
(c) Was photographed with members holding campaign material for the YTWT (which photograph was published on the YTWT Facebook page).
On 26 October 2018, Mr Pfund attended on members at the Surfside Buslines site during working hours where he:
(a) Wore the YTWT campaign material;
(b) Distributed YTWT campaign material; and
(c) Was photographed with members holding campaign material for the YTWT (which photograph was published on the YTWT Facebook page).
On 26 October 2018, Mr Wyatt attended on members at the Hills Tankers site during working hours where he:
(a) Wore the YTWT campaign material;
(b) Distributed YTWT campaign material; and
(c) Was photographed with members holding campaign material for the YTWT (which photograph was published on the YTWT Facebook page).
On 27 October 2018, Mr Carter attended on members at a Cleanaway Industrial site during working hours where he:
(a) Wore the YTWT campaign material;
(b) Distributed YTWT campaign material; and
(c) Was photographed with members holding campaign material for the YTWT (which photograph was published on the YTWT Facebook page).
On 29 October 2018, Mr Pfund attended on members at the Toll Coles Contract site during working hours where he:
(a) Wore the YTWT campaign material;
(b) Distributed YTWT campaign material; and
(c) Was photographed with members holding campaign material for the YTWT (which photograph was published on the YTWT Facebook page).
On 30 October 2018, Mr Carter attended on members at the TNT Molendinar site during working hours where he:
(a) Wore the YTWT campaign material;
(b) Distributed YTWT campaign material; and
(c) Was photographed with members holding campaign material for the YTWT (which photograph was published on the YTWT Facebook page).
On 31 October 2018, Mr Carter attended on members at the Ipswich Waste Services site during working hours where he:
(a) Wore the YTWT campaign material;
(b) Distributed YTWT campaign material; and
(c) Was photographed with members holding campaign material for the YTWT (which photograph was published on the YTWT Facebook page).
On 2 November 2018, Mr Carter attended on members at the Skybus Gold Coast site during working hours where he:
(a) Wore the YTWT campaign material;
(b) Distributed YTWT campaign material; and
(c) Was photographed with members holding campaign material for the YTWT (which photograph was published on the YTWT Facebook page).
On 15 November 2018, Mr Wyatt attended on members at the Toll Priority site during working hours where he:
(a) Wore the YTWT campaign material;
(b) Distributed YTWT campaign material; and
(c) Was photographed with members holding campaign material for the YTWT (which photograph was published on the YTWT Facebook page).
84 In considering whether irregularities occurred at these various sites, it is reasonable to examine key issues arising from attendance at the sites, namely:
The relevance of events of 31 August 2018, which occurred prior to the opening of nominations for the 2018 elections; and
The relevance of conduct by union officials at a large number of sites involving the wearing of YTWT campaign material, distribution of YTWT campaign material, being photographed with members holding YTWT campaign material, and those photographs being published on the YTWT Facebook page.
Events of 31 August 2018
85 The events of 31 August 2018 where Mr Pfund allegedly campaigned on behalf of YTWT, clearly occurred several weeks before nominations were opened for the election on 11 September 2018.
86 In Mcjannett, Barker J observed:
62. On the material before the Court, the first step in the election process is the calling of nominations for the relevant positions. That occurred, on the facts before me, on 28 August 2008.
63. In my view, s 190, in circumstances such as these, has no application to the conduct complained of relating to the election flyers that occurred prior to 28 August 2008. At that time there was no election underway, and, in turn, there were no candidates.
87 The principles to which Barker J referred in Mcjannett have equal application to the present proceedings. It follows that s 190 has no application to the conduct of 31 August 2018 of which the applicant complains.
88 No irregularity was constituted by the events of 31 August 2018.
Conduct at the Sites
89 I do not understand there to be dispute by either the TWU or the First to Third Interested Persons that the conduct of YTWT campaigners at the Sites would have constituted a contravention of s 190 of the FWRO Act, save for the fact that in each instance it is alleged that the relevant YTWT campaigner was acting in his own time and not otherwise utilising union resources.
Toll training session – 28 September 2018
90 Mr Biagini deposed that the delegates who came to TWU House at Murarrie on 28 September 2019 did so for the purpose of attending a planned consultative meeting provided for under the Toll TWU Enterprise Agreement. Mr Biagini further stated that TOLL paid the delegate’s wages for the day and costs associated with transportation. The TWU provided the training room at TWU House.
91 According to evidence of Mr Biagini, the delegates left the building during a lunch break and one of the delegates took a photograph on the footpath of the delegates.
92 In my view there is no evidence of union resources being used contrary to s 190 of the FWRO Act, and no evidence of an irregularity.
NQX Intermodal site – 16 October 2018
93 In respect of the attendance by Mr Biagini on 16 October 2018 on members at the NQX Intermodal site, Mr Biagini deposes that he attended at 5.00am in his own time before the work day, driving his personal utility vehicle.
94 This evidence was not challenged.
95 In my view there is no evidence of union resources being used contrary to s 190 of the FWRO Act, and no evidence of an irregularity.
Ceva Logistics site – 16 October 2018
96 In respect of the attendance by Mr Carter on 16 October 2018 on members at the Ceva Logistics site, evidence was given by Ms Kay Stanley, the office manager and financial assistant of the TWU Queensland Branch, in an affidavit dated 15 May 2019, and Mr Biagini in his affidavit dated 16 May 2019, that Mr Carter was on annual leave on 16 October 2018.
97 This evidence of Ms Stanley and Mr Biagini was not challenged.
98 In my view there is no evidence of union resources being used contrary to s 190 of the FWRO Act, and no evidence of an irregularity.
StarTrack Gold Coast site – 17 October 2018
99 In respect of the attendance by Mr Wyatt on 17 October 2018 on members at the StarTrack Gold Coast site, evidence was given by Ms Stanley and Mr Biagini that Mr Wyatt was on annual leave on 17 October 2018.
100 This evidence of Ms Stanley and Mr Biagini was not challenged.
101 In my view there is no evidence of union resources being used contrary to s 190 of the FWRO Act, and no evidence of an irregularity.
Qantas site – 22 October 2018
102 In respect of the attendance by Mr Carter on 22 October 2018 on members employed by Qantas at Brisbane airport, materially Mr Patrick White gave evidence in his affidavit dated 17 May 2019 as follows:
9. After the discussion about rostering Mr Carter spoke to members about a Fair Work Commission case that was ongoing at the time in relation to the payment of site rates. Mr Carter also spoke about the EBA negotiations. After that discussion Mr Carter asked members if they had anything further to discuss. It was at that time that a member, Mr Ian Mather, asked about the upcoming TWU elections. Mr Carter replied giving some information about the voting process indicating that it was a postal ballot of members. I recall that Mr Carter did encourage members to vote.
10. Mr Carter spoke for only a few minutes and then the meeting concluded.
103 The applicant relies on an email he was sent by another member which was as follows:
On Saturday 20 October at 9am we had a TWU Union meeting with organiser Adam Carter from the TWU. We spoke about a range of issues and then at the end of the meeting when it was time for general business, one of the members asked Adam about the up and coming election (i.e. when the vote card or email is coming out to vote). Adam replied “I was going to speak to you guys about this” and he turned over a poster that was faced down on the desk. This poster had his team on it to vote for (Peter Bargweeny) and Adam then proceeded to talk about the opposing team saying that they had no experience and that in this day and age there is no need for change. He also said that we are better off knowing the team that has done the right job for the last 8 years (which is his team). I found this odd as it did not relate to union business and was electioneering.
104 The description of events contained in the email to the applicant to which I have just referred is plausible. However in circumstances where this evidence cannot be tested, on the balance of probabilities I accept the evidence of Mr Patrick White, which was unchallenged.
105 In my view there is no evidence of union resources being used contrary to s 190 of the FWRO Act, and no evidence of an irregularity.
Armaguard Townsville site – 22 October 2018
106 In respect of the attendance by Mr Pfund on 22 October 2018 on union members at the Armaguard Townsville site, evidence of Mr Pfund and Mr Biagini was that:
Mr Pfund attended the meeting in his own time before work;
Mr Pfund met with union members outside the perimeter fence of the workplace;
Mr Pfund was wearing a TWU polo shirt.
107 In Asmar 1 Tracey J said:
[20] The clothing worn by members of the Bolano team, when the photographs appearing in campaign leaflets and posters were taken, was clothing supplied by the Union. It was worn by officials in the course of their daily duties. Similar clothing was available to be purchased by members. I do not consider that such clothing can properly be considered to be the property or resources of the Union. It is open, on the evidence, to conclude that the various items of clothing were given to employees by the Union. There is no suggestion that the Union asserted any property rights in the clothing or that the employees were under an obligation to return the clothing on the occurrence of any particular event.
108 The photograph of Mr Pfund annexed to the applicant’s affidavit indicates that Mr Pfund was wearing a TWU polo shirt rather than YTWT clothing, however there is no evidence the shirt was the property of the TWU. The principles explained by Tracey J in Asmar 1 apply.
109 I accept the evidence of Mr Pfund that he campaigned outside of business hours on his own time. In my view there is no evidence of union resources being used contrary to s 190 of the FWRO Act, and no evidence of an irregularity.
TNT site – 25 October 2018
110 In respect of the attendance by Mr Pfund on union members at a TNT site at Eagle Farm in Brisbane on 25 October 2018, evidence of Mr Pfund was that he was on leave at the time, he personally paid for travel to Brisbane and accommodation, he attended the site in his capacity as a YTWT supporter, and he was later reimbursed his travel expenses by YTWT.
111 This evidence is unchallenged. There is no evidence of union resources being used contrary to s 190 of the FWRO Act, and no evidence of an irregularity.
Cement Australia site – 24 October 2018
112 In respect of the alleged attendance by Mr Wyatt on TWU members at a Cement Australia site on 25 October 2018, Mr Wyatt deposed that he actually attended the site on 24 October 2018 after finishing work on that day, and that he attended in his capacity as a candidate.
113 This evidence is unchallenged. There is no evidence of union resources being used contrary to s 190 of the FWRO Act, and no evidence of an irregularity.
Surfside Buslines depot – 26 October 2018
114 In respect of the attendance by Mr Pfund on 26 October 2018 on TWU members at the Surfside Buslines depot at Tweed Heads in New South Wales, Mr Pfund deposed that he was on annual leave at the time, and that he used the YTWT campaign vehicle registered to Mr Biagini.
115 This evidence is unchallenged. There is no evidence of union resources being used contrary to s 190 of the FWRO Act, and no evidence of an irregularity.
Hills Tankers site – 26 October 2018
116 In respect of the attendance by Mr Wyatt on 26 October 2018 on TWU members at the Hills Tankers site at Pinkenba, Mr Wyatt deposed that he attended the meeting during his lunch break in his capacity as a candidate.
117 This evidence is unchallenged. There is no evidence of union resources being used contrary to s 190 of the FWRO Act, and no evidence of an irregularity.
Cleanaway Industrial site – 26 October 2018
118 In respect of the alleged attendance by Mr Carter on 27 October 2018 on TWU members at a Cleanaway Industrial site, Ms Stanley and Mr Biagini depose that this attendance was actually on 26 October 2018 when Mr Carter was on annual leave.
119 This evidence is unchallenged. There is no evidence of union resources being used contrary to s 190 of the FWRO Act, and no evidence of an irregularity.
Toll Coles Contract site – 26 October 2018
120 In respect of the alleged attendance by Mr Pfund on 29 October 2018 on TWU members at the Toll Coles Contract site, Mr Pfund deposed that he actually attended the site very early in the morning of 26 October 2018 while he was on annual leave. He further deposed that he attended the site in his capacity as a supporter of the YTWT and not in his union organiser capacity.
121 This evidence is unchallenged. There is no evidence of union resources being used contrary to s 190 of the FWRO Act, and no evidence of an irregularity.
TNT Moledninar site – 30 October 2018
122 In respect of the attendance by Mr Carter on 30 October 2018 on TWU members at the TNT Moledninar site, Ms Stanley and Mr Biagini depose that Mr Carter was on annual leave that day. Mr Biagini also deposes that Mr Carter used Mr Biagini’s motor vehicle to travel to the site.
123 This evidence is unchallenged. There is no evidence of union resources being used contrary to s 190 of the FWRO Act, and no evidence of an irregularity.
Ipswich Waste Services site – 30 October 2018
124 In respect of the alleged attendance by Mr Carter on 31 October 2018 on TWU members at the Ipswich Waste Services site, Ms Stanley and Mr Biagini deposed that Mr Carter actually attended on 30 October 2018 rather than 31 October 2018, and that Mr Carter was on annual leave on that date.
125 This evidence is unchallenged. There is no evidence of union resources being used contrary to s 190 of the FWRO Act, and no evidence of an irregularity.
Skybus Gold Coast site – 2 November 2018
126 In respect of the attendance by Mr Carter on 2 November 2018 on TWU members at the Skybus Gold Coast site, Ms Stanley and Mr Biagini depose that Mr Carter was on annual leave that date.
127 This evidence is unchallenged. There is no evidence of union resources being used contrary to s 190 of the FWRO Act, and no evidence of an irregularity.
Toll Priority site – 15 November 2018
128 In respect of the attendance by Mr Wyatt on 15 November 2018 on TWU members at the Toll Priority site, there is evidence of Ms Stanley, Mr Biagini and Mr Wyatt himself that Mr Wyatt was on annual leave on that date.
129 This evidence is unchallenged. There is no evidence of union resources being used contrary to s 190 of the FWRO Act, and no evidence of an irregularity.
ISSUE 5: DID YTWT’S USE OF THE BRANCH VAN AND/OR BRANCH VEHICLES CONSTITUTE AN IRREGULARITY?
130 The applicant claims that Mr Biagini and Mr Pfund made use of vehicles owned by the Queensland Branch for the purpose of campaigning for the YTWT. This included the Branch incurring related road tolls for this campaigning.
131 The applicant also submitted that there was a contravention of s 190 of the FWRO Act in respect of the use by Mr Biagini of the Branch Van for the purposes of campaigning for the YTWT whilst on a “regional blitz”.
132 Although I can identify no specific evidence explaining the provenance of the “Branch Van”, I understand that, at material times, a vehicle was owned by the Queensland Branch of the TWU which was used for Branch business, and which bore the markings of the union on the outside of the vehicle.
133 I understand that the Branch Van can be distinguished from other branch vehicles used personally by Branch officials of the TWU (although, again, there was no specific evidence on point).
Use of the Branch Van
134 Mr Biagini gave evidence that he participated in a regional blitz, which usually started in the Wide Bay area and involved travel to Maryborough, Rockhampton, Mackay, Townsville and Cairns. Mr Biagini further deposed that he usually spent a few days in each of those areas, and did a “relay with the organisers” and had a general meeting in each area. Mr Biagini further stated under cross-examination:
MR WHITE: So that’s your Transport Workers’ team paraphernalia in the TW van? ---Appears to be.
It appears to be. So that van was going from Wide Bay all the way up to Cairns- - -?---Cairns.
- - - doing blitz’s, union meetings and then a bit of campaigning on the side?---Not necessarily campaigning. The organisers that were going, they used the van as their to carry their clothes, everything, because they had spent a week in each place, and I’m not even sure – I’ve never seen this myself and I’m not even sure where that van is photographed.
Well - - -?---That material in there is your Transport Workers’ team, but how it got in there I couldn’t explain. I wasn’t there.
(Transcript pp 71-72.)
135 In his affidavit dated 11 March 2019 Mr White annexed a number of images including a picture of the TWU van, an image of what appears to depict a vest with YTWT marketing within the TWU van, images of YTWT brochures and YTWT vests allegedly within the Branch van and a YTWT vest that states “Vote 1 Peter Biagini” allegedly within the Branch van.
136 In relation to the use of the Branch Van, Mr Biagini denies having made use of the van for the purpose of campaigning. Under cross-examination Mr Biagini stated:
Okay. Second question: on that day, was the union van .....?---5 On that day, yes.
Yes. It was. So you’ve stated, “Yes. We’ve – look here, we’ve got some posters”, so where did those posters come from?---Those posters that the organisers may have could have been in the van.
Could have been in the van?---Well, at the end of the day, as I said before, the organisers don’t take their own cars up. They’re not working 24/7, so they take their own belongings with them and if someone got some – you know, the stuff that you just showed in the photos, they may have it on their belongings, in their bag.
But once again, you said to all the union officials about the ROC - - -?---Yes.
- - - “Supposed to do it, supposed to do this, we’re supposed to, you know, there but” – so of course - - -?---No. But if they’re in their own time – as I said, if you’re going up for a week to Rockhampton, you’re in the van, so you haven’t got your own car, you’ve got your own bag with you, you’re not working 24/7, so if you’ve got some stuff in your bag that you want to carry with you, whether it’s election material or your shaving gear or whatever, that’s your business what’s in your bag.
Yes. But the election material shouldn’t have been in the van in the first place, shouldn’t it?--Well, again, they’re using that van as their own to travel around. You know, they’re using the van to travel around.
Yes?---To do both: to do their job and their personal stuff.
So you’re saying just then that every time that there’s a union meeting, straight after, there’s an election meeting?---No, no. I’m not saying that. With this material, I’ve never known this amount of material that went up anyway. This material might have been in their bag and somebody spread it around in the van and took a photo of it, I don’t know but it is possible, isn’t it?
(Transcript p 76 lln 5-35.)
137 In relation to the use of the Branch Van, the applicant submits:
The photographs of YTWT campaign material throughout the Branch’s van evidence an irregularity because the use of the Branch van for electioneering purposes constituted a breach of s 190.
Mr Biagini acknowledged that the Branch Van was used during a regional blitz, which occurred during the election. The van was used to transport officials between worksites from Wide Bay to Cairns for purposes relating to Union business, however the van was also used for electioneering and campaigning which coincided with the blitz.
The only reasonable inference that could be drawn from the presence of campaign material in the van was that Branch resources were used to support the YTWT.
The YTWT acknowledged that they were required to make use of a campaign vehicle registered in Mr Biagini’s name.
138 The First to Third Interested Persons submitted that the applicant’s claims in relation to the use of the van suffered from a number of defects, namely:
It relied on an assertion from an anonymous member.
The only evidence relied on was a series of somewhat unusual photographs apparently showing some campaign material in amongst other items.
There was no evidence that the photographs were taken during the election period.
The location of the photographs was unknown.
The only circumstances put before the inquiry were anonymous photographs of a stationary unattended van. This was not evidence of the use of the van for campaigning purposes in the election period. It was not evidence that the material was transported in the van.
There was no evidence of any connection of Mr Biagini to the van in the election period.
The applicant adduced no evidence that Mr Biagini used the van, and Mr Biagini deposed that he did not use it during the regional blitz.
139 The First to Third Interested Persons also submitted that there was no probative evidence upon which an inference could be drawn that the van was used for electioneering purposes during the regional blitz. The only evidence in relation to this was that of Mr Biagini who denied that the van was used for campaign purposes. Finally, even if the van was used to transport campaign material, transport of campaign material outside working time was a permissible incidental use.
140 I note that Mr Biagini accepted that photographs of the Branch Van appear to depict YTWT material inside the vehicle, however he did not know where the photograph was taken and was unable to assist any further.
141 The TWU submitted in summary:
Other than providing the alleged photograph of the van, the applicant has not provided evidence of the circumstances, timing or nature of the alleged use of the vehicle. Mr Biagini denies having used the van for campaigning.
The suggestion that the evidence establishes that the van was used as part of the process for electioneering and campaigning is without foundation. Even if there was evidence that the organisers carried campaign materials in the van, the evidence is that organisers necessarily carried campaign material as part of their personal items and no use of union resources is involved.
142 While the photographic evidence upon which the applicant relied suggested that there may have been use of the Branch Vehicle to support campaigning by the YTWT, I am not satisfied that the use was in the terms alleged by the applicant.
143 It is a serious matter to find that there has been a contravention of s 190 of the FWRO Act. Ultimately there is insufficient evidence to establish that the Branch Vehicle was used for campaigning purposes – indeed the photographs merely indicate that the YTWT material was in the Branch Vehicle at one point, at an unidentified date. It may well be that Mr Biagini took with him YTWT materials when he was on his “regional blitz”, and that he stored those materials in the Branch Vehicle, however as Ryan J observed in Nelson at [29]:
There may also be circumstances in which to deny a salaried officer or employee a technical, or incidental, use of the organisation's resources for electioneering purposes, as in the transport of campaign material in the organisation's vehicle for distribution outside working time, would be to place that officer or employee at an unfair disadvantage. It is undesirable in the circumstances of the present case to attempt to define with any more precision what may amount to a technical or incidental use, in that sense, of an organisation's resources.
144 I am not satisfied that there has been an irregularity in respect of the usage of the Branch Van by Mr Biagini or other YTWT supporters.
Use of Branch Vehicles
145 The applicant also alleges a breach of s 190 as a result of union officials’ usage of Branch vehicles.
146 The applicant relies on evidence of Mr Pfund and Mr Wyatt indicating that they may have used the vehicles for the purpose of campaigning. The applicant draws the Court’s attention to the following cross-examination of Mr Wyatt:
MR WHITE: Can I move on to the second affidavit, Mr Wyatt. It’s mainly only the Facebook, StarTrack, Gold Coast site, number ..... number 8. Affidavit on 16 May 2019. Mr Wyatt, on 18 October you took three hours annual leave for the purpose of campaigning for your Transport Workers team?---That’s correct.
Correct. You left straight from your house straight down to the coast?---Yes. Be the usual practise, yes.
Yes. Okay. So which vehicle did you use for that?---My TWU vehicle.
So it’s a union vehicle used for transport?---Well, as you would be aware Darren, you’re allowed some personal use of your – of your vehicle.
Yes. But you were actually using union funds, union equipment, in the process of campaigning?---Yes. I’m allowed – employees of the union are allowed to use their vehicles for some personal use.
But didn’t Peter have two utes?---That’s irrelevant. I drove the TW – my TW car down to the Gold Coast, as is my usual practise.
That’s – and who paid the tolls going over the toll bridge?---I – I would imagine the usual way.
Which is?---The TWU.
The TW. So the TW has actually funded the tolls to go over the Gateway Bridge?---Yes. That would be correct.
Drive all the way down the Gold Coast?---Yes.
(Transcript pp 89-90.)
147 In re-examination, Mr Wyatt gave evidence as follows:
MR REIDY: Now, you were asked about the TWU vehicle. Could you just explain the extent of the personal use you have of that vehicle?---Well, all TWU organisers have got some personal use of the vehicle. We use it on the weekends, and we have some use for them when we’re on leave. We don’t use ..... when we’re on leave, we don’t use it a lot, but sometimes we do. And, you know, driving down the Gold Coast would be like going down the coast on a Saturday morning, which is quite – quite reasonable.
And when you say “quite reasonable”, how does that relate to the terms of use of the vehicle?---Well ..... as I said, Mr Reidy, any of – we are allowed to use our vehicles as – for some personal use.
Sorry. I just need to clarify one thing. You were asked to – some questions about tolls. Do you – what’s the position with paying tolls when you go to work – use the vehicle to go to work?---Well, the tolls just get billed through E-Toll to the TWU.
And where do you live, again?---Warner, which is out on the north side.
Out on the north side. And so when you were coming – when you took the three hours annual leave, what time of day was that?---I would generally – we – I would generally - - -
No, sorry. I’m talking about on 17 October when you went to StarTrack?---Yes. I would – I would have left home about 6.40 – 5.45, quarter to 6.
In the morning?---That morning, yes. Some .....
And then after you finished the three hours annual leave where did you go?---I drove back to the TW office.
And so, assuming then that you didn’t have annual leave, what would the position with crossing the bridge and using the toll have been that day?---If I didn’t have annual leave?
Yes?---It’s just a normal work day.
And you would go where? You would have gone where on that normal work day from home?---Yes. I would have left home as – as normal, and driven down the Gateway to Helensvale and then came back the same way.
HER HONOUR: Sorry. Where did you say you lived, Mr - - -?---Warner.
Warner, on the north side?---Yes.
Where’s the TWU office?---Murarrie, your Honour.
Right. So it’s on the south side?---Yes. Just over the other side of the Gateway Bridge, yes.
Okay. Thank you.
MR REIDY: And normally to get to the TWU office you go over the bridge; is that
right?---That’s – that’s right, yes.
(Transcript pp 91-92.)
148 Mr Pfund also gave evidence under cross-examination, in relation to the use of Branch vehicles:
With your affidavit dated 16 May, Armaguard Townsville site number 6?---Yes. It says on 22 October 2018 you attended the site at 6 o’clock in the morning?---Right.
And then – so when you – I’m just trying to work out, when you attended that site, how did you get to that site? Did you drive, walk, catch the bus?---Drive.
And which vehicle did you use?---My work car.
The union vehicle?---Yes.
Okay. So on number 7, that you ..... you sat there for, it looks like, an hour waiting for the members to turn up. Then you took some photos with them holding Your Transport Workers’ Team paraphernalia?---Yes.
The photos were taken by what device?---I think it was my phone.
So the TW phone?---Yes.
Okay. So it’s a union phone being used to take photos for your transport workers’ union?---Of – of the members there. Yes.
(Transcript p 100 lln 20-41.)
149 In his affidavit dated 27 August 2019, Mr Pfund deposes that he “took down some YTWT campaign posters towards the end of the election period at a time where all ballot papers that could have been counted would have been received”. Further evidence was given by Mr Pfund in relation to his attendance at the Sunbus site:
So you’ve gone over to Sunbus and you’ve gone into the yard to take down their – your Transport Workers team campaign posters?---Yes.
So which vehicle did you use to drive over there?---The – the work vehicle.
The union vehicle? And did you have any – did you make the phone call to the operations manager, or anything, to say you’re walking in on site, or you just walked in?---I – no. No. Generally we – the – there’s an agreement with the manager there that I text him before I’m – before I arrive.
…
That’s fine. So I’m just saying – so if you text, you didn’t forget, or you forgot, you’ve gone there in the union van to pick up – as you’ve stated, to pick up your Transport Workers team campaign posters?---Yes. To take them down.
(Transcript p 106.)
150 In re-examination the following exchanges occurred:
Now, in relation to your motor vehicle; what is the person use policy in respect of that motor vehicle?---The personal use?
Yes?---Yes. We have, yes, personal use. Other than work use, we have the personal use on, you know – you know, after work or before work or – or, you know, weekends. It’s – it’s, I guess, limited, but, nonetheless, we can use it for our personal use.
(Transcript p 108 lln 11-17.)
151 Further:
HER HONOUR: Can I just ask a question about the vehicle. So you said – the work vehicle. So can you tell me anything else about that vehicle?---About the work vehicle?
Yes?---What – what would you like to know?
Well, what I would like to know is how – do you keep it 24 hours a day, for example?---Yes. It’s parked at my – my residence, not – not – it’s not parked at the union office.
Right. Okay?---Probably because the – the other union I share it with, they’ve – they’ve got access to the – the – the office as well.
(Transcript p 108-109.)
152 The applicant refers to the affidavit evidence of Mr Biagini and Mr Pfund and suggests that this undermines the argument that a personal use policy permitted the use of branch vehicles for campaigning. The evidence referred to by the applicant is a comment of Mr Pfund that he travelled to a depot using the campaign utility vehicle registered to Mr Biagini and the evidence of Mr Biagini that Mr Carter travelled to the Gold Coast in a campaign ute that is registered in his name.
153 I do not consider that this evidence substantiates the applicant’s claims. The use of one vehicle, namely the campaign ute, does not necessarily mean that the use of another vehicle, namely a Branch vehicle, would have resulted in a breach of s 190. The evidence of Mr Biagini and Mr Pfund in this regard does not comment either way on whether the personal use policy allowed use of the Branch vehicles for campaigning.
154 In relation to the use of branch vehicles, the First to Third Interested Persons submitted:
Officials have private or personal use of their vehicles including before and after work and on weekends.
The vehicles are kept by the official 24 hours a day.
In relation to Mr Wyatt’s attendance at the StarTrack Gold Coast site on 17 October 2019, Mr Wyatt was on annual leave for part of the day. After he attended StarTrack Gold Coast, he attended his usual work at the Union office for the remainder of the day. Mr Wyatt was required to travel over the Gateway Bridge to get to work and return home from work. His terms of employment required the Union to pay for tolls. In using the vehicle on this occasion, he was exercising a personal entitlement arising out of his employment and was not using a resource of the Union for a purpose that was not permitted as part of his conditions of employment. The use of the vehicle and payment of tolls was not a use of Branch resources contrary to s 190.
In relation to Mr Pfund’s attendance at the Armaguard Townsville site on 22 October 2019, Mr Pfund had personal use of his motor vehicle. The use of the vehicle was not contrary to s 190.
155 The TWU submitted:
45. In closing submissions, Mr White suggests that Mr Pfund acknowledged using his branch vehicle to get to and from site visits at which campaigning occurred and that road tolls were paid by the union in the case of travel by Mr Wyatt. Presumably, it is submitted that Mr Pfund and/or Mr Wyatt thereby used union resources in contravention of s 190 of the RO Act. There are a number of fundamental problems with that contention.
46. The evidence is that union vehicles are able to be used by officials for personal use. If officials are, in accordance with the practice of the Branch, able to use the motor vehicle for personal purposes as part of their conditions of employment, the official is able to use the vehicle for any purpose he or she wishes without impermissibly using the resources of the union. No contravention of s 190 could have occurred. In relation to the payment of road tolls, the evidence of Mr Wyatt made clear that no additional toll was paid as a result of Mr Wyatt travelling to the Gold Coast.
156 In my view the use of Branch vehicles by Mr Pfund and Mr Wyatt for personal use – in this case, campaigning – fell within the scope of the technical or incidental use to which Ryan J referred in Nelson at [29]. I further note that to the extent that Mr Wyatt would have incurred road tolls in driving to the Gold Coast from Brisbane, he would have incurred these tolls on his regular commute from his home in Warner to the TWU office and no further tolls were incurred as a result of his attendance at StarTrack Gold Coast on 17 October 2019.
157 I am not satisfied that there has been an irregularity in respect of the usage of the Branch vehicles by Mr Pfund or Mr Wyatt.
ISSUE 6: WAS AN UNAUTHORISED BALLOT BOX USED AT THE SURFSIDE BUSLINES SITE AND/OR THE SUNBUS TOWNSVILLE SITE? IF SO, DID THIS CONSTITUTE AN IRREGULARITY?
158 The applicant also alleges that irregularities occurred due to the use of unauthorised local ballot boxes. Specifically, the applicant alleges that these ballot boxes were used at the Surfside Buslines site and the Sunbus Townsville site.
159 The submissions of the AEC notes that the TWU Rules require that voting in a Branch election must occur via a secret postal ballot. Specifically, the AEC submits:
6. The AEC was required to conduct E2018/141 under an arrangement for the purposes of subsection 189(3) of the FW(RO) Act in accordance with the rules of the organisation as required under paragraph 193(1)(a) of the FW(RO) Act (subject to the exceptions provided by paragraph 193(1)(b) of the FW(RO) Act). The rules of the organisation to be applied were the rules in force on the day the nominations for the election opened, as specified by section 132 of the Fair Work (Registered Organisations) Regulations 2009 (the FW(RO) Regulations).
7. The rules for the Transport Workers Union (TWU) are certified under section 161 of the FW(RO) Act. Sub-rule 60(9)(a) of the Transport Workers Union Rules stipulates that voting in a Branch election must be "by secret postal ballot".
8. The AEC submits that where an election is being conducted by the AEC, section 145 of the FW(RO) Regulations prohibits a person from taking any action in relation to the election without the Returning Officer's authority or direction.
9. The Returning Officer for E2018/141 at no time directed or authorised the conduct of meetings for the completion or collection of ballot papers or ballot packs.
10. In accordance with section 193(1)(b)(i) of the FW(RO) Act, the Returning Officer notified Mr Peter Biagini, Branch Secretary of the TWU Queensland Branch, Mr David Hicks, Team Driven, and all candidates in the TWU Queensland Branch Election that the process for collecting votes in elections for registered organisations is to send voting material directly to members and provide an envelope in which completed ballot papers are to be returned directly to the AEC Returning officer. The Returning Officer further directed that under no circumstances should completed ballot papers or packs be collected or collated by an intermediary.
160 On 21 November 2019, the AEC contacted candidates in the following terms:
Dear Candidate
TWU QLD Branch Election E2018/141
The Australian Electoral Commission (AEC) has received a complaint that meetings are being organised for the purpose of completing and collecting votes from voters in the TWU Qld Branch Election.
The process that the AEC adopts in conducting elections for registered organisations is to send voting material directly to members and provide an envelope in which completed ballot papers are to be returned directly to the AEC Returning Officer.
Where an election is being conducted by the AEC, Regulation 145 of the Fair Work (Registered Organisations) Regulations 2009 prohibits a person from taking any action in relation to the election without the Returning Officer’s authority or direction. As the Returning Officer for this election I have not directed, or authorised, and do not intend to direct or authorise, the conduct of meetings for the completion or collection of ballot papers or ballot packs.
Under no circumstances should completed ballot papers or packs be collected or collated by an intermediary. The direction is given in accordance with Section 193(b)(i) of the Fair Work (Registered Organisations) Act 2009 (the Act) which provides that Returning Officers may give such directions as they consider necessary to ensure that no irregularities occur in or in relation to the election.
I also draw your attention to section 195 of the Act, a copy of which is attached.
Yours sincerely
[signature]
Steve Gillespie
Returning Officer
Australian Electoral Commission
21 November 2018
Surfside Buslines site – Tweed Heads
161 In his affidavit dated 11 March 2019, Mr White has annexed a photograph of a notice which he alleges was posted at the Surfside Buslines site. The notice read:
ATTENTION ALL MEMBERS
SHORTLY YOU WILL RECEIVE YOUR VOTING FORM IN THE MAIL FOR THE UPCOMING UNION ELECTION. THERE WILL BE A SEALED BALLOT BOX HERE IN THE DEPOT FOR YOUR CONVENIENCE. RATHER THAN POST YOUR BALLOT PAPER PLEASE FEEL FREE TO USE THE BALLOT BOX PROVIDED
James Dunne
Co-Delegate
162 In his affidavit dated 15 May 2019, Mr James Dunne, an employee of Surfside Buslines and a delegate of the TWU, acknowledged that he is the author of the above notice and accepts that he put the notice “on the outside of the TWU noticeboard in the depot at Tweed Heads”. Whilst Mr Dunne deposed that he is unable to recall the date that he put up the notice, he stated that this occurred immediately prior to ballot papers being delivered to members. At the time of displaying the notice, Mr Dunne had not received his ballot paper and was not aware of other members who had received a ballot paper.
163 Mr Dunne deposed that he was not asked by the YTWT to display the notice and that in the notice the reference to the “sealed ballot box” referred to the locked multi-purpose box. Further, Mr Dunne stated that the notice remained in place overnight and was removed the next day, being displayed for less than 24 hours. Mr Dunne was unaware of whether any TWU members put their ballot into the locked multi-purpose box.
164 Relevant evidence was also given by Ms Donna Clapham, a delegate of the TWU and a member of the Queensland Branch, in an affidavit dated 15 May 2019. Ms Clapham deposed, in summary:
There was a TWU Noticeboard and locked multi-purpose box at the Surfside Buslines Tweed Heads depot. The multi-purpose box has been there for a number of years, the box was locked and Ms Clapham had a key.
The multi-purpose box was used by TWU members and potential members to communicate with delegates.
Ms Clapham had not seen the notice posted by Mr Dunne prior to being shown the affidavit of the applicant.
The image of the notice appeared to show that the notice was attached to the outside glass cover of the TWU Noticeboard by means of sticky tape.
Ms Clapham did not see a sealed ballot box, and would have been aware of any ballot box.
At around the time that ballot papers were being distributed, Ms Clapham heard members talking about putting their ballot papers into the multi-purpose box. On 21 November 2018, she spoke to Mr Richard O’Sullivan who confirmed that members had to post their own ballot papers.
At approximately 6.25 am on 21 November 2018, she posted a notice on the multi-purpose box that covered the hole of the box so that members would not be able to put their ballot papers in the multi-purpose box.
165 In her affidavit, Ms Clapham annexed a photograph of the notice she posted on the multi-purpose box, which read:
Guy’s you must post your own Ballot papers
Thank. Twu.
D
166 Mr Biagini provided evidence that on 22 November 2018, he was copied to an email from the Registered Organisations Commission (ROC). The email was annexed to his affidavit and stated:
22 November 2018
Mr Michael Kaine
National Secretary
Transport Workers’ Union of Australia
By email: [Michael Kaine email address redacted]
Cc: [Peter Biagini email address redacted]; info@twuqld.asn.au
Dear Mr Kaine
Protected disclosure under Part 4A of the Fair Work (Registered Organisations) Act 2009 -INV2018/75
I refer to previous correspondence in relation to this matter, including the letter from the Registered Organisations Commission (ROC) dated 29 October 2018 and Mr Biagini's letter dated 6 November 2018 on behalf of the Queensland Branch of the Transport Workers Union of Australia (TWU) in relation to the current TWU elections being conducted pursuant to the Fair Work (Registered Organisations) Act 2009 (RO Act).
I advise that the ROC has now been made aware of circumstances in the Queensland Branch election where members in a workplace have been instructed or asked to provide their ballot paper to someone else and/or place it in a 'local' box for that purpose.
I am also advised that the AEC has received reports of this occurring in the Victoria/Tasmania Branch election.
Section 195(2) of the RO Act sets out a range of conduct that can amount to interference with ballot papers, and relevantly provides that::
(2) A person commits an offence if the person:
(a) impersonates another person with the intention of:
(i) securing a ballot paper to which the impersonator is not entitled; or
(ii) casting a vote; or.
(b) does an act that results in a ballot paper or envelope being destroyed, defaced, altered, taken or otherwise interfered with; or
(c) fraudulently puts a ballot paper or other paper:
(i) into a ballot box or other ballot receptacle; or
(ii) into the post; or
(d) delivers a ballot paper or other paper to a person other than a person receiving ballot papers for the purposes of the ballot; or
(e) records a vote that the person is not entitled to record; or
(f) records more than one vote; or
(g) forges a ballot paper or envelope, or utters a ballot paper or envelope that the person knows to be forged; or
(h) provides a ballot paper without authority; or
(i) obtains a ballot paper which the person is not entitled to obtain; or
(j) has possession of a ballot paper which the person is not entitled to possess; or
(k) does an act that results in a ballot box or other ballot receptacle being destroyed, taken, opened or otherwise interfered with.
Penalty: 30 penalty units.
In addition, Regulation 145 of the Fair Work (Registered Organisations) Regulations 2009 provides that:
(1) For any election conducted by the AEC under Part 2 of Chapter 7 of the Act, a person other than the person conducting the election must not do, or purport to do, any act in the conduct of the election other than as directed or authorised by the person conducting the election.
Note: This subregulation is a civil penalty provision (see regulation 168).
(2) The AEC must advise the Commissioner of a possible contravention of subregulation (1) not later than 21 days after the AEC has become aware of the possible contravention.
I understand that the AEC has written to relevant TWU Branches and may also write to candidates in those Branch elections about these matters, including providing a direction under section 193 of the RO Act in relation to ballot papers -that they do not authorise the collection or collation of ballot papers by a party other than the AEC.
However, the ROC also invites the TWU to take its own steps to inform officials, employees and workplace delegates of the above provisions of the RO Act, and that collection or collation of other persons ballot papers is contrary to the AEC's direction, as well as informing them that the use of the resources of an organisation or branch to support particular candidates in a registered organisation election (section 190 of the RO Act).
I would appreciate it if you could advise me of any steps that the TWU takes in this regard.
I note that in other registered organisation elections, organisations and branches have posted information on their website in relation to such matters and I request that the TWU consider doing so.
Protections for disclosers
As some of the matters raised with the ROC are protected disclosures pursuant to s 337A of the RO Act, and therefore attract the whistleblower protections outlined in the protected disclosures scheme in Part 4A of the RO Act.
The ROC's Fact Sheet Penalties for taking a reprisal against a wliistleblower provides further information in relation to these protections and outlines the consequences of taking or threatening to take reprisals against a discloser or another person.
Please feel free to contact me either by phone on [redacted] or by email to [redacted] if you wish to discuss any aspect of these matters.
Yours sincerely
[signature]
Bill Steenson
Principal Lawyer, Compliance & Investigations
167 Mr Biagini further deposed that on 22 November 2018, he caused a Notice to be posted on the website of the TWU Queensland Branch. The notice relevantly provided:
ATTENTION: TWU MEMBERS
As you may be aware, TWU elections are currently taking place.
As part of the running of the elections, the Australian Electoral Commission and Registered Organisations Commission have directed that under no circumstances should completed ballot papers or ballot packs be collected by an intermediary.
This means that members are to fill out and post their own ballot papers back to the AEC in a post office box and that no other person should touch the ballot paper or envelope.
Please note that not following these directions may contravene Section 195(2) of the Fair Work (Registered Organisations) Act 2009 and Regulation 145 of the Fair Work (Registered Organisations) Regulations 2009.
168 In relation to the alleged irregularity caused by the use of a ballot box at the Surfside Buslines site, the applicant submitted:
There was undisputed evidence that a ballot box existed at the site.
The extent of this ballot boxes use was not able to be ascertained, however, the deployment and use of the ballot box did, in and of itself, represent an irregularity.
The use of ballot boxes was not limited to one location and may have affected multiple locations.
The use of ballot boxes represented a departure from established practice and generally accepted principles governing the conduct of an election.
He did not have the resources to investigate the more widespread use of proscribed ballot boxes.
The investigation of such matters was referred to the ROC who referred the matter to the Australian Federal Police.
The mere existence of ballot boxes would represent a departure from established practice and accepted principles governing the conduct of an election.
On the balance of probabilities, the use and existence of ballot boxes gave rise to an irregularity.
It was open for the Court to draw an inference that the use of ballot boxes was not confined to two sites.
169 In relation to the use of a ballot box at the Surfside Buslines site, the First to Third Interested Persons submitted:
The argument that the mere existence of ballot boxes is a departure from established practice and, by implication, an irregularity is without substance. Something more is required for a departure from a rule, established practice or generally accepted principle governing the conduct of an election. It is not enough that they sit dormant, they must be used to divert the flow of ballot papers from the ordinary course.
There is no evidence ballot papers were placed in the ballot box.
The issue of the notice being displayed, was immediately and decisively dealt with by the Union when it was brought to its attention.
In summary, the evidence is that one person advised that the union box could be used for ballot papers but the situation was remedied before the box was used. In those circumstances, the evidence does not establish an irregularity.
170 Further the TWU submitted:
Even if established the mere placing of a ballot box would not give rise to an irregularity. At the very least, there would need to be evidence that ballots were in fact placed in the ballot box. There is no such evidence.
171 The definition of “irregularity” for the purposes of s 6 of the FWRO Act includes:
(a) breach of the rules of an organisation or branch of an organisation…
172 Rule 60 of the Transport Workers Union Rules (TWU Rules), which are certified under s 161 of the FWRO Act, makes provision for Branch Elections of the TWU. Subrule 60(9)(a) provides that voting in a branch election must be “by secret postal ballot”.
173 The First to Third Interested Persons and TWU submitted that the Court ought not accept that the mere existence of ballot boxes was an irregularity. In my view however the evidence before the Court goes beyond the mere existence of ballot boxes. There was clearly the prospect that union members would use the box, Ms Clapham deposed that she heard “members talking about putting their ballot papers into the multi-purpose box”, and I consider it likely that union members did take advantage of the provision of the ballot box and use it. This is so, notwithstanding that the box was signed as a “ballot box” for only a limited period of 24 hours.
174 It is clear that the provision of a ballot box at the Surfside Buslines site at Tweed Heads contravened subr 60(9)(a), which requires ballots to be secret and posted.
175 I consider the use of the ballot box at the Surfside Buslines site at Tweed Heads constituted an irregularity pursuant to s 6(a) of the FWRO Act.
Sunbus – Townsville site
176 In relation to the claim of an irregularity in relation to the use of a “ballot box” at the Sunbus Townsville site, the applicant relies on the evidence of Ms Smith who provided an affidavit dated 7 May 2019 and was cross-examined at the hearing. Ms Smith deposed materially:
17. Prior to the election, Tom asked me to collect ballot papers from my workplace. He gave me the combination to the ballot box and instructed me to tell workers to put them in the union box and to collect and post them all at the nearest post-box without delay. I was asked to do it for the whole week of elections.
18. I agreed to, and I did not spruik either team. I decided I would simply remind people to vote, tell them if they were to give their paper to me I would post it straight away or they could post it themselves. I resolved that if people asked, I would tell them who I was voting for, and that “if you like the union as it is, vote this team; if you want change, vote that team”.
19. On the Saturday prior to the opening of the ballot I updated my Facebook profile picture with a Team Driven banner.
20. The following morning, Tom attempted to call me several times. When I answered the telephone, Tom was furious and frantic and questioned whether I should be collecting ballots as he had originally instructed.
177 Additional oral evidence was given by Ms Smith at the hearing, in summary:
The Union ballot box was in fact a large fishing tackle box, which presumably was used for union purposes such as for members or potential members to put information in the box.
Ms Smith was instructed by Mr Pfund to sit in the room with the ballot box for the duration of the election (which was one week in length).
Staff were told to put ballot papers into the ballot box, and Ms Smith was to collect the ballot papers from the ballot box and post them. She did so on her own time.
Ms Smith sat in the room with the ballot box for one week between the hours of 9.30 am and 1.30 pm and “didn’t really speak to anyone… no one was interested”.
Ms Smith collected the ballot paper of Mr Eric Mackey, which she took straight to the post office and mailed. She believed that, in total, she posted possibly three ballot papers.
Contrary to the evidence of Mr Pfund, Ms Smith was not instructed to ask members to put “pledge cards” in the union box.
178 Ms Smith also gave evidence at the hearing about “pledge cards”, as follows:
HER HONOUR: Can I just ask a question. So what was the purpose of the pledge cards?---Well, that’s – I think it was just to encourage people to say, “Promise I will vote for a particular team.” Like, that’s what they were, “I will pledge to support Your Transport Workers’ Team.” That’s what the cards were. And, look, I had no idea all this was going to happen; otherwise, I would have kept them. I don’t know if they had names, addresses, phone numbers. I thought they would just sign it and we were told to get them to sign it. And it went against my values of, you know, I’m not forcing someone to vote some particular way, so I didn’t do it.
(Transcript p 50 lln 16-23.)
179 In his affidavit of 27 August 2019 Mr Pfund gave evidence rebutting that of Ms Smith. In particular Mr Pfund deposed:
7. I refer to paragraph 17 of Ms Smith’s affidavit. The Sunbus workplace has what is called a “union box”. It is a plastic tackle box with a combination lock. The box is used for members and potential members to communicate with delegates. For example, an employee may use it to lodge a completed application for membership. A delegate or I will subsequently collect the application. I have the combination and delegates have the combination. The Australian Workers’ Union also have a “union box” at the Sunbus workplace. Sunbus is the only workplace in the Townsville and Mackay regions that has a TWU “union box”.
8. I do not recall if I gave the combination to Ms Smith or, if I did, when I gave her the combination. I agree that I may have given it to her.
9. …
10. I did not ask Ms Smith or any other delegate to tell workers to put their ballot papers in the “union box” and to collect and post the ballot papers at the nearest post-box without delay. I did not tell Ms Smith or any other delegate to do anything in relation to collecting ballot papers at the workplace. However, I did ask Sunbus delegates before the election to support the YTWT and to assist by handing out how to vote materials to TWU members
11. …
12. During my telephone conversation with Ms Smith, I said to Ms Smith words to the effect: “How could you support Team Driven?” I was surprised and disappointed that she was not supporting YTWT. I spoke to her in a normal and calm manner. I was not furious or frantic as Ms Smith claims. I did not question whether Ms Smith should be collecting ballots, I have never given any such instruction. It was a short conversation.
180 Further, at the hearing in response to questions from Mr White, Mr Pfund gave the following evidence:
And on the same – with – now, on number 7 it’s about the union box in Sunbus, and you asked the delegates to collect cards and put them in the union box, or - - -?---The what?
- - - or did you ask them to pick up voting slips?---The – no. The pledge cards. Yes.
Just pledge cards only?---Yes.
They put them in that union box?---Yes.
…
So I’m just trying to work out – because we’re using these union boxes to put either pledge cards in or voting slips, so I’m just trying to work out that it must have been – so there’s actually three?---No. The pledge cards.
(Transcript p 104 ll 1-31.)
181 Mr Pfund also gave evidence that he had handed out “pledge cards” whilst campaigning (for example, transcript pp 100-102).
182 The evidence of Ms Smith and Mr Pfund clearly conflicts in respect of whether Mr Pfund gave instructions to Ms Smith or any other union delegate about the use of the union box as a ballot box, and the collection and postage of ballot papers from the ballot box. The First to Third Interested Persons and the TWU submit that I should prefer the evidence of Mr Pfund. On balance, however, I prefer the evidence of Ms Smith in respect of whether the union box at the Sunbus site was used as a ballot box for votes during the TWU election period. This is because:
It is clear that the union box at the Sunbus site was used for election purposes during the election, although Ms Smith and Mr Pfund differed as to the precise usage of it;
Although Ms Smith was somewhat dogmatic in her oral evidence, I considered her to be a credible witness and do not accept that she was evasive or non-responsive to questions;
Ms Smith was very firm in her views as to events relating to the use of the union box at the Sunbus site as a ballot box;
There is no plausible reason for Ms Smith to invent the evidence she has given in this respect;
Ms Smith’s evidence was specific, including for example in respect of the time she spent sitting in the room with the ballot box, and the fact that she was able to name a particular union member who did not directly post his ballot paper;
I consider it likely that the circumstances relating to the ballot box in Townsville were of great interest to Ms Smith, as being an event which was out of the ordinary, as well as being an event early in her role as union delegate. It is likely that Ms Smith would recollect these events, compared with Mr Pfund who had other TWU responsibilities of importance as well as the election campaign which required his attention.
While the evidence that Ms Smith gave at the hearing may not have been properly reflected in her affidavit, I note that Ms Smith’s affidavit was tendered in support of a litigant in person, Mr White; and
There is no evidence as to a procedure relating to the use of the pledge cards and deposit of the pledge cards in the union box, other than the oral evidence of Mr Pfund at the hearing.
183 I am satisfied that the union box at the Sunbus site was used as a ballot box during the election period and that this arrangement was instigated by instructions given by Mr Pfund to Ms Smith and other delegates.
184 A question arises however as to the implications of this arrangement.
185 Subrule 60(9)(a) of the TWU Rules provides that voting in a branch election must be “by secret postal ballot”.
186 The evidence is inconclusive however as to whether any TWU members actually used the ballot box at the Sunbus site to deposit their ballot papers. The events at the Sunbus site can be distinguished from the events at the Surfside Buslines site, in respect of which Ms Clapham gave evidence that she had heard members discussing their usage of the ballot box. However, the evidence of Ms Smith was that, following instructions by Mr Pfund, arrangements had been put in place to facilitate voting in the elections by members, and that the postage of ballot papers by Ms Smith was part of those arrangements.
187 There is no evidence before me that those ballot papers posted by Ms Smith were anything other than sealed, or that Ms Smith was doing anything other than merely posting ballot papers to the AEC with the authorisation of the relevant voting members. However, the informal arrangements put in place by the TWU, under the direction of Mr Pfund, at the Sunbus site by way of the ballot box, and the apparent associated use of delegates such as Ms Smith as intermediaries to collect ballot papers for dispatch to the AEC, compromised the integrity of the secret ballot, and accordingly breached r 60(9)(a). This was an irregularity within the meaning of s 6(a) of the FWRO Act.
ISSUE 7: WAS THE MEMBERS’ LIST ACCURATE, SO AS TO ALLOW VOTING BY ELIGIBLE MEMBERS IN THE ELECTION?
188 In his affidavit dated 11 March 2019, Mr White deposed that prior to the election he received complaints from at least 40 members that they were unable to update their details on the Branch register of members, and they therefore did not receive a fair opportunity to vote in the election.
189 Annexed to this affidavit was a letter from the ROC to the applicant dated 4 January 2019 in which the ROC referred to a complaint by the applicant of failure to maintain an accurate register of members and in particular the alleged inclusion of members who were either not eligible members or did not accurately record contact details. Relevantly the ROC’s letter continued:
Following receipt of the Branch's response, which included provision of a copy of its register of members as at 31 December 2017 and 21 August 2018, ROC staff reviewed the information provided.
From that review, ROC staff identified a range of concerns regarding the information contained in the register of members, including the inclusion of possibly ineligible persons on the register, as well as whether the register contains all of the required information, and whether that information is current, as required by section 230 of the RO Act.
As these matters may be possible contraventions of the RO Act, I will be seeking further information from the Branch in relation to its record keeping obligations, specifically concerning the register of members.
190 The applicant submitted that he was unable to provide any additional evidence relating to the alleged failure to maintain an accurate register of members due to his limited resources.
191 The applicant has failed to adduce any evidence, indicative of irregularities in relation to the membership register. On the material before me, notwithstanding the potential concerns of the ROC as expressed in their letter, the current allegation of irregularity is speculative and unsubstantiated.
ISSUE 8: DID YTWT UTILISE WORK ENTRY PERMITS TO ENTER WORKSITES? IF SO, DID THIS CONSTITUTE AN IRREGULARITY?
192 In relation to the alleged irregularity caused by the entry of TWU officials onto work sites pursuant to the exercise of a right of entry entitlement, the applicant submitted as follows:
16. I am of the understanding that right of entry under the Fair Work Act 2009 would be required to access the following sites:
(a) StarTrack Gold Coast;
(b) Cement Australia;
(c) Hills Tankers;
(d) Toll Priority;
(e) Ceva Logistics
(f) TNT;
(g) Surfside Buslines;
(h) Cleanaway Industrial;
(i) SkyBus Gold Coast;
(j) Armaguard;
(k) Toll Coles Contract
(l) NQX Intermodal; and
(m) Brisbane Airport.
17. I am of the understanding that at all relevant times:
(a) Mr Wyatt was, during the Election, the Branch President and was also employed by the Branch as an organiser for the South-West Brisbane area;
(b) Mr Adam Carter was, during the Election, the Branch Assistant Secretary which is a full-time paid office of the Branch.
(c) Mr Tom Pfund was, during the Election, employed by the Branch as an organiser in North Queensland and was not a candidate in the Election;
(d) Mr Peter Biagini was, during the Election, the Branch Secretary which is a full-time paid office of the Branch;
(e) Messrs Wyatt, Carter and Biagini were candidates for the YWTW at the Election; and
(f) Messrs Wyatt, Carter, Pfund and Biagini campaigned for the YWTW during the Election.
18. The affidavit of Mr Biagini inadequately addresses the question of whether right of entry permits were used to gain entry onto worksites for the purpose of campaigning.
19. It is accepted that some worksites do not require the formal production of a right of entry permit by known officials of the Branch to access the site.
20. Although the officials did not formally produce their right of entry, they exercised a right of entry because the officials mirrored the requirements of the FW Act and were known permit holders that gave notice to the employers of their entry.
193 The First to Third Interested Persons, and the TWU, submitted, in summary:
It is unclear from the applicant’s submissions to which entries he was referring as having been the subject of an improper exercise of right of entry;
This aspect of the claim misses the point that the applicant is required to establish use of union property or resources in respect of the election, which is not the case in respect of the exercise of a right of entry;
There is no evidence that there was in fact any use of a right of entry;
The evidence of Messrs Biagini and Wyatt was that officials did not utilise right of entry permits for the purpose of attending worksites in order to campaign to members of the union.
194 In my view the submissions of the First to Third Interested Persons and the TWU are compelling, and I accept them.
195 This aspect of the applicant’s claim is not substantiated.
ISSUE 9: IF THE CONDUCT DID CONSTITUTE IRREGULARITIES, WERE THE IRREGULARITIES SUCH THAT THE RESULT OF THE ELECTION MAY HAVE BEEN AFFECTED BY THE IRREGULARITIES WITHIN THE MEANING OF S 206(5) OF THE FWRO ACT?
196 Section 206(5) of the FWRO Act provides :
The Court must 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 or may happen, the result of the election may have been affected, or may be affected, by irregularities.
197 In relation to the relevant election, I have found the following irregularities occurred:
Use of union resources at a TWU Branch meeting at StarTrack Rockhampton on 2 November 2018 to assist YTWT;
Use of an unauthorized ballot box at the Surfside Buslines site during the election period; and
Use of an unauthorized ballot box at the Sunbus Townsville site during the election period.
198 In Sara, in the matter of an inquiry into the election for offices in the Australian Salaried Medical Officers Federation [2018] FCA 844, Steward J recently said at [25]:
…the irregularity must be of a kind that has affected, or may affect, the result of an election: see s 206(5) of the FWRO Act. As Siopis J said in Clancy, in the matter of an application for an inquiry in relation to an election for offices in the Australian Nursing and Midwifery Federation [2017] FCA 460 at [26]:
It follows that it is incumbent on an applicant under s 200 of the FW(RO) Act, to satisfy the Court not only that the claim that the irregularity occurred is based on reasonable grounds, but also that there are reasonable grounds to support the making of an order of the kind referred to in s 206(4) of the FW(RO) Act. In other words, in respect of a completed election, such as in this case, that the result of the election may have been affected by the claimed irregularity, if established.
199 (See also Wilcox CJ in Carney v Matthews, unreported, IRCA N1.109/1994, 27 March 1995)
200 It follows that the onus remains on the applicant to satisfy the Court that an order should be made in terms of s 206(4) of the FWRO Act.
201 Further, Reeves J considered in Nimmo at [69]:
This brings me to s 206(5) of the Act, which is set out at [8] above. There is ample authority in this Court that the question whether the result of the election may have been affected has to be assessed as a matter of “real not merely theoretical possibilities”: see Re Ferguson; Re Inquiry into Election in the Australasian Meat Industry Employees Union, WA Branch (1986) 17 IR 208 (“Ferguson”) at 210 per Toohey J, and the cases cited by Gray J in Bailey at 22 and by Weinberg J in Jacomb at [54].
202 There is also authority that an appropriate approach to considering whether there was a “real” possibility of the irregularity or irregularities affecting the result of the election is to consider the margin between the “lowest scoring elected person and the highest scoring unelected person”. In Carney for example Wilcox CJ observed:
The reason why counsel for the applicant submits that the election inquiry ought to be terminated is that, as a result of the lengthy investigation process which has been undertaken in preparation for the inquiry, the applicant and his legal advisers are satisfied that, even if the allegations of irregularity were established to the satisfaction of the Court, it is highly unlikely that the Court would make an order setting aside the result of any of the ballots. The reason for this is that s.223(4) of the Act provides that the Court shall not declare an election to be void, or declare a person not to be 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 or may happen, the result of the election may have been affected or may be affected by irregularities. In other words, although the Court may come to the conclusion that there has been an irregularity and has power to make a declaration to that effect, the poll is not affected unless the Court is satisfied that that irregularity or those irregularities may have affected the result. It seems to me that the applicant and his advisers are correct in reaching the conclusion that it is highly unlikely that they would overcome the hurdle presented to them by this subsection. It is a feature of the subject elections, in respect of each of the disputed offices, that there was a considerable margin between the lowest scoring elected person and the highest scoring unelected person. The lowest margin seems to be of the order of 1100 votes. In respect of most offices, including the senior offices of Secretary and Assistant secretaries, the margins are well over 2000. When one adds the number of votes which may have been affected by the various categories of irregularity suggested by the applicant, it is extremely difficult to see that, even if they were established, they would affect any of the offices. Probably the strongest element in the applicant's case is the allegation of multiple voting. This is supported, as to one of the ballots, by some expert evidence which itself is subject to challenge; but the significant point is that it shows that a maximum of 159 votes are suspect on this score. As I understand the expert evidence, it is not suggested that one person filled in 159 votes. The evidence only suggests that 159 votes are in a category where more than one ballot was completed by one person. Many of them are cases where only two or three ballots seem to have been completed by one person. A situation like that is not necessarily an irregularity. A member may legitimately ask a friend or relative to fill in a ballot for him, that other person also being an elector. Having regard to that fact, and the circumstance that in relation to the other allegations it is extremely hard to put numbers to them, I think it is unlikely that the Court would reach the conclusion that is required in order to enable it to set aside the elections.
(Emphasis added.)
203 Similarly, in Clancy, in the matter of an application for an inquiry in relation to an election for offices in the Australian Nursing and Midwifery Federation [2017] FCA 460:
201. In light of the evidence of Mr Gilbert, Mr Clancy has not established good grounds for suspecting that 8,000 eligible voters were excluded from the electoral roll in a manner which constituted an “irregularity in relation to an election of an office” and has not established reasonable grounds for his application for an inquiry on that basis.
202. In any event, Mr Clancy has not established that even if, as he claimed, there were 8,000 student nurses who were “disenfranchised”, that the result of the elections as a matter of practical reality, may have been different had the 8,000 student nurses been included on the roll of voters. The evidence of Mr Gilbert was that there were approximately 65,000 eligible voters in the Victorian branch. It is apparent from the voting results at [9] above, that 12,829 eligible voters from the Victorian branch of the ANMF voted in the elections. On Mr Gilbert’s evidence, this is approximately 20% of the eligible voters from that branch. Applying that proportion to the 8,000 student nurses, results in a figure of about 1,600 voters who would otherwise have been likely to have voted in the elections, had they not, on Mr Clancy’s case, been wrongfully disenfranchised. However, in Victoria, Mr Clancy lost the election for the office of Federal President by 8,041 votes and for the office of Federal Secretary by 4,779 votes. Thus, even if all student nurses, who were likely to have voted, had they not been excluded, had voted for Mr Clancy in each election, there would have been no difference to the outcome of the election results in Victoria, nor to the outcome of the election results in the country at large.
204 Mr Stephen Gillespie was the Returning Officer for the election. Annexed to his affidavit dated 17 May 2019 was a copy of the TWU Queensland Branch Scheduled Election E2018/141 Post-election Report dated 13 December 2018. In that Report the Roll of Voters is described as:
Total number of voters on the Roll 7732
205 I have already found that the applicant’s claim concerning the membership register was not substantiated. Accordingly I accept that the total number of voters on the Roll accurately represented the eligible members entitled to vote in the election.
206 Further, I note that the Declaration of Results – E2018/141 in respect of contested offices in the Branch election was annexed to Mr White’s affidavit of 11 March 2019. In that document the following relevant details are recorded:
|
VOTING MATERIAL ISSUED | |
|
Total number of people on the roll of voters |
7,732 |
|
Number of voters issued with voting material |
7,732 |
|
Total number of voters issued with replacement voting material |
41 |
|
Total number of voting material packs issued |
7,773 |
|
VOTING MATERIAL RETURNED |
|
|
Total number of envelopes returned for scrutiny by closing date of ballot |
2,783 |
|
Number of declaration envelopes rejected at preliminary scrutiny (minus) |
76 |
|
Number of ballot papers returned outside declaration envelopes |
39 |
|
COUNT |
|
|
Total ballot papers admitted to the count |
2,668 |
|
LATE OR UNRETURNED VOTING MATERIAL |
|
|
Voting material returned as unclaimed material by closing date of ballot |
117 |
|
Voting material packs not returned by voters by closing date of the ballot |
4,873 |
|
Percentage of voting material packs returned by voters to number of people on the roll of voters |
36% |
207 In this election, where the total ballot papers admitted to the count was 2,668, the difference between the lowest scoring elected person and the highest scoring unelected person for each Branch position was as follows:
Branch President: 1,321 votes
Branch Vice President: 1,304 votes
Branch Secretary: 1,323 votes
Branch Assistant Secretary: 1,329 votes
Branch Trustee: 1,262 votes
Branch Committee or Management Member: 1,263 votes
National Councillor: 1,254 votes
Female National Councillor: 1,294 votes
208 The smallest difference between the lowest scoring elected person and the highest scoring unelected person occurred for the position of National Councillor, where there was a difference of 1,254 votes.
209 I have already set out in detail the outcome of the election, and the respective votes for candidates from each team. It is clear that the votes given across the Queensland Branch for the successful team YTWT substantially exceeded those in favour of Team Driven.
210 The relative success of each team and its candidates indicates that any effect of the irregularities on the outcome of the election would have been negligible.
211 Further, in respect of each of the three irregularities:
(1) In relation to the irregularity at StarTrack Rockhampton: it is unclear how many members were present at the meeting addressed by Mr Biagini at StarTrack Rockhampton on 2 November 2018. However a photograph annexed to Mr Biagini’s affidavit of 5 August 2019 shows eight people present. In an earlier affidavit dated 16 May 2019 Mr Biagini deposed that “about three members” attended that meeting, and that the meeting “was poorly attended”. Further, there is evidence in an affidavit dated 12 July 2019 that approximately ten workers were present. Mr White submitted that the delegates or members at that meeting would have been influenced by representations made by Mr Biagini, such that they would have then advocated for the YTWT with other members in their home yards. However:
(a) There is no evidence of such advocacy occurring;
(b) Even if there were such advocacy there is no evidence of the number of potential members who could have been influenced;
(c) In circumstances where so few members attended the meeting, it is reasonable to conclude that the influence of representations made at the meeting would not have been widespread; and
(d) I am satisfied that such influence would not have affected the outcome of the election.
(2) In relation to the irregularity at the Surfside Buslines site: there was no evidence before the Court to demonstrate the number of members at the site who could have been affected, or who may have used the ballot box. The only evidence was that of Ms Clapham that she heard some people talking about having used the ballot box. Further, the unchallenged evidence of Mr Dunne was that the box was only marked as a ballot box for 24 hours, and Ms Clapham gave evidence that she later placed a sign on the box specifically stating that the members were required to post their own ballot papers. I consider that the possibility of members using the box for election purposes would have been very limited.
(3) In relation to the irregularity at the Sunbus Townsville site: such evidence as was before the Court in respect of the ballot box and acts of Ms Smith at the Sunbus Townsville site indicated that only three votes were involved.
212 Mr White submitted that the Court should infer that the irregularities arising from campaigning by YTWT supporters at member meetings, and the unauthorised use of ballot boxes, was widespread. In the absence of any evidence to that effect I am not prepared to draw that conclusion.
213 For these additional reasons I am not satisfied that result of the election would have been affected by these irregularities.
CONCLUSION
214 In circumstances where I have found irregularities, however I am not satisfied that the result of the election would have been affected by the irregularities, I consider that the election inquiry should be terminated forthwith.
215 Section 325 of the FWRO Act provides:
Federal Court may certify that application was reasonable
(1) Where a person has applied for an inquiry into an election but the Federal Court does not find that an irregularity happened, the Court may certify for the purposes of this Division that the person acted reasonably in applying.
216 I have found that three irregularities occurred, however I was not satisfied that they would have affected the result of the election. In circumstances where I have found irregularities, the power granted by s 325 of the FWRO Act to grant a certificate is not relevant: Reid, in the matter of an application for an inquiry relating to elections for offices in the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2007] FCA 417; (2007) 163 IR 392 at [35]. In any event, I note the terms of s 324 of the FWRO Act, which relevantly provides:
(1) Subject to this Division, the Minister may, on application made by a person under subsection (2), authorise payment by the Commonwealth to the person of financial assistance in relation to the whole or part of the person's relevant costs, if the Minister is satisfied:
(a) that hardship is likely to be caused to the person if the application is refused; and
(b) that in all the circumstances it is reasonable that the application should be granted.
(2) An application may be made to the Minister for financial assistance under this Division by the following persons (other than organisations) in the following circumstances:
…
(d) a person who applied for an inquiry into an election, where the Federal Court found that an irregularity happened;
217 Finally, I note that this is a no costs jurisdiction unless a proceeding is instituted vexatiously or without reasonable cause: s 329 of the FWRO Act. In circumstances where I have found irregularities (albeit not irregularities which affected the outcome of the election) I am satisfied that this proceeding was neither vexatious nor instituted without reasonable cause.
|
I certify that the preceding two hundred and seventeen (217) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. |
Associate:
