FEDERAL COURT OF AUSTRALIA
Menon, in the matter of an election for offices of the Manufacturing Division of the Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 620
ORDERS
DATE OF ORDER: |
IN QUD 168 OF 2021, THE COURT ORDERS THAT:
1. An Inquiry into alleged irregularities in respect of the election for officers in the Manufacturing Division of the Construction, Forestry, Maritime, Mining and Energy Union in election E2020/114, to be conducted at a date to be fixed.
IN QUD 169 OF 2021, THE COURT ORDERS THAT:
1. The application be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
COLLIER J:
1 Yesterday I heard two urgent originating applications under the Fair Work (Registered Organisations) Act 2009 (Cth) (RO Act) concerning elections for office (election E2020/114) in the Manufacturing Division (Manufacturing Division) of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU).
2 The first originating application before the Court was filed by Mr Arturo “Bluey” Menon on 27 May 2021 in QUD 68/2021 pursuant to section 200 of the RO Act, seeking orders that the Court conduct an Inquiry into alleged irregularities in respect of election E2020/114.
3 The second originating application before the Court was filed in QUD169/2021. Mr Menon sought interim orders pursuant to s 204 of the RO Act in relation to an Inquiry concerning an election for an officer in an organisation. Specifically, Mr Menon sought orders that:
(1) no further steps be taken in the conduct of the election E2020/114 until determination of the inquiry or further order (s 204 (1)(a))
(2) people who have assumed the following offices to which the inquiry relates not act in that office until determination of the inquiry or further order (s 204 (1)(c)):
(a) Divisional President
(b) Divisional Senior Assistant Secretary
(c) Divisional Assistant Secretary
(d) New South Wales District President
(e) New South Wales District Secretary
(f) New South Wales District Delegates to Divisional Conference
(g) Victorian District Secretary
(h) Victorian District Management Committee Member; and
(i) Victorian District Delegates to Divisional Conference.
(3) people who last held the following offices to which the inquiry related act in that office until determination of the inquiry or further order (s 204 (1)(d)):
(a) Divisional President
(b) Divisional Senior Assistant Secretary
(c) Divisional Assistant Secretary
(d) New South Wales District President
(e) New South Wales District Secretary
(f) New South Wales District Delegates to Divisional Conference
(g) Victorian District Secretary
(h) Victorian District Management Committee Member; and
(i) Victorian District Delegates to Divisional Conference.
4 At the hearing yesterday appearances were entered on behalf of Mr Menon as the applicant, as well as the following interested persons:
the Australian Electoral Commission (AEC); and
The Manufacturing Division, and Ms Jennifer Kruschel, a senior officer of the Manufacturing Division (together in relation to their submissions: the Manufacturing Division).
5 All parties were represented by Counsel. The AEC and the Manufacturing Division opposed orders in the terms sought by Mr Menon in both applications.
6 The urgency attendant on both applications arises because the voting period in respect of election E2020/114 opens tomorrow, that is on 9 June 2021. Mr Schulte for the AEC informed the Court that the AEC anticipated preparing postal ballots by today for postage to CFMMEU members on 9 June 2021.
7 After considering overnight the submissions of the parties and the material before the Court, I am satisfied that the Court should order an Inquiry pursuant to s 201 of the RO Act. However, I am not persuaded that the interim orders sought by the applicant should be granted. I so find for the following reasons.
BACKGROUND
8 The CFMMEU is a registered organisation under the RO Act, comprising four divisions, including the Manufacturing Division. Rules of membership are found in both the CFMMEU National Rules, and the Manufacturing Division Rules.
9 A decision ([2020] ROCD 115) in respect of the arrangement for the conduct of election E2020/114 was made by the Registered Organisations Commission following the lodgment by the Manufacturing Division on 26 June 2020 and 14 August 2020 of prescribed information under RO Act for an election for offices and non-officer positions. The offices identified were both divisional offices and offices of the Manufacturing Division referable to districts in Australia; the non-office positions were referable to certain Pulp and Paper Workers Districts.
10 Section 200(1) of the RO Act relevantly provides:
200 Application for inquiry
When member of organisation may apply for inquiry
(1) If a person who is, or within the preceding period of 12 months has been, a member of an organisation claims that there has been an irregularity in relation to an election for an office in the organisation or a branch of the organisation, the person may make an application for an inquiry by the Federal Court into the matter.
Note: For the meaning of irregularity, see section 6.
11 Section 201 of the RO Act sets out the basis for instituting an election enquiry:
201 Instituting of inquiry
Where:
(a) an application for an inquiry has been lodged with the Federal Court under section 200; and
(b) the Court is satisfied that there are reasonable grounds for the application;
the Court must fix a time and place for conducting the inquiry, and may give such directions as it considers necessary to ensure that all persons who are or may be justly entitled to appear at the inquiry are notified of the time and place fixed and, where the Court fixes a time and place, the inquiry is taken to have been instituted.
12 “Irregularity” is defined in s 6 of the RO Act:
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.
13 Section 204 of the RO Act provides that where an inquiry into an election has been instituted, the Federal Court may make interim orders as specified in the section.
14 It is uncontroversial that the CFMMEU made arrangements AEC to conduct election E2020/114. In an email dated 3 March 2021, the returning officer of the AEC wrote to Mr O’Connor, Divisional Secretary of the Manufacturing Division, setting out the electoral timetable, providing that:
nominations closed at 12.00 pm on 6 April 2021; and
for any contested office, a postal ballot would be open on 18 May 2021 and then close at 10.00 am on 16 June 2021.
15 By email dated 13 May 2021, the returning officer of the AEC wrote again to Mr O’Connor informing him of revised ballot open and close dates, providing that:
the voting period would now open on 9 June 2021 and close at 10.00 am AEST on 7 July 2021; and
a draw for ballot positions would occur on 19 May 2021.
16 Following the close of nominations at 12.00 pm on 6 April 2021, the AEC issued nomination acceptance reports to interested parties which confirmed those nominees who had been accepted as candidates in election E2020/114 in accordance with the relevant rules of the union. The nomination acceptance reports confirmed that a number of offices were uncontested, including the offices of:
(a) Divisional President;
(b) Divisional Senior Assistant Secretary;
(c) Divisional Assistant Secretary;
(d) New South Wales District President;
(e) New South Wales District Secretary;
(f) New South Wales District delegates to Divisional Conference; and
(g) Victorian District Secretary.
17 On 24 May 2021, the AEC declared those offices of the Division, Victorian District and New South Wales District in which there was no contest.
18 I understand that Mr Menon currently holds positions including that of South-East Co-ordinator in Construction and General, Queensland Northern Territory Divisional Branch of the CFMMEU (QNTDB). I further understand that he was elected District president of the Queensland Northern Territory Western Australian District of the Manufacturing Division (QNTWA district) on 28 November 2016, and QNTWA District Delegate to Divisional Conference on 20 December 2016, and that he was employed by the QNTDB.
19 Mr Menon alleges two broad irregularities in respect of election E2020/114, namely:
The electoral roll irregularity, namely that financial members of the CFMMEU attached to the Manufacturing Division, who lived in New South Wales but whose names were provided to the returning officer by the QNTDB, were not included on the roll of voters for election E2020/114, and
The eligible candidates irregularity, namely that certain nominated financial members of the CFMMEU who were attached to the Manufacturing Division and entitled to nominate officers in election E2020/114 had their nominations rejected by the returning officer, when those nominations ought not have been rejected.
20 Mr Menon alleges that the electoral roll irregularity affected all Divisional offices and all District Offices of the New South Wales district where there was a contest for office.
21 He further alleges that the following offices were subject to the eligible candidates irregularity:
Divisional President
Divisional Senior Assistant Secretary
Divisional Assistant Secretary
New South Wales District President
New South Wales District Secretary
New South Wales District Delegates to Divisional Conference
Victorian District Secretary
Victorian District Management Committee Member; and
Victorian District Delegates to Divisional Conference.
22 Mr Menon claims that some results of the elections have been declared.
23 As I have already noted, Mr Menon seeks interim orders pursuant to s 204 of the RO Act. Those orders are in the nature of restraining orders and maintenance of the status quo pending the conduct of the Inquiry Mr Menon seeks.
EVIDENCE BEFORE THE COURT
24 The parties relied on a number of affidavits in both matters.
25 Mr Menon relied on two affidavits, both sworn on 31 May 2021, but one of which contained detailed confidential information referable to members of the Manufacturing Division. I made a confidentiality order in respect of this particular affidavit.
26 Mr Menon also relied on the affidavit of his representing lawyer, Mr Dale Blackmore, filed on 28 May 2021.
27 The AEC relied on an affidavit sworn by Mr Owen Jones, a senior lawyer with the AEC, on 7 June 2021.
28 The Manufacturing Division relied on six unsworn affidavits filed on 7 June 2021, in particular the affidavits of Ms Kruschel, and of Mr Michael O’Connor, the Divisional Secretary of the Manufacturing Division.
Evidence of the applicant
Mr Menon’s evidence
29 In his affidavits, Mr Menon gave evidence, in summary:
Of his roles with the CFMMEU;
Of longstanding administrative arrangements in place in Queensland in relation to members of the Manufacturing Division, including an agreement dating back to 1998 concerning services provided by the Manufacturing division by the Construction and General division, Queensland Construction Workers’ Divisional Branch;
That he worked for the Forestry, Furnishing, Building Products and Manufacturing division of the CFMMEU (FFPD) between 1995 and 2013 in New South Wales, and has many contacts from that time notwithstanding that he relocated to Brisbane;
Throughout 2015 and into 2016 many NSW members complained that the NSW District of the CFMMEU had not visited their workplaces and was not adequately dealing with the members. NSW members were asking to join the QNTWA District;
During the 2016 Federal Election campaigned he travelled through New South Wales and concluded that many workplaces were not being serviced properly, and membership had plummeted across workplaces;
On 13 June 2017 the Divisional Secretary of the FFPD Michael O’Connor wrote to members in Northern NSW confirming that the only “branch” that could represent those members was the NSW District.
On the same date Mr O’Connor wrote to Mr Menon stating (inter alia) that complaints had been made by members in relation to Mr Menon and that Mr Menon was accused of inducing members to become members of the Queensland and Northern Territory Construction and General Division. Mr O’Connor was also communicating with Mr Ravbar. Mr Menon responded in writing and in detail to Mr O’Connor’s correspondence, and assisted Mr Ravbar to prepare a response to Mr O’Connor regarding servicing members who lived in Northern New South Wales;
Subsequently the NSW District took no further action in relation to members who lived in northern New South Wales. Rather, each member provided an application form to the QNTDB and paid membership contributions to the QNTDB until April 2020. In return the QNTDB serviced CFMMEU members who live in northern New South Wales;
In November 2019 historical administrative arrangements were altered between the CFMMEU in respect of its Construction and General Division QNTDB and the - in respect of the State Construction and General Division. As part of the administrative arrangements the Construction, Forestry, Mining & Energy Industrial Union of Employees Queensland, State Construction and General Division (CFMEUQ) started collecting membership contributions pursuant to a service agreement between the CFMMEU, in respect of its Construction and General Division, QNTDB, and the CFMEUQ, in respect of its State Construction and General Division (service agreement);
On 15 February 2021 Mr O’Connor wrote to the Divisional Branch Secretary of the QNTDB, Mr Ravbar, and told Mr Ravbar that as Divisional Secretary it was Mr Ravbar’s responsibility under the CFMMEU rules and the RO Act to maintain a register of members of the Manufacturing Division and provide an accurate certified list to the AEC, and that Mr O’Connor required the list of members of the Manufacturing Division that was kept and maintained by the QNTDB;
On 4 March 2021 Mr Ravbar provided Mr O’Connor with a list of members of the Manufacturing Division maintained by the QNTDB. This list included members of the Manufacturing Division who live in northern New South Wales who are serviced by the QNTDB as a result of longstanding administrative arrangements.
On 19 March 2021 Mr Menon caused a request to be lodged to the Returning Officer for a copy of the roll of voters in the Manufacturing Division Election.
On 11 May 2021 Mr Menon was confirmed as a candidate to stand for election to the office of Divisional Secretary of the Manufacturing Division and District Secretary of the QNTWA District;
As an accepted candidate he was entitled to receive, and did on 13 May 2021 receive, an electronic copy of the roll of voters. He was concerned there was a discrepancy in the roll of voters, excluding members who lived in northern New South Wales.
Mr Blackmore’s evidence
30 Mr Blackmore gave evidence in summary as follows:
On 19 August 2020, the Registered Organisations Commission determined that it was satisfied that an election was required to be held for positions within the Divisional Conference, Divisional Executive and District Committee of Management of the Manufacturing Division.
The Registered Organisations Commission made arrangements with the Australian Electoral Commission (AEC) to conduct the 2021 elections.
The AEC set out the electoral timetable, which closed nominations for the 2021 elections at 12.00 pm on 6 April 2021.
Following the close of nominations, the AEC was required to examine all nominations to ensure compliance with the divisional rules. If any nominations were found to be defective, then before rejecting such nominations, the AEC was required to notify the person concerned of the defect and, where practicable to do so, give them the opportunity of remedying the defect within a period if not less than seven days after being so notified (defect notice).
Defect notices were sent by the AEC to:
(a) Mr Jim Magee, who had nominated for election to the office of Divisional President.
(b) Ms Kylie Brown, who nominated for election to the office of Divisional Senior Assistant Secretary and Victorian District Secretary.
(c) Mr Benjamin Smart, who nominated for election to the office of Divisional Assistant Secretary.
(d) Mr Ian McHugh, who nominated for election to the office of New South Wales District President.
(e) Mr Eric Dixon, who nominated for election to the office of New South Wales District Secretary.
(f) Mr Steven Silk, who nominated for election to the office of New South Wales District Delegate to Divisional Conference.
(g) Mr Phillip Wilson, who nominated for election to the office of New South Wales District Delegate to Divisional Conference.
(h) Mr Greg Wimble, who nominated for election to the office of New South Wales District Delegate to Divisional Conference.
(i) Mr Adam Tester, who nominated for election to the offices of Victorian District Committee of Management Member and Victorian Delegate to Divisional Conference.
(j) Mr Beau Stanic, who nominated for election to the office of Victorian District Committee of Management Member.
(k) Mr Tim Adderley, who nominated for election to the office of Victorian District Committee of Management Member.
Despite a response being provided to each defect notice that confirmed the relevant member was in fact eligible to be nominated for election to the respective office, each of the above members had their nomination rejected by the AEC.
A number of offices were uncontested, including the offices of:
(i) Divisional President;
(ii) Divisional Senior Assistant Secretary;
(iii) Divisional Assistant Secretary;
(iv) New South Wales District President;
(v) New South Wales District Secretary
(vi) New South Wales District Delegates to Divisional Conference; and
(vii) Victorian District Secretary.
On 24 May 2021, the AEC declared those offices of the Division, Victorian District and New South Wales District in which there was no contest.
Evidence of the AEC
31 Materially, Mr Jones deposed:
Election E2020/114 is ready to proceed in accordance with the revised election notice.
He is informed that on 2 June 2021 the AEC ordered the printing of the ballot papers for election E2020/114, however depending on the outcome of the applications there may be two ballots to be withdrawn and redone and seven new ballots. Any adjustments to the printing order will incur a cost of $8,100.00.
In the event that an Inquiry is ordered, ballots would be impacted in respect of various offices.
The AEC had printed sufficient ballot papers to include the 83 members not currently included in electoral roll.
The COVID-19 pandemic in 2020 caused a number of elections to be cancelled or delayed, including election E2020/114. The AEC’s resources were allocated to those elections that have been delayed due to the pandemic, and the delay of election E2020/114 will delay other scheduled elections to occur in 2021.
The AEC wants election 2020 to proceed expeditiously, because it is a large election and its delay will delay other scheduled elections to be conducted by the AEC in 2021.
Unless ordered by the Court, the AEC intends to proceed with election E2020/114.
Evidence of the Manufacturing Division
Ms Kruschel’s evidence
32 In her affidavit filed 8 June 2021, Ms Kruschel materially deposed:
On 13 April 2021, Mr Menon by his solicitors wrote to Mr O’Connor complaining about his calling of a meeting of the Divisional Conference. Mr Menon asserted that until the election was concluded, the persons who would attend the meeting of the Divisional Conference no longer held their offices, because their terms had expired on 2 January 2021.
On 16 April 2021, Mr Menon commenced proceedings in this Court against Mr O’Connor and each of the members of the Divisional Executive, including Ms Kruschel. In this proceeding, Mr Menon filed an originating application seeking an order pursuant to s 164(1) of the RO Act that “…the Respondents perform and observe the rules as null and void any call of a meeting of the Divisional Conference of the Manufacturing Division until completion of elections for offices of the Manufacturing Division after 16 June 2021”. The proceeding was discontinued by Mr Menon on 12 May 2021.
Mr Menon’s actions have raised uncertainty about the governance of the Division pending the conclusion of the current elections. Such uncertainty about whether offices in the Division are vacant is liable to create confusion and concern among the members of the Division.
It is important for the election to proceed as scheduled and not be delayed. With delays in the court process and the potential for appeals, it is possible the elections might not be held for some considerable time if they are not permitted to proceed now.
In proposed interim orders sent to the Court by Mr Menon, it was proposed that until the hearing and determination of the Inquiry, the people who last held the following offices to which the inquiry relates ought act in that office until determination of the inquiry:
(a) Divisional President;
(b) Divisional Senior Assistant Secretary;
(c) Divisional Assistant Secretary;
(d) New South Wales District President;
(e) New South Wales District Secretary;
(f) New South Wales District Delegates to Divisional Conference; and
(g) Victorian District Secretary.
The people elected to the offices listed in paragraphs (a) to (e) and (g) held those offices before the election. Paragraph (f) is the exception.
Before the election the New South Wales District was entitled to two delegates to Divisional Conference (i.e. paragraph (f)). One of those positions was held by Ms Sharon Musson. The second position had been vacant for some time before the present election. In the present election, the New South Wales District became entitled to elect three delegates. One of those three positions was filled by Ms Musson who was re-elected and so the proposed order 3 would not affect her. The other two were filled by newly elected delegates.
There are 23 members of the Divisional Conference, so a prohibition on the two newly elected delegates from New South Wales will have little if any practical effect, but it will on the other hand deprive the members of the New South Wales District of the voice of their full allocation of delegates in the Divisional Conference, which is the supreme governing body of the Manufacturing Division, during the course of these proceedings.
Mr O’Connor’s evidence
33 In his affidavit, Mr O’Connor gave evidence of the history of the Manufacturing Division, and that the development of the CFMMEU through its many amalgamations could be seen in the eligibility clauses in rule 2 of the CFMMEU rules.
34 Mr O’Connor gave evidence that on 5 March 2021 he caused the list of members of each District of the Manufacturing Division to be uploaded to the AEC portal by the Manufacturing Division in accordance with the request of the AEC. The list of members evidenced that there were a total of:
9289 members in the Division; and
1663 members in the New South Wales District.
35 Mr O’Connor gave detailed evidence concerning his preparation of the list of members, including that he had written to Mr Michael Ravbar, the Secretary of the Queensland Northern Territory Branch of the Construction Division (Queensland Construction Branch) on 15 February 2021, requesting Mr Ravbar provide a list of members of the Manufacturing Division that Mr Ravbar had on his membership database. On 4 March 2021 Mr Ravbar’s personal assistant emailed to Mr O’Connor a list of members from Queensland, containing 83 persons who resided in New South Wales.
36 Mr O’Connor deposed that, in accordance with rule 8 of the CFMMEU Rules and rule 6 of the Manufacturing Division rules, he took the view that, to be a financial member of the Manufacturing Division, a person must have paid all contributions, in the amounts determined by the Divisional Executive, to the Divisional Secretary or an authorised agent of the Manufacturing Division. He deposed that an examination of the records of the New South Wales District of the Manufacturing Division, and the Manufacturing Division, was caused to be undertaken and there was no evidence of any payment by any of the 83 New South Wales residents to either of those bodies during at least the previous 24 months. As a result, Mr O’Connor formed the view that he could not certify that the 83 New South Wales residents were financial members of the Manufacturing Division, and therefore they were removed from the list of members which he caused to be provided to the AEC.
37 Mr O’Connor referred to arrangements in place between the Manufacturing Division and the Queensland Construction Branch, in particular an agreement entered in 1998 (1998 Agreement) between the Construction and General Division, Queensland Construction Workers’ Divisional Branch, the FFTS Union Division (which has since become the Manufacturing Division) and the FFTS Union Division, Queensland Divisional Branch. Pursuant to the 1998 Agreement the Queensland Construction Branch was to provide industrial support services to members of the QNTWA District, including the maintenance of a list of members of the Queensland district on its computer system. There was no other agreement or arrangement made between the Manufacturing Division and the Queensland Construction Branch authorising the Queensland Construction Branch to enrol, service or collect contributions from members of the Manufacturing Division who resided in New South Wales.
38 Mr O’Connor rejected the assertion in Mr Blackmore’s affidavit that, in consideration for the collection of the contributions payable by a member of the Division, the Construction and General Division would service members of the Manufacturing Division resident in northern New South Wales.
39 Mr O’Connor gave detailed evidence concerning the nominations for office of Mr Magee, Mr McHugh, Mr Dixon, Mr Silk, Mr Wilson, Mr Wimble, Ms Brown, Mr Smart, Mr Tester, Mr Stanic, and Mr Adderley.
40 In respect of a number of these candidates (for example Mr McHugh, Mr Dixon, Mr Silk, Mr Wilson and Mr Wimble) Mr O’Connor deposed that he understood that their nominators were not financial members of the Manufacturing Division.
41 In respect of a number of these candidates (for example, Mr Magee, Mr Smart, Mr Tester, Mr Stanic and Mr Adderley) Mr O’Connor deposed that he understood that they were not financial members of the Manufacturing Division, and therefore were ineligible to stand for office.
42 In relation to Ms Brown, Mr O’Connor noted that Ms Brown had applied for membership of the Manufacturing Division, however this was incorrect. Mr O’Connor also noted that, due to Ms Brown’s activities in encouraging members of the Manufacturing Division to resign, and rejoin as members of the Victorian Branch, he initiated Federal Court proceedings against the members of the Divisional Branch Committee of the Victorian Construction Branch under s 164 of the RO Act (VID 13 of 2020, O’Connor v Setka [2020] FCA 441, successfully appealed in O’Connor v Setka [2020] FCAFC 195).
43 In respect of the interim orders sought by Mr Menon, Mr O’Connor deposed:
131. Based on my experience as an official of Manufacturing Division and its predecessors for many years, delaying the elections as sought by Menon is likely to be productive of uncertainty and confusion among members of the Division and it would be far preferable that they have an opportunity to cast their vote. Depending on the outcome, some or all of the irregularities alleged by Menon may fall away. On the other hand, there is no certainty as to how long the litigation will take to be completed, especially with the possibility of appeals. I note that the Full Court judgment referred to above was delivered approximately 10 months after the case was commenced in the Court and the case is not yet completed. I accordingly respectfully request that the Court not delay the ballot which is due to commence on 9 June 2021.
Evidence of Messrs Smith, Skourdoumbis, Dusty and Gooley
44 The Manufacturing Division also relied on affidavits of
Mr Craig Smith, the Divisional Assistant Secretary of the Manufacturing Division;
Mr Leo Skourdoumbis, the Senior Divisional Assistant Secretary of the Manufacturing Division;
Mr Adam Dusty, an electorate officer, employed by the CFMMEU from February 2017 until April 2019 as an organiser in the New South Wales District; and
Mr Stephen Gooley, superannuation co-ordinator in the Manufacturing Division.
45 Relevantly at para 6, Mr Smith deposed:
Without conceding or admitting the other parts of Menon’s affidavit, I wish to make the following responses to the following parts of Menon’s affidavit.
46 Mr Smith then materially deposed:
Para 18(a) of Mr Menon’s affidavit was an incorrect description of the organising arrangements which were in place in the NSW District (para 7)
Para 18(b) of Mr Menon’s affidavit was also wrong, in that he was not contacted by Mr Menon, did not have discussions with him, was not passed on information by Mr Menon, and was not informed by any Delegate or member that they had been in contact with Mr Menon (para 8)
He had one contact with Mr Menon in mid-2014 about a friend of Mr Menon (para 9);
Para 20 of Mr Menon’s affidavit was untrue (para 10);
He took “strong issue” with Mr Menon’s assertions in para 23 (para 11)
Mr Menon’s statement in para 24 that Mr Menon had spoken to Mr Smith about the situation in southern New South Wales was untrue (para 12)
Mr Menon’s statement in para 28 that Mr Menon had spoken to Mr Smith was untrue (para 13)
Mr Menon did not report to Mr Smith about the activities Mr Menon described in para 29 (para 14)
Mr Smith disputes Mr Menon’s claim in para 31 (a) that Mr Menon was “horrified” (para 16)
Mr Smith takes issue with Mr Menon raising bullying issues in the manner Mr Menon has (para 17)
Para 33 of Mr Menon’s affidavit “completely misrepresents the situation” (para 18)
47 Mr Skourdoumbis’ affidavit was responsive to the affidavits of Mr Blackmore and Mr Menon. Mr Skourdoumbis materially deposed:
At no time did he agree to Mr Magee being treated as a financial member prior to 23 March 2021 and at no time did Mr Skourdoumbis inform Mr Magee to that effect (para 6);
It was never the position of the Manufacturing division that arrears of membership contributions of Mr Tester, Mr Stanic or Mr Adderley were waived by the Manufacturing Division (paras 8, 11, 14);
On 8 February 2017 he met with Mr Eric Dixon and 15 workers at Boral Timber – Murwillumbah, when he informed Mr Dixon that (contrary to advice given Mr Dixon by Mr Menon) the workers there could not join the Queensland Branch of the Construction and General Division (para 23). Mr Skourdoumbis had similar meetings with other workers at other sites (paras 24, 25);
Mr Skourdoumbis believed that Mr Menon had encouraged the members at their workplace to resign from the Manufacturing Division and join the Queensland Branch of the Construction and General Division (para 26)
48 Mr Dusty materially deposed:
During his employment with the CFMMEU he was responsible for organising the Southern Region of New South Wales which included Tumut, Tumbarumba and Wagga areas.
On 26 July 2017 he attended the Hyne Timbers workplace in Tumbarumba. While he was there Mr Menon and another organiser employed by the CFMMEU in the Construction and General Division arrived at the workplace. Mr Dusty prepared a report of what occurred at the Hyne Timbers workplace and sent it to Mr O’Connor the following day.
One of the delegates at the site gave Mr Dusty forms which the delegate said had been left at the workplace by Menon, and other organisers of the Australian Capital Territory Divisional Branch of the Construction and General Division.
49 Mr Gooley materially deposed:
He was the author of the complaint annexed to the affidavit of Mr Arturo “Bluey” Menon (annexure BM-3), filed 31 May 2021. The contents of the complaint accurately reflect the information provided to Mr Gooley by the below mentioned people.
He was not on shift when the events described in the complaint occurred. He based the complaint on information that had been provided to him by the Hyne Timber dry mill delegate, Mr Darren McPherson, and the Hyne Timber green mill crew, which included Daryl Schmidt, Matthew Salter, Scott McPherson, Trevor Whilesmith, David Cramp. Stephen Whilesmith and Darren Shaw. The above mentioned people were on day shift at the time of Mr Menon’s actions referred to in the complaint on 10 May 2017. They provided Mr Gooley with this information on the day after, being 11 May 2017.
The information about the actions of Mr Menon on 6 and 8 June 2019 referred to in the complaint was provided to Mr Gooley by Darren McPherson, other members from the dry mill and Adam Dusty.
At no time was it reported to Mr Gooley that Mr Menon said he was recruiting members into the QNTWA District of the FFPD, but rather, it was reported by the abovementioned people that Mr Menon was encouraging members to join the Construction and General Division in Queensland.
On 10 May 2017, Mr Gooley received a call from Dusty Miller, who was an organiser from the ACT Branch of the Construction and General Division of the Union. Mr Miller advised Mr Gooley that Mr Miller and Mr Menon were onsite and asked Mr Gooley to visit them. Mr Gooley said that he was on nightshift and could not attend. Mr Miller said to Mr Menon “Guess what, we are your new organisers. Craig Smith has been sacked, Michael O’Connor is on the out, and the Construction Division is taking over the FFPD.” Mr Gooley replied that that was the first he had heard of that and he would not be doing anything until he spoke to Craig. None of what Miller said was true.
SUBMISSIONS OF THE PARTIES
50 In summary the applicant submitted as follows.
The northern New South Wales members are attached to the Manufacturing Division.
Rule 2 (C) of the National Rules provides for the attachment of eligible members of the CFMMEU to that division. It followed that timber workers who were eligible to join the CFMMEU under rule 2 (C) attached to the Manufacturing Division when they joined the union.
Each of the missing northern New South Wales members was a timber worker who was eligible to join, and did join, the CFMMEU pursuant to r 2 (C) of the National Rules. Mr Menon gave evidence of the circumstances leading to those members being serviced by the QNTDB in mid-2017, and subsequent arrangements for services to be provided, and fees to be collected, by the QNTDB and then the CFMEUQ Construction and General Division.
Such arrangements were separate from, and did not alter, those members’ attachment to the Manufacturing Division, which was determined by the rules.
Administrative arrangements within the CFMMEU permitting northern New South Wales members to be serviced by the QNTDB were permitted by r 27 (vii) of the CFMMEU rules. The effect of these arrangements was that all members of the union who were attached to the Manufacturing Division and lived in Queensland had their membership contributions collected by the QNTDB, and then the CFMEUQ Construction and General Division..
The effect of the 1998 agreement, which remained in operation, was that the Construction and General Division of the CFMMEU collected membership contributions from Queensland members of the FFTS Division of the CFMMEU (which division later became the Manufacturing Division). This was consistent with Mr O’Connor’s request to Mr Ravbar for a list of members of the Manufacturing Division on the QNTDB’s database.
There is also a service agreement which has the effect that the State Construction and General Division of the CFMEUQ collects membership contributions from Queensland members of the union on behalf of the construction and General Division of the CFMMEU, regardless of where those members are attached.
It follows that the CFMEUQ Construction and General Division collects contributions from the northern New South Wales members as well as other Manufacturing Division members to whom it provides services.
The operation of rules 7 (v) and 8 (iv) of the CFMMEU means that those northern New South Wales members are to be treated as financial members of the Manufacturing Division.
The absence on the roll of voters of the northern New South Wales members is, inter alia, a breach of rule 32 (c)(iii) of the Manufacturing Division Rules, which sets out the criteria for eligible voters. This is an irregularity in the roll of voters.
The rejection of valid nominations for office is an irregularity, because it is a breach of the rules of the Manufacturing Division. In particular:
(a) The rejection of Mr Magee by the returning officer on the basis that Mr Magee failed the requirement in r 32 (a)(i) “of having continuous financial membership of the Division during the last 3 years” was an error, because r 32 (a)(i) did not require continuous financial membership during the last 3 years – merely that a member be financial and have 3 years financial membership at the time of nomination. Rule 32 (a)(i) can be contrasted with, for example, r 28 (x) in this respect. In any event Mr Magee paid the outstanding arrears to the Manufacturing Division, thus curing any defect in his nomination pursuant to r 6 (vi) of the Manufacturing Division Rules.
(b) The rejections of Ms Brown by the returning officer in respect of both her nominations was an error, because the decision of the Full Court in O’Connor v Setka had the effect of transferring her to the Manufacturing Division, and because Ms Brown was a financial member of the CFMMEU because had continued to pay fees to the Construction and General Division as she was unaware of the change in her membership status.
(c) The rejection of Mr Smart by the returning officer was an error, because Mr Smart was attached to the Manufacturing Division for the same reasons as Ms Brown. Further, Mr Smart most recently joined the CFMMEU in 2017, and had also been a financial member from 2002 until 2012 and 2012 until 2014. He was a financial member of the CFMMEU and the operation of r 7 (v)(b) meant that he was a financial member of the Manufacturing Division.
(d) The rejection of Mr McHugh by the returning officer for the reason that, although Mr McHugh appeared to be a member of the Manufacturing Division, the returning officer had not received evidence that Mr McHugh was a member of the New South Wales District, was an error. Rule 5 (iv) of the Manufacturing Division Rules provided that all members shall be deemed to be attached to the District covering the locality in which the member resided.
(e) The rejection of Mr Dixon by the returning officer for the reason that, although Mr Dixon appeared to be a member of the Manufacturing Division, the returning officer had not received evidence that Mr Dixon was a member of the New South Wales District, was an error for the same reasons as those in respect of Mr McHugh.
(f) The rejection of Messrs Silk, Wilson and Wimble for the reason that, their nomination did not comply with the requirements of rule 6 (iv) and (v), in that the last payment of membership contributions to the Manufacturing Division was received was on 9 March 2017 and no subsequent membership contributions paid, was an error. Further, the communication from the AEC to each of the candidates that, although they appeared to be members of the Manufacturing division, they did not appear to be members of the New South Wales District, was an error for the same reasons as those in respect of Messrs McHugh and Dixon.
(g) The rejections of Messrs Tester, Adderley and Stanic by the returning officer was an error, because they were attached to the Manufacturing Division for the same reasons as Ms Brown and Mr Smart.
Principles relevant to determining whether to make orders under s 204 are the same as the principles applicable to interim injunctive relief. The orders sought by Mr Menon to maintain the status quo should be made because he has demonstrated that there is a serious question to be tried in relation to each irregularity – that is, there are reasonable grounds to contend that irregularities have occurred. The balance of convenience favours such relief because there is no loss or damage to the AEC if the relief is granted.
51 The AEC’s submissions closely followed the evidence of Mr Jones. Materially:
The AEC intends to continue to conduct election E2020/114 unless restrained by the Court from doing so.
The balance of convenience favours the election being conducted, because:
(a) costs borne by the Commonwealth will be thrown away to the extent of $8,000; and
(b) by reason of the AEC’s resources being stretched due to the number of elections currently being administered by the AEC, the postponement of the election will have a prejudicial effect on the conduct of other elections.
If the Court is satisfied that the election ought be restrained, then the scope of the restraint should be crafted to minimise disruption and limited to only those offices that are in dispute.
There is no justification for the entire election to be halted.
There is no utility in seeking to hat elections to offices where the resulted have been declared.
If the Court is minded to grant the restraint, then it should be limited. No further steps be taken in respect of the conduct of the election, insofar as it concerns the following offices:
(a) Divisional President;
(b) Divisional Senior Assistant Secretary;
(c) Divisional Assistant Secretary;
(d) Victorian District Management Committee Member; and
(e) Victorian District Delegates to Divisional Conference,
until determination of the inquiry or further order.
52 The Manufacturing Division submitted, in summary, as follows:
The material filed by the applicant does not discharge the obligation on him under s 200 of the RO Act, in that it does not provide a basis for a finding by the Court that there are reasonable grounds to inquire into any or all of the alleged irregularities.
Rule 27 of the National Rules grants each Division of the CFMMEU autonomy, including in r 27 (ii) protection for each Division against interference in its affairs by any other Division of the union.
Rule 7 (iv) of the National Rules provides that a member shall be attached to the Division of the CFMMEU covering the industry or employment of the member and the member shall only be in one such Division.
Rule 18 of the Manufacturing Division’s rules provides that the membership of the Division shall be organised into Districts (including the New South Wales District and the Queensland Northern Territory Western Australian District). The Queensland District consists of all members resident in Queensland, Western Australia and the Northern Territory.
Rule 6 of the Manufacturing Division’s rules provides for the payment of membership contributions, including that if payment is not made within 3 months of due date, the defaulting member becomes unfinancial (r 6 (iv)).
Rule 32 of the Manufacturing Division’s rules sets out qualifications for nomination for elected office.
In relation to the exclusion of particular New South Wales residents alleged to be members of the New South Wales district of the Manufacturing Division from the electoral roll:
(a) The applicant has proceeded on a misconceived understanding of the rules of the Manufacturing Division in that he deposes that he was permitted to recruit members from the New South Wales District into the Queensland District. In so acting he was procuring those members to act in breach of r 18.
(b) The applicant incorrectly relied on the 1998 Agreement, which had no application to Manufacturing Division members outside the Queensland District. It followed that, to the extent that the Queensland Construction Branch collected contributions from New South Wales members recruited by the applicant, those collections were unauthorised by the 1998 Agreement, and did not constitute a discharge of the obligations of the New South Wales members to pay contributions to the Manufacturing Division in accordance with r 6 of the Manufacturing Division’s rules.
(c) It followed that the exclusion of these New South Wales members from the electoral roll on the basis that they were not financial members was correct, and no reasonable ground for an inquiry into this alleged irregularity has been demonstrated.
(d) In any event, even if some or all of the New South Wales members were wrongly removed from the electoral roll, they numbered a maximum of 83 members. Out of a total of 9,289 members on the roll for electing Divisional Officers, and 1,633 members on the roll for the election of New South Wales District Officers, the exclusion of 83 New South Wales members is unlikely to affect the results of the election.
In relation to the exclusion of candidates who claimed membership in the New South Wales district, being Messrs McHugh, Dixon, Silk, Wilson and Wimble:
(a) Mr McHugh was one of the 83 New South Wales members, and was unfinancial;
(b) Mr Dixon is one of the 83 New South Wales members, and is unfinancial for the same reason as Mr McHugh. Further, Mr Dixon was unfinancial as he has not paid contributions to the District since 9 March 2017;
(c) Mr Silk had not paid contributions to the Division since March 2017, he was one of the 83 New South Wales members, and his nominators were unfinancial (being also part of the 83 New South Wales members);
(d) Mr Wilson had not paid contributions to the Division since 2 June 2017, he was one of the 83 New South Wales members, and his nominators were unfinancial (being also part of the 83 New South Wales members);
(e) Mr Silk had not paid contributions to the Division since 2 March 2017, he was one of the 83 New South Wales members, and his nominators were unfinancial (being also part of the 83 New South Wales members);
In relation to the exclusion of Ms Brown: Ms Brown had resigned her former employment with the Manufacturing Division and taken up employment as an organiser with the Victoria-Tasmania Branch of the Construction and General Division. The Court should not accept the applicant’s assertion that Ms Brown’s attachment to the Victoria-Tasmania Branch of the Construction and General Division was a mistake. No explanation is provided as to the basis upon which Ms Brown could, in conformity with the rules of the CFMMEU, be organising on behalf of the Construction and General Division, employees who should be in the Division. Rule 27 (ii) of the National Rules make this clear. Further, the Court should reject the applicant’s assertion as to the alleged effect of the orders of the Full Court in O’Connor v Setka. Ms Brown’s reliance on National Rule 7(v)(b) as allegedly curing her failure to pay dues to the Manufacturing Division is misplaced, because at all relevant times she was attached to the Construction and General Division. Finally the Court should reject the submission of the applicant that the requirement in r 32(a)(i) for 3 years financial membership does not equate to 3 years continuous financial membership.
In relation to the exclusion of Mr Smart: the evidence is clear that Mr Smart resigned from the Manufacturing Division on 24 September 2019, he made no application to rejoin the Manufacturing Division, he has not paid membership contributions to the Manufacturing Division for the period between1 April 2019 and 31 March 2021, and while he had paid contributions between 1 April 2021 and 30 September 2021 no payments had been made on account of the arrears for the period from 1 April 2019. Further, similarly to the situation in respect of Ms Brown, the arguments concerning the decision of the Full Court in in O’Connor v Setka, his reliance on National Rule 7 (v)(b) as allegedly curing his failure to pay dues to the Manufacturing Division, and his arguments concerning the nature of the requirement in r 32(a)(i), were misplaced.
In relation to the exclusion of Mr Magee: his evidence concerning the reason for ceasing to pay membership dues (namely COVID-19) should not be accepted; further Mr Skourdoumbis rejected the allegations that Mr Magee’s arrears of fees had been waived.
In relation to the exclusion of Mr Tester: Mr Tester had resigned from the Manufacturing Division on 4 September 2019; he was unfinancial; he alleged unspecified conversations with unnamed officials of the Manufacturing Division about his arrears of contributions (which were rejected by Mr O’Connor and Mr Skourdoumbis); he could not be a financial member of the Manufacturing Division while he remained a member of the Construction and General Division; his reliance on National Rule 7 (v)(b) is misplaced; his reliance on the alleged effect of the orders of the Full Court in O’Connor v Setka [2020] FCA 441 is erroneous.
Similar considerations arise in respect of the exclusions of Mr Stanic and Mr Adderley, as applied in respect of the exclusion of Mr Tester.
The Court cannot be satisfied that there were reasonable grounds for an inquiry into the alleged irregularities in respect of these matters.
No Inquiry should be ordered, however if an inquiry is ordered, any interim orders should relate only to those irregularities which the Court has found warrant an inquiry. Further:
(a) A large number of the elections have already been declared.
(b) The evidence before the Court demonstrates that the only elections which appear to be incomplete are those in respect of:
(i) The District Committee of Management (Affirmative Action position) of Pulp and Paper Workers District;
(ii) The District Secretary, District Vice-president, District Committee of Management, District Delegate to Divisional Conference in the Queensland District to Divisional Conference in the Queensland District;
(iii) District Joint President, District Assistant Secretary, District Vice-President, District Committee of Management, District Delegate to Divisional Conference in the Victorian District; and
(iv) Divisional Secretary.
(c) The exclusion of the New South Wales members can only affect the ballots for New South Wales District Delegate to Divisional Conference and for Divisional Secretary.
(d) The balance of convenience weighs heavily in allowing the ballots to go ahead.
RELEVANT RULES
53 As I noted earlier in this judgment, whether there have been irregularities in respect of the conduct of election E2020/114 is referable to certain National Rules of the CFMMEU, and certain rules of the Manufacturing Division. For completeness, it is convenient to set them out.
Relevant National Rules of the CFMMEU
54 Rule 2(f) of the National Rules provides:
2 - CONSTITUTION
…
(F) Without limiting the generality of any other sub-rule or paragraph or being limited thereby an unlimited number of persons who are employed in, or competent to be employed in or in connection with the following industries or trades are eligible to be members of the Union:
Piano and piano-player makers and tuners, organ-makers, and makers of gramophones and all other musical instruments, cabinet-makers, wood-carvers, billiard table makers and fitters, clock-case makers, coffin-makers, 3-ply veneer workers, chair and couch makers, or other articles of sitting accomodation, sewing machines, upholsterers, carpet and linoleum planners and all floor covering layers, outdoor hands, measuring, fixing, soft furnishings, blind cutting, making, painting, fixing, french-polishers, enamellers, spraying machine operators, makers of wireless instrument cases or cabinets, woodturners, mantel-piece makers, overmantel-makers, mattress-makers, wire-weavers, picture-frame makers, bedding-makers, quiltmakers (including eiderdown), venetian and wireblind makers, bamboo pith and cane and wicker workers, packers of crockery and furniture mantlepieces, pictures, carpets, drapery, plate and sheet glass in warehouses, shops, factories or stores, glass bevellers, glass benders, glass worker (excepting those on spectacles, lenses or frames and employees in firms where such employees are engaged on work connected with the manufacture or repair of scientific, precision or other instruments such as binoculars, microscopes, military, aircraft and naval instruments), glass lampshade workers, safety glass workers, toy makers and/or toy repairers in establishments where the chief product or products or one of the chief products manufactured in such establishments is otherwise provided for herein; cutters, silverers, glaziers, glass polishing, cutting, painting, cementing, leadlight glaziers and cutters, and all woodworking or other machinists, and operators of other mechanical devices preparing material for above employees; millwright's baby carriage makers, upholstresses, new and second-hand carpet, drapery, table and lampshade hands; flock-workers, rag-pickers and fumigators; timber stackers, yardmen, and labourers, and all other employees working in new and secondhand furniture factories, piano factories, organ factories, mantel-piece factories, billiard-table factories, overmantel factories, bedding-factories, mattress factories, venetian and wire-blind factories, picture-frame factories, plate-glass factories, luxfer glazing factories, bamboo pith cane; Reed-tex, Hytex, and wicker-work factories, sewing machine factories, flock factories, window background workers, display article workers, refrigerator workers, incubator workers, together with such other persons, whether employees engaged in the industries or not, as have been appointed officers of the Union and admitted as members thereof, provided that a branch may issue a clearance to any member whom it may be considered should not retain his membership on the ground that he is working in an industry not governed by any awards of the Society.
55 Rule 7 of the National Rules provides:
7 - MEMBERSHIP
(i) A candidate for membership of the Union may make application to the National Secretary, the Division covering the occupation or industry in which the person is employed, the Branch covering the area in which the person is employed or resides, or the Divisional Branch covering the industry or occupation in which the person is employed, usually employed or desirous of being employed and the area in which the person resides or is employed, and such application shall be made and dealt with in the manner and subject to the conditions including conditions as to any probationary period required by the rules of the Division. Any application shall be forwarded to the office in the appropriate division which under the rules of that division deals with such applications. The decision to accept or reject that application shall be made in accordance with the Rules of that division by that office. Provided that where a person makes application to any officer of the Union that application shall be a valid application for membership of the Union and the Union shall, treat the member as a member of the Division to which the officer is attached, until transferred in accordance with the rules.
(ii) Candidates shall supply such information as to their identity and occupation, and such other particulars as to their eligibility for membership and the benefits of membership as the Rules of the Union may require, and shall, when requested, fill in and sign such application form as may be provided.
(iii)
(a) Any application for membership may be referred to the National Executive by the Division, or Divisional Branch to whom application is made or by the member.
(b) Where in any case the admission to membership of the person applying is rejected, such person shall have the right to appeal to the National Executive, whose decision shall be final.
(iv) A member shall be attached to the Division of the Union covering the industry or employment of the member and shall be in only one such Division. Each member shall be notified of the Division to which such member is attached or any other classification relevant to the Rules of the Union and such Division or classification shall be entered on the record of the Union in relation to that member which record shall be conclusive proof of the Division and/or classification to which that member is assigned.
(v)
(a) Notwithstanding anything elsewhere contained in the Rules of the Union no application for membership of the union shall be void or irregular only for the reason that the form of application is not fully completed or completed at all, or that some other form of application is used, or any other procedure under the Rules has not been complied with provided that the person intended to, and did in fact, in some way or other, apply for membership and the Union treated the person as a member. A member may be transferred to another Division, Branch or Divisional Branch without loss of continuity of membership. Without limiting the generality of the foregoing, a person who, at the time of application for membership was not eligible to be or become a member, shall be and become a member as soon as the person is eligible to be and become a member or earlier if by any Act, law or other Rule the membership is otherwise validated provided that the person performs an act which evidences an intention to be or become a member. For all purposes the payment of union dues in whole or in part shall be taken to be, without limiting the generality of the foregoing, a method by which a person intended to, and did in fact, in some way or other, apply for membership and/or evidences an intention to be or become a member.
(b) Without affecting or detracting from the requirements of sub-rules 42(iii) and 42(xii) and without limiting the rights of the member or a Division, Divisional Branch or authorised officer thereof, to seek or obtain a transfer of Division or Divisional Branch in accordance with the rules, no membership of the Union and no membership or attachment to a Division, Branch or Divisional Branch of the Union shall be invalidated, void or otherwise treated as irregular on account of the member being attached to a Division, Branch or Divisional Branch which, in accordance with the Rules, may not be the correct Division, Branch or Divisional Branch provided that the member was eligible for membership of the Union and the member was aware of the Division, Branch or Divisional Branch to which the member was attached. Every member of the Union who, on the records of the Union, is financial and is, on those records, attached to a Division, Branch or Divisional Branch shall be treated for all purposes as a financial member thereof and shall be entitled to all rights and required to comply with all obligations which attach thereto until transferred in accordance with the Rules.
(vi) Any Division or Branch or Divisional Branch may utilise for the purposes of application form for membership of this Union, an application form used for any previously registered organisation of employees which has become, upon amalgamation, part of this Union or any application form utilised jointly or otherwise with any trade union of employees registered under any legislation of a State or Territory.
(vii) A member shall, when applying for membership be informed of the financial obligations arising from membership and the circumstances, and the manner, in which a member may resign from the organisation and shall be informed of such in writing.
(viii)
(a) Where a Divisional Secretary or Divisional Branch Secretary is of the view that a person in the Division or Divisional Branch of which she/he is an officer should be attached to another Division or Divisional Branch the Divisional Secretary or Divisional Branch Secretary shall contact the Divisional Secretary or Divisional Branch Secretary of the Division or Divisional Branch to which, in the view formed, the member should be attached, and seek to obtain agreement on the transfer of the said member. Where agreement cannot be reached the matter may be referred to the National Secretary and be determined by the National Executive or an officer designated by the National Executive.
(b) Further provided that where a Divisional Secretary or a Divisional Branch Secretary forms the view that a member of another Division or Divisional Branch ought to be a member of the Division or Divisional Branch to which the Divisional Secretary or Divisional Branch Secretary is attached, the Divsional Secretary or Divisional Branch Secretary shall contact the the Divisional Branch Secretary of the Divisional Branch to which the member is now attached and seek agreement that the member be transferred. Where agreement cannot be reached the matter may be referred to the National Secretary and be determined by the National Executive or an officer designated by the National Executive.
(c) In relation to the two immediately foregoing paragraphs contact between Divisions and/or Divisional Branches in relation to these issues may, by custom and practice or by agreement, be dealt with by an officer other than the Divisonal Secretary or Divisional Branch Secretary or may be dealt with by members of staff. Where a member is transferred or determined to be transferred in accordance with either of the immediately preceding paragraphs the member shall be notified accordingly and the transfer shall be effective 14 days after the notification to the member. Within that period the member may object to said transfer and such objection will be determined by the National Executive. Pending such objection the member shall nevertheless be transferred in accordance with any of the aforesaid agreements and/or determinations.
(d) Any determination by the National Executive or officer designated by the National Executive shall use the principles established in and by sub-rules 42(i) and 42(iii) hereof.
Nothing in these paragraphs shall affect or detract from the provisions of subrule(s) 42(i), (iii) and (xii) and membership of a Division or a Divisonal Branch shall be valid notwithstanding an irregularity in, breach of or failure to comply with the procedures in either one or both paragraphs (a) or (b) herein.
56 Rule 27 of the National Rules provides:
27 - DIVISIONS
(i) There shall be Divisions of the Union established, in accordance with the Rules of the Union. Such Divisions shall be established on a basis of industry or occupation.
Provided that upon the amalgamation of The Maritime Union of Australia and the Textile, Footwear and Clothing Union of Australia with the Union there shall be four (4) Divisions of the Union as follows:
(a) the Construction and General Division;
(b) the Manufacturing Division;
(c) the Mining and Energy Division; and (d) The Maritime Union of Australia Division.
(ii) Each Division shall have autonomy to decide matters which do not directly affect the members of another Division without any interference by any other body within the Union, including but not limited to:
(a) The industrial interests of its members.
(b) The election of officers within the Division.
(c) Matters arising from the Objects of the Division.
(d) Structure of the Division.
(iii) Each Division shall have autonomy in relation to its funds and property.
(iv) Each Division shall have rules and have power to make, alter or rescind such rules, to be called Divisional Rules. Without limiting the generality of the foregoing paragraph, each Division shall have power to determine policy for that Division, not inconsistent with the rules and policy of the Union as decided by National Conference or National Executive.
(v) If there is any environmental matter that directly affects the employment of members of one Division only, then that Division whose members are so affected shall have the power to determine the policy of the Union on that matter.
(vi) Divisions, other than the Manufacturing Division, shall, in accordance with their rules, have Branches along a geographic, occupational or area basis which branches of a Division will be called Divisional Branches and may have more than one divisional branch in a State or Territory divided on a geographic or occupational basis.
(vii) Any Division may, in accordance with their rules, allocate any Branch of the Union or any other Divisional Branch of any Division of the Union the responsibility for a Divisional Branch or part of a Divisional Branch where it is, in the opinion of the Division not appropriate or economic to establish and/or maintain a separate Divisional Branch in that area.
(viii) Where any Division allocates any of its Divisional Branches to a Divisional Branch of another Division, the latter Divisional branch shall pay capitation fees to and be represented by the first mentioned Division on the basis of the number of members so allocated.
Manufacturing Division Rules
57 Rule 2 of the Manufacturing Division rules provides:
2 - ELIGIBILITY FOR DIVISION
Every member who is a member of the union by virtue of Rule 2 Sub-Rule (C), (F) and (R) of the National Rules shall belong to this Division.
58 Rule 5 of the Manufacturing Division rules provides:
(i) A candidate for membership of the Division may make application to the Divisional Secretary or the District Secretary covering the area in which the candidate resides or is employed and such application shall be made and dealt with in the manner and subject to the conditions including conditions as to any probationary period required by the Manufacturing Division Rules.
(ii) Candidates shall supply such information as to their identity and occupation, and such other particulars as to their eligibility for membership and the benefits of membership as the Divisional Executive may require, and shall, when requested, fill in and sign such application form as may be provided.
(iii) An application for membership of the Division may be referred by the Secretary of the relevant District to the Divisional Executive for consideration or decision. Where in any case the admission to membership of any person applying is rejected such person shall have the right to appeal to the Divisional Conference the decision of which shall be final.
The Divisional Conference shall decide the appeal at a meeting specially conducted for that purpose and the appellant shall have the right to attend the meeting and state a case on the appeal.
(iv) All members shall be deemed to be attached to the District covering the locality in which the member resides, except:
(a) where the member is eligible for membership of the Division pursuant to Sub Rule 2 (C) of National Rule 2 Constitution to the PPW District; and
(b) members in the TCF Sector who reside in Queensland, who shall be deemed to be attached to the NSW District.
59 Rule 6 of the Manufacturing Rules provides:
6 - ENTRANCE FEES AND CONTRIBUTIONS
(i) Applicants for membership of the Division shall pay on application an entrance fee in accordance with these rules. Such entrance fee if applicable shall not exceed $300.00. The payment of the entrance fee shall not be a condition precedent to any person being constituted a member under these rules.
(ii) The contribution payable by each member shall be fixed by the Divisional Executive subject to the processes provided for in Rule 14.
(iii) The Divisional Executive may if, in its opinion it is desirable or necessary for financial or any other reason that the aforesaid entrance fees or contributions should be altered, waived or suspended, make such decision as it deems desirable or necessary, and the altered, waived or suspended entrance fee and/or contribution payable shall be applicable to the member(s), group or class of members concerned.
(iv) Members must pay any entrance fee, contribution, levy and fine imposed in accordance with these rules, subject to any decisions made by the Divisional Executive in accordance with Rule 6 (iii) or Rule 28. A member will be deemed to be unfinancial if any such payment is not made within three months of becoming payable in accordance with these rules.
(v) An unfinancial member will not be eligible to receive any benefits, participate in any deliberations, propose or second any new applicant member for admission, or exercise any authority or any membership rights.
(vi) A member shall be deemed to be financial immediately upon payment of all arrears outstanding.
(vii) Contributions shall be paid to and collected by the Divisional Secretary, or an authorised agent of the Division.
(viii) The Divisional Executive may fix a special or different rate of contribution and/or entrance fee for any class of members within the Division.
Any decision made by the Divisional Executive in accordance with this rule must not discriminate between members on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
(ix) A member shall, when applying for membership be informed of the financial obligations arising from membership and the circumstances, and the manner, in which a member may resign from the organisation and shall be informed of such in writing.
60 Rule 18 of the Manufacturing Division rules provides:
i. For the purposes of organisation of the members of the Division and for provision of services to members each member of the Division shall be allocated to a District as follows:
(a) the NSW District which shall consist of:
1. all members resident in that State of NSW and the Australian Capital Territory other than those persons who are eligible for membership of the PPW District as provided for in (f) of this Sub Rule; and
2. all members of the TCF Sector resident in the State of Queensland;
(b) the Victorian District consisting of all members resident in the State of Victoria other than those persons who are eligible for membership of the PPW District pursuant to (f) of this Sub Rule and those persons who are eligible for membership of the Greater Green Triangle District pursuant to (g) of this Sub-Rule;
(c) the South Australian District consisting of all members resident in the State of South Australia other than those persons who are eligible for membership of the PPW District pursuant to (f) of this Sub Rule and other than those persons who are eligible for membership of the Greater Green Triangle District pursuant to (g) of this Sub-Rule;
(d) the Tasmanian District consisting of all members resident in the State of Tasmania other than those persons who are eligible for membership of the PPW Branch pursuant to (f) of this Sub Rule.
(e) the Queensland Northern Territory Western Australian District consisting of all members resident in the States of Queensland, Western Australia and the Territory of the Northern Territory other than those persons who are eligible for membership of the PPW Branch pursuant to (f) of this Sub Rule and other than those persons who are eligible for membership of the TCF Sector resident in the State of Queensland;
(f) the PPW District consisting of all members eligible for membership of the Union pursuant to Sub Rule 2 (C) (ii) of Rule 2 Constitution of the Rules of the Union.
(g) the Greater Green Triangle District consisting of all members in the State of South Australia whose place of employment is located in any of the following municipalities: Mt Gambier, Grant, Robe, Kingston, Naracoorte-Lucindale, Southern Mallee, Tatiara, Coorong or Wattle Range: and in the State of Victoria all members whose place of employment is located in one of the following municipalities: Ararat, Colac Otway, Corangamite, Glenelg, Horsham, Moyne, Northern Grampians, Southern Grampians, Warnambool or West Wimmera: other than those persons who are eligible for membership of the PPW Branch pursuant to (f) of this Sub Rule.
ii. The Divisional Conference or Divisional Executive shall have power to constitute such other Districts and allocate members thereto as it may determine appropriate from time to time.
iii. The Divisional Executive shall determine the location of each District Office.
61 Rule 32 of the Manufacturing Division rules provides:
(a)
(i) Any member of the Division who is financial as provided for in Rule 6, at the time of nominations and has three years financial membership, may nominate for the following positions:
Divisional Secretary
Divisional President
Divisional Senior
Assistant Secretary
Divisional Assistant Secretary
(ii) Any member of the TCF Sector of the Division who is financial as provided for in rule 6 at the time of nominations and has three years financial membership may nominate for the following position:
TCF National Secretary
(ii)(a) Any member of the TCF Sector of the Division who is financial as provided for in rule 6 at the time of nominations and has one year financial membership may nominate for the following position/s, where such position/s are to be elected pursuant to rule 9 A (vi):
Ordinary TCF Sector Council member
Where the position of ordinary TCF Sector Council member is required pursuant to rule 9 A (vi) to be from the Victoria District or from the NSW District, a member nominating for the position must also be a member of that District.
(iii) No member shall be entitled to nominate for more than one Divisional full time office.
Where a member nominates for more than one Divisional full time office the Divisional Returning Officer shall seek from the member a decision as to which position the member wishes to contest.
(iv) The Divisional Assistant Secretary (PPW) position will be held by the District Secretary of the PPW District. If the PPW District Secretary is elected to the position of Divisional President, then the Divisional Assistant Secretary (PPW) position ceases to exist. If the PPW District Secretary vacates the position of Divisional President then the Divisional Assistant Secretary (PPW) position is reestablished.
(v) The term of office for the above positions, other than the positions of TCF National Secretary and ordinary TCF Sector Council member below shall be four (4) years such term commencing from 2 January following the elections.
The term of office for the TCF National Secretary in the year 2020 shall commence on 21 December 2020 and shall continue until 1 January 2024 in order to synchronise the terms of office of the other offices in (a) (i) of this rule. Thereafter, the term of office for the TCF National Secretary shall be four (4) years.
The term of office for the position/s of ordinary TCF Sector Council Member is as provided for in Sub Rule (c) (xxiii) of this rule.
(b)
(i) The Divisional Executive shall determine prior to the calling of nominations whether a position of District Secretary in any District is to be a full time paid Office.
(ii) No member shall be entitled to nominate for both the position of District Secretary and District Assistant Secretary (if any)
(iii)
(A) The scale of financial membership of the District necessary for members to nominate for the following positions is as follows:
District Secretary (other than the NSW District Secretary) – 3 years financial membership
NSW District Secretary – 2 years financial membership District President – 1 year financial membership
District Vice President - 1 year financial membership
District Assistant Secretary/ies other than Victoria District TCF Assistant Secretary (if any) - 1 year financial membership
Victoria District TCF Assistant Secretary – 1 year financial membership of the TCF Sector
Victoria District TCF Full Time Officer – 1 year financial membership of the TCF Sector
District Management Committee Members – 1 year financial membership
PPW Sub Branch Secretary-1 year financial membership
PPW Sub Branch Senior Vice President - 1 year financial membership
PPW Sub Branch Junior Vice President -1 year financial membership
PPW Sub Branch Committee of Management Members -1 year financial membership
District Organiser - 1 year financial membership
(B) Provided that notwithstanding Rule 32(b)(iii)(A) and subject to Rule 44(xi), for the purpose of any election conducted in 2018, any member of the Division who is financial as provided for in Rule 6, at the time of nominations, may nominate for any position listed in Rule 32(b)(iii)(A).
(iv) The term of office for the above positions shall be four years and such term shall commence from the 2nd of January following the election.
(c)
(i) Nominations for the above positions, shall be called by the Divisional Returning Officer by notification on the union website on 11 August 2020 and each four years thereafter following that date.
(ii) Nominations shall open on 18 August 2020 and each four years thereafter following that date, other than in respect of the position of ordinary TCF Sector Council member. Any member desiring to nominate for the above positions shall apply either personally or in writing to the Divisional Returning Officer for a nomination form. Such forms shall be signed by the candidate and:
(A) if nominating for any of the positions listed in paragraph (a)(i) of this rule – signed by at least ten financial members of the Manufacturing Division;
(B) if nominating for the position listed in paragraph (a)(ii) of this rule – signed by at least ten financial members of the TCF Sector;
(C) if nominating for the position of District Secretary – signed by at least ten financial members of that District;
(D) if nominating for any other position listed above – signed by at least five financial members of the Manufacturing Division; and forwarded by certified post to the Divisional Returning Officer or handed personally at the Divisional Office or, in the case of an election conducted by the Australian Electoral Commission at the office nominated by it and a receipt thereupon obtained.
(iii) Nominations shall be closed at noon on 1 September 2020 and each four years thereafter following that date, other than in respect of the position of ordinary TCF Sector Council member. Nominations must be received by the Divisional Returning Officer by that time on the date to be eligible.
(iv) A member having nominated for any office in accordance with these Rules may withdraw the nomination by notifying the returning officer in writing of an intention to do so at any time up to 14 days after the closing of nominations. The returning officer on receipt of a notification from a member wishing to withdraw a nomination shall immediately take the appropriate steps to withdraw the members name from the ballot papers prior to their distribution.
(v) Candidates may include with their nomination form, a statement not exceeding 200 words and in respect of District Management Committee member 50 words, containing only the candidate's personal history and only the candidate's policy statement.
(vi) The Divisional Returning Officer shall examine all nominations to ensure that they are in order and if any nominations are found to be defective, the Divisional Returning Officer, before rejecting the nominations, shall notify the person concerned of the defect and where practicable to do so give them the opportunity of remedying the defect within a period of not less than seven days after being so notified.
(vii) If at the closing date for nominations only sufficient nominations have been received by the Divisional Returning Officer to fill any vacancy or vacancies the Divisional Returning Officer shall thereupon declare the person or persons so nominating elected and supply forthwith a report of the declaration of the ballot to the candidates by submitting a Divisional Returning Officers report to the Divisional Secretary.
(viii) If all nominations are received and there are more nominations than there are vacancies the Divisional Returning Officer shall conduct a draw for positions on the ballot paper and shall notify candidates of the time and place of the draw in sufficient time for a candidate or a nominee to attend the draw; such attendance shall be at the candidate's own costs and expense.
(ix) The Divisional Returning Officer shall forthwith have printed ballot papers in sufficient quantities to enable the supply of a ballot paper for each member eligible to vote in the election and secure a certificate from the printer as to the number printed.
(x) Such ballot papers shall have printed thereon only the title of the office to be filled, method of voting and the name of the candidates for such office and a space for the required vote to be registered, provided however that where more than one candidate is required to be elected the number to be elected shall, be printed on the ballot paper. The position of the names of each candidate on the ballot paper shall be in order of the draw of positions for that ballot.
(xi) Where a ballot is required, the Divisional Secretary shall provide, within thirty five days of the closing of nominations, a certified list of financial members entitled to vote to the Divisional Returning Officer.
(xii) The Divisional Returning Officer shall, on a date which will enable the ballot paper to be posted not later than fourteen clear days before the closing date of the ballot, send by prepaid post to each member eligible to vote in the election an envelope addressed to such member at their address appearing on the list of members eligible to vote supplied to the Divisional Returning Officer by the Divisional Secretary and that envelope shall contain only the following documents -
(a) a ballot paper initialled by the Divisional Returning Officer in respect of each office to be filled at the election for which the member is eligible to vote;
(b) a declaration envelope and an empty unsealed pre-paid post envelope addressed to the Divisional Returning Officer, c/- the numbered mail box referred to in this rule;
(c) such printed instructions necessary for the completion of each of the ballot papers enclosed in the said envelope and any other instructions that the Divisional Returning Officer may consider necessary;
(d) the candidates statement provided for in accordance with sub-rule (c)(v) of this rule.
(e) provided that the Divisional Returning Officer shall post to each member eligible to vote by mail each relevant ballot paper.
(xiii) For the purpose of the election the books of the Division shall be deemed to have closed as at 1 August in the year of the election. Only members who are shown in the records at the office of the Division as having paid all contributions, levies and fines prior to 1 August shall be entitled to vote. Provided that any member who at any time prior to the closing of the ballot satisfies the Divisional Returning Officer that they have paid all contributions, levies and fines prior to the 1 August in the year of the election shall be entitled to receive a ballot paper and the Divisional Returning Officer shall send by post, a ballot paper in accordance with sub-rule (c)(xii)(a) of this rule. Provided that for the purpose of the position of ordinary TCF Sector Council member, a reference to 1 August in this Sub Rule does not apply.
(xiv) The opening date of the ballot shall be 1 October and the closing date shall be noon 15 October in each year in which the ballot is held, other than in respect of the position of ordinary TCF Sector Council member. All ballot papers shall be returned to the Divisional Returning Officer, c/- the post office box named on the reply envelope. The post office box to which the ballot papers are returned shall be hired by the Divisional Returning Officer prior to the dispatch of the ballot papers or if a box has been previously used by the union, they shall cause the lock to be changed.
(xv) The Divisional Returning Officer shall collect the returned ballot papers from the post office box and deposit them in a ballot box until the commencement of the count of the ballot which will take place no later than the first working day following the closing of the ballot and shall be completed as soon as is practicable.
(xvi) Any candidate at their own expense may appoint a financial member of the union to act as their Scrutineer by notification in writing to the Divisional Returning Officer. Any Scrutineers so appointed may be present at any stage of the counting of the ballot provided that the Divisional Returning Officer is also present.
(xvii) The Divisional Returning Officer shall proceed to count the ballot on the preferential system provided for in Rule 4, Definitions, and the candidate or candidates receiving the necessary votes shall be deemed elected.
(xviii) In the case of equality of votes for any 2 or more candidates the Divisional Returning Officer shall determine the result by declaring the candidate who currently holds the office being contested elected. Should no candidate hold the office which is being contested the Returning Officer shall determine the result by casting lots.
(xix) The Divisional Returning Officer shall declare the successful candidates elected and notify the Divisional Secretary of the result of the ballot and the result shall be notified to the members. The Returning Officer shall also notify each successful candidate by post and publish their names in at least one daily newspaper circulating in the Divisional area.
(xx) The Divisional Returning Officer's report to the Divisional Secretary shall contain all relevant information including the number of ballot papers printed, the number posted, the number returned, the number unused, the number of votes received by each candidate, the names of those nominated for each office and their proposers.
(xxi) Any accidental or unavoidable omission or error in the carrying out or observance of this rule shall not invalidate an election if such omission or error appears not to have affected the result of an election.
(xxii) In any election the Divisional Returning Officer and any Scrutineer shall do all things necessary to preserve the secrecy of the ballot and shall conduct themselves in a sober, proper and impartial manner. Scrutineers shall, as far as practicable, be present at all stages of the ballot. They shall obey any directions given to them by the Divisional Returning Officer. If any Scrutineers or Scrutineer are not present at any stage or stages of the ballot the Divisional Returning Officer may proceed nonetheless.
(xxiii) Election of ordinary TCF Sector Council members
The provisions of Sub Rule (c) apply to the election of ordinary TCF Sector Council members, other than where provided, and other than to the extent of any inconsistency between Sub Rule (c)(xxiii) and the remainder of Sub Rule (c), in which case the provisions of Sub Rule (c)(xxiii) prevail.
Where required by rule 9 A, an election for the position of ordinary TCF Sector Council member must take place subsequent to, but in the same calendar year in which, the Divisional Conference election of Divisional Executive members pursuant to rule 9.
The date on which the roll of voters for any such election is to be closed is to be 14 days prior to the date on which nominations for the election open.
The period in which nominations for any such position shall be received closes at 4pm on the 18th day after the date on which nominations for the position opened.
The ballot for any such position shall commence 5 weeks after the closing of nominations for the position, and shall close at noon on the 14th day after the ballot commences.
The term of office of a person elected to the position of ordinary TCF Sector Council member will commence upon the declaration of election for the position, and conclude upon the election of Divisional Executive members by the Divisional Conference pursuant to rule 9 in in the calendar year four years subsequent to the commencement of the term.
CONSIDERATION
Should the court make orders pursuant to s 201 of the RO Act?
62 The task of the Court considering whether the requirements of s 201 of the RO Act have been satisfied was explained by Flick J in Re Killesteyn [2009] 261 ALR 730; [2009] FCA 1311:
23 The power conferred by s 201 is constrained by the requirement that the Court be “satisfied that there are reasonable grounds for the application”. Grounds which provide no more than a speculative basis for a suspicion will not suffice: Re Post; Re Election for Offices in Transport Workers Union of Australia, Western Australian Branch (1992) 40 IR 162. When considering the terms of earlier comparable legislation, French J there formulated the approach to be applied as follows (at 166):
“Reasonable ground for the application”
The question for the Court mandated by s 219(b) of the Industrial Relations Act 1988 is whether it is satisfied that there is reasonable ground for the application. It will not be so satisfied if the grounds relied upon could not, even if made out, constitute “an irregularity in relation to an election for an office in the organisation”. The question whether there is such an irregularity lies at the heart of this jurisdiction. Nor will it be so satisfied if the allegations of fact relied upon in the application do not at least offer good grounds for suspicion that there has been such an irregularity. The Court will not entertain an application of a speculative nature based upon the applicant’s opinion that there has been irregularity unless that opinion rests upon some substantial factual foundation. Necessary conditions to establish the requisite state of satisfaction can be multiplied. It is harder to state what is sufficient to satisfy the Court beyond the words of the section itself which require an evaluative judgment at this preliminary stage.
(emphasis added)
63 Justice Flick in Re Killesteyn also referred to the observations of Kirby J in Re Jarman; Ex parte Cook (No 2) (1996) 136 ALR 233; [1996] HCA 7. There Kirby J said (at 241)
It is true that the powers of the Industrial Relations Court in conducting an election inquiry should not be narrowly construed. But the Act has provided ample powers to the court to make orders, as appropriate and necessary, including at short notice, to meet irregularities appearing in the course of an inquiry into an election. To invoke the jurisdiction of the Industrial Relations Court and to conduct an inquiry into an election is a serious matter. This explains the procedure established by s 219(b) by which, before an inquiry is conducted, the court must be satisfied that “there is reasonable ground for the application”. I say that the step is a serious one because it affects confidence in the integrity of the conduct of the organisation; introduces an element of uncertainty in the tenure of the office-holders affected; distracts the attention of those office-holders, to some extent, from the pursuit of their industrial functions; consumes a great deal of time of the organisation and of public office-holders; and involves much public and private cost. In such circumstances, the proper inference is that the Parliament intended that electoral inquiries should not be lightly embarked upon nor extended unnecessarily beyond the subject matter of the particular application. That is the scheme of Pt IX Div 5 of the Act. The provision of s 221(1)(c) must be read to give effect to that scheme ...
(emphasis added)
64 (see also Barker J in Re McJannett (No 2) (2009) 188 IR 156; [2009] FCA 1015 at [102], Reeves J in Re Nimmo (2011) 192 FCR 111; [2011] FCA 38 at [27]-[28])
65 In Clancy, Re ANMF [2017] FCA 460 after referring to the decision of French J in Re Post, Siopis J observed:
23 Further, in my view, the question of whether there are “reasonable grounds for the application” under s 201(b) of the FW(RO) Act is to be informed by the nature of the inquiry proceeding contemplated by s 206 and, in particular, the relief which may be ordered as a consequence of the inquiry.
24 It is relevant, therefore, to have regard to s 206(4) and s 206(5) of the FW(RO) Act. It is apparent that, if an irregularity is found, the Court only has power to make a limited range of orders. In effect, the Court only has power to make one or more of the three primary orders, set out in s 206(4)(a), (b) and (c) respectively, and orders incidental or supplementary to, or consequential upon, those orders.
25 Section 206(5) places a further limitation on the power of the Court to make orders under s 206(4). In relation to a completed election, this limitation is that the Court must be of the opinion that, having regard to the irregularity found and any likelihood that similar irregularities may have occurred, the result of the election may have been affected by irregularities.
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.
(emphasis added)
66 I also note the following comments of Flick J in Application of the Electoral Commissioner (2014) 226 FCR 144; [2014] FCA 588:
6 The holding of an inquiry, it must be recalled, is a “serious” step: Re Jarman; Ex parte Cook (No 2) [1996] HCA 7; (1996) 136 ALR 233 at 241 per Kirby J; Re Killesteyn (application for an inquiry in relation to an election in the Australian Salaried Medical Officers’ Federation (Qld)) [2009] FCA 1311 at [24], [2009] FCA 1311; (2009) 261 ALR 730 at 737 per Flick J; McJannett v Bulloch [2012] FCA 1233 at [90] per Barker J. But the requisite state of satisfaction, it must also be recognised, is to be formed at a point of time prior to the holding of any inquiry and at a point of time when the persons affected may not be in the best position to assist the court: Bourne v Campbell [1999] FCA 1522 at [8], (1999) 93 IR 238 at 240 per Einfeld J. The level of satisfaction, it was there said, “will ordinarily be quite low”.
67 Turning now to the circumstances of the case before the Court, I note the seriousness of a decision by the Court to order an inquiry for the reasons articulated by Kirby J in Re Jarman.
68 However, I am satisfied that there are reasonable grounds for the application made by Mr Menon within the meaning of s 201 of the RO Act, such that the Court should order the Inquiry sought.
69 First, Mr Menon contends that there have been breaches of the National Rules and the Manufacturing Division rules, both in respect of omission of members (specifically, the 83 members living in northern New South Wales) from the election rolls in election E2020/114, and in respect of the rejection of nominations of the candidates to whom I have referred during this judgment. In relation to whether the 83 northern New South Wales members are financial members entitled to all the rights of, and required to comply with all the obligations of, members of the Manufacturing Division of the CFMMEU, Mr Menon contends for example that:
The northern New South Wales members are eligible to join and did join the CFMMEU pursuant to r 2(C) of the National Rules, and are attached to the Manufacturing Division;
That those members have been serviced by the QNTDB and more recently the CFMEUQ Construction and General Division does not alter those members’ attachment to the Manufacturing Division in accordance with r 2(C), particularly in light of r 27(vii) of the National Rules; and
The effect of rr 7(v) and 8(iv) of the National Rules means that those members are to be treated as financial members of the Manufacturing Division.
70 In respect of elections, r 32 of the Manufacturing Division Rules provides that any member of the Division who at the time of nomination “has three years financial membership” may nominate for stipulated positions. Rule 6 of the Manufacturing Division Rules describes relevant membership fees and contributions, but also contemplates that the Divisional Executive may alter, waive or suspend such contributions.
71 Yesterday a great deal of argument by Counsel for the applicant and the Manufacturing Division concerned the proper interpretation of these, and other, rules. Their arguments raised complex factual and interpretational issues. So, for example, the attention of the Court was drawn to such considerations as:
Conflicting evidence (for example, that of Mr Skourdoumbis rebutting evidence of Mr Menon that membership fees had been waived in respect of various candidates, and the rejection by such witnesses as Mr Smith of the evidence of Mr Menon concerning interactions between them);
The legitimacy, application, and/or relevance of the 1998 Agreement insofar as concerned collection of union dues from members (be they in Queensland or New South Wales) under the Rules;
Whether the National Rules and Manufacturing Rules permitted members living in one District to be serviced by another arm of the union, in another District;
Whether the candidates whose candidatures were rejected were “financial” members within the meaning of the Rules (which in turn raised the issue of whether financial membership for the purposes of r 32 of the Manufacturing Division Rules contemplated continuous financial members over a period of time, to a particular date); and
Whether some of those candidates (for example Ms Brown) were even members of the Manufacturing Division within the meaning of the Rules (raising such issues as the application of the decision of the Full Court in O’Connor v Setka, and indeed likely, or possible, flow-on effects from that decision in respect of union membership).
72 Reviewing the transcript of yesterday’s hearing, I consider there is merit in the submission of Mr Friend QC for the applicant that the Manufacturing Division had “come along with [their] whole case” (transcript p 62 l 22) to meet the present application. Whether or not that is the situation, notwithstanding the seriousness of an application pursuant to s 201 of the RO Act, the Court’s power conferred by s 201 is constrained by the requirement that the Court be “satisfied that there are reasonable grounds for the application”.
73 That is the present task of the Court in reviewing the application in QUD 168 of 2021.
74 The fact that the Manufacturing Division led evidence rebutting relevant evidence of Mr Menon does not, of itself, mean that Mr Menon’s application lacks merit, and does not prevent the Court concluding that the alleged irregularities rest upon some substantial factual foundation for the purposes of s 201 of the RO Act. Indeed in the absence of that evidence being appropriately tested at in Inquiry, such questions as whether, in fact, members were financial because their arrears of membership fees had been waived, simply cannot be properly resolved at this stage.
75 It is premature – and in my view, ultimately not possible – for me to reach final conclusions in respect of such contested issues as those to which I have referred. The multiplicity of issues raised by the parties, many hotly disputed, require consideration beyond the scope of a hearing of an application lodged pursuant to s 200 of the RO Act.
76 Second, turning now to whether Mr Menon has established that there are irregularities supporting orders pursuant to s 201 of the RO Act, as a general proposition members of a union who pay their union dues are entitled to the benefits of union membership, including voting rights in respect of office holding, and nomination for candidature of offices in their union. The bald picture as painted by such material as is presently before the Court is that 83 members of the union have paid dues to their union, the union has accepted their money, but due to an administrative arrangement (which the applicant contends is perfectly legitimate) those members are denied the voting and candidacy rights to which they are entitled under the union Rules.
77 The applicant also points to the rejection of nominations of candidates for election. Despite the significant conflict between the applicant and the Manufacturing Division as to the eligibility of the candidates, the applicant has mounted a plausible case (by reference to both the Rules and the facts) of their eligibility. I make this observation notwithstanding the differing reasons for which candidates were deemed to be ineligible. Those reasons in turn relate to contested matters of fact and law, which can only be determined by proper consideration (and certainly not at this stage of the proceedings)
78 Ultimately, rejection of eligible candidates for reasons which may prove to be misconceived is a serious matter. The case advanced by the applicant indicates that there are at least reasonable grounds for concluding that those reasons were misconceived.
79 As matters presently stand, the allegations of fact as presented to the Court offer good grounds for suspicion that irregularities as claimed have attended the voting process in respect of election E2020/114. Such irregularities are referable to breaches of the rules of the CFMMEU, and acts or omissions by which the full and free recording of votes by all persons entitled to record votes is prevented (s 6 RO Act).
80 Finally, a matter of significance on which the Manufacturing Division relied concerned the number of union members relevantly excluded from voting in election E2020/114. In substance, the Manufacturing Division submitted that, numerically, the number of affected voters was small, being 83 out of a total of 9,289 members on the roll for electing Divisional Officers, and 1,633 members on the roll for the election of New South Wales District Officers. It followed that this statistical insignificance should inform the view taken by the Court of the strength of the applicant’s case in relation to the alleged irregularities.
81 In particular, the Manufacturing Division relied on the judgment of Siopis J in Clancy, and observations of his Honour concerning the relevance of the extent to which the result of an election may be affected by alleged irregularities.
82 Justice Siopis in Clancy referred to the extent to which the result of an election may be affected by irregularities in the context of s 206 of the RO Act. This section concerns action by the Federal Court at an inquiry when the Court is inquiring into whether an irregularity has occurred in relation to an election, and sets out the types of orders which can be made if the Court finds that an irregularity has occurred. Sections 206(4) and (5) of the RO Act provide:
(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.
83 The orders presently sought by the applicant are not pursuant to s 206 of the RO Act. Rather, the present application is made pursuant to s 201 RO Act. It does not automatically follow that the Court’s consideration of whether there are reasonable grounds for the application should be circumscribed by the orders which the Court will be in a position to make at a later date pursuant to s 206 of the RO Act, should the Court now reach the relevant state of satisfaction in accordance with s 201.
84 Further, I accept the submission by Counsel for the applicant that, in any event, the Court is not in a position to determine whether the votes of the 83 members who are currently deemed to be unfinancial would have no impact on the result of election E2020/114.
85 Notwithstanding the issue of proportionality of the 83 northern New South Wales members to the body of CFMMEU members as a whole, I am not prepared to find that the rejection of 83 members of the union is insignificant. Rather, the fact that 83 members of the union are considered to be unfinancial and refused the right to vote, over their protests, is a matter of significance which in my view bolsters the strength of the applicant’s case.
Should the court make the interim orders sought?
86 Section 204(1) of the RO Act provides that where an inquiry into an election has been instituted, the Federal Court may make interim orders. It does not appear to be in dispute that the Court is empowered to make the interim orders sought by the applicant.
87 However, s 204(1) confers discretionary power on the Court. The question now before me is whether I ought make the orders sought by the applicant, or indeed any orders to maintain the status quo pending the hearing of the inquiry.
88 As Tracey J observed in Asmar, in the matter of an election for an office in the Victorian No 1 Branch of the Health Services Union (No 2) [2012] FCA 1243:
8. In applying s 204(1)(a) of the Act and its precursors, this Court and its predecessors have had regard to the same principles which govern the determination of applications for interlocutory injunctions: see Lancaster v Municipal Officers’ Association (1980) 22 AILR 452.
9. An applicant must demonstrate a serious question to be tried and that the balance of convenience favours the making of the order: see Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at 68 (per Gleeson CJ and Crennan J), 81-84 (per Gummow and Hayne JJ).
89 Further, as Lee J observed in Smith v Operative Painters and Decorators’ Union of Australia, Western Australian Branch (1992) 44 IR 357 at 362-3 (referring to s 221(1)(a) of the Industrial Relations Act 1988 (Cth), which was in the same terms as s 204(1)(a)):
The purpose of s 221 and the question to answer when the making of an order is considered thereunder is what will best assist the due conduct of the inquiry, the interests of the organisation and its members and the public interest in the orderly conduct of the affairs of the organisation. The personal interests of candidates do not take precedence over these considerations.
90 (see also Asmar (No 2) at [10])
91 To the extent that I am satisfied that there are reasonable grounds for the application in QUD168/2021 to order an Inquiry pursuant to s 201 of the RO Act, there is a serious question to be tried such that interim orders sought by the applicant should be made.
92 However, I am not satisfied that the balance of convenience supports those interim orders.
93 First, such material as is before the Court indicates that close of nominations took place on 6 April 2021, and that the AEC issued nomination acceptance reports on 24 May 2021. A revised election notice for election E2020/114 was issued by the returning officers on 13 May 2021, advising that the ballot would open on 9 June 2021. The applications currently before the Court were filed after hours on 27 May 2021. The applications were filed promptly, however notwithstanding the availability of the Court to hear the applications during the week commencing 31 May 2021 the applicant was not prepared to have the matter listed until two days before the ballot opened. The delay in having the matter heard was for reasons known to the applicant, but has meant that the interested parties have needed to, essentially, scramble to have submissions and material prepared. I consider this an issue of relevance in weighing the balance of convenience, notwithstanding the applicant’s submission that such applications are frequently made and heard ex parte.
94 Second, during the period between the filing of the applications and the hearing, the AEC incurred expenses, and gave evidence that it devoted considerable resources, to the preparation of election material for election E2020/114. The AEC has filed evidence, uncontested at this stage, to the effect that alterations in the timetabling of the election will incur a cost of $8,100.00. The AEC also gave evidence that the ballots would be placed in envelopes today, ready for posting tomorrow, and presumably has engaged in that process prior to delivery of judgment today.
95 Third, as I have already noted the nomination acceptance reports issued by the AEC confirmed that a number of offices were uncontested including:
Divisional President;
Divisional Senior Assistant Secretary;
Divisional Assistant Secretary;
New South Wales District President;
New South Wales District Secretary;
New South Wales District delegates to Divisional Conference; and
Victorian District Secretary.
96 I have already observed that on 24 May 2021, the AEC declared those offices of the Division, Victorian District and New South Wales District in which there was no contest.
97 Proposed order 3 of the interim orders sought by Mr Menon is an order that the persons who last held the following offices to which the inquiry relates may act in that office until determination of the inquiry:
(a) Divisional President;
(b) Divisional Senior Assistant Secretary;
(c) Divisional Assistant Secretary;
(d) New South Wales District President;
(e) New South Wales District Secretary;
(f) New South Wales District delegates to Divisional Conference; and
(g) Victorian District Secretary.
98 The Manufacturing Division submitted that all of the persons who were elected to the offices listed in paras (a) to (e) and (g) held those offices before the election, and it was only the New South Wales District delegates to Divisional Conference who were different because two new delegates were elected.
99 In those circumstances I consider there would be little utility in proposed order 3 of the interim orders sought.
100 Fourth, such evidence as before the Court is that 83 members of the union residing in northern New South Wales are prevented from voting as being (inter alia) unfinancial, and the disqualification of those members in turn affects the nomination of candidates for office (including certain of the candidates the subject of the alleged eligible candidates irregularity. As I have already noted, the Manufacturing Division submits that the only elections which appear to be incomplete are those in respect of offices noted in Annexure DB-55 to the affidavit of Mr Blackmore, namely:
The District Committee of Management (Affirmative Action position) of Pulp and Paper Workers District;
The District Secretary, District Vice-president, District Committee of Management, District Delegate to Divisional Conference in the Queensland District to Divisional Conference in the Queensland District;
District Joint President, District Assistant Secretary, District Vice-President, District Committee of Management, District Delegate to Divisional Conference in the Victorian District; and
Divisional Secretary.
101 The Manufacturing Division further submits that the exclusion of the 83 northern New South Wales members can only affect the ballots for New South Wales District Delegate to Divisional Conference and for Divisional Secretary. Insofar as I can ascertain from the material before me, this submission is uncontroversial.
102 To that extent an order of the breadth sought by Mr Menon, namely restraining any further steps in respect of all of those offices, is too broad.
103 Finally, while I consider that there is a serious question to be tried, in circumstances where considerable resources have already been expended by not only the union but the AEC, I consider that election E2020/114 should proceed. I am also conscious of the orders which can be made pursuant to s 206 of the RO Act, in the event that the Court finds irregularities as claimed.
104 I consider that the application for interim orders should be dismissed.
CONCLUSION
105 I have found that there are reasonable grounds for the application for an inquiry filed by Mr Menon under s 200 of the RO Act. I will hear the applicant and the interested parties in respect of the date on which the Inquiry is to be conducted, and in respect of case management orders leading to the hearing.
I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier. |
Associate:
