IN THE INDUSTRIAL RELATIONS COURT

OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

No VI 2749 of 1996

B E T W E E N :

BRIAN JOHN DALEY

Applicant

AND

R.J. GRAY, S. POLHE, P. KELLY, B. ROGERS, L. MANCINO, J. SCHOLES, I. UNAL, A. MAMMONE, O. LOPEZ, M. KING, B. DOLOUGHAN

Respondents

____________________

No VI 2750 of 1996

BETWEEN :

RODNEY GRAY

Applicant

AND

B. DALEY, W.F. HEYES, R. McMULLEN, P. McNEILL, P.G. ZANANDREA, J.G. MACRAE, M.P. McGRATH, R. HOGAN, B. STEWART, R.J. GRAY, M. ANDERSON, S. POLHE, G.T. IND, I. UNAL, R.J. DAVIES, G.M. WILKINSON, T. MIHIN, P. PASHALIS, K. WATERS, K.A. McLARTY, P. HARDING, G. McBEAN, G.J. JESSOP, W.D. MUMPHRYS, M. TSATMALIS, P. KELLY, D. MEDVEN, P. HARKNESS, M. MIFSUD, P. ABLE, E. REDDICK, G. HOLLAND, R.J. BEINCOURT, D. TOLOMANOSKI, J.M. TAYLOR, S. VASILIAKIS, C.G. ZEBALLOS, M. ABDUR RAHMAN, D. MONTEBELLOW, D.E. STOSEGAN, D.J.L. TRUSS, R.M. EUDEY, M.G. DORAN, D.P. SUTHERLAND, G. MACKINNON, M. HAINS, B.L. KAROLYI, L. MANCINO, V. ILIAS, P. FALLON

Respondents

____________________

BEFORE:      North J

PLACE:         Melbourne

DATE:          10 December 1996

EX TEMPORE REASONS FOR JUDGMENT

        I have before me two applications under s 209 of the Industrial Relations Act 1988 for rules to show cause and for interim orders.  Both applications relate to the events surrounding the election for the position of Secretary/Treasurer of the Victorian Baking Section of the Miscellaneous Workers' Division of the Australian Liquor, Hospitality and Miscellaneous Workers' Union.  Nominations in that election closed on 22 November 1996.  Rodney Gray is one candidate in that election.  He is supported by the Committee of Management of the Baking Section of the Miscellaneous Workers' Division of the Union. Mr Brian Daley is the Secretary of the Victorian Branch of the Union and of the Miscellaneous Workers Division of the Branch.  He identifies with Ms Veronica Ilias the other candidate in the election. They in turn identify with the Branch Executive and Branch Council of the Union. 

        In the first application, Mr Gray seeks orders against the members of the Branch Executive and Branch Council excepting Messrs Polhe, Unal, Kelly and Mancino.  In the second application, Mr Daley seeks orders against the members of the Committee of Management and Mr Doloughan, an organiser employed by the Union for the purposes of the Baking Section.  Orders are not sought, however, against Messrs McLarty, Scholes and Lopez, other members of the Committee of Management.  The applicants in each rule claim against the respondents in each rule that the resources of the Union have been used to advance one candidate to the exclusion of the other.  Counsel were united in their reference to the relevant authorities. It is sufficient to refer to the principle as set out by Evatt and Northrop JJ in Scott v Jess (1984) 3 FCR 263 at 271-2:

         "The reference to the objects of the Act as set out in s 2, and the detailed provisions contained in the Act and the Conciliation and Arbitration Regulations relating to the election of officers within an organisation makes it clear that those elections must be conducted fairly, having regard to the interests of all members and all candidates. Implicit in that concept of fair play is the principle that the officers exercising power within an organisation shall not exercise that power to authorise the use of the resources of the organisation to support or promote a candidate or a group of candidates or to seek to defeat a candidate or a group of candidates during the conduct of an election to offices within the organisation."

That same principle was restated in Darroch v Tanner (1987) 16 FCR 368 at 371.

        It emerges from the evidence that, following the close of nominations, those interests associated with Mr Daley circulated a letter clearly referable to the election and to the issues being agitated in the election at the expense of the Union.  It is true that the letter made reference to previously published material, but it is not necessary for the purpose of these reasons to explore the history prior to the close of nominations.  Shortly after that letter was circulated, the Baking Section circulated a long letter addressed to fellow members, again canvassing many matters which are current matters of discussion and dispute in the context of the election.  This document was also said to be responsive to an open letter sent by Mr Daley at a time which, for the present purposes, I will accept was also within the election period.  The open letter was apparently sent before nominations closed, but at a time at which Mr Bromberg, who appeared for the interests associated with the Committee of Management and Mr Gray, argued was within the election period.  For the purposes of these reasons, I am prepared to accept that proposition.  Stopping at this point, the three communications indicate to me a clear infringement of the principle enunciated in Scott v Jess.

        It would be wrong, in my view, to take too narrow a view of the facts.  It would be wrong to carefully scrutinise, for instance, how much of the Union's resources were used in each particular letter and to balance the cost of one against the cost of the other to come to a conclusion that one side was slightly better or worse off than the other.  The conclusion I draw from those three pieces of correspondence is that both of the contending parties acted in approximately equal degree in breach of the principle enunciated in Scott v Jess. 

        Mr Bromberg argued, however, that the publications associated with his clients should be dealt with separately from other incidents alleged by his clients against the interests associated with Mr Daley.  He offered an undertaking on behalf of his clients not to use the resources of the Union for communication with members without giving notice of this intention to the opposing interests.  Mr Staindl, who appeared as counsel on behalf of Mr Daley and the interests associated with him, was not in a position to offer a reciprocal undertaking.  Mr Bromberg submitted that the only evidence against his clients related to the publication of material and not to any other acts in breach of the principle.  Consequently, if an injunction was to be granted against his clients, it should be limited to prevention of the use of Union resources for the purposes of publication.  On the other hand, he contended, the evidence against Mr Staindl's clients demonstrated a use of Union resources in a variety of circumstances other than the publication of material. In response to these arguments, Mr Staindl foreshadowed an intention to rely on the conduct of the Committee of Management apart from publication in support of the claim for interim orders. 

        In my view, the argument put by Mr Bromberg draws too fine a line in the circumstances of this case.  The significant factor is that both sides have acted in breach of the principle to a similar degree.  The precise manner of infringement is not determinative.  In order to ensure that no party breaches the principle for the balance of the election period, I will grant both rules and will grant injunctions in the same terms against all the parties excepting Mr McLarty, Mr Scholes and Mr Lopez.

I certify that this and the preceding

four (4) pages are a true copy of the reasons

for judgment of his Honour Justice North.

Associate:

Dated:            2 January 1997

APPEARANCES

No VI 96/2749

Counsel for the applicant:                                       D. Staindl

Solicitors for the applicant:                                     Ryan Carlisle Thomas

Counsel for the respondents except

       J.A. Scholes and O. Lopez:                              M. Bromberg

Solicitors for the respondents except

       J.A. Scholes and O. Lopez:                              Howie & Maher

No VI 96/2750

Counsel for the applicant:                                       M. Bromberg

Solicitors for the applicant:                                     Howie & Maher

Counsel for the respondents except

     S. Polhe, I. Unal, P. Kelly, K.A. McLarty,

     and L. Mancino:                                                 R.W. Hinkley, and later D. Staindl

Solicitors for the respondents except

     S. Polhe, I. Unal, P. Kelly, K.A. McLarty,

     and L. Mancino:                                                 Ryan Carlisle Thomas

Date of hearing:                                                      10 December 1996

Date of judgment:                                                   10 December 1996