In the matter of the Federated Clerks Union of Australia In the matter of an application for Jack Lawler Rayner for an inquiry into elections in the Federated Clerks Union of Australia, Victorian Branch [1983] FCA 100

(CO

TN THR FEDERAT COUR™Y OF AUSTRATTA

\ ) VICTORTA DISTRICT PEGISTRY ) Ve. Mo. 37 of 1927 ) )

INDUSTRIAL DTIVTISTON

IN THE MATTER of the Tederated Clerks Union of Australia, an organization of employees under the Conciliation and Arbitration Act of 3904

and

IN THE MATTER of an application by Jack Lawler Rayner for an inquiry into elections in the Federated Clerks Union of Australia, Victor1an Branch

CORAM: Northrop J.

DATE OF ORDFR: 24 May 1983

WHERE MADE: Melbourne ORNDEP

Y Pod

THE COURT DECLARES THAT the elections held in 1°°2 to the

offices o* annual state conference deleqate and state councillor to the Victorian Branch of the Federated Clerks Union of Australia from the shipping section of that Pranch

are declared void.

IN THE FEDERAL COURT OF AUSTRALTA

VICTORIA DISTRICT REGISTRY V. No.?7 of 1982

ower

INDUSTRIAL DTVISTON

IN THE MATTER of the Federated Clerks Union of Australia, an organization of emplovees under the Conciliation and Arbitration Act of 19N4

and

IN THD MATTER of an application by Jack Lawler Rayner for an inquiry into elections in the Federated Clerks Union of Australia, Victorian Branch

CORAM: Northrop J. DATE: 30 May 1983 WHERE MADE: Melbourne

REASONS FOR JUDGMENT

The Court is inquiring into the question of whether an irregularity occurred in or in connection with an election for the offices. of state conference deleaate and state councillor respectively under the rules of the Federated Clerks Union of Rustralia, Victorian Branch, "the Branch";

see s.165 of the Conciliation and Arbitration Act 1904, "the

Act". Jack Lawler Rayner, the applicant, had Jodaed an

application for an inquiry with the Industria] Reqistrar;

s.J59(7% and £9) of tho Act, Tre Tnductrial Pearstrar

referred the matter to the Court under s.169 of the Act. Thereupon the inquiry was instituted in the Court; s.161 of the Act; see also s.J1R8A(1) of the Act and s.19 Federal Court of Australia Act 1976. At the inquiry counsel appeared on behalf of the anplicant and one counsel appeared on hehalf of Mr. J. D. Cameron (the secretary of the Branch), Mr. R. Brown and Mr. K. Cook (heing persons who nominated for the offices the subject of the inquiry), Mr. T. IH. Ryan (the returning officer conducting the election), and the Federated Clerks Union of Australia, "the Federation", all of whom are hereinafter referred to as "the respondents".

At an early staqe of the inquiry it became apparent that the election was for offices in the Rranch being respectively the offices of a state conference Aeleaate under

Branch rule 13 and a state councillor under Rranch rule 19,

—

in each case the election heing by members of the shippina section, of the Branch. The rules of the Federation, "the Federal rules", and the rules of the Branch, "the Branch rules", are registered under the provisions of the Act. The Branch has purparted to have made rules applicable to the shipping section of the Branch, hut those rules are not registered under the provisions of the Act. Jt hecame clear,

therefore, that the election was for offices provided for in

the Branch rules, being offices which, under the Act and the

Requlations, were required to be filled hy an election, hut that the election had been conducted under rules which had

not been registered.

The inquiry originally sought by the applicant and referred to the Court hy the Tneustrial Reqistrar related to a third position, namely that of 'secretary of the shipping section. That was a position not provieed for in any registered rule of the Federation or of the Branch. It was a position provided for by the unreqistered shipping section rules and was conducted pursuant to those unregistered rules. On a preliminary objection the Court, constituted by Smithers J., on 16 November 1°°2 made an order declaring that the Court had no jurisdiction to entertain the reference of the Industrial Registrar insofar as it involved an inquiry into the election for the position of secretary of the shipping

section.

After the matter had heen onened but before any evidence, apart from the affidavits, had been qiven, counsel for the respondents submitted that the Court had no jurisdiction to entertain the reference insofar as it related to the two offices already described. Tn substance, his submission was that in s.J59(1) and s.165f1) of the Act, the

word "election" should be construed as meaning "an election

which was being or had been conducted pursuant to rules which

had been registered". The relevant parts of those sections

are set out:

'

"159.(1) Where a member of dn organization ++. Claims that there has heen an ijirrequiarity

in or in connexion with an election for an office in the organization, or in a branch of

the organization, he may lodge an application for an inauiry ..."

and

165.1) At an inquiry the Court shall inquire into and determine the question whether any irregularity has occurred in or in connexion with the election ..."

Counsel] contended that an election conducted pursuant to unregistered rules is a nullity and thus is not an election for the purposes of those provisions. Tn support of that contention counsel relied upon views erypressed in Smith v. Taylor (1964) 6 F.L.R. 138 and the cases referred to therein. All those cases arose under what is now s.141 of the Act. Counsel contended that where such an election takes place there can he no election on which to found the inquiry and he referred by way Of example to the reasons for decision given by the Industrial Registrar, Mr. K. Marshall, in Tn re M.O.A. (19°71) 26 1138 3245, That was a case where the office in

question was created hy unreaistered rules and the hotder of

that office had no powers conferred uvon him hy any

reaistered ruies. The same nrineinies formed the hasis of

the decision of Smithers J., supra. In the present case, the two offices, the subject of the inquiry, are created by the Branch rules which are registered, and the holders of those offices have power conferred upon them by the Rranch rules.

'

Counsel contended further that a reference to other provisions in Part 1X supported absence of jurisdiction. He referred to the definition of the word "irregularity" contained in s.4 of the Act and its extended meaning to include "a breach of the rules of an organization" which, he contended, must mean reqistered rules. There is force in that contention but it does not conclude the matter since the definition is not definitive of the meaning of the wor?'

"irregularity". I refer to and adhere to what was said in In

re Federated Liquor and Allied Tndustries Employees Union of

Australia; Ex parte Huxtable (1979) 40 F.L.R. 418 at pp -424-5. Counsel referred also to sections 165/33 and (4), 1673}, 169B, J70A(1) and 170A3) of the Act, as well as the definition of "office" appearing in s.4 of the Act and

s.J59(1).

Tn my 'opinion, the Court has jurisdiction to conduct the inauiry. In s.159f1), reference is made to "an election for an office ..-. an a branch of the orqanization", while s.165(1) requires the Court to inguire into anda

determine whether any irregularity has occurred in or in

connection with the election heing the election for an

office, in the present case in the Rranch. The inquiry is directed to whether an urregularity has occurred in or in connection with an election for the two offices in the Branch already referred to. In the ahsence of any declarations given under s.165 of the Act, and in the absence of orders that may be made under s.140 or s.141 of the Act, the persons declared clected to those offices would exercise the powers conferred upon them by the Pranch rules. Tt is clear that the elections challenged ere elections for offices within the Branch and that the restricted meaning to be qiven to the word "election" in the contention of counsel should not be

adopted. In fact, it is Aifficnult to see a gqreater irregularity, within the ordinary meaning of that word, in or in connection with an election in a branch than where that

election is conducted pursuant to unreqistered rules.

vo dt follows that for the very reasons expressed hy counsel for the respondents on the jurisdiction point, irregularities occurred in or in connection with the election

to the two offices the subject of this inquiry. The Court so

finds.

In these circumstances the Court must determine what orders should be made; see s.165(3) of the Act. There is no doubt that the election was and is void. In fact, counsel for the respondent said it was a nullity. The

provisions of s.165(4) are satisfied. However, the terms of

ay

office of the two persons purported to have been elected to the two offices have already expired, namely on 15 April 1983. In those circumstances the only order the Court should make is that the election of Mr. Brown and lir. Cook to those two offices should he declared void. The Court made that order on 24 May 1983 but reserved its reasons for so doing.

The Court now publishes those reasons.

' &

ee.