Re Election of Office In Australian Building Construction Employees and Builders Labourers Federation [1978] FCA 3; (1978) 30 FLR 252 (21 February 1978)

FEDERAL COURT OF AUSTRALIA

Re ELECTION FOR OFFICE IN AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND
BUILDERS LABOURERS FEDERATION [1978] FCA 3; (1978) 30 FLR 252
Conciliation and Arbitration

COURT

FEDERAL COURT OF AUSTRALIA
INDUSTRIAL DIVISION
J.B. Sweeney J.(1)

CATCHWORDS

Conciliation and Arbitration - Registered organizations - Election for offices - Regulations regarding secret postal ballots - Inquiry - Rules - Qualification of two years' continuous financial membership for eligibility to nominate another as candidate - Whether rule mandatory or directory - Rejection of nomination - Duty of returning officer to advise member of rejected nomination - Subsequent rejection of second nomination - Whether returning officer obliged to advise of rejection of second nomination - Alleged irregularity - Whether result of election affected - Conciliation and Arbitration Act 1904, s. 133AA, Pt IX - Conciliation and Arbitration Regulations, regs. 146AC, 146AE. The Conciliation and Arbitration Act 1904 provides by s. 133AA (1) that every election by a direct voting system for specified offices within an organization shall be by secret postal ballot. Subsection (2)* provides that regulations may make provision for and in relation to the conduct of an election in accordance with the requirements of the section in the case of an election in respect of which the rules of the organization do not provide for a secret postal ballot. Part VAA of the Conciliation and Arbitration Regulations which provides for the conduct of such postal ballots includes reg. 146AE which provides by sub-reg. (2) that where the returning officer finds that a document lodged at the place and within the period determined by the returning officer under reg. 146AC and purporting to be the nomination of a person as a candidate for an election for an office within an organization is not a nomination in accordance with the provisions of sub-reg. (1), the returning officer shall, if practicable, give notice to the person, as soon as practicable, by telegram of the reasons why the document is not a nomination in accordance with those provisions and, where the person is eligible for election for the office under the rules of the organization, the returning officer shall, in the telegram, notify the person that his nomination as a candidate for the election may be lodged at that place - (a) within a period of seven days after the date of sending the telegram; or (b) where, under the rules of the organization, a defective nomination may be remedied within a period of longer than seven days after the close of the period for lodging nominations - within that longer period.

Under s. 159 of the Act, where amongst other things, a member claims that there has been an irregularity in or in connexion with an election for an office in the organization, he may lodge an application for an inquiry by the court into the matter.

The rules of an organization provided that a member nominating another *(Amended by Act No. 108 of 1977.) member as a candidate for, amongst other offices, trustee, must have been a bona fide financial member of the organization continuously for not less than two years immediately prior to the nomination. In the conduct of an election for offices of trustee, the returning officer rejected a nomination of a member on the ground that the nominator was not a bona fide financial member of the organization continuously for two years immediately preceding the nomination. The member lodged a second nomination which was also rejected on the same ground but without the member being advised of its rejection. The member lodged an application for inquiry into the election on the ground that the returning officer's rejection of the nominations constituted irregularities in conduct of the election.

Held: (1) While the rules providing for a period of continuous financial membership for eligibility to nominate another as a candidate for office in an election were directory only, substantial compliance with their provisions was required and, on the evidence, there had been no such substantial compliance.

(2) The returning officer failed to comply with reg. 146AE, in that his telegram of advice that the first nomination had been rejected did not also specify the period during which a further nomination might be lodged. That omission was an irregularity, but on the evidence it did not affect the result of the election.

(3) The returning officer's failure to advise the member of the rejection of the second nomination did not constitute an irregularity because the provisions of reg. 146AE had application to a first nomination only.

HEARING

Sydney, 1978, February 9, 10, 21. 21:2:1978
INQUIRIES INTO ELECTION.

Members of an organization registered under the Conciliation and Arbitration Act 1904 lodged applications for inquiries into the conduct of an election for the offices of trustees of the organization.

J.E.R. Bland, for the applicants.

D.M. Ryan, for the respondents.
Cur. adv. vult.

Solicitors for the applicants: J. N. Zigouras & Co.

Solicitors for the respondents: Geoffrey Edwards & Co.
(Reported by Miss M. R. Hickey, Barrister-at-Law.)

DECISION

February 21.

The following judgment was delivered.
J.B. SWEENEY J. These are two inquiries pursuant to s. 161 of the

Conciliation and Arbitration Act 1904. Each relates to an election conducted within the Australian Building Construction Employees and Builders Labourers Federation (the federation) in July 1977. (at p253)

2. In the case of the inquiry referred by virtue of the application of Mr. Williamson, he ultimately sought leave to withdraw the application. In the circumstance, I record a finding that no irregularity as alleged in those proceedings occurred, and I otherwise dismiss the inquiry. (at p253)

3. Mr. Burns' inquiry also concerned the election for the position of trustees. Four trustees were to be elected, and since Mr. Burns' nominations were rejected, there were only sufficient persons nominated to fill the vacancies and no ballot was held. (at p254)

4. The questions raised here concern the nominations of Mr. Burns. (at p254)

5. The rules of the federation provide that a member nominating another for, among other positions, that of trustee, must have been a bona fide financial member of the federation continuously for not less than two years immediately prior to the nomination. (at p254)

6. On receipt of Mr. Burns' nomination, the returning officer proceeded to check it. For this purpose, he referred to union records, consisting of a ledger card and duplicates of receipts issued to members. (at p254)

7. One of Mr. Burns' nominators was a Mr. William Barrass. Mr. Barrass purported to be an honorary member of the union and had been issued with a current membership ticket consistent with that status. (at p254)

8. Honorary membership is provided for in r. 6 (q): "Members who have been enrolled continuously for a period of not less than twenty (20) years and who are over the age of sixty (60) years may be exempt from payment of contributions, and be granted an honorary membership." (at p254)

9. The ledger card and other documents showed that Mr. Barrass had been made an honorary member of the federation on 31st March, 1976. Since honorary membership exempted him from payment of contributions, he was a member qualified to nominate if his honorary membership had been effectively granted. Examination of the records however showed that Mr. Barrass joined the federation on 17th August, 1967. He was joined by Mr. N. Wallace, now the assistant secretary of the Victorian branch of the union, but at that date an organizer of the union. The records show that on 17th August, 1967, he paid to Mr. Wallace the sum of $7, $3 of which was for contributions and $4 for an entrance fee. Under the rules, an entrance fee is payable once only on a man joining the federation. (at p254)

10. Mr. Barrass did not give evidence before me. His application for honorary membership was tendered and in it he claimed to have been a member for some twenty-three years and it appears to have been on this basis that his application was granted. I am satisfied on the evidence that this was not the case and that his membership dated only from August 1967. It appeared on the face of the records that he was not qualified for the grant of honorary membership when it was made. (at p254)

11. The rule providing for compulsory membership is not in my view mandatory, but is directory. Nonetheless, a substantial compliance with it is required and I am satisfied that a person whose membership was less than half that required by the rule could not be admitted to honorary membership under that rule. (at p255)

12. I am satisfied therefore that Mr. Burns' first nomination was invalid and was properly rejected by the returning officer. (at p255)

13. The returning officer's duty under the rules and reg. 146AE was to advise Mr. Burns by telegram the reasons why the nomination was invalid and, in the telegram, notify him that a further nomination might be lodged within a period of seven days after the date of sending the telegram. In fact the returning officer sent a letter to Mr. Burns advising the reasons for the rejection of the nomination, but not advising the period within which a further nomination might be lodged. (at p255)

14. The evidence of the returning officer, Mr. Masterson, was that he advised Mr. Burns verbally of this. His evidence was uncontradicted and I accept it. I think there was an irregularity in the failure to carry out the provisions of the regulation, but I am satisfied in view of the verbal advice given and the subsequent events that I cannot hold that the result of the election may have been affected by the irregularity. On the contrary, I am quite convinced it was not. (at p255)

15. After receiving the letter from the returning officer, Mr. Burns took steps to have another nomination form completed. This was signed by two nominators and lodged with the returning officer prior to the closing date. It, too, was rejected on the grounds that one of the nominators, Mr. Wade, was not qualified under the rules to nominate. Records were produced and evidence called to show Mr. Wade's financial position. (at p255)

16. The rules provide for half-yearly contributions of $24 for each half-year and provide that these two amounts are payable in advance in March and September of each year. In fact, during the relevant period of two years, he did not make the payment due in March 1975 until July of that year. He was some days late in making the payment due in September 1976 and again in March 1977. When a member fails to pay his contributions within the prescribed time, he becomes unfinancial and remains unfinancial until payment is made. He then again becomes financial but clearly has not been continuously financial. This being so, I am satisfied that Mr. Wade was not a financial member of the federation continuosly for not less than two years immediately prior to the nomination. (at p255)

17. This nomination was also rejected. On its rejection, no telegram in pursuance of reg. 146AE was sent to Mr. Burns and he was not notified until about 18th July, 1977, that the nomination had been rejected. Nominations closed at 5 p.m. on 8th July, 1977, and he was not therefore given seven days' notice necessary under reg. 146AE, if that regulation has application to the second nomination. (at p255)

18. Upon consideration of the regulation, I am satisfied that it has no such application. The regulation provides that where the returning officer finds that a document lodged at the place and within the period determined by the returning officer under reg. 146AC is defective, he is to send advice by telegram as then set out in the regulation. Regulation 146AC provides that the returning officer is to determine the times and dates of the commencement and close of the period for lodging nominations. In my opinion, the reference to documents lodged at the place and within the time under reg. 146AC is a reference to the first nomination only. The intention of the regulation is to afford a candidate one opportunity of remedying a faulty nomination, but he is not entitled to have seven days' notice given to him in which to remedy any subsequent nomination which may also be faulty. If the construction were otherwise, a position could well be reached where a candidate lodged a series of faulty nominations and had to receive a period of seven days after each in which to lodge a further nomination. The ballot could thus be extended over a very considerable period. It is true that in this case by reason of the fact that the returning officer examined the nomination paper prior to the closure that the second nomination was lodged at the place and within the period which had been determined by the returning officer, but this was accidental. If the returning officer followed a normal course of not examining the nomination papers until nominations had closed then a second nomination paper could not be lodged within the period fixed by the returning officer under reg. 146AC. To interpret the regulation as asked would give it quite a capricious result, depending on the accident of when the returning officer examined the nomination. (at p256)

19. I am satisfied no irregularity arose through the returning officer not advising of the rejection of the second nomination prior to 18th July, 1977. (at p256)

20. It follows from what I have said that I am satisfied the only irregularity which has occurred in this election did not affect the result. I so determine and I make no other order. (at p256)

ORDER

Order accordingly.