Becker, in the matter of an application for an inquiryin relation to an election for an office in the Australian Licensed Aircraft Engineers Association (with Corrigendum dated 24 January 2005) [2005] FCA 18 (21 January 2005)

Last Updated: 24 January 2005

FEDERAL COURT OF AUSTRALIA

Becker, in the matter of an application for an inquiry in relation to an election for an office in the Australian Licensed Aircraft Engineers Association

[2005] FCA 18

ANDREW KINGSLEY BECKER, IN THE MATTER OF AN APPLICATION FOR AN INQUIRY IN RELATION TO AN ELECTION FOR AN OFFICE IN THE AUSTRALIAN LICENSED AIRCRAFT ENGINEERS ASSOCIATION

N 922 of 2004





MADGWICK J
21 JANUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 922 OF 2004

BECKER, IN THE MATTER OF AN APPLICATION FOR AN INQUIRY IN RELATION TO AN ELECTION FOR AN OFFICE IN THE AUSTRALIAN LICENSED AIRCRAFT ENGINEERS ASSOCIATION

JUDGE:	MADGWICK J
DATE:	21 JANUARY 2005
PLACE:	SYDNEY

CORRIGENDUM

1 In the reasons for judgment handed down in this matter by Justice Madgwick on 21 January 2005, the appearances should read:

‘Solicitor for Forstaff Avalon: Abbott Tout.’

Associate:

Dated: 24 January 2005

FEDERAL COURT OF AUSTRALIA

Becker, in the matter of an application for an inquiry in relation to an election for an office in the Australian Licensed Aircraft Engineers Association

[2005] FCA 18

INDUSTRIAL LAW – election inquiry – alleged ‘irregularity in relation to an election for an office’ – where some members wrongly deprived of vote – where irregularity established – whether irregularity affected the result of an election – whether a statistical approach should be applied.


Workplace Relations Act 1996 (Cth), Schedule 1B


Parker v Amalgamated Society of Carpenters and Joiners of Australia (1992) 43 IR 248 followed













ANDREW KINGSLEY BECKER, IN THE MATTER OF AN APPLICATION FOR AN INQUIRY IN RELATION TO AN ELECTION FOR AN OFFICE IN THE AUSTRALIAN LICENSED AIRCRAFT ENGINEERS ASSOCIATION

N 922 of 2004





MADGWICK J
21 JANUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 922 OF 2004

BECKER, IN THE MATTER OF AN APPLICATION FOR AN INQUIRY IN RELATION TO AN ELECTION FOR AN OFFICE IN THE AUSTRALIAN LICENSED AIRCRAFT ENGINEERS ASSOCIATION

JUDGE:	MADGWICK J
DATE OF ORDER:	2 SEPTEMBER 2004
WHERE MADE:	SYDNEY

THE COURT DECLARES THAT:

1. An irregularity happened in relation to the election for the position of Councillor representing members employed by Forstaff Avalon in the Australian Licensed Aircraft Engineers Association which was declared by a Returning Officer of the Australian Electoral Commission on 11 March 2004 (‘the election’).

2. The election is void.

THE COURT ORDERS THAT:

3. The Industrial Registrar is directed to make arrangements for a new election to be held.

4. The new election is to proceed on the following timetable:

a. The roll of voters is to be closed on 29 September 2004 at 5.00 pm;
b. The relevant list of members (for the purpose referred to in Rule 23C) is to be provided by the Secretary by 1 October 2004;
c. Nominations open on 5 October 2004;
d. Nominations close at noon on 19 October 2004;
e. Ballot opens 2 November 2004
f. Ballot closes 23 November 2004 at 10:00 am.

5. Mr Paras Parasram is to continue to act in the office of Councillor representing members employed by Forstaff Avalon until the declaration of the result of the new election.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 922 OF 2004

BECKER, IN THE MATTER OF AN APPLICATION FOR AN INQUIRY IN RELATION TO AN ELECTION FOR AN OFFICE IN THE AUSTRALIAN LICENSED AIRCRAFT ENGINEERS ASSOCIATION

JUDGE:	MADGWICK J
DATE:	21 JANUARY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

MADGWICK J:

2 This matter involved an application under s 200(3) of Schedule 1B to the Workplace Relations Act 1996 (Cth) (‘the Act’) for an enquiry into whether an irregularity occurred in relation to an election for the position of Councillor representing members employed by Forstaff Avalon (‘Forstaff’) in the Australian Licensed Aircraft Engineers Association (‘ALAEA’), the result of which was declared by a Returning Officer of the Australian Electoral Commission (‘AEC’) on 11 March 2004 (‘the election’).

3 The matter was heard on 2 September 2004. I declared that an irregularity had occurred and that the election was consequently void, and ordered that a new election must be held. These are the reasons for that decision.

BACKGROUND

4 The ALAEA is an industrial organisation registered under the Act. The election for the office of Councillor representing members employed by Forstaff was conducted under the provisions of the Rules of the ALAEA, incorporating alterations of 7 November 2003 (‘the Rules’). Of the three candidates competing for the office, Mr Parasram received 64 votes, Mr Walsh 28 votes and Mr Thompson 24 votes. On 11 March 2004, Mr Parasram was declared elected.

5 Between 31 March 2004 and 26 May 2004, in cooperation with the ALAEA, the AEC obtained information and made inquiries which suggested that 57 members, who were entitled to vote in the election, were omitted from the roll of voters. None of those 57 members was sent ballot material by the Returning Officer, nor was any other opportunity to vote in the election provided. The applicant, the Electoral Commissioner as defined in the Commonwealth Electoral Act 1918 (Cth), formed the belief that there had been an irregularity in relation to the election and that the result of the election may have been affected by that irregularity. Accordingly, an application was made for this Court to inquire into the matter.

6 Subsequent to the application being filed on 9 June 2004, the possibility of two further irregularities was raised. The first concerned 10 employees of Forstaff who had authorised payroll deductions in order to become financial members of the ALAEA (and thus be eligible to vote). Due to an administrative oversight, the deductions had not been made, but eight of the 10 employees were on the roll of voters and were sent ballot material and five of those eight voted. The second concerned 50 Forstaff employees who were having payroll deductions made as members of the ALAEA but were not on the roll of voters, and were therefore not sent ballot material.

THE LEGISLATIVE FRAMEWORK

7 Section 200(3) of Schedule 1B to the Act (‘the Schedule’) states:

‘If the Electoral Commissioner believes that there has been an irregularity in relation to an election for an office, the Electoral Commissioner may make an application for an inquiry by the Federal Court into the matter.’

8 Irregularity is defined in s 6 of the Schedule as follows:

‘[I]rregularity, 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.’ (Section 190 prohibits an organisation or branch from assisting one candidate over another.)

9 The present proceedings relate to whether an irregularity occurred within the meaning of s 6(b)(i) of the Schedule. Under s 205 of the Schedule, the Court ‘must allow to appear at an inquiry all persons who apply to the Court for leave to appear and who appear to the Court to have an interest in the inquiry’. Section 206 of the Schedule sets out the requirements for determination of the inquiry by the Court. If an irregularity is found to have occurred, pursuant to s 206(5) of the Schedule, the Court must be satisfied that such irregularity may have affected the result of the election. If it is so satisfied, the Court may order, among other things, that the election, or any step in relation to the election is void (s 206(4)(a)), and for a new election to be held (s 206(4)(c)(ii)).

10 In determining whether any irregularity may have affected the result of the election, the objects of the Schedule (s 5) must also be borne in mind:

‘The principal objects of this Schedule are to:

(a)	ensure that employee and employee organisations registered under this Schedule are representative of and accountable to their members, and are able to operate effectively; and
(b)	encourage members to participate in the affairs of organisations to which they belong; and
(c)	encourage the efficient management of organisations and high standards of accountability or organisations to their members; and
(d)	provide for the democratic functioning and control of organisations.’

THE ALAEA’S RULES

11 Elections for offices in the ALAEA are conducted under the provisions of the Rules of the ALAEA. The relevant part of Rule 21(3) states:

‘The thirteen (13) Councillors of the Federal Executive shall be elected in accordance with this sub-rule:-

...

(d) Two (2) Councillors shall be elected by a majority vote of the financial members employed by Forstaff Avalon ...[emphasis added].’

12 Rule 7 of the Rules, entitled ‘Entrance Fees and Contributions’, assists with the determination of whether a member is financial. Rule 7(3) of the Rules provides:

‘...the [ALAEA] may make an arrangement with an employer ...employing members of the [ALAEA] that the Employer will, on receipt of an authorisation acceptable to the [ALAEA] from a member so employed, deduct from the wages ... payable to the member, amounts by way of contributions, fees, levies, dues or monies owing by the member of the [ALAEA]. If a member to whom any such arrangement is applicable, lodges such an authorisation with the [ALAEA] or the Employer, he shall be deemed to be a financial member, as from the first pay day in respect of which deductions are made, pursuant to the authorisation and shall remain a financial member so long as deductions are made pursuant to the authorisation [emphasis added].

Provided that any member who, at the time of the first deduction pursuant to the authorisation, was an unfinancial member shall continue to be so until all arrears, in contributions, fees, levies, etc., are paid. Provided further that if a member ceases to be employed by an employer who has been making deductions pursuant to such an arrangement, the amount of the contributions, fees, levies, etc., then unpaid by the member, shall become due within one month after he ceases to be employed by the Employer and be payable in accordance with these Rules.’

THE ISSUES

13 Pursuant to s 205 of the Schedule, I granted leave to Mr Parasram, the ALAEA and Forstaff to appear as parties to the proceedings.

14 In essence, the applicant submitted that irregularities had occurred. There was a mathematical possibility that one of the other candidates could have defeated Mr Parasram if the 57 (or, as ultimately agreed by the parties, 107) excluded members had been able to vote. Statistically this was unlikely, but the applicant opposed a purely statistical approach, submitting that the use of statistical information to predict the voting behaviour of disenfranchised voters may be unsafe, as it assumes that the first group of voters is relevantly similar to the second group and such an assumption should not be made without evidence. It was further submitted that statistical information obtained from a small sample group may be especially unreliable, and that the use of any statistical information, even if statistically valid, may tend to be undemocratic (and thus not give effect to the object listed in s 5(d) of the Schedule) if applied to a larger proportion of voters.

15 The applicant also submitted that applying a purely statistical approach would invite corruption, in that one could not be sure that the disfranchised group of people had not been subtly selected by someone on the basis of predicted voting preferences, although there was no suggestion that this had occurred in the present case.

16 Finally, the applicant submitted that to allow a 30 per cent error in a roll of voters would also be an invitation to the continuation of inefficient record keeping, which would again be inimical to the objects of the Schedule.

17 Initially, Mr Parasram conceded that an irregularity had occurred but submitted, relying on a statistical approach, that the irregularity would not have affected the result of the election. However, during the course of the hearing, after it was established that 107 members who could have voted had not been provided with an opportunity to do so, Mr Parasram agreed that such an irregularity may have affected the result and agreed to the proposal put forward by the applicant that a fresh election should be held.

18 The ALAEA and Forstaff did not take any position on the question of whether an irregularity had occurred and made no submissions in opposition to a fresh election being held if I found, as I did, that an irregularity had occurred that may have affected the result of the election.

19 However, the ALAEA was concerned to reject any suggestion that irregularities were belatedly discovered in order to upset the particular result of the election, that is to remove Mr Parasram from his position. That was not the case.

20 The evidence also indicated that there was a degree of confusion in relation to the correct union dues for Forstaff employees and the ALAEA equally rejected any suggestion that, in the event I made a finding in relation to the amounts that should have been deducted from the salaries of Forstaff employees, any failure to deduct the appropriate dues was not a result of advice supplied by the ALAEA. In this regard, the parties agreed that negotiations were continuing as to the determination and deduction of the correct dues for Forstaff employees and it was not necessary for me to decide the issue.

21 In relation to the ten Forstaff employees who had authorised payroll deductions for their membership of the ALAEA without any deductions actually being made, no party suggested that the eight who received voting papers should not have received voting papers, nor that the two who did not receive voting papers were wrongly disfranchised.

22 That group of employees was the only group as to which there was any doubt about the financial status of their membership. Rule 7 of the Rules (see [11] above), required that, if a payment authorisation was in place, the employee ‘shall be deemed to be a financial member, as from the first pay day in respect of which deductions are made, pursuant to the authorisation and shall remain a financial member so long as deductions are made pursuant to the authorisation.’ In the present case, authorisations were in place, the date from when deductions were meant to commence had passed, but, through no fault of the employees, no deductions had occurred. It was agreed that in such a case, a purposive construction of the Rules would deem that group of employees as financial.

23 Accordingly, the only possible irregularity pressed was the omission of 107 members from the roll of voters and I had no difficulty in agreeing with the parties that this was an irregularity.

CONSIDERATION

24 The question is whether the omission of 107 members from the roll of voters may have affected the result of the election. It is well established that there must be a real, and not merely a theoretical, possibility that an irregularity may have affected the result of an election (‘the test’): Re Ferguson; re Inquiry into Election in Australasian Meat Industry Employees Union, Western Australian Branch (1986) 17 IR 208; Re Vehicle Builders Employees’ Federation of Australia (SA Branch) (1987) 13 FCR 350; Re Patterson; Re Association of Railway Professional Officers of Australia (1987) 19 IR 373; Parker v Amalgamated Society of Carpenters and Joiners of Australia (‘Parker’) (1992) 43 IR 248.

25 In assessing whether there is a real possibility that the irregularity may have altered the result, a statistical approach may be employed, using the voting behaviour of those who voted to predict the outcome of the election but for the irregularity. I accept, however, the applicant’s submissions, outlined above, concerning the potential pitfalls of solely applying a purely statistical approach.

26 In Parker, Wilcox J. held (at 254) that the application of the test ‘to the facts of a particular case involves, not merely a mathematical calculation, but the making of a judgment in the light of a number of factors.’ His Honour continued:

‘The most important factor will always be the relationship between the winning margin and the number of votes infected by irregularity. But the participation rate and the pattern of voting, so far as this may appear from the evidence, will always be material. As it seems to me, the smaller the number of irregular votes, the greater the difficulty in a court feeling confident that the relevant voters acted, or would have acted, in line with the total electorate. The smaller the margin, the greater the difficulty in assuming that it would not have been bridged by atypical voting.’

27 I agree with those comments, and with the further consideration noted by Wilcox J. (at 254) that if ‘a conclusion that an irregularity did not affect the outcome of an election is to be drawn from evidence as to the voting behaviour of members who were provided with ballot papers, it must be shown that the excluded, or improperly included, voters were typical of the whole.’ For example, voters who shared a particular electoral allegiance or came from a particular geographical area would not be ‘typical of the whole’.

28 In the context of the present case, Mr Parasram’s winning margin was 36 votes. The evidence before me was that 248 ballot papers were issued (including two duplicate ballot papers) and of the 118 ballot papers returned, 116 were admitted to scrutiny. This produced a return rate of 47 per cent. As was ultimately agreed by the parties, given that 107 people had been wrongly disfranchised, the Court could not feel confident that such irregularity would not have affected the outcome.

29 Accordingly, I declared that the omission of 107 voters from the roll of voters was an irregularity that may have affected the result of the election, and that the election was therefore void.

30 I permitted the parties a brief adjournment in order to come to some agreement as to the appropriate course to be followed. By consent, I then made the following orders:

1. The Industrial Registrar is directed to make arrangements for a new election to be held.

2. The new election is to proceed on the following timetable:

a. The roll of voters is to be closed on 29 September 2004 at 5.00 pm;
b. The relevant list of members (for the purpose referred to in Rule 23C) is to be provided by the Secretary by 1 October 2004;
c. Nominations open on 5 October 2004;
d. Nominations close at noon on 19 October 2004;
e. Ballot opens 2 November 2004
f. Ballot closes 23 November 2004 at 10:00 am.

3. Mr Paras Parasram is to continue to act in the office of Councillor representing members employed by Forstaff until the declaration of the result of the new election.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated: 21 January 2005

Solicitor for the Applicant:	Australian Government Solicitor
Counsel for Australian Licensed Aircraft Engineers’ Association:	Mr D Chin
Solicitor for the ALAEA:	Jones Staff & Co
Solicitor for Mr Parasram:	Appeared in person
Solicitor for Forstaff Avalon:	Mr S Burke
Date of Hearing:	2 September 2004
Date of Judgment:	21 January 2005