Application by Shahid Naqvi for an Inquiry into an Election in The Amalgamated Metal Workers & Shipwrights Union

[1981] FCA 39

IN THE FEDERAL COURT OF AUSTRALIA	)
)

DIVISION	INDUSTRIAL	)	NO. 17 Of 1980
1

SOUTH AUSTRALIA DISTRICT REGISTRY )

IN THE MATTER Of the

Concillatlon and Arbltratlon

Act, 1904

AND IN THE MATTER Of an

application by SHAHID NAQVI

for an Inauirv into an

Electlon in &E	AMALGAMATED
METAL WORKERS'	AND SHIPWRIGHTS
UNION

26 March I981 J.B. SWEENEY J.

REASONS FOR JUDGMENT

This is an inquiry into an election conducted for the

offlce of assistant state secretary ln the Amalgamated Metal

Workers and Shipwrights Union, South Australian Branch, which

I hereafter refer to as "the Union". Application was made to

the Industrial Registrar by Mr. Shahid NaqVi for an inquiry on

17 December last. The Industrial Registrar granted the

who subsequently sought leave to withdraw from the proceedlngs,
application and referred the matter to the court. wotlce	f the
reference was given to the applicant, to the Union and to	Mr.

Lean, the successful candidate. Mr. Lean was in Court at the first hearing, but did not seek leave to appear, althpugh invited so to do.

At that stage, Mr. Naqvi was represented by counsel

both as counsel and solicitor, since the applicant had been
unsuccessful in seeking legal aid from the Commonwealth Attorney-
General and the South Australia Legal Aid Commission. Leave

was granted and subsequently Mr. Naqvl appeared in person.

I would add it appears that the Industrial RehtlOnS

Bureau played some part in the examination of the matter by the
Industrial Registrar, but It did not seek leave to appear and

no materlal was before me indicating what it had investlgated

or found.

Questions raised on the hearing centred around two

issues: firstly, whether the applicant was	flnanclal member
and entitled to nominate: and secondly, whether	should have

been given notice of rejection of his nomination by the

returning officer and an opportunity to remedy any defect.

Before coming to these issues, it is necessary to

consider briefly the rules of the Union. I should say they

are both confused and confusing and	I think in considerable
need of attention by the organization. Rule	2 ( 1 ) provides that

all elections within the Union for an office as defined ln
section 133AA of the Conciliatlon and Arbitratlon Act shall

be conducted in accordance wlth the provlsions of the Act and

Regulations. It was put to me that, pursuant to this	rule,
in the case	of this office, clearly an office as defined, it
was necessary for	a ballot to be conducted by direct votlng
system as defined and by secret postal ballot.	I deal with
the inquiry on that basis.

Seution 133AA of the Act so provides. It further

provides for regulations making certain provisions in the case

of an election in which the rules do not provide for a secret

postal ballot, but it was put that that was not this case and

I accept that submission. The Regulations, then, have no

application in this present case.

The balance of Rule 2 provides for some matters not

inconsistent with this view of the ballot, such as the

obligation on the returning officer to check all nominations

and acceptances received, to see that they comply with the

rules, and reject any that do not so comply. It is further

provided that it is his duty:

Where any defective nomination occurs,
to notify the member concerned of the
defect and, where practicable, afford

such member the opportunity of remedying

same, such to be done no later than	7
days after being	so notified.

Other provisions of the rule such as sub-rules (10)

to (12) and others are inconsistent with sub-rule	1 and seem
to me to have no application. Rule 2(6)(a) and	(d) read
together require, among other things, that	candidate for

the position of assistant state secretary must be financial

in accordance with rules 4 3 and 46 at the date of nomination.

The first issue is whether the applicant was so

financial. Rule 4 3 provides:

Unless otherwise specified in these rules, a member shall not be financial whilst in arrears with the payment of any contributions,

fmes or levies, such having to be made
no later than the end of the first month In
each quarter: namely, January, April, July
and October. Once so paid, the member again

becomes financial.

Rule 46 gives power to the national conference

to determine the maximum amount of contributlons to be paid by

members and power to the national council, from time to tune,

to set the rates of contrlbutions to be paid by members between

national conferences. It further provides:

Quarters, for the purpose of this rule,
shall be January-March, April-June,
July-September, October-December.
contributions up to the end of each
quarter must be paid not later than the
end of the months of January, April,
July and October. Once so pald, the

member again becomes financial.

In my view, the obligations of the member is to pay the

contributions for each quarter by the end of the months of

January, April, July and October.	If he does not so pay them,
he becomes unfinancial because	he 1 s In arrears with the payment
of contributions.

Rules 43 and 46 each provide for such payments not

later than the end of the flrst month in each quarter and

each then provides that, once so paid, the member again

becomes financial. In my view, this last sentence, read as

part of the rules, means that a member is under an obligation

to pay during each of the first months of each quarter.	~f
he does not, he	becomes unfinancial, but if he subsequently

makes the payment, he again becomes financial.

It was argued that the expression "once so paid"

could only refer	to contributions paid during the months of
January, April, July and October. However, if this	1 the

interpretation, then at least on the second day of each of

those four months,	a member who had not paid dues for the
quarter would become unfinancial and	he would remaln

unfinancial during that first month until he paid the

contributions. This, in my view, would be an absurd

consequence, because his obligation is only to pay them by

the end of the month. The language of the rules is not	o
intractable as to require me to give it that meaning.	A

member cannot be unfinancial until he is in arrears with the
payment, and he cannot be in arrears until the date fixed

for payment; namely, until the end of the flrst month In

each quarter has passed.

In my view on the true interpretation of the rules,

a member is under an obligation to pay each quarter's dues

during the first month of the quarter. If he fails, he

becomes unfinancial, but if he subsequently pays it, then,

subject to the proper payment of other dues from tlme to
time, he is financial.

I turn to another aspect: rule 46 also provldes that

exemption of contributions may be granted to any member in special clrcumstances with the approval of state council and subject to the consent of the national council. The evidence

was that power to grant exemption had been bestowed, with the approval of state council and the consent of national council, on officers, officials and the office staff of the South

Australian Branch. It appears that application for exemption

may be made by letter	or may be made by appllcation in person.
Where application is made by letter, It appears that	a letter
is sent in reply statlng whether exemption is granted	or not.

There appears to be no official record of grants of exemptlon made on personal applications.

Turning now to the facts in this particular case, the

applicant has been a member of the Union since 1972 and, durmg

the latter part of his membership, has been the president	o
secretary of the Christies Beach Branch of the Union.	As such,

he was subject to election every 12 months and was required to

be financial in order to hold the office. A letter put in

evidence - Exhibit F - refers to checks made by the State Office on the financial status and rights of officers o such a branch to be members of the Union.

That letter was well subsequent to this application

but it is a fact that Mr. Naqvi held these offices during this

period and was not challenged in the annual check made on any

occasion until September	or October of last year. In addition
to that, his evidence was that he was	a financial member. He
did not produce particular receipts	or coples of contribution

cards for various payments made: when asked about	hem, he	said
he had not brought them to Court.

It may be mentioned that he was at a considerable

disadvantage in appearing in person. In addition, he gave evidence that on 10 June 1980 he pald the sum of $31.60 at the

office of the Union. He paid this amount having lnqulred the

amount necessary to make him flnanclal, and havlng also sought

an exemption in respect of	a perlod of unemployment which
apparently commenced at the end of March	1980.

He claimed that having pald the amount he was glven

an exemption and became, by the combined effect of the payment

and the exemption, flnancial. He produced an "OK Card" given to

him on that date, which certified that he was a financial

member until 6 June 1980. The evldence 1s that these cards

were issued: they were a successor to pence cards which had

previously been issued by the Amalgamated Engineering Union and their purpose was said to be to indicate the financlal status of the member to whom they referred.

The writing on the "OK Card" was ldentlfled by

Mr. Tumbers as the writing of a member of the staff of the

Union. No attack was made on the bona fides of the card and,

treating it on its face value, the position would be that

Mr. Naqvi was financial until 6 June 1980.

If that were so and he was financlal at that date, the

next dues did not become payable until the end of the month

of July and that would necessarily mean that	he was flnancial
at the time of nomination, which was sometime in June	1980.
According to an affidavit of the returning officer,	he determined

that nominations for the position were to close on Monday,

13 June 1980. He forwarded to branch secretarles on 3 June 1980

a notice requlring the branch secretary to call for nominations

for the position. !The date of nominatlon then was clearly

some date in June, prior to 30 June.

As against that material, there was put in evidence

certain membership contribution cards which, on the evidence,

are sent to members of the Union in various quarters of the

year showing varying amounts owed by the applicant. Those

produced were compiled by the office staff at the direction

of Mr. Tumbers. He relied for the compilatlon of the card

and the figures on the card on computer records. The applicant

did not agree that the position was as shown on those cards.

Mr. Tumbers was not responsible for the preparation

of the material fed to the computer.	NO evidence was led
directly to show the manner in which this was done.	I accept

that the Union computer records show that Mr. Naqvi was not

financial at the date of nomination, but whlle these records

purport to show actual payments made they did not in any
identifiable manner show periods for which exemptions of

contributions had been made.

Exemption, it was agreed, given under rule 46, may

be given retrospectively in respect of any payments that are

due.	If exemptions are given, that In my view obliterates the
debt and that	sum cannot be taken into account as money owlng
In order to find	a member is unfinancial.

Mr. White, for the Union, also produced certain exhibits

claiming to show the value of exemptions granted between 1978

and 1980. but no record was produced indicating the date when,

the person by whom and the amount of exemption given and again
no evidence was called to show which exemptions had been given

and to define them in any way.

I am then, in the position that there is evidence by

Mr. Naqvi: it	is supported by a card issued by the Unlon
showing his financial status. As against that, there are

cards showing certain payments due and showing certain payments
made. There is nothing to indicate that exemptions are taken
into account or how they are taken into account in the preparation

of those cards.

Mr. rumbers gave evidence that in seeking to determlne

what exemptions had been given he looked at the letters which

had been received seeking exemption and the replies to them,

but that does not	cover, of course, the question of exemptlons
granted on personal application. In my	new, I am - by reason,
particularly of the	"OK Card", but also taking into account

all the evidence - of the opinion that Mr. Naqvi was at the date

of nomination a financial member.

The nomination having been recelved, it was rejected

by the returning officer who took the view that the appllcant

was not a financial member. He did not, however,	notify the
member concerned	of the defect, or afford him the opportunlty

of remedying it. It was argued that the words "defective

nomination" where appearing in rule 2 refer only to the

document nominating a member and defects In that document.

It was sought to gain support for this submlsslon

from the next paragraph, which reads:

where members acceptance qualifications

are not in accordance with the	rule,
they be notified as soon	as possible.

It is not easy to know what the phrase "members acceptance

qualifications" meps and I see no reason why that specific
provision should cut down the meaning of the words "defective
nomination" in the preceding paragraph.

In the 'first paragraph, the opportunity of remedying

the defect is to be glven where practlcable and it may well be
the second provision is only to ensure that non-conformity
with the rule in the case of acceptance quallficatlons
requires notification, whether it be practicable or not,

to remedy the Inconsistency. In my	view, the term used in
the rule, "defective nominatlon", covers the whole act of nominating, including the requlrement that	a member be
financial.

It is quite clear that had Mr- Naqvl been notified

he could have remedied the defect and become financial either

by paying the amount or by seeking under rule 46 an exemption

of contrlbutions to the extent necessary to make him financlal.

Had he been given the opportunity to do	s he could have applied
to any one of	a number of persons and In appropriate circum-

stances an exemption would no doubt have been granted.

It was clearly practicable for the defect to be

remedied. I am therefore of the opinlon that irregularlties have occurred in that the nomination was rejected, although

Mr. Naqvi was	a financial member at the date of nomlnation
and secondly, that an irregularity occurred in that he was

not notified as required by rule 2(l)(a).

I am of the opinion, as required by section 165(4)

that, having regard to what I have found, the result of the

election may have been affected by irregularities.

.I wish to add this: that, as is clear, I have accepted

Mr. NaqVl'S evidence. That does not mean that I have found

" I

12.

Mr. Tumbers in any way an unsatlsfactory witness. I think he

gave evidence quite fairly and without any attempt to shrink

from matters which might have been regarded as cutting across

the case which he was supporting.

Mr. Williams, the returning offlcer, did not glve

evidence, but he was confronted with what in my view were a particularly difficult set of rules and the findings I have

made should not be regarded as in any way	reflecting on
Mr. williams' honour or ability.

I propose to make an order, firstly, declaring the

election of Mr. Lean void and secondly, I direct the
Induetrlal Registrar to make arrangements for a new election
to be held. I will make an order that, until the fresh

election has taken place, the office of assistant state

secretary be occupied by Mr. Leonard George Lean. I will

make an order that the exhibits may be handed out by the

District Registrar to whichever party tendered them.