Asmar, in the matter of an election for an office in the Victorian No 1 Branch of the Health Services Union (No 3)

In the matter of an election for an office in the Victorian No 1 Branch of the Health Services Union (No 3), Ms Asmar challenged the decision of the Returning Officer to reject her nomination for two offices within the Branch. The legal issues that arose from this dispute included whether Ms Asmar was a financial member of the Union and whether she was an employee under s 171A of the Fair Work (Registered Organisations) Act 2009 (Cth), which would have rendered her ineligible to stand for election. Furthermore, the court had to determine whether the Returning Officer's decision constituted an irregularity and whether the Union's rules were void to the extent that they rendered Ms Asmar an unfinancial member.

The court examined the evidence provided by Ms Asmar, including her affidavit and the Union's records. It was found that Ms Asmar had been a financial member of the Union for many years, but had faced difficulties in maintaining her membership status since 2007. Despite her attempts to make payments and provide direct debit authorities, her contributions were not deducted from her account as per her instructions. Consequently, the Union had falsely recorded her as having resigned her membership and removed her from the register of members. The court found that these actions constituted a breach of the Union's rules and were irregularities in relation to the elections.

The court concluded that Ms Asmar was, in fact, a financial member of the Union and, therefore, her nomination should not have been rejected. It further held that the Union's rules, to the extent that they rendered Ms Asmar an unfinancial member, contravened s 142(1)(c) of the Act. Remedial orders were made under s 206 of the Act to rectify the situation and ensure the election could proceed. The ballot was set to open on 3 December 2012 and close on 19 December 2012, a shorter period than the ballots in the other two branches, to ensure the election could be concluded before Christmas.

The final orders included setting aside the determination of the order of candidates on the ballot paper, requiring the Returning Officer to determine the order of candidates in accordance with the Rules, and specifying the new opening and closing dates for the ballot. Additionally, the Returning Officer was required to immediately declare the result of the ballot upon completion of the count. The parties were granted liberty to apply on 24 hours notice to each other party.