Australian Electoral Commission v Hickson - [1997] FCA 1182

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - election inquiry - nomination lodged was defective under the rules - notice given of defect - defect remedied within time specified - nomination rejection based on unfinanciality at close of nominations - proper construction and application of rules - unfinanciality should be determined at the expiration of time specified in notice.

Workplace Relations Act 1996 ss 196, 197, 218, 219

Conciliation and Arbitration Regulations reg 146AE(2)
Acts Interpretation Act 1901 (Cth) s15AB

Re Election for Office in Australian Building Construction Employees and Builders Labourers Federation (1978) 30 FLR 252, considered
Re Application by Shahid Naqvi (J B Sweeney J, 26 March 1981, unreported), considered
Re Australasian Meat Industry Employees Union (Keely J, 19 July 1988, unreported), not followed
Re Hall (1994) 58 IR 19, not followed
Mills v Dunham (1891) 1 Ch 576, cited
Amalgamated Society of Engineers v Smith (1913) 16 CLR 537, cited
R v Holmes; ex parte Public Service Association of New South Wales (1977) 140 CLR 63, applied
Re An Election in the Australian Colleries’ Staff Association (NSW Branch) (1990) 26 FCR 499, applied
Re Election for Office in Transport Workers Union of Australia, Western Australian Branch (1992) 40 IR 245, applied
Re Carter; Re Federated Clerks Union of Australia, Victorian Branch (No. 1) (1989) 32 IR 1, applied
Re Kiely; ex parte Transport Workers Union (1992) 42 IR 1, applied
Lovell v Federated Liquor and Allied Industries Employees’ Union of Australia (1978) 22 ALR 704, applied

AUSTRALIAN ELECTORAL COMMISSION v DAVID HICKSON and AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION and PAUL BASTIAN
No NG 701 of 1997

NORTHROP ACJ, BRANSON and MARSHALL JJ
MELBOURNE
5 NOVEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 701 of 1997

BETWEEN:

AUSTRALIAN ELECTORAL COMMISSION
APPELLANT

AND:

DAVID HICKSON,
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION AND
PAUL BASTIAN
RESPONDENTS

COURT:

NORTHROP ACJ, BRANSON AND MARSHALL JJ

DATE:

5 NOVEMBER 1997

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

NORTHROP ACJ

The matter before the Court involves the proper construction and application of the Rules of the Food, Metals, Engineering, Printing and Kindred Union (“the AMWU”). The AMWU is an organisation of employees under the Workplace Relations Act 1996 (“the Act”). In conformity with Part IX of the Act, the affairs of the AMWU are conducted under Rules made by the AMWU. A reference to ss 195, 196, 197, 198 and 199 of the Act illustrates provisions which may or must be included in the rules of an organisation but it must be remembered that the rules of an organisation are made by the organisation itself. As a result, the rules of organisations are in many different forms. Section 196 is of importance. The section is set out:-

“196. The rules of an organisation:
(a)shall not be contrary to, or fail to make a provision required by, this Act or an award or certified agreement, or otherwise be contrary…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1997] FCA 1182
Decision Date: 5 NOVEMBER 1997

CaseChat Overview and Summary

The case of Australian Electoral Commission v Hickson involved a dispute over the proper construction and application of the rules of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ("the AMWU") in relation to an election for the office of State Secretary NSW. The central issue was whether a defect in a nomination could be remedied within the timeframe specified in the union's rules. David Hickson, a candidate for the office, had his nomination rejected because one of his nominators, Mark O'Brien, was not a financial member of the union at the time the nomination closed. Although O'Brien became a financial member within the period specified for remedying the defect, the Returning Officer rejected Hickson's nomination and declared Paul Bastian elected unopposed. The Full Court of the Federal Court found that the Returning Officer had wrongly rejected Hickson's nomination and wrongly declared Bastian elected unopposed. The Court concluded that the defect in the nomination could be remedied within the timeframe specified in the union's rules, and therefore, the nomination should not have been rejected. The Court ordered a new election for the office of State Secretary NSW, in which both Hickson and Bastian would be candidates. The Australian Electoral Commission's appeal against the orders of the Court was dismissed, and the reasons for judgment were published on 5 November 1997.

Orders