In the matter of an Application by Kevin Maher under Section 218 of the Workplace Relations Act 1996 in relation to elections in National Construction Branch of the Australian Workers’ Union

[1997] FCA 1622

~ U U ~ ~ U ~ N S Na. .l,k8kkbb~ a

XN THE I-TUSTRIAL	REmTIO_NS COURT	)
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OF AUSTRALIA No. V1 2339 of 1996

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V r c ' ~ ' O R I A - D ~ S T R X ~ T REGISTRY 1

IN THE MATTER OF AN APPLICATION BY KEVXN

MAHER UNDER SECTION 218 OF THE W0RKPLAG"jG

RELATIONS ACT 1996 IN RCLATION TO

ELECTIONS IN NATIONAL CONSTRUCTION BKRNCIR

OF THE AUSTRALIAN WORKERS' UNION

Coram :

-	.	-	Ryan J
D a t s :	5 May 1997

I ., ,l ---em.-- Placed: Melbourne

REASONS FOR LIUDGMENT

R Y W J:	This inquiry concerns an e lec t ion t o fill a casual
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vacancy or casual vacancies, the term of which will expire on

this year. Nominations for elections to fill the oamo and other offices for the full term of four years to commence

, 30 J ~ m e

on 1 July 1997 closed on 9 April 1997. There is evidence tha t

for most, if not all, of those offices, including those hold

,*,)	by persons whose elections to fill casual vacancies in thorn
have been challenged, there are not sufficient nominations to
require the returning officer to conduct a ballot.
The basis of the present inquiry went to the constitution of
the rolls of voters used in the election to fill the casual
vacancies. Irregularities were said to have occurred in the
failure to transfer members from other Branches of the Union
to the National Construction Branch ( ' 1 the NCB") i n accordance
with Rule 3 6 ( n ) . As well, if was asserted that certain mcrnhero

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of other Branches who were not el igible for membership of the

NCB and some fifty-two other persons who are not financial

menibers of the Union ltad been included on the NCB r o l l for t h ~

e l e c t i o n t o f i l l the casual vacancies,

Finally, it was asserted that other persons who had va l id ly

become members of t h e NCB had not beer1 included on the roll.

In those circumstances, having regard to the very short time

which will elapse during which the casual .vacancies w i l l .

a . c$

continue to be filled, I consider it a proper exercisc of the

i	Court's discretion t o terminate the inquiry pursuant t o
S. 223 (5) . However, because of the prima fac ie force o f the
evidence on which the applicant relied, which has not EO far
beer1 the subject of a complete challenge in t h e s e proceedings
and which was sufficient to persuade a Judge of this Court to
institute the inquiry, f consider it appropriate to certify
pursuant to S . 343 that the applicant acted reasonably i r ~
applying for the inquiry. I w i l l , therefore , order:

' ,I I*

1.    That the directions made by myself on 28 February 1997 be

vacated.

2.    That the inquiry be terminated.

3     That it be certified pursuant to s , 343 that the

applicant acted reasonably i n appWyi11g f o r the inquiry.

I certify that t h i s and the prcceding t w o

(2) pages are a true copy of the Reasons

for Judgment of his Honour Justice Ryan,

Associate:

Counsel for ME K. Maher	: MS A. Chambers
solicitors for Mr K. Maher	: Maurice Blackburn & CO
Counsel fo r Messrs Busby,	: Mr P. Punch
Patterson and Gries	: Carroll & 0' Dea
SoXicitors f o r Messrs Busby,	: Mr P. Punch
Patterson and Gries	: Carroll & O'Dea

l	Counsel for the Australian	: Mr G. Tharley
Electoral ~omrnission
solicitors Ear the Australian	: Mr G , Thorley
Electoral Commission
Date of Hearing	: 5 May 1997
D a t e o f Judgment	: 5 May 1997