Kevin Maher under section 218 of the Worplace Relations Act 1996 and elections in National Construction Branch of the Australian Workers' Union

[1997] FCA 1623

JUDGMENT No. .!.k.~1....	~;1.3iL?
3. .-

IN THE IWUSTRIATJ RELATIOKS COURT	1
OF AUSTRALTA	1 No. V1 2339 of 1996

VIC'I'CRIA-DISTRIXT REGISTRY 1

IN TESE MATTER OF AN APPLICATION BY KEVIN

MAHEK UNDER SECTION 218 OF THE WORKPUCE RELATIONS ACT 1996 IN RELATION TO

ELECTIONS IN NATIONAL CONSTRUCTION BRANCEL

OF THE AUSTIIALIAN WORKERSf UNION

Coram:	Ryan J
D a t e - :	S May 1997

S, ,/ Place': Melbourne

REASONS FOR JUDGMENT

RYAU J: This inquiry concerns an election to f i l l a c a s u a l vacailcy or casual vacancies, the term of which will expire on 30 June this year. Nominations f o r eiections to gill the same and other offices f o r the f u l l term of four years to commcrlce

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

f o x most, if not all, of those o f f i c e s , inciudling those held

by persons whose elections to fill casual vacancies in them

have been challenged, there are not s u f f i c i e n t nominations to

r e q ~ i r e the returning officer to conduct a ballot.

The basis of t h ~ present inquiry went to tks cor1otitutiol:r of

the rolls of voters used in the election to fill the casual

vac-mcies. Irregularities were said to have occurred i n the

failure to transfer members from other Branches of the Uniolz

to the National Construction Branch ( l1 the NCBII) i n accordance

with Rule 3 6 ( n ) . As well, it was asserted khak ce r t a in rneml~ere

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of other Branches who were not eligible for membership of [-,he

NCB and some fifty-two other personG who are not finarlcial

members of t h e Union had been included on the NCB roll f o r thc

e l e c t i o n to fill the casual vacancies,

F i ~ ~ a l l y , it was asserted that other persons who had validly

become members of the NCB had not been included on the r o l l .

In these c i r c u m s t a n c e s , having regard to the very short time

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

,'+	continue to be filled, I consider it a proper exercise of tlia Court's discretion t o terminate the inquiry pursuant to
S , 223 ( 5 ) . However, because of t h e prima f a c i e force o f the
evidence on which the applicant r e l i e d , which has not so far
been t h e subject of a complete challenge i n t h e s e proceedings
and which was sufficient to persuade a Judge of t h i s Cour t to
i x l e t i t u t e the inquixy, 1 consider it appropriate t o certify
pursuant t o S. 343 that the applicant acted reasonably in
applying for the inquiry. I will, therefore, order:
>L	V
1. T h a t the directions made by myself on 28 February 1997 he

vacated.

2 . That the inquiry be terminated.

3 .     That it be certified pursuant to s , 343 that: t he

applicant acted reasonably in applyirlg for the inquiry.

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E : sd 8? :TT EB/SB/Z0

Electoral comrnlsslon

I certify that this and the preceding t w o

(2) pages are a true copy of the Reasons

for Judgment of h i s Honour Justice Ryan,

Associate:

Counsel f o r Mr K. Maher	: MS A. Chambers
solicitors for Mr K. Maher	: Maurice Blackburn & CO
Counsel for Messrs Busby,	: Mr P. Punch
Patterson and Gries	: Carroll & OIDea
Solicitors f o r Messrs Busby,	: Mr P. Punch
Patterson and Gries	: Carroll & O'Dea
Counsel for the Australiarl	: Mr G. Thorley

Elec tora l commission

Solicitors Ear the Australian	:	Mr G , Thorley
Electoral Commission

Date of Hearing	: 5 May 1997
D a t e o f Judgment	: S May 1997