Matter of an application by shirley Mellor for an Inquiry into an election in the Federated Liquor & A.I.E.U. of Australia

[1987] FCA 191

CATCHWORDS

Industrial law - reglstered organization - election - new

ballot - roll of voters - private addresses of financial

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members unknown - whether proper to delete from roll -

whether to send ballot papers by certified mail.

Conciliation and Arbitration Act 1304, s s . 4 , 133AA, 165, 171

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IN THE MATTER OF AN APPLICATION BY SHIRLEY MELLOR FOR AN

INQUIRY INTO AN ELECTION IN THE FEDEF;ATED LIQUOR AND ALLIED

i	INDUSTRIES EMFLOYEES UNION OF AUSTRALIA.
No. Q6 OF 1386
GRAY J. BRISBANE
2 7 ~ ~ MARCH 1987

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IN THE PL4TTER of an appllcation

by 3HIRLEY MELLGR for an inquiry

into an election In the FEDERATED

LIOUOR MJD ALLIED INIjrJSTRIES

ZMPLOYEES UNION OF AUSTRALIA

JUDGE: W A Y 3.

m: 27TH IYARCH 1987

EX TEMFORE REASONS FOR J U D G r E N T

On 26ch November 1326, the Court found in this

inquiry that irregularitles had occurred in or in ccnnection with

the elections for the offices of State Secretary/Treasurer and

Assistant State Secretary In the Queensland Branch of the

Federated Liquor and Allied Industries Employees Union of

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Australia, and made certain orders in consequence OF that

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finding, and in coniequence of belng satisfied that the results

of the elections may be affected by those irregularities. The

orders involved the conduct of a fresh ballot between the

exlsting candidates. _-

Certain of the orders were in the following terms:

" 3 . The persons ellglble to vote be members o€ the

Federated Llquor and Allied Industries Employees Union

m its Queensland branch who ace financial	in accordance
with the r u l c a as at 26 November 1986.

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4. The roll of voters for such fresh ballot be

prepared in the following manner:-

(a) on~or before 24 December 1966 the State President

of the Queensland branch of the Federated Liquor

and Allied Industries Employees' Union f

Australia, Noel Rawle Horn, supply to the

Australian Electoral Commission a list of the names -

and addresses of the members eligible to vote	in-
such ballot;

(b) The Returning Officer take such steps as he sees

fit, by direction or request to any person or

I	persons, to ascertain the private addresses of any
members for whom private addresses do not appear on
the list supplied.

5. In the conduct of the fresh ballot, so far as

possible, ballot papers be sent to the private addresses

of persons eligible to vote, but where private addresses are not available, ballot papers be sent to work place

addresses. 'I

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Pursuant to those orders, Mr. Horn supplied to the Australian

Electoral Commission a list of persons certified by him to be

financial in accordance with the rules of the Union as at 26th

November 1966. It was intended by the Returning Officer that

!	that	list,	with	any subsequent	additions,	deletions	a d
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I alterations, should constitute the roll of persons eligible to

vote in the fresh ballot.

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Subsequently, much correspondence has passed between Mr.

Horn and the Returning Officer at the Australian Electoral

Commission, concerning the final form of the roll. It is

unnecessary for me to review the entirety of that correspondence.

It is _- sufficient to say that the correspondence reveals that the

combLnid efforts of Mr. Horn and the Returning Officer have

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produced a quite remarkable result in ascertaining private

addresses of members of the Branch, whose private addresses did

not appear in the records of the Unlon.

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On 16th March 1987 the Returning Officer sent to Mr.

Horn a list of 1,451 members who were on the list of persons

eligible to vnte, but in respect of whom private addresses were voters.

not avallable. As a result of certain inquiries made by him,-Mr. -

Application has been made before me today for the

purpose of obtaining further directions with respect to the

preparation of the roll of voters for the fresh ballot. Mr.

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Horn's proposal is that certain persons, whose private addresses have not been ascertained, should be deleted from the list of

persons eligible to vote. I am informed that the number of such

persons is now 1,060. As I have already indicated, I should be

most reluctant to order that persons be deleted from the roll of

voters when it has already been certified that they were

financial in accordance with the rules of the Union as at 26th

November 1986. There are, of course, all sorts of possible ways

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in which those persons might receive ballot papers, even though

their private addresses are not known and their employers, or

former employers, .are not able to indicate any forwarding

addresses. They may, for instance, still have workmates employed

in the relevant establishments, who advise them that ballot

paperg-are waiting for them, or management may be able to get in

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touch with them in some other way. They may indeed hear from

other publicity that the election 1s in progress, and attend at

their former places of employment in order to obtain their ballot

papers. For those reasons I am reluctant to delete those persons

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electoral roll.

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The proposal has been put to me, on behalf of Messrs.

Elton and Hardie, two candidates in the elections, that persons - -

in the category of "no private address known and unknown to their

former employers" should only have their ballot papers sent to

them by certified mail. It is suggested that this would provide

some security against those ballot papers falling into the hands

of persons who may misuse them. The Returning Officer proposes

to give substantial directions employers whose at

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establishments voters are listed without their private addresses.

Having heard what those proposals are, I indicate that I prefer

them to the proposal that certified mail be used. I am impressed

by the argument that the use of certified mail would impose an

additional requirement on some voters which would not be suffered

by others, namely, the requirement that they should sign a

receipt for a certified mail article, and perhaps attend at a

post office for the purpose of doing so, in order simply to

i ,	receive a ballot paper. In my view, such an additional burden	is
unjustified.

I do not propose to give any direction to the Returning

Officer, since he is primarily responsible for the conduct of the

ballot, but I indicate that I do not propose to accede to the

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directions which have been sought by Messrs. Elton and Hardie.

It would be wrong for me to leave the matter without

making some remarks about	a	controversy which appears to have
arisen between Mr. Horn and	the Returning Officer. As I have

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previously remarked, their combined rrrorts have produced an

extraordinary result, which could not have been predicted on 26th

November 1986, as to the number of private addresses which have

been ascertained. In correspondence with the Returning Officer, - -

Mr. Horn has made some complaints, and the Returning Officer, by

his solicitor, has made some complaints today about Mr. Horn's

activities, indicating that they are unhelpful. I cannot, of

course, give any directions to Mr . Horn at the present time,

because he is not a party to the proceeding and has not been

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advised of the possibility of any such directions. I do point

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out that the Returning Officer does have power to give directions

to Mr. Horn, if he sees fit to do so. I should say, however,

that on the evidence before me, Mr. Horn appears to have acted entirely with the best of motives and not at any stage to have set out to make the Returning Officer's job more difficult. I do

commend both Mr. Horn and the Returning Officer for the effort

that they have put into the conduct of this fresh ballot. Save

for that, I do not propose to pass judgment on any of the

activities of either.

I have already indicated that I do not propose to give

any further directlons,	so it appears to me that	no formal order
will be necessary.

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CAfter-hearing further argument :7

I will direct that as from this day any party wishing to

exercise the liberty to apply reserved in the order made on 26th

November 1986 give 48 hours notice in writing to each other

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party.

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