Inquiry relating to elections for offices in the United Firefighters’ Union of Australia, Victorian Branch; Re Churchill
[2001] FCA 469
INDUSTRIAL LAW – registered organisations – election inquiry – procedural defect in union rules – jurisdiction of electoral official to find procedural defect – error of law – jurisdictional error –collateral challenge to decision of electoral official – power of electoral official to impose voting system – irregularity in relation to election – whether union rules fail to provide for election by direct voting system – whether union rules are oppressive, unreasonable or unjust
WORDS AND PHRASES – “irregularity”, “procedural defects”, “eligible to vote”
Amalgamated Metals Foundry & Shipwrights Union, Re; Ex parte Adamson(1984) 4 FCR 319 cited Australian Journalists’ Association, Re; Ex parte Nicholson(1990) 27 FCR 75 cited
[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
AGLC
Re Churchill [2001] FCA 469
Case
[2001] FCA 469
Decision Date
CaseChat Overview and Summary
The case was an election inquiry under the Workplace Relations Act 1996 (Cth). Mr Churchill sought an inquiry into the election of offices in the United Firefighters’ Union of Australia, Victorian Branch. The claimed irregularity in the election was that the electoral official did not count the votes in accordance with rule 27(13) of the union. The union rule required that when a candidate was elected to fill the first position, all ballot papers were sorted back to first preference votes. Then all ballot papers containing a first preference vote for the first elected candidate were distributed to the remaining candidates according to the second preference vote on each ballot. The electoral official however did not count the votes in this fashion. The electoral official instead counted the votes in a different manner which was not prescribed by the rules. The issue was whether the electoral official could adopt a new voting system to remedy a procedural defect in the union rules. The court held that the electoral official could not do so because the electoral official misdirected himself in concluding that there was a procedural defect in the union rules which required remedy. The electoral official misdirected himself in two relevant respects. First, the electoral official formed the view that the rules of the union did not provide for a method of counting votes where more than one person was to hold an office. This was an error of law. Second, the electoral official assumed the correctness of the conclusion that the rules do not provide a mechanism for counting votes for multiple positions. The error was in treating this gap as a procedural defect. The court concluded that the electoral official did not have jurisdiction to take any action and the union rules were invalid to the extent that it failed to provide for the election of the holder of each office by a direct voting system and to the extent that it was oppressive, unreasonable or unjust. The court ordered that the elections to be declared void and fresh elections to be held.