FEDERAL COURT OF AUSTRALIA

Asmar, in the matter of an election for an office in the Victorian No 1 Branch of the Health Services Union (No 3) [2012] FCA 1289

THE COURT DECLARES THAT:

1.    The decisions of the Returning Officer on 18 October 2012 to reject Ms Asmar’s nominations for the offices of Branch Secretary and Branch Delegate to National Council of the Victoria No 1 Branch of the Health Services Union are each void.

THE COURT ORDERS THAT:

2.    Paragraph 1 of the Order made herein on 26 October 2012 be vacated.

3.    In relation to the elections of the positions of Branch Secretary, and National Council Delegate in the Health Services Union Victoria No 1 Branch (Elections):

(a)    the determination of the order of candidates on the ballot paper conducted by the Returning Officer on 19 October 2012 be set aside; and

(b)    on or before 4:00pm on 19 November 2012 the Returning Officer determine the order of candidates on the ballot paper in accordance with Rule 29A(d)(xiv) of the Rules of the Health Services Union (Rules).

4.     The Elections otherwise proceed in accordance with the Rules subject to the following exemptions:

(a)    Notwithstanding Rule 29A(d)(xv), the ballot shall open on 3 December 2012.

(b)    Notwithstanding Rule 29A(d)(xv), the ballot shall close on 19 December 2012.

(c)    Notwithstanding Rule 29A(d)(xxiv), upon completion of the count of the ballot, the Returning Officer immediately declare the result of the ballot to the Administrator. The persons so declared elected take office as soon as the result of the ballot is so declared.

5.    Liberty to apply on 24 hours notice to each other party.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

1    This is an inquiry into the conduct of an election for offices in the Victoria No 1 Branch of the Health Services Union (respectively “the Branch” and “the Union”). The applicant (“Ms Asmar”) lodged nominations for the offices of Branch Secretary and National Council Delegate. Those nominations were rejected by the Returning Officer on the ground that she had not been a financial member of the union for the requisite qualifying periods under the Union’s rules.

2    Upon being so advised Ms Asmar made an application under s 200(1) of the Fair Work (Registered Organisations) Act 2009 (Cth) (“the Act”), for an inquiry by the Court. I acceded to that application: see Asmar; in the matter of an election for an office in the Victoria No 1 Branch of the Health Services Union [2012] FCA 1242 (“Asmar No 1”).

3    I subsequently ordered that no further steps be taken in the conduct of the election pending the outcome of the inquiry: see Asmar; in the matter of an election for an office in the Victoria No 1 Branch of the Health Services Union (No 2) [2012] FCA 1243.

4    All candidates who had nominated for offices in the Branch were advised of the inquiry. Of these only Mr Marco Bolano, who also nominated for the position of Branch Secretary, participated in the inquiry. The Returning Officer and the Union’s administrator were also represented.

Background

5    The elections for all offices in the Branch were made necessary by the orders of Flick J in Brown v Health Services Union (2012) 291 ALR 497. In proceedings, brought under s 323(1) of the Act, his Honour found that the Union’s East Branch had ceased to function effectively and that there were no effective means under the Rules by which it could be enabled to function effectively. The East Branch had been formed, in May 2010, by the amalgamation of three existing Branches of the Union including the Victoria No 1 Branch. His Honour appointed an Administrator, disbanded the East Branch and constituted three separate demerged branches to take its place. One of those demerged branches was the Victoria No 1 Branch. His Honour’s orders required the Administrator to cause arrangements to be made for the conduct of elections for all offices in the demerged branches. Such elections were to be conducted by the Australian Electoral Commission: see at [193]. The timetable for the conduct of the Branch elections provided for nominations to be called for on 7 September 2012; nominations to close on 28 September 2012; the ballot to open on 2 November 2012; and the ballot to close on 23 November 2012.

6    On 27 September 2012, Ms Asmar lodged nominations for the two offices which she sought. There is no dispute that, apart from the questions of her financial status and her eligibility for membership of the Union, Ms Asmar’s nominations complied with the Union rules.

7    By letter dated 12 October 2012, the Returning Officer advised Ms Asmar that the Union records showed that she had joined the Union on 24 July 2012 “and therefore [she had] not been a continuous financial member for either 12 (for Branch Secretary) or 3 months (for National Councillor) immediately preceding 28 September 2012, which was the close of nomination.”

8    Ms Asmar instructed solicitors who wrote a six page letter to the Returning Officer. The letter provided an account of Ms Asmar’s dealings with the Union commencing in 1998. It was contended that, following a long period of financial membership, Ms Asmar had, since 2007, repeatedly been frustrated in attempts to maintain her status as a financial member. The solicitors asserted that Ms Asmar was, as a matter of law, a financial member of the union for the requisite qualifying periods.

9    By letter dated 18 October 2012, the Returning Officer confirmed his decision to reject Ms Asmar’s nomination. He gave no reasons.

10    Ms Asmar contended that the Returning Officer’s decision constituted an ‘irregularity’ because it involved a breach of the Union’s rules. Alternatively, she argued that, if in the circumstances, the Rules had the effect of rendering her an unfinancial member, they were, to that extent void, because they contravened s 142(1)(c) of the Act.

11    Mr Bolano initially supported the Returning Officer’s decision on the ground that Ms Asmar did not satisfy the financial membership criteria prescribed by the Rules and also because she was, at relevant times, in any event, not a member of the Union.

12    It was common ground that Ms Asmar had not paid the contributions (in the sense of parting with the monies) which were necessary for her to be treated as a financial member of the Union in the 12 months prior to 28 September 2012. The principal issue in dispute relates to the circumstances in which this situation arose.

The inquiry

13    Section 206(1) of the Act provides that the Court is required to inquire into and determine “the question whether an irregularity has happened in relation to the election, and such further questions concerning the conduct and results of the election as the Court considers necessary”. The applicant bears the onus of proving that an irregularity has occurred: see Re Nimmo (2011) 192 FCR 111 at 117-8. The issue is to be determined on the balance of probabilities: see s 206(2) of the Act.

14    In Asmar No 1 at [6]-[13] I examined the concepts of “irregularity” and an “election”. I do not repeat what I there said. Suffice it to say that, under the Act, a decision to accept or reject an nomination is a step in the electoral process and an irregularity can occur if there is a breach of a union’s rules which has implications for the conduct of an election.

The rules

15    It is necessary to examine three parts of the rules: those relating to eligibility for membership of the Union, eligibility for candidacy, and the maintenance of financial membership.

16    Rule 3 provides for the conditions of eligibility for membership of the Union. There was no dispute that, when she was employed as a pathology collector in the health services industry and as an organiser of the Union, Ms Asmar satisfied the relevant parts of this Rule.

17    Rule 29A of the Rules deals with elections. It prescribes the procedures which must be observed in the conduct of all elections for, inter alia, Branch officers and Branch delegates to the National Council: see Rule 29A(a)(i) and (iv).

18    Rule 29A(c) provides for the appointment of a Returning Officer who may or may not be a member of the Union. In the present case, the appointed Returning Officer was an officer of the Australian Electoral Commission. The Returning Officer is required to conduct the election in accordance with the rules: Rule 29A(d) and s 193(1)(a) of the Act.

19    Rule 29A(d)(i) provides for the Returning Officer to call for nominations for the relevant positions. Rule 29A(d)(vii) provided that:

“The Returning Officer shall check all nominations received for compliance with the requirements of these rules and shall reject any that do not so comply; provided that in the event of his/her finding a defect in any nomination, he/she shall before rejecting the nomination notify the person concerned of the defect, and, where it is practicable to do so, give him/her the opportunity of remedying the defect where practicable within seven days of his/her having been so notified.”

20    Rule 29A(e) provided that:

“(i)    Nominations for any position of full time paid Branch Officer shall have been a continuously financial member of the Union for not less than twelve months immediate [sic] preceding his/her nomination and shall be a financial member of the Union at the date of his/her nomination.

(ii)    Nominations for any position other than that of full time paid Branch Officer shall have been a continuously financial member of the Union for not less than three months immediately preceding his/her nomination and shall be a financial member of the Union at the date of his/her nomination.”

21    Rule 10(b)(ii) provided that an unfinancial member was not entitled to nominate for any office in the Union. Rules 8(f)(vii) and 10(a) both deemed a member who owed contributions equivalent to an amount in excess of 13 weeks contributions to be unfinancial.

22    The provisions relating to financial membership are to be found in Rule 8. The Rule provided for the fixing of annual contributions which are payable by members: see Rule 8(a). Contributions are payable 13 weeks in advance: Rule 8(b). Members are offered a range of methods by which to make payment of their contributions. Relevantly Rules 8(f)(i), (ii) and (viii) provided:

“(i)    A member may apply in writing to the Secretary of his/her Branch to pay his/her contributions by instalments paid fortnightly, monthly, quarterly (once every three months), or half-yearly (once every six months), on a basis of one twenty-sixth, one twelfth, one quarter, or one half, respectively, of the annual contribution payable. A member may apply to pay such instalments by any of the following methods:

A.    by direct debit from a bank and/or financial institution account;

B.    by a charge or credit card;

C.    by cheque;

D.    by cash; or

E.    any other method approved by Branch Committee.

(ii)    A member shall be deemed to have made application in writing to pay his/her contributions by instalments upon receipt of documentation by the Branch which shows that member has paid or has authorised payment of his/her contributions by periodic instalments available under paragraph (f)(i), and by one of the methods referred to in that paragraph (f)(i). Any such application made before the commencement date shall be treated as an application for the purposes of this Rule.

…

(viii) This Sub-Rule 8(f)(viii) applies to any member who has prior to the commencement date made or caused a payment to be made or documentation to have been provided to the Secretary of the Branch which showed an intent to pay his/her contributions by periodic instalments as described in paragraph (f)(i) and (ii), and by one of the methods therein, and did pay any such instalment. Such a member shall on and after the commencement date be taken to have applied to and have been permitted to (and by this Sub-Rule also is retrospectively permitted to) pay his/her contributions by instalment from the date the member made the payment, and shall be treated as a financial member for all purposes in respect of the periods of time to which such payments are referable.”

23    Rule 8(d) provided that contributions “payable by members of the Union shall be paid to and collected by the appropriate Branch Secretary or his/her duly appointed agent.”

24    Given the potentially serious consequences for a member who becomes unfinancial under the Rules, certain protections are provided. Rule 8(f)(v) was one such provision. It provided that, where a member’s instalment had not been received by the Branch by the due date, the Branch Secretary was obliged to notify the member that the payment had not been received and of the consequences to the member of the failure to pay the instalment. Rule 16(b) provided for the purging of the register of members. It provided for the Branch Secretary to strike off the register of members the names of those owing contributions for a period of 26 weeks or more. The Branch Secretary was required to give any member one month’s written notice of the intention to strike the member’s name off the register. Rule 16(c) required the Branch to notify the National Secretary of all names struck off the register within 14 days of such striking off occurring.

The evidence

25    Ms Asmar swore an affidavit in support of her application. She deposed that she had been a financial member of the Union continuously between 1998 and May 2007. Between 2004 and May 2007 she was a paid organiser employed by the Union. Following a dispute with elected officials she accepted voluntary redundancy from her position as an organiser. During her employment as an organiser her contributions had been made by way of payroll deduction. Once she ceased being an organiser she provided the Union with a direct debit authority which authorised the payment of her contributions by means of deductions from her National Australia Bank credit card account. Deductions were not made pursuant to this authority. She provided further authorities in December 2007, early 2008, in July 2009 and in February 2011. With one exception no deductions were made pursuant to such authorities. During this period Ms Asmar made numerous telephone enquiries in relation to her financial status. Her calls were either put on hold for protracted periods or were dealt with in an unhelpful manner. Ms Asmar made an attempt to pay her contribution by cheque or money order in March 2010. She sent the cheque or money order by post to the Union. It was returned marked “return to sender”.

26    A copy of the Union form on which Ms Asmar made one of her requests to have her contributions deducted from her National Australia Bank account was in evidence. The request was for her account to be debited “until further notice in writing.” The direct debit request which was made by Ms Asmar and which was acted upon by the Union was a method of payment of contributions which was specifically contemplated by the Rules. It was the method chosen by her to ensure that her contributions were paid. It was received by the Union. In order for a deduction to have taken place the authority must have been lodged, by the Union, with the National Australia Bank. It was to operate indefinitely. Ms Asmar did not terminate the authority in writing.

27    In 2009 I approved a scheme under s 323 of the Act under which all Branch offices were declared vacant, fresh elections were ordered and an Administrator was appointed to manage the affairs of the Branch pending the outcome of those elections. This scheme was put in place because the Branch had ceased to function effectively: see Re Health Services Union (2009) 187 IR 51. In doing so I observed that internal disputes within the Branch had rendered it dysfunctional. One manifestation of this dysfunction was a failure to maintain proper records. This inquiry has been hampered by the inability of the Administrator (through no fault of his or those working for him) to produce a complete and accurate set of records relating to Ms Asmar’s membership of the Union.

28    Some limited assistance was provided by Ms Pauline Fegan who was the Branch President at the time of the 2009 restructuring. She was able to produce an affidavit which had been sworn by one Frances Lindsay on 4 December 2009 in support of an application for an election inquiry. The election concerned was the remedial election which formed part of the scheme which I had approved earlier in the year. The affidavit was affirmed in an attempt to establish that Ms Asmar was unfinancial and, therefore, ineligible to contest the election which followed the restructuring of the Branch. In the event, no inquiry took place. This was because Ms Asmar’s nomination was accepted and the election proceeded. Mr Bolano was elected as Branch Secretary in preference to Ms Asmar.

29    Exhibited to Ms Lindsay’s affidavit was a series of computer printouts which she said came from the Union records. Much of the same information, in a different format, was provided to the Court by the Assistant Administrator in the present restructuring scheme. The printouts contained conflicting information.

30    A printout on 14 July 2009 showed that Ms Asmar’s membership was recorded as “archived”, a term which Ms Lindsay understood to mean that the member concerned had ceased to be a member of the Union. The printout also disclosed that Ms Asmar’s membership had lapsed from 22 April 2008.

31    On 29 July 2009, Ms Lindsay obtained a further printout from the Union’s computer records. By this time Ms Asmar’s membership status had been changed to “active”.

32    Ms Lindsay also produced a printout headed “Member Profile” which is dated 29 October 2009. It shows Ms Asmar’s status as “active”. It disclosed that, as at 13 June 2007, Ms Asmar owed contributions of $123.25. That amount was written off on 22 April 2008. A series of entries then appear for 16 July 2009 (the “16 July entries”). They show three payments which, together, totalled fees of $1,232.50. This amount related to then outstanding subscriptions for the financial years 2007-8 and 2008-9 and payment due for the six months ending on 31 December 2009.

33    A second document, also printed on 29 October 2009, showed that the 16 July entries had been made by a Miss Linda Di Pierro who Ms Lindsay identified as an employee of the Branch. This document also recorded that the 16 July entries had been reversed by Ms Di Pierro on the following day. As a result Ms Asmar appeared as a former member who had resigned and whose membership had been archived. On 20 July 2009, Ms Di Pierro effected a further entry which showed Ms Asmar was a member but then immediately archived Ms Asmar’s records.

34    On 21 July 2009, Ms Fegan made a further alteration to Ms Asmar’s records to show that Ms Asmar was an “active” member.

35    The circumstances in which these changes came to be made in July 2009 are partially explained by Ms Fegan in her affidavit. She deposed that Ms Asmar had told her in late 2008 and the early part of 2009 that she (Ms Asmar) was having difficulty in having her membership of the Union recognised. Ms Fegan arranged for a friend to provide Ms Asmar with a direct debit authority form. She observed Ms Asmar fill it out. Ms Fegan took the completed form to the Union office and gave it to Ms Di Pierro and asked Ms Di Pierro to process it on Ms Asmar’s behalf. Ms Fegan continued:

“A few days later Ms Asmar telephoned me and said that Ms Di Pierro told her that she could not process her direct debit authority. I told Ms Asmar that I would speak to Ms Di Pierro. When I spoke to Ms Di Pierro, she told me that she had re-entered Ms Asmar into the system but had then been told by Mr Jackson to remove her. I then went on to the system and reinstated Ms Asmar as an active member.”

36    Ms Asmar said that she had personally given another copy of the direct debit form to Ms Di Pierro.

37    I raised these issues with the Assistant Administrator, Mr James Simmonds, when he gave evidence. In particular I asked him whether there were any banking records of the Branch which showed that the sum of $1,232.50 had been credited to the Branch’s account on or about 16 July 2009. Mr Simmonds caused the records of the Branch to be examined and produced a “batch report” which showed that this sum had been debited from Ms Asmar’s Mastercard and credited to the Union’s account on 16 July 2009. Unfortunately the authority given by Ms Asmar for the debiting of her credit card was not able to be found.

38    Mr Simmonds had earlier produced another document which explained why it was that, on 17 July 2009, Ms Asmar’s membership profile had been changed to show that she had resigned and that her membership had been “archived”. The document was an e-mail from Mr Jeff Jackson, the then Branch Secretary, to Ms Rita Wills who was an employee of the Union responsible for Branch membership. The e-mail (which was dated 17 July 2009) read:

“I am advised that Ms Diana Asmar has been reinstated on the membership register despite having been purged from that register sometime ago, after her membership terminated in accordance with rule 13. I am informed that she has been re-listed as an unfinancial member.

I direct you to remove her name from the register of members and ensure that no staff make any changes or admit any members to the membership system without my authority.”

39    When Ms Di Pierro appeared to give evidence under summons, she confirmed that she had adjusted the records on 17 July 2009 following a direction to do so given by Ms Wills.

40    Ms Di Pierro explained the circumstances in which she had acted. She was employed by the Union and worked in the Branch Office between April 1996 and December 2009. Throughout this period she was responsible for maintaining membership records. Her supervisor was Ms Wills. After Ms Asmar had ceased to be employed as an organiser by the Union in May 2007, Ms Wills had instructed her that she should not process any future applications for membership lodged by Ms Asmar and one or two other persons. She understood that Ms Wills was, in turn, acting on instructions given by Mr Jackson. For this reason some applications, made by Ms Asmar between 2007 and 2009, had not been acted on.

41    In July 2009, Ms Asmar had made a further application. It was made on the standard application form which contained a direct debt authority. In completing the form Ms Asmar had authorised the deduction from her Mastercard account with the National Australia Bank of all monies needed to bring her contributions up to date. The authority also authorised ongoing deductions to cover her membership contributions as they fell due.

42    Ms Di Pierro had processed Ms Asmar’s application, notwithstanding Ms Wills’ earlier direction, because she had been directed to do so by Ms Fegan.

43    Ms Di Pierro had altered the records on the following day on instructions given by Ms Wills.

44    The result was that, despite Ms Asmar being a financial member under the Rules as a result of the payments she had made on the previous day, she was recorded as having resigned from the Union and her record “archived”.

Consideration of financial issues

45    This process involved a number of breaches of the Rules. In the first place Ms Asmar was, on 17 July 2009, a financial member of the Union. No ground therefore existed under the Rules for her name to be removed from the register of members. In any event, her name could not be purged from the register of members without her being given notice under Rule 16. This did not occur.

46    The result was that Ms Asmar was falsely recorded as having resigned her membership and was removed from the register of members. This should not have occurred. Under Rule 8 she had tendered the requisite contributions and had provided the Union with an authority, which operated indefinitely, to deduct her Union contributions as and when they fell due. The giving of such authority and the acting on it by the Union were specifically contemplated by Rule 8. Ms Asmar remained financial until the end of 2009 because of the payment she had made in July of that year. At that point a further deduction should have been made from her account, in accordance with the authority which she had given in July 2009, for further deductions to be made. It was not. This was because of the direction given by Mr Jackson. In giving the direction he contravened Rule 8(d) which required him to collect contributions which had been proffered by a member. Such contraventions of Rule 8(d) continued as each new contribution period began and no step was taken by Mr Jackson and his successors to act on Ms Asmar’s debit authority.

47    Because the Union chose not to act on that authority, Ms Asmar appeared in the Union records which were provided to the Returning Officer as a member who had not been financial within the meaning of the Rules for the periods required for candidature for the offices which she sought. For this reason the Returning Officer rejected her nominations. In these circumstances the contraventions of the Rules by Mr Jackson and those who acted in accordance with his directions can properly be regarded, in my view, as irregularities in relation to the elections for the two offices for which Ms Asmar sought to be a candidate.

48    Having heard Ms Di Pierro’s evidence, none of the parties sought to contend to the contrary.

49    The position is understandable having regard to the authorities. In Re Slaters, Tiling and Roofing Industry Union of Victoria (1983) 72 FLR 411 Keely J dealt with a case in which a person who had sought to maintain his financial status as a member of a Union had failed to do so because the secretary had refused to accept his subscriptions. His Honour held that, in such circumstances, the member was not to be treated as being unfinancial. He declined (at 416) to accept a construction of the Rules which resulted “in a member being deemed to be unfinancial where … he has offered his union dues to the secretary at the union office and the secretary has refused to accept payment.” His Honour so held in a case where the union rules did not contain an express obligation on officials to accept contributions tendered by members or potential members.

50    In McJannett v Bulloch [2012] FCA 1233 Barker J also dealt with a case in which an applicant for union membership alleged that union officials had acted to prevent him from becoming financial in order to prevent him from contesting union elections. His Honour (at [228]) accepted that the breach of an implied obligation of a union to accept the contributions of a person entitled to be a member of that union could constitute an irregularity for the purposes of the Act. His Honour continued at [229] that:

“In my view, if it could be established that there was any deliberate strategy undertaken by or on behalf of the Union or an elected officer, such as the Secretary, at all material times, to prevent the applicant being financial … then there would be evidence that suggests a breach of the Rules of the Union in relation to the payment of contributions.”

51    I would also observe that, in Re Slaters, Keely J said that, were the union’s rules properly to be construed as causing a member who had done all that was required, under the rules, to make contributions to be regarded as being unfinancial because an official had refused to accept payment, the rules would have contravened the then s 140(1)(c) of the Conciliation and Arbitration Act 1904 (Cth), (see now s 142(1)(c) of the Act), because such a rule would impose upon members of the organisation conditions, obligations and restrictions, which, having regard to the objects of the Act, would be oppressive, unreasonable or unjust. This was the case as, if taken literally, such a rule would permit Union officials to prevent members from participating in those aspects of Union affairs which were reserved for financial members by refusing to receive their subscriptions.

Consideration of membership issues

52    Although Mr Bolano did not, following the evidence given by Ms Di Pierro, seek to support the Returning Officer’s decisions on the ground that Ms Asmar was not a financial member of the Union, he did submit that, at some time no later than December 2010, she had ceased to be a member of the Union by operation of s 171A of the Act.

53    Section 171A, when read with s 18B(3)(a), relevantly provides that, if a person is a member of a Union and the person “is not, or is no longer” an employee, “the person’s membership of the organisation immediately ceases.” In s 6 of the Act the word “employee” is defined to have “its ordinary meaning and includes a person who is usually such an employee …”

54    Mr Bolano accepted that Ms Asmar had remained an employee, as defined in the Act, at least until December 2008 and, possibly, but no later than, until December 2010.

55    Ms Asmar gave evidence about her work history after ceasing to be an organiser employed by the Union in May 2007. Her affidavit contained the following chronological table:

“May 2007 – September 2007: unemployed.

September 2007 – December 2008: full time employment with the Transport Workers’ Union.

December 2008-June 2009 – unemployed.

December 2008 – December 2009: Mayor of Darebin Council for which I received an honorarium.

September 2009 – December 2009: casual employee, engaged for 1 day per week, at Medi7Clinic. The work I performed entitled me to be a member of the HSU.

December 2009 – October 2011: unemployed.

April 2010 – became pregnant.

January 2011 – gave birth to my child.

December 2010 – December 2011: Major of Darebin Council for which I received an honorarium.

October 2011: I accepted an offer of employment with Dorevitch Pathology but did not take up the role. The work that I would have performed would have entitled me to be a member of the HSU.

January 2012 to date: casual employee for Complete Family Care Medical Centre. I am employed for 1 day per week. I sometimes work 2 days per week.

The work I perform entitles me to be a member of the HSU.”

56    She also gave evidence that, between May 2007 and January 2012 she applied for well over 100 jobs in positions in the health industry. The positions which she sought were positions which were covered by the Union’s eligibility rules. Ms Asmar commenced working for the Complete Family Care Medical Centre in January 2012. There was some uncertainty in the evidence about when her voluntary work at the centre became paid employment. This happened some time in 2012.

57    Mr Bolano submitted that Ms Asmar had ceased usually to be an employee when she became Mayor of the City of Darebin in December 2008 or when she again assumed that position in December of 2010. I reject this submission.

58    Section 171A was introduced into the Act following the decision in Australian Education Union v Lawler (2008) 169 FCR 327 in which the Full Court held that, unless a union included in its rules a provision which enabled the removal from membership persons who were no longer eligible to be members, the union was not validly registered under the former Workplace Relations Act 1996 (Cth). Section 171A was intended to preserve the registration of unions which did not have the requisite Rules. The purging was effected by statute.

59    The term “usually employed” or the phrase “usual occupation is that of employee”, have been found in federal industrial legislation in Australia at least since 1910. In Australasian Meat Industry Employees’ Union v Belandra Pty Ltd (2003) 126 IR 165 at 179, [43] North J, speaking of employers, said that:

“Whether a person is usually an employer is a question of fact to be determined in the light of all the circumstances in each case. There is no formula appropriate in all cases which can be used to answer the question. As to a past employment relationship, it may be relevant to know how long ago the person ceased to be an actual employer or to understand why the person ceased to be an actual employer. As to future employment, it may be relevant to know when such employment is to commence or resume, and the circumstances of any delay in commencing or resuming employment.”

60    This approach is also appropriate when determining whether a person is to be regarded as usually being an employee.

61    Ms Asmar first became an employee at the age of 17. That was 21 years ago. For most of those 21 years she has been engaged in paid employment, either in the health services industry or in an industrial organisations. Since she ceased to be employed by the Union she has had employment with the Transport Workers’ Union, a medical clinic and the medical centre where she is presently employed. These periods of employment have been interspersed with periods when she has not been employed. She has nonetheless, during these periods, sought employment.

62    I do not consider that her public service in the two 12 month periods during which she was the Mayor of the City of Darebin was inconsistent with her having been an employee or usually an employee. She had been the Mayor of Darebin on an earlier occasion. That was between December 2004 and December 2005. Throughout that time she was a full time employee of the Union. During the latter part of her second term as Mayor in 2009 she was also employed. It is plain enough that Mayoral duties did not prevent her from engaging in paid employment when she could obtain it.

63    Having regard to all of these circumstances, I have concluded that Ms Asmar was, at all relevant times, an “employee” within the meaning of the Act. It follows that s 171A of the Act did not operate to bring her membership of the Union to an end.

Conclusions

64    Ms Asmar’s nomination should not have been rejected. Remedial orders should be made under s 206 of the Act.

65    It remains to consider what ancillary orders should be made with a view to ensuring that the election that has presently been stayed can be resumed and concluded. All parties and the administrator submitted that it was desirable in the interests of the Union and its members that the election be completed before Christmas.

66    Given the relatively short period of time available between now and then it would not be possible for the ballot to remain open for the period of three weeks that has been allowed for the ballots for the Victoria No 3 branch and the New South Wales branch.

67    The Electoral Commission has advised the Court that it requires a short time in which to conduct a lottery to determine the order of candidates for the two positions for which Ms Asmar is eligible to stand and that further time will then be required to print the ballot papers and other material that is to be dispatched to members. I am told that that can be done in time for the ballot to open on 3 December 2012.

68    I propose that the ballot will open on that date and remain open until 19 December 2012, a period of 16 days. This is a shorter period than the period of the ballots in the other two branches but it is necessary that the period be shortened in order to ensure that the ballot which will take place amongst approximately 12,000 members of the Branch can be conducted appropriately and declared before Christmas without imposing undue hardship upon the Electoral Commission’s staff.

Associate:

Dated:    16 November 2012