IN THE FEDERAL COURT OF AUSTRALIA INDUSTRIAL DIVISION SOUTH AUSTRALIA DISTRICT REGISTRY No. 17 of 1980 were we ww IN THE MATTER of the Conciliation and Arbitration Act, 1904 AND IN THE MATTER of an application by SHAHID NAQVI for an Inquiry into an Election in THE AMALGAMATED METAL WORKERS' AND SHIPWRIGHTS UNION _ 26 March Y981 J.B. SWEENEY J. REASONS FOR JUDGMENT This is an inquiry into an election conducted for the office of assistant state secretary in the Amalgamated Metal Workers and Shipwrights Union, South Australian Branch, which I hereafter refer to as "the Union". Application was made to the Industrial Registrar by Mr. Shahid Naqvi for an inquiry on 17 December last. The Industrial Registrar granted the application and referred the matter to the Court. Notice of the reference was given to the applicant, to the Union and to Mr. Lean, the successful candidate. Mr. Lean was in Court at the first hearing, but did not seek leave to appear, althpugh invited so to do. At that stage, Mr. Naqvi was represented by counsel who subsequently sought leave to withdraw from the proceedings, both as counsel and solicitor, since the applicant had been unsuccessful in seeking legal aid from the Commonwealth Attorney- General and the South Australia Legal Aid Commission. Leave was granted and subsequently Mr. Naqv1 appeared in person. I would add it appears that the Industrial Relations Bureau played some part in the examination of the matter by the Industrial Registrar, but it did not seek leave to appear and no material was before me indicating what it had investigated or found. Questions raised on the hearing centred around two issues: firstly, whether the applicant was a financial member and entitled to nominate; and secondly, whether he should have been given notice of rejection of his nomination by the returning officer and an opportunity to remedy any defect. Before coming to these issues, it is necessary to consider briefly the rules of the Union. I should say they are both confused and confusing and I think in considerable need of attention by the organization. Rule 2(1) provides that all elections within the Union for an office as defined in section 133AA of the Conciliation and Arbitration Act shall be conducted in accordance with the provisions of the Act and Regulations. It was put to me that, pursuant to this rule, in the case of this office, clearly an office as defined, it was necessary for a ballot to be conducted by direct voting system as defined and by secret postal ballot. I deal with the inquiry on that basis. Section 133AA of the Act so provides. It further provides for regulations making certain provisions in the case of an election in which the rules do not provide for a secret postal ballot, but it was put that that was not this case and I accept that submission. The Regulations, then, have no application in this present case. The balance of Rule 2 provides for some matters not inconsistent with this view of the ballot, such as the obligation on the returning officer to check all nominations and acceptances received, to see that they comply with the rules, and reject any that do not so comply. It is further provided that it is his duty: Where any defective nomination occurs, to notify the member concerned of the defect and, where practicable, afford such member the opportunity of remedying same, such to be done no later than 7 days after being so notified. Other provisions of the rule such as sub-rules (10) to (12) and others are inconsistent with sub-rule 1 and seem to me to have no application. Rule 2(6)(a) and (d) read together require, among other things, that a candidate for the position of assistant state secretary must be financial in accordance with rules 43 and 46 at the date of nomination. The first issue is whether the applicant was so financial. Rule 43 provides: Unless otherwise specified in these rules, a member shall not be financial whilst in arrears with the payment of any contributions, fines or levies, such having to be made no later than the end of the first month in each quarter; namely, January, April, July and October. Once so paid, the member again becomes financial. Rule 46 gives power to the national conference to determine the maximum amount of contributions to be paid by members and power to the national council, from time to time, to set the rates of contributions to be paid by members between national conferences. It further provides: Quarters, for the purpose of this rule, shall be January-March, April-June, July-September, October-December. Contributions up to the end of each quarter must be paid not later than the end of the months of January, April, July and October. Once so paid, the member again becomes financial. In my view, the obligations of the member is to pay the contributions for each quarter by the end of the months of January, April, July and October. If he does not so pay them, he becomes unfinancial because he 1s in arrears with the payment of contributions. Rules 43 and 46 each provide for such payments not later than the end of the first month in each quarter and each then provides that, once so paid, the member again becomes financial. In my view, this last sentence, read as part of the rules, means that a member is under an obligation to pay during each of the first months of each quarter. ff he does not, he becomes unfinancial, but if he subsequently makes the payment, he again becomes financial. It was argued that the expression "once so paid" could only refer to contributions paid during the months of January, April, July and October. However, if this 1s the interpretation, then at least on the second day of each of those four months, a member who had not paid dues for the quarter would become unfinancial and he would remain unfinancial during that first month until he paid the contributions. This, in my view, would be an absurd consequence, because his obligation is only to pay them by the end of the month. The language of the rules is not so intractable as to require me to give it that meaning. A member cannot be unfinancial until he is in arrears with the payment, and he cannot be in arrears until the date fixed for payment; namely, until the end of the first month in each quarter has passed. In my view on the true interpretation of the rules, a member is under an obligation to pay each quarter's dues during the first month of the quarter. If he fails, he becomes unfinancial, but if he subsequently pays it, then, subject to the proper payment of other dues from time to time, he is financial. I turn to another aspect: rule 46 also provides that exemption of contributions may be granted to any member in special circumstances with the approval of state council and subject to the consent of the national council. The evidence was that power to grant exemption had been bestowed, with the approval of state council and the consent of national council, on officers, officials and the office staff of the South Australian Branch. It appears that application for exemption may be made by letter or may be made by application in person. Where application is made by letter, 1t appears that a letter is sent in reply stating whether exemption is granted or not. There appears to be no official record of grants of exemption made on personal applications. Turning now to the facts in this particular case, the applicant has been a member of the Union since 1972 and, during the latter part of his membership, has been the president or secretary of the Christies Beach Branch of the Union. As such, he was subject to election every 12 months and was required to be financial in order to hold the office. A letter put in evidence - Exhibit F - refers to checks made by the State office on the financial status and rights of officers of such a branch to be members of the Union. That letter was well subsequent to this application but it is a fact that Mr. Naqvi held these offices during this period and was not challenged in the annual check made on any occasion until September or October of last year. In addition to that, his evidence was that he was a financial member. He did not produce particular receipts or copies of contribution cards for various payments made: when asked about them, he said he had not brought them to Court. It may be mentioned that he was at a considerable disadvantage in appearing in person. In addition, he gave evidence that on 10 June 1980 he paid the sum of $31.60 at the office of the Union. He paid this amount having inquired the amount necessary to make him financial, and having also sought an exemption in respect of a period of unemployment which apparently commenced at the end of March 1980. He claimed that having paid the amount he was given an exemption and became, by the combined effect of the payment and the exemption, financial. He produced an "OK Card" given to him on that date, which certified that he was a financial member until 6 June 1980. The evidence is that these cards were issued: they were a successor to pence cards which had previously been issued by the Amalgamated Engineering Union and their purpose was said to be to indicate the financial status of the member to whom they referred. The writing on the "OK Card" was identified by Mr. Tumbers as the writing of a member of the staff of the Union. No attack was made on the bona fides of the card and, treating it on its face value, the position would be that Mr. Naqvi was financial until 6 June 1980. If that were so and he was financial at that date, the next dues did not become payable until the end of the month of July and that would necessarily mean that he was financial at the time of nomination, which was sometime in June 1980. According to an affidavit of the returning officer, he determined that nominations for the position were to close on Monday, 13 June 1980. He forwarded to branch secretaries on 3 June 1980 a notice requiring the branch secretary to call for nominations for the position. The date of nomination then was clearly some date in June, prior to 30 June. As against that material, there was put in evidence certain membership contribution cards which, on the evidence, are sent to members of the Union in various quarters of the year showing varying amounts owed by the applicant. Those produced were compiled by the office staff at the direction of Mr. Tumbers. He relied for the compilation of the card and the figures on the card on computer records. The applicant did not agree that the position was as shown on those cards. Mr. Tumbers was not responsible for the preparation of the material fed to the computer. No evidence was led directly to show the manner in which this was done. I accept that the Union computer records show that Mr. Naqvi was not financial at the date of nomination, but while these records purport to show actual payments made they did not in any identifiable manner show periods for which exemptions of contributions had been made. Exemption, it was agreed, given under rule 46, may be given retrospectively in respect of any payments that are due. If exemptions are given, that in my view obliterates the debt and that sum cannot be taken into account as money owing in order to find a member is unfinancial. Mr. White, for the Union, also produced certain exhibits claiming to show the value of exemptions granted between 1978 and 1980, but no record was produced indicating the date when, the person by whom and the amount of exemption given and again no evidence was called to show which exemptions had been given and to define them in any way. I am then, in the position that there is evidence by Mr. Naqvi: it is supported by a card issued by the Union showing his financial status. As against that, there are cards showing certain payments due and showing certain payments made. There is nothing to indicate that exemptions are taken into account or how they are taken into account in the preparation of those cards. Mr. Tumbers gave evidence that in seeking to determine what exemptions had been given he looked at the letters which had been received seeking exemption and the replies to them, but that does not cover, of course, the question of exemptions 10. granted on personal application. In my view, I am - by reason, particularly of the "OK Card", but also taking into account all the evidence - of the opinion that Mr. Naqvi was at the date of nomination a financial member. The nomination having been received, it was rejected by the returning officer who took the view that the applicant was not a financial member. He did not, however, notify the member concerned of the defect, or afford him the opportunity of remedying it. It was argued that the words "defective nomination" where appearing in rule 2 refer only to the document nominating a member and defects 1n that document. It was sought to gain support for this submission from the next paragraph, which reads: Where members acceptance qualifications are not in accordance with the rule, they be notified as soon as possible. It is not easy to know what the phrase "members acceptance qualifications" means and I see no reason why that specific provision should cut down the meaning of the words "defective nomination" in the preceding paragraph. In the 'first paragraph, the opportunity of remedying the defect is to be given where practicable and it may well be the second provision is only to ensure that non~-conformity ll. with the rule in the case of acceptance qualifications requires notification, whether it be practicable or not, to remedy the inconsistency. In my view, the term used in the rule, "defective nomination", covers the whole act of nominating, including the requirement that a member be financial. It is quite clear that had Mr. Naqvi been notified he could have remedied the defect and become financial either by paying the amount or by seeking under rule 46 an exemption of contributions to the extent necessary to make him financial. Had he been given the opportunity to do so he could have applied to any one of a number of persons and in appropriate circum- stances an exemption would no doubt have been granted. It was clearly practicable for the defect to be remedied. I am therefore of the opinion that irregularities have occurred in that the nomination was rejected, although Mr. Naqvi was a financial member at the date of nomination and secondly, that an irregularity occurred in that he was not notified as required by rule 2(1)(a). I am of the opinion, as required by section 165(4) that, having regard to what I have found, the result of the election may have been affected by irregularities. -I wish to add this: that, as is clear, I have accepted Mr. Naqvi's evidence. That does not mean that I have found 12. Mr. Tumbers in any way an unsatisfactory witness. I think he gave evidence quite fairly and without any attempt to shrink from matters which might have been regarded as cutting across the case which he was supporting. Mr. Williams, the returning officer, did not give evidence, but he was confronted with what 1n my view were a particularly difficult set of rules and the findings I have made should not be regarded as in any way reflecting on Mr. Williams' honour or ability. I propose to make an order, firstly, declaring the election of Mr. Lean void and secondly, I direct the Industrial Registrar to make arrangements for a new election to be held. I will make an order that, until the fresh election has taken place, the office of assistant state secretary be occupied by Mr. Leonard George Lean. I will make an order that the exhibits may be handed out by the District Registrar to whichever party tendered them. I certify that this and the eleven preceding paves are a tru erny of the Reasons for Judtrent bereinof his Honour Mr. Justice Sweeney. J Nutehuwwe. i Associate Dated: 2 Mancth 1991