bls CATCHWORDS Industrial law - Conciliation and Arbitration Act - inquiry unto election irregularities - rule preventing members over 65 years standing for election - consideration of other grounds not referred to in application. Conciliation and Arbitration Act ss. 159, 168(2), 170 In the Matter of an Application pursuant to Section 159 of the Conciliation and Arbitration Act 1904 as amended and In the Matter of THE AUSTRALIAN WORKERS' UNION Number S.A. 12 of 1985 Keely J. Adelaide 18 December 1985 2. related. The first was:- "The action of the Returning Officer in indicating by the notice calling for nominations that he will reject nominations from persons aged 65 or older as at the date lodgement of nominations was unlawful. "(sic) The second alleged irregularity was:- "The action of the Returning Officer in rejecting a nomination from a candidate over the age of 65 namely one James Doyle was unlawful..." The applicant sought to support both of those allegations as to arregularities by contending that Rule 51l(c) of the certified rules of the union contravened s.140(1) of the Conciliation and Arbitration Act 1904, as amended (the Act). That contention was advanced in a separate application by the applicant in matter S.A. Number 11 of 1985 in which judgment was given on 11 December 1985 rejecting the applicant's contention as to that sub-rule; the reasons for judgment in that matter have just been delivered. Accordingly, that basis for the two irregularities alleged in the present application has failed. However, at the hearing, the applicant's solicitor advanced an additional submission. It was that Rule 20A of the certified rules of the union, when read in conjunction with Rule 13A, had the effect that the nomination of the applicant should have been accepted, even if Rule 51l(c) were held to be valid. The argument put in support of this There are various difficulties in the way of this additional submission. However, in my opinion, it falls at the first hurdle because of the terms of Rule 20A itself, the Material parts of which are as follows:- "20A - Special Rule Notwithstanding anything contained in these Rules, persons who are members of this Union and who hold and have held membership in any one or more of: (a) The Union; (d) Australian Workers' Union, South Australian Branch; shall be entitled to nominate candidates for office in the Union and shall be entitled to be nominated for office in the Union in accordance with Rules 51 and 68." In my opinion the words "in accordance with Rules 51 and 68" mean what they say. The persons referred to in Rule 20A are "entitled to be nominated for office" in the (Federal) union but any such nomination must be "in accordance with Rules 51 and 68" of the certified rules of that union. Accordingly, in my opinion there 1s no substance in the contention put by the applicant as an addition to those in his application. The election is being conducted under s.170 of the Act. In respect of such an election "the court is not required to proceed with an inquiry unless it is satisfied that there is reasonable ground for the application" (s. bate CATCHWORDS Industrial law - Conciliation and Arbitration Act - inquiry into election irregularities - rule preventing members over 65 years standing for election - consideration of other grounds not referred to in application. Conciliation and Arbitration Act ss. 159, 168(2), 170 In the Matter of an Application pursuant to Section 159 of the Conciliation and Arbitration Act 1904 as amended and in the Matter of THE AUSTRALIAN WORKERS' UNION Number S.A. 12 of 1985 Keely J. Adelaide 18 December 1985 IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIAN DISTRICT REGISTRY) S.A. Number 12 of 1985 ) INDUSTRIAL DIVISTON ) In the Matter of an Application pursuant to Section 159 of the Conciliation and Arbitration Act 1904 as amended AND: In the Matter of THE AUSTRALIAN WORKERS' UNION 18 DECEMBER, 1985 KEELY J. REASONS FOR DECTSION On 11 December 1985 an order was made dismissing an application for an inquiry into certain alleged irregularities, claimed to have occurred in or in connexion with an election for certain offices in the South Australian Branch of the Australian Workers Union (the union). Because of the urgency of the matter, the decision was announced without waiting for the preparation of reasons for decision. These are the reasons for the decision dismissing the application. The application, made by James Doyle, a member of the union, alleged two irregularities which are closely 2. related. The first was:- "The action of the Returning Officer in indicating by the notice calling for nominations that he will reject nominations from persons aged 65 or older as at the date lodgement of nominations was unlawful."(sic) The second alleged irregularity was:- "The action of the Returning Officer in rejecting a nomination from a candidate over the age of 65 namely one James Doyle was unlawful..." The applicant sought to support both of those allegations as to irregularities by contending that Rule 5li(c) of the certified rules of the union contravened s.140(1) of the Conciliation and Arbitration Act 1904, as amended (the Act). That contention was advanced in a separate application by the applicant in matter S.A. Number 11 of 1985 in which judgment was given on 11 December 1985 rejecting the applicant's contention as to that sub-rule; the reasons for judgment in that matter have just been delivered. Accordingly, that basis for the two irregularities alleged in the present application has failed. However, at the hearing, the applicant's solicitor advanced an additional submission. It was that Rule 20A of the certified rules of the union, when read in conjunction with Rule 113A, had the effect that the nomination of the applicant should have been accepted, even if Rule 5l(c) were held to be valid. The argument put in support of this 3. secondary submission was convoluted and, if correct, would lead to an extraordinary result. It would mean that a member of the union registered under the (Federal) Act, who by reason of Rule Sl(c) was not entitled to be nominated for election, was nonetheless able to be nominated. The argument by which the applicant sought to achieve that result involved the following steps. First, that Rule 13A deemed the applicant, as amember of the (Federal) union, to be also a member of a union "registered under the provisions of the Industrial Conciliation and Arbitration Act" (S.A.) (the State Registered union). Second, it was said that, by reason of the fact that the applicant was (or, more precisely, was deemed to be) a member of the State Registered union, Rule 20A deemed him to he a member of the (Federal) union - notwithstanding that he had already been a member of the (Federal) union for 50 years. Third, it was contended that the result of this somewhat convoluted process was that the applicant, as a person deemed to be a member of the (Federal) union, was ina stronger position - by reason of the deeming provision in Rule 20A - than if he had simply remained a member of the (Federal) union - as of course he did. It may be added that he had been a member of the (Federal) union for approximately 50 years before Rules 13A and 20A came into force on 1 August 1984. 4. There are various difficulties in the way of this additional submission. However, in my opinion, it falls at the first hurdle because of the terms of Rule 20A itself, the material parts of which are as follows:- "20A - Special Rule Notwithstanding anything contained in these Rules, persons who are members of this Union and who hold and have held membership in any one or more of: (a) The Union; (dad) Australian Workers' Union, South Australian Branch; shall be entitled to nominate candidates for office in the Union and shall be entitled to be nominated for office in the Union in accordance with Rules 51 and 68." In my opinion the words "in accordance with Rules 51 and 68" Mean what they say. The persons referred to in Rule 20A are "antitled to be nominated for office" in the (Federal) union but any such nomination must be "in accordance with Rules 51 and 68" of the certified rules of that union. Accordingly, in my opinion there is no substance in the contention put by the applicant as an addition to those in his application. The election is being conducted under s.170 of the Act. In respect of such an election "the court is not required to proceed with an inquiry unless it is satisfied that there is reasonable ground for the application" (5s. 159(4)(b) of the Act). As the applicant's contentions had ali failed, the court was not required to proceed with the inguiry because it was not satisfied that there was any reasonable ground for the application. Accordingly, the application was dismissed. The applicant applied for a certificate under 5.168(2) of the Act that he "acted reasonably in so applying" for an inquiry. Although the applicant's submissions as to Rule 51(c) have been rejected, they were sufficiently arguable to warrant the giving of such a certificate and accordingly I so certify. It should perhaps be added that, although the question relating to Rule 5i(c) was determined without calling upon counsel for the union to address the court, that course was possible because he had lodged a list of the authorities upon which he relied. —————— tt certify that this and. the fone | are a true copy of the h prec ° 3 pases : ; ' Resse 'or Jos. ment nerein oF ws Honour "Mer Go wee Keely . msg | | Associate | Dated. 1% Decurber ps.