24 GENERAL DISTRIBUTION NOT REQUIRED IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. 32 of 1984 ) INDUSTRIAL DIVISION ) IN THE MATTER of an application by JAMES WALSHE for an inquiry into an election for an office in the AUSTRALIAN RAILWAYS UNION 25 MAY, 1987 ° ~/ REASONS FOR JUDGMENT a Zor 1987 4 FEDERAL COURT OF AUSTRALIA PRINCIPAL REGISTRY - James Walshe (the applicant) is a member of Australian Railways Union (the union) which is an organization of employees registered under the Conciliation & Arbitration Act 1904 (the Act). He applied for an inquiry under Part IX of the Act into alleged irregularities in or in connection with an election for the office of Assistant National Secretary of the union. The application was referred to the Court by the Industrial Registrar under sub-section 159(4)(a) of the Act, which sub-section provided that "thereupon an inquiry shall be deemed to have been instituted". The election was conducted under s. 170 of the Act by Mr. N. P. Kean, an officer of the Australian Electoral Commission, Sydney, who called for nominations in August 1984. Three candidates were nominated for the office of Assistant National Secretary, including Mr. Roger Gavin Jowett who was not a member of the union. The irregularity alleged in the application in its original form was, in essence, that Mr. Jowett was not eligible to stand as a candidate in the election by reason of the fact that he was not a member of the union. The application was amended on 18 February 1985 so as to raise two additional alleged irregularities. One was that Mr. Jowett's nomination was not valid because an amendment to rule 39 was not valid; it was said that this was by reason of a failure to comply with the existing rules as to the procedure for making amendments to the rules. The second additional alleged irregularity was, in substance, that his nomination was not valid because the rule, as amended, contravened s. 140 of the Act in that it permitted non-members of the union to stand for election for a full-time office, including, in the present case, that of Assistant National Secretary. However, although the amended application was filed More than two years ago Mr. J. P. Phillips, of counsel, on behalf of the applicant, has today informed the court that the applicant does not wish to call any evidence in support of those alleged additional irregularities. In the absence of any evidence, the Court can not find that either of those two additional alleged irregularities occurred. It remains to consider the irregularity alleged in the application in its initial form, as referred to this court by the Industrial Registrar on 30 October 1984. At the material time rule 75 of the rules of the union provided as follows :- "Eligibility to Hold Office 75. No person shall be eligible for election or appointment to any office, other than for a full-time office, unless he is a financial member of the Union and is either actually employed at the time of his election in or in connection with Railway and Tramway working, or is an officer of the Union or a Branch of the Union. Any person shall be eligible for election to a full-time office unless he is an unfinancial member of the Union." It was common ground that the position of Assistant National Secretary was "a full-time office" within the meaning of that rule. Having regard to that fact and to the terms of rule 75 and in particular to the last sentence of that rule, it is obviously very difficult for the applicant to sustain his original contention that Mr. Jowett was not eligible to stand as a candidate in the election by reason of the fact that he was not a member of the union. Today his counsel has informed the court that he does not now wish to advance any argument in support of that contention. The submissions advanced by Mr. Shaw Q.C. today on behalf of both Mr. Jowett and the union, must be upheld. on its face the last sentence of rule 75 in its then form appeared to intend that any person, whether a member of the union or not, might stand for election to that office "unless he is an unfinancial member of the Union"; it has not been suggested that Mr. Jarrett was an unfinancial member. Rule 39 of the rules included the following provision :- "The National President, Vice President, National Secretary and Assistant National Secretary shall be elected by secret ballot by all financial members of the Union." It will be seen that those words required that the electors be "financial members of the Union" but did not say that a candidate must be a member of the union. In my opinion, on the proper construction of rules 39 and 75, there was, in August 1984, no requirement under the rules that a candidate for the office of Assistant National Secretary be a member of the union. Accordingly, the returning officer did not err in accepting the nomination of Mr. Jarrett. It may be added that, if there were any ambiguity in the matter, it would be permissible to refer to the history of the rules. However that history does not support the applicant's contention as to the construction of the rules; on the contrary, it supports the view that the rules, in the form in which they appeared at the time of nominations being received in late 1984, did not require that a candidate for that office be a member of the union. In those circumstances, on the material before the court and having heard what has been said today, including Mr. Shaw's submissions as to s. 159(4)(b), I am, in the words of that sub-section, "not satisfied that there is reasonable ground for the application" for an inquiry. The sub-section provides that, in those circumstances "the court is not required to proceed with the inquiry" (s. 159(4)(b)) and I do not intend to proceed with it. The inquiry accordingly is terminated. I certify this and the four preceding pages to be a true copy of the Reasons for Judgment of his Honour Mr. Justice Keely sesoewees Neneh Date: as \c\ SZ