FEDERAL COURT OF AUSTRALIA Jones, in the matter of an application for an inquiry relating to an election of an office in the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (SA Branch) [2004] FCA 462 INDUSTRIAL LAW – registered organisation – election inquiry – whether candidate fulfilled eligibility requirements – whether candidate employed in an industry in or in connection with which the union is registered – whether candidate unable to obtain employment. Workplace Relations Act 1996 (Cth) Re Election in TWU (1992) 40 IR 245 followed The Queen v Holmes; Ex parte Public Service Association (NSW) (1977) 140 CLR 63 followed Rounsevell v Mitchell and Others (1968) 11 FLR 414 followed Re Election for Office in Transport Workers Union of Australia, Western Australian Branch (1992) 40 IR 245 followed IN THE MATTER OF AN APPLICATION BY IAN JONES FOR AN INQUIRY RELATING TO AN ELECTION OF AN OFFICE IN THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION (SA BRANCH) S 61 OF 2004 LANDER J 20 APRIL 2004 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 61 OF 2004 IN THE MATTER of an application by IAN JONES for an Inquiry relating to an election for office in the AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION (SA BRANCH) JUDGE: LANDER J DATE OF ORDER: 20 APRIL 2004 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. Declare that the acceptance by the returning officer of the nomination for election for the office of South Australian Branch Secretary of the AFMEPKIU lodged by Paul Michael Noack on 24 February is void. 2. Declare that an irregularity has occurred in the election for the position of Branch Secretary in the South Australian Branch of the AFMEPKIU. 3. Direct the Industrial Registrar to make arrangements for the uncompleted steps in the election for the position of Branch Secretary of the South Australian Branch of the AFMEPKIU be completed on the basis of the valid nominations received. 4. Order that the inquiry be otherwise terminated. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 61 OF 2004 IN THE MATTER of an application by IAN JONES for an Inquiry relating to an election for office in the AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION (SA BRANCH) JUDGE: LANDER J DATE: 20 APRIL 2004 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 This is an application pursuant to s 200 of Schedule 1B of the Workplace Relations Act 1996 (Cth) (the Act) for an inquiry by this Court into an election to take place on 28 April 2004 for the position of State Secretary SA Branch of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (SA Branch) (AFMEPKIU) (the union). 2 The proceedings were heard two business days ago and, because of the urgency of the matter, must be determined today. Otherwise, it is likely that the ballot, which is due to take place for the position of State Secretary and for other offices within the union, might be disrupted. 3 Section 200(1) of Schedule 1B of the Act provides: '(1) If a person who is, or within the preceding period of 12 months has been, a member of an organisation claims that there has been an irregularity in relation to an election for an office in the organisation or a branch of the organisation, the person may make an application for an inquiry by the Federal Court into the matter. Note: For the meaning of irregularity, see section 6.' 4 These proceedings were commenced on 5 April 2004 by the applicant, who is a member of the AFMEPKIU and the Federal Secretary of the AMWU Vehicle Division, which is a division of the AFMEPKIU. He is, therefore, eligible to bring this application: s 200(1) of the Act. 5 A person of the kind mentioned in s 200(1) may apply for an inquiry if there has been an irregularity in relation to an election for an office in the organisation. Irregularity, in relation to an election or ballot, is defined in s 6 of Schedule 1B of the Act: 'irregularity, in relation to an election or ballot, includes: (a) a breach of the rules of an organisation or branch of an organisation; and (b) an act or omission by means of which: (i) the full and free recording of votes by all persons entitled to record votes and by no other persons; or (ii) a correct ascertainment or declaration of the results of the voting; is, or is attempted to be, prevented or hindered; and (c) a contravention of section 190.' 6 In this case, the claim is that there has been a breach of the rules of the union which has led to the irregularity of the returning officer accepting Mr Noack's nomination. An invalid nomination may constitute an irregularity: Re Election in TWU (1992) 40 IR 245. 7 The inquiry is to be conducted in accordance with the procedure provided for in s 205. The Court must inquire into and determine the question whether an irregularity has happened: s 206(1). The determination is on the balance of probabilities: s 206(2). The Court has power to make both interim orders (s 204) and final orders (s 206). 8 On 24 February 2004, Mr Paul Michael Noack, who has been a member of the union, formerly the Vehicle Builders Employees Federation, and now the Australian Manufacturers Workers Union for 28 years, and who is still a member of the AFMEPKIU, nominated for the position of State Secretary. The closing date for nominations was 27 February 2004. 9 It is the applicant's contention that Mr Noack is ineligible to stand for that position because he does not comply with the qualifications required for a candidate pursuant to the union rules. 10 Rule 4 of the union rules sets out the qualifications for those who may be nominated as a candidate for the offices in rule 4.1 of the rules. Those offices include the office of State Secretary. 11 Rule 4.3(c) provides: '(c) A member may be nominated as a candidate under this Part if the member: (i) has been a member for the continuous period specified below relating to that office immediately preceding the closing date for lodging nominations and during the period of 12 months immediately preceding the closing date for lodging nominations was not unfinancial for a period longer than 3 months; (ii) is financial at the closing date for lodging nominations and in the case of offices at a State level, was financial in that State; and (iii) was, for not less than a total period or periods of 9 months during the period of 12 months immediately preceding the closing date for lodging nominations: (1) employed as an employee in a trade or calling or branch thereof in or in connection with which the Union is registered; (2) unemployed on account of illness, incapacity or inability to obtain employment; (3) engaged in a full-time office of the Union after having been elected or temporarily appointed thereto; or (4) employed as a salaried officer of the Union, the Manufacturing Industry Skills Training and Assessment Service (MISTAS) and/or other union associated enterprises specifically endorsed by the National Council, either singly or on the recommendation of a Federal Executive of a Division.' 12 By way of background, Mr Noack joined the union when working as a press operator for General Motors Holden in 1976. He remained employed with that company until 1985 when he was dismissed. In 1987 he nominated for, and was elected to, the full-time position of Assistant State Secretary of the VBEF, and he continued as a full-time paid elected union official with that union, and its successor, until 1999. When he resigned as a union official in 1999, he was the State Secretary of the union. As I have already said, he seeks to be re-elected to that position. 13 He has remained a financial member of the union for the whole of the period until 27 February 2004. For those short reasons, it can be seen that Mr Noack satisfies the criteria in rule 4.3(c)(i) and rule 4.3(c)(ii). Indeed, the applicant does not dispute that Mr Noack satisfies the criteria in rule 4.3(c)(i) and rule 4.3(c)(ii). 14 The only question before me is whether he satisfies the criteria in rule 4.3(c)(iii). 15 It was Mr Noack's case, and the inquiry proceeded on that basis, that if he were eligible to nominate as a candidate it was because, for part of the period of the 12 months immediately preceding the closing date for nominations, he satisfied the criteria in rule 4.3(c)(iii)(1) and, for the other part, he satisfied the criteria in rule 4.3(c)(iii)(2). He did not seek to rely upon rule 4.3(c)(iii)(3) or rule 4.3(c)(iii)(4). 16 It is necessary to inquire into Mr Noack's work history for the period between 27 February 2003 and the closing date for nominations, 27 February 2004, because a member's eligibility to nominate as a candidate is measured over the period of 12 months immediately preceding that latter date. 17 Mr Noack was unemployed prior to 22 October 2002, when he received an offer from the Office of Economic Development to take up the position of 'Industrial Relations Liaison Officer' which he accepted, and in which employment he commenced on 2 January 2003. The initial term of engagement was for a period of employment between 2 January 2003 and 30 June 2003 working two days per week. His employment was: 'To facilitate, on behalf of the South Australian Government, a Strike Free (Automotive Imports and Exports) Agreement for the Port of Adelaide. This Tgreement is to be in place and signed by all parties by the 30th June 2003. To provide advice to the Office of Economic Development on Industrial Telations matters as required.' 18 On 15 April 2003 his working hours were increased by 7.5 hours per week (one day) 'to enable me to work on an expanded agreement to include the transport workers union and transport companies'. 19 During the course of his employment, Mr Noack made a number of presentations to car companies, stevedoring companies, and transport companies on the subject of 'Building and Delivering SA's Automotive Exports and Job Security'. 20 His employment with the SA Government was extended beyond 30 June 2003 when he was employed to conduct a maritime study mission to overseas countries with the Maritime Union of Australia, the Transport Workers' Union, Flinders Ports and CSX World Terminals. The maritime study mission visited ports in Holland, England, Germany and the United States of America for the purpose of examining the process, storage and export of motor vehicles from major ports. The study mission took place overseas from 29 July to 14 August 2003. 21 After the completion of the tour, Mr Noack was given two weeks to provide a report, which he did on 27 August 2003. Mr Noack's employment with the SA Government terminated on that same day. 22 On 16 September 2003, Mr Noack registered with Centrelink and, on 18 September 2003, commenced to receive benefits and, from 5 November 2003, began to receive a 'Newstart (Job Seeking) allowance'. 23 Mr Noack has been continuously unemployed since 27 August 2003. 24 In an affidavit, tendered at the hearing of these proceedings, Mr Noack said that, during the period August to December 2003, he met with a friend, Mr Peter Johnston, who has contacts with vehicle dealerships in South Australia in an attempt to secure employment for himself with any of those dealerships. 25 Mr Johnston was called and gave evidence of his attempts to secure employment for Mr Noack. Mr Johnston is both a personal friend of Mr Noack and his financial adviser. I accept Mr Johnston's evidence that, between August and December 2003, he approached four separate car dealers seeking to obtain employment for Mr Noack. 26 Mr Noack also said that he met with a Mr Barry Stanford, who has contacts in the metal/scrap industry and, who has also attempted to obtain employment for Mr Noack in that industry. I was told by Mr Noack that Mr Stanford was not available to give evidence until the week after next. Mr Noack did not seek to have the matter adjourned because he did not wish to disrupt the holding of the election. I accept Mr Noack's evidence in that regard. I can infer that Mr Stanford was unable to obtain employment for Mr Noack. 27 Mr Noack gave oral evidence of his dealings with other officials in other unions seeking their support to persuade the SA Government to re-employ him to carry out the work which he undertook between 2 January 2003 and 27 August 2003. I accept his evidence that he asked Mr Gallagher, Mr Newland and Mr McMahon to intercede with the SA Government in that regard. The work that Mr Noack was seeking was of the same kind as he had carried out between January and August 2003. He did not call any of those gentlemen, but I accept that his failure to call them was due to their unavailability, not because they would not support his evidence. 28 The applicant tendered an affidavit of Paul Camillo who deposed to the fact that in 2003, and probably by June 2003, General Motors Holden had commenced a third shift and hired 1000 further workers. Mr Noack cross-examined Mr Camillo. Mr Camillo accepted, generally, that most of those hired, about 95 per cent, were young persons. Mr Noack is aged 52 years. Mr Camillo also agreed that Mr Noack had approached him, some time after August 2003 seeking his assistance to find Mr Noack employment in manufacturing with the SA Government. 29 I accept Mr Camillo's evidence that he approached the Minister without achieving any success. 30 Mr Noack explained why he did not approach General Motors Holden. He said that, as his affidavit discloses, that company had summarily dismissed him in 1985 and had a policy of not rehiring persons who had been so dismissed. I accept that evidence. 31 He said that, in the period between 27 August 2003 and 27 January 2004, he made few, if any, written applications for employment because he thought he had better prospects of obtaining employment by personal contacts and he concentrated his efforts accordingly. I accept that evidence. 32 On 19 January 2004, Mr Noack met with SYC Job Prospects and signed a job seeker statement and a job search plan and, on 27 January 2004, commenced three weeks of intensive job search training in which he applied in writing for 40 jobs, none of which were successful. I think his unsuccessful efforts to obtain employment support his evidence that he believed he had better prospects of obtaining a job by personal contacts. 33 He claims that he has been wholly unemployed in the period from 27 August 2003 to 27 February 2004 due to his inability to obtain employment. 34 It is Mr Noack's contention that, for the period 2 January 2003 until 27 August 2003, he has been employed as an employee in a trade or calling or branch in or in connection with which the union is registered. Since 27 August 2003, he has been unemployed on account of his inability to obtain employment. Therefore, he contends, that he has satisfied the requirements of rule 4.3(c)(iii) for the whole of the period of 12 months preceding the date for lodging nominations for office on 27 February 2004. Mr Noack says he is eligible because he satisfies the criteria in rules 4.3(c)(iii)(1) and (2). 35 On the other hand, the applicant contends that Mr Noack's employment with the SA Government was not as an employee in a trade or calling or branch in or in connection with which the union is registered. Moreover, the applicant contends that Mr Noack has not been unemployed on account of his inability to obtain employment since 27 August 2003 or, at least, between 27 August 2003 and 27 January 2004. 36 If either of the applicant's contentions are correct then Mr Noack is ineligible to nominate as a candidate for the office of State Secretary because he is ineligible within the meaning of the rules of the union. That follows because he would not have satisfied the criteria in rule 4.3(c) for a period of nine months during the period of 12 months immediately preceding the closing date for nominations. If he does not satisfy rule 4.3(c)(iii)(1), but does satisfy rule 4.3(c)(iii)(2), he will only have satisfied that rule for six months. If he does satisfy rule 4.3(c)(iii)(1), but does not satisfy rule 4.3(c)(iii)(2), again, he will only have satisfied that rule for six months. He cannot rely upon the provisions of rule 4.3(c)(iii)(2) for the period earlier than 27 August 2003 because he was employed during that period. 37 The union rules should be construed broadly, not technically. They should not be 'subjected to the same meticulous scrutiny as a deed carefully prepared by lawyers and should not be restrictively construed': The Queen v Holmes; Ex parte Public Service Association (NSW) (1977) 140 CLR 63 at 73. This union's rules have in a sense evolved. The union is the product of a number of amalgamations and parts of predecessor union rules are now parts of this union's rules. Some regard has to be had to that in a construction of the rules. 38 The purpose of rule 4.3(c) is quite clear. It is to require candidates who wish to nominate to be more qualified than merely financial members at the time of their nomination. Rule 4.3(c)(iii)(3) and rule 4.3(c)(iii)(4) recognise that persons who have been employed either as full-time officers (as defined in rule 4.3(c)(iii)(3)) or salaried officers (as defined in rule 4.3(c)(iii)(4)), are suitable persons for nomination. The rules recognise their contribution to union affairs as qualifying them for nomination. 39 Rule 4.3(c)(iii)(1) and rule 4.3(c)(iii)(2) permit employed and unemployed persons who have not been directly involved in union affairs to nominate as candidates, provided, of course, they are financial members at the closing date for nomination. 40 A person, who on account of illness, incapacity or mobility to obtain employment, who has been unemployed for nine months in the period of 12 months preceding the closing date for lodging nominations, may be nominated as a candidate. That subrule is intended to qualify someone who, for no fault of his or her own, has not been able to gain employment during the period mentioned. 41 Rule 4.3(c)(iii)(1) is intended to qualify those persons who have been in employment for the period mentioned in an industry or in any capacity in which the union is entitled or able to represent them. 42 Employment, per se, is not enough to allow someone to rely upon rule 4.3(c)(iii)(1). It must be employment of a kind, in an industry or capacity, over which the union has coverage. 43 The industry is defined in rule 2(e): 'The Coach, Motor Car, Rolling Stock and Aircraft Industry.' 44 Whether Mr Noack's employment with the SA Government is of that kind depends upon a consideration of the rule which provides for eligibility for membership, which is contained in the Objects and Constitution of the union (rule 1), to determine whether Mr Noack was employed in a trade, calling or branch. In Mr Noack's case, the relevant rule is contained in rule 1E: '1E. Without in any way limiting or being limited by the sub-rules 1A, 1B, 1C, 1D, 1F, 1G, 1H and 1I, the Union shall also consist of an unlimited number of employees engaged in or usually engaged in the process, trade or business connected with or incidental to the manufacture, assembling or repairing of carriages, carts, wagons, trucks, railway cars, tram cars, motor cars, motorcycles, sidecars, aircraft and other vehicles used in air transit and all other vehicles or parts thereof and whether in wood and/or metal and/or other material, preparation for sale of motor vehicles (pre-delivery) and sale by auction of any motor vehicle, (including detailing work) together with any persons appointed as officers of the Union and elected as members thereof.' 45 The first question to be determined is whether Mr Noack was employed in a position which was 'connected with or incidental to the manufacture, assembling or repairing of carriages, carts, wagons, trucks, railway cars, tram cars, motor cars, motorcycles, sidecars, aircraft and other vehicles used in air transit and all other vehicles or parts thereof …, preparation for sale of motor vehicles (pre-delivery) and sale by auction of any motor vehicle, (including detailing work) …'. 46 In Rounsevell v Mitchell and Others (1968) 11 FLR 414, the Commonwealth Industrial Court (Spicer CJ, Dunphy and Kerr JJ) were concerned with the interpretation of an eligibility rule of the Australian Workers Union. In that rule, a person engaged in, or in connection with, certain industries and callings was eligible for membership of the union. The branch president had been made a member following his employment with the union as an industrial officer. The Court said at 429: ' The next point to be considered is the claim that the respondent Barry is not validly in office as branch president. The facts may be simply stated. Before he was admitted to membership of the organization he was employed as an industrial officer by the branch. He was at that time and during his employment with the branch not engaged in any of the long list of industries and callings set out in r. 6, the constitution rule of the organization. He was admitted to membership and thereafter stood for election to the office of branch president. He was elected and now acts in that office. It was claimed that he was not entitled to be a member of the union and hence could not become one or be validly elected as president. He is due to retire in June and has not stood for re-election.' 47 The Court answered the question it posed for itself (at 430): ' Expressed in its simplest form, the argument relied upon is that a person employed on the staff of an organization as an employee handling industrial matters arising in respect of the employment of union members in their various industries or callings is employed by the union in connexion with those industries or callings. We are unable to agree with this argument. He is employed in another industry or calling, completely different from the industries or callings in r. 6. There is no connexion between his employment and those other industries or callings. He does no work connected with the actual work of those engaged in those industries or callings. His work is to endeavour to obtain for them wages and conditions of employment which they seek or the organization seeks on their behalf. Work of this kind is not work connected with the industries or callings themselves. It is not work connected with what such employees do in their industries or callings, but is work connected with the reward they get for what they do or with the relations between their employer and themselves. Persons engaged in helping settle various aspects of the contract of employment between employer and employee in various industries would not be engaged in connexion with those industries. If this were so a clerk employed by the legal firm to handle industrial work for such an organization (i.e. doing work very similar to that done by Barry) would be equally able to claim that he was engaged in connexion with the industries or callings covered by its constitution. A similar claim could be made by a clerk employed by a legal firm to handle the workers' compensation claims or common-law actions for damages arising out of the employment of the members of an organization. It could be similarly argued that he was engaged in connexion with the industries concerned. Such an argument would, in our view, be erroneous.' 48 Of course, a person employed as an industrial officer would be eligible to nominate as a candidate for this union because that person could rely upon rule 4.3(c)(iii)(4) but, if the former Court's reasoning is correct, not under rule 4.3(c)(iii)(1). 49 Rounsevell v Mitchell and Others was followed by French J in Re Election for Office in Transport Workers Union of Australia, Western Australian Branch (1992) 40 IR 245. The question in that case was whether two nominees for election to the Transport Workers Union offices were qualified for nomination. 50 The rule (rule 22) which provided for eligibility required a candidate to be: '(i) a financial member of the union, and (ii) either is employed in the industry in connexion with which the union is registered and in respect of such employment is entitled to membership of the union pursuant to r 4, or is a person holding office as Federal Secretary, Federal Assistant Secretary, Branch Secretary, Branch Industrial Research Officer or Organiser (whether elected or appointed) or as organiser appointed by Federal Council or Federal Committee of Management.' 51 The rule is not in pari materia but it does speak of an industry '… with which the union is registered …'. 52 The conditions of eligibility for membership of that union were: '4. — CONDITIONS OF ELIGIBILITY FOR MEMBERSHIP (A)(1) The union shall consist of an unlimited number of persons employed or seeking to be employed in or in connexion with the industry or industries, and/or occupation, and/or calling, and/or vocations, and/or industrial pursuits of: (a) the transport of persons and/or passengers and/or goods, wares, merchandise, or any material whatsoever, by or on vehicles or animals or by aircraft or by motor, steam, oil, electric or other mechanically propelled contrivances; drivers, assistants and conductors of same, and stable work wheresoever performed, including the work of attendants on horses and other beasts of burden, whether in stables or otherwise; all yard and garage cleaning and other work in connexion with driving and transport, including, washing, greasing, oiling, cleaning, polishing, tyre-fitting and general attendance on horse or mechanically-propelled vehicles and mechanical contrivances, training and breaking-in of horses, loading and unloading on to and/or from any vehicle; shunting by horsepower, supervising and collecting moneys, or washing cans in connexion with the distribution of milk, working in pits, tarring and washing pans, ploughing in of night soil, digging trenches and burying soil in connexion with sanitary work, ploughing in conjunction with the construction and excavation of earthworks; and (b) All driving; and (c) Chauffeurs, Conductors and Attendants on or about motor vehicles, and employees engaged in and about Garage, Motor Stables and other similar places in the repair and maintenance of motor vehicles, or as attendants.' 53 The candidate had been employed as an Industrial Research Officer with the Amalgamated Metal Workers and Shipwrights Union and later with the Transport Workers Union. French J described his duties (at 249): ' Handmer's duties as Industrial Officer included the research, presentation and preparation of wage cases to the Western Australian Industrial Relations Commission, the presentation of cases to the Australian and Western Australian Industrial Relations Commissions concerning unfair dismissals, redundancies, rosters and safety matters, negotiating with employers on members' employment conditions, presentation of award enforcement cases before the Industrial Magistrate for underpayment of wages, support for organisers and shop stewards through the provision of accurate and up to date copies of awards and wage rates, briefing of officials, shop stewards and members on important industrial matters involving wage case decisions and Industrial Relations Commission decisions, and co-ordinating and researching requests to the Federal Office of the Transport Workers Union relating to amendment of federal awards. The job also involved participation in union education and leadership training through the Trade Union Training Authority and the Occupational Health and Safety Training Union of the Trades and Labour Council. During his time as Industrial Officer, Handmer retained his membership of the TWU.' 54 French J determined that rule 22 (the eligibility rule) should be given a broad construction. However, even if given such a construction, Mr Handmer did not qualify for nomination as a candidate. 55 As I have said, he followed Rounsevell v Mitchell and Others and quoted with approval part of the passage which I have cited above. 56 During the time that Mr Noack was employed by the SA Government he was not, in my opinion, employed as an employee in a trade or calling or branch in or in connection with which the union is registered. Whilst his work may have advanced the union's interests, the test of eligibility is whether he was employed in a trade or calling or branch thereof in or in connection with which the union is registered. 57 Mr Noack was originally employed by the SA Government to facilitate a strike free (automotive imports and exports) agreement for the Port of Adelaide. He was also employed to provide advice on industrial relations matters. No doubt, a strike free agreement could have benefits to the union and its members, but it could not be said that by facilitating such an agreement he was thereby employed in any sort of trade or calling in connection with which the union is registered. 58 Nor could it be said that the work he undertook with the SA Government was connected with or incidental to any of the matters in rule 1E. If Mr Noack's work was such as to qualify him under rule 4.3(c)(iii)(1), then so also would the work of an industrial advocate, industrial officer and the clerk in the legal firm to which the Court referred in Rounsevell v Mitchell and Others. 59 Even assuming a wide and beneficial construction of the rule, I cannot conclude that the work carried out by Mr Noack between 2 January 2003 and 27 August 2003 made him an employee 'in a trade or calling or branch thereof in connection with which the union is registered'. 60 That is enough to dispose of the matter. As I have said, Mr Noack needed to establish eligibility under both rule 4.3(c)(iii)(1) and rule 4.3(c)(iii)(2) to be eligible to be nominated. 61 However, because the question of his eligibility under rule 4.3(c)(iii)(2) was addressed by the witnesses and argued, it would be appropriate for me to address that matter in these reasons. 62 In relation to rule 4.3(c)(iii)(2), the question is whether Mr Noack has been, for any period, unemployed on account of an inability to obtain employment. An inability must be established. Ordinarily, an inability would be established by showing what efforts were made to obtain employment. 63 Rule 4.3(c)(iii)(2), unlike rule 4.3(c)(iii)(1), does not speak of employment 'in a trade or calling or branch thereof in or in connection with which the union is registered'. It might be said, therefore, that a member could establish eligibility even if the member had been seeking employment quite unconnected with the union's coverage. It might be said that, if the draftsperson had intended to restrict the employment to employment of the kind in rule 4.3(c)(iii)(1), the draftsperson would have said so. 64 However, that would be to give the rule too narrow a construction. That would be to construe the rule as if it were 'a deed carefully prepared by lawyers'. Moreover, it would lead to the odd result that a person, employed in a trade unconnected with the union, would not be eligible to be nominated as a candidate but a person seeking that kind of employment would. That cannot be right. Rule 4.3(c)(iii)(2), therefore, should be understood to refer to employment of the kind contemplated in rule 4.3(c)(iii)(1). 65 I accept that, after 27 January 2004, Mr Noack applied, unsuccessfully, in writing for 40 jobs. The jobs for which he applied were in a trade or calling in connection with which the union is registered. I find that after 27 January and until 27 February he qualified under rule 4.3(c)(iii)(2). 66 After 27 August, and before Christmas 2003, Mr Johnston made four enquiries of car dealers to obtain employment for Mr Noack, all of which were unsuccessful. Mr Stanford was also unsuccessful in obtaining employment for Mr Noack. 67 As I have already said, I accept Mr Noack's evidence which, in part, was corroborated by Mr Camillo, that in the last quarter of 2003 Mr Noack asked the four gentlemen he named in the union movement to intercede with the SA Government to obtain employment for him of the same kind as he had before. Those efforts, however, are irrelevant for the purpose of consideration of Mr Noack's eligibility under this rule because the employment he was seeking was not of the kind contemplated in rule 4.3(c)(iii)(1). That follows from my conclusion in relation to his eligibility under rule 4.3(c)(iii)(1). 68 The question, therefore, that has to be asked and answered is whether asking Mr Johnston and Mr Stanford to help him to obtain a job is enough to say that in that period he was unable to obtain employment. 69 I think, on balance, it was. I think, as has been shown, that Mr Noack had greater prospects of obtaining employment using contacts than applying himself. I think it was not unreasonable in the last quarter of 2003 for Mr Noack to rely on contacts to obtain employment. I think it can be said, in that period, that Mr Noack was unable to obtain employment of the kind contemplated in rule 4.3(c)(iii)(1). 70 That means, on the basis of that finding, that, for a period of about five months (including the one month from 27 January to 27 February), he was unemployed on account of an inability to obtain employment. However, because he failed on his claim to be in employment under rule 4.3(c)(iii)(1), that is not enough to bring him within rule 4.3(c)(iii). He does not satisfy the test of nine months. 71 In my opinion, he is ineligible to nominate as a candidate for State Secretary. 72 I make the following declarations, direction and order: 1. Declare that the acceptance by the returning officer of the nomination for election for the office of South Australian Branch Secretary of the AFMEPKIU lodged by Paul Michael Noack on 24 February is void. 2. Declare that an irregularity has occurred in the election for the position of Branch Secretary in the South Australian Branch of the AFMEPKIU. 3. Direct the Industrial Registrar to make arrangements for the uncompleted steps in the election for the position of Branch Secretary of the South Australian Branch of the AFMEPKIU be completed on the basis of the valid nominations received. 4. Order that the inquiry be otherwise terminated. I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 20 April 2004 Counsel for the Applicant: W Friend Solicitor for the Applicant: Maurice Blackburn Cashman Counsel for the Respondent: The Respondent appeared in person Counsel for the Australian Electoral Commission R J Prince Solicitor for the Australian Electoral Commission Australian Government Solicitor Date of Hearing: 16 April 2004 Date of Judgment: 20 April 2004