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 2) [2012] FCA 1243 Citation: Asmar, in the matter of an election for an office in the Victorian No 1 Branch of the Health Services Union (No 2) [2012] FCA 1243 Parties: DIANA ASMAR File number: VID 829 of 2012 Judge: TRACEY J Date of judgment: 9 November 2012 Catchwords: INDUSTRIAL LAW – Application for an order restraining registered organisation from taking any further steps in the conduct of elections – whether serious question to be tried – whether balance of convenience satisfied – application granted Legislation: Fair Work (Registered Organisations) Act 2009 (Cth), s 204 Industrial Relations Act 1988 (Cth), s 221 Cases cited: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 – cited Lancaster v Municipal Officers' Association (1980) 22 AILR 452 – cited Smith v Operative Painters and Decorators' Union of Australia, Western Australian Branch (1992) 44 IR 357 - considered Date of hearing: 26 October 2012 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 15 Counsel for the Applicant: Mr M Irving Solicitor for the Applicant: Holding Redlich Counsel for the Returning Officer: Mr P Gray SC Solicitor for the Returning Officer: Australian Government Solicitor Counsel for Mr Marco Bolano: Mr D Staindl Solicitor for Mr Marco Bolano Kelly Workplace Lawyers IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 829 of 2012 ASMAR, IN THE MATTER OF AN ELECTION FOR AN OFFICE IN THE VICTORIAN NO 1 BRANCH OF THE HEALTH SERVICES UNION (NO 2) DIANA ASMAR Applicant JUDGE: TRACEY J DATE OF ORDER: 26 OCTOBER 2012 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. Until the completion of this proceeding in relation to the elections for the positions of Branch Secretary and National Council Delegate in the Health Services Union Victorian No 1 Branch ("the Branch"), or until further orders of the Court, the Returning Officer shall not take any further steps in the conduct of the elections for the offices of the Branch President, Branch Secretary, Branch Senior Vice President, Branch Junior Vice President, Branch Assistant Secretary-Treasurer, Ordinary Member of the Branch Committee or National Council Delegate in the Branch. 2. On or before 31 October 2012 the Applicant file and serve any affidavit material on which she intends to rely and contentions of fact and law. 3. On or before 7 November 2012 the Returning Officer, the Administrator of the Branch, or candidate in any of the elections referred to in paragraph 1 file and serve any affidavit on which he or she intends to rely and/or any contentions of fact and law. 4. On or before 12 November 2012 the Returning Officer, the Administrator of the Branch or candidate in any of the elections referred to in paragraph 1 may file and serve any affidavit in reply on which he or she intends to rely and/or contentions of fact and law in reply. 5. The trial be by affidavit. 6. The matter be fixed for trial for two days commencing on 15 November 2012 at 10:15 am. 7. There be liberty to apply on 48 hours' written notice. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 829 of 2012 ASMAR, IN THE MATTER OF AN ELECTION FOR AN OFFICE IN THE VICTORIAN NO 1 BRANCH OF THE HEALTH SERVICES UNION (NO 2) DIANA ASMAR Applicant JUDGE: TRACEY J DATE: 9 NOVEMBER 2012 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 On 25 October 2012 I ordered than an inquiry be conducted into elections for the offices of Branch Secretary and National Council Delegate in the Victorian No 1 Branch ("the Branch") of the Health Services Union ("the Union"): see Asmar; in the matter of an election for an office in the Victorian No 1 Branch of the Health Services Union [2012] FCA ### ("Asmar (No 1)"). 2 I fixed 26 October 2012 as the day on which the inquiry was to commence. I gave directions with a view to ensuring that all other candidates in the various elections for Branch officers were notified of the order so that they could, if they wished, take part in the inquiry. Notice was also given to the Union's administrator. 3 When the inquiry commenced on 26 October 2012, Ms Asmar was represented. So too was Mr Marco Bolano, who was also a candidate for the office of Branch Secretary and was the leader of one of the 'teams' which was contesting the election against the 'team' led by Ms Asmar. The Australian Electoral Commissioner also appeared. 4 Ms Asmar applied for an order under s 204 of the Fair Work (Registered Organisations) Act 2009 (Cth) ("the Act") restraining the taking of any further steps in the elections for all offices in the Branch pending the outcome of the inquiry. 5 Ms Asmar's application was not opposed. 6 I granted Ms Asmar's application and made an order that no further steps were to be taken in the conduct of the various elections until the inquiry had been completed. I also gave directions with a view to ensuring that the conduct of the inquiry proceeds as quickly as possible. These are my reasons for making the order and giving the directions. 7 Section 204(1)(a) of the Act provides that: "(1) Where an inquiry into an election has been instituted, the Federal Court may make one or more of the following orders: (a) an order that no further steps are to be taken in the conduct of the election or in carrying into effect the result of the election; ..." By section 204(1)(f) the Court is also empowered to make "an order incidental or supplementary to an order under this subsection." 8 In applying s 204(1)(a) of the Act and its precursors, this Court and its predecessors have had regard to the same principles which govern the determination of applications for interlocutory injunctions: see Lancaster v Municipal Officers' Association (1980) 22 AILR 452. 9 An applicant must demonstrate a serious question to be tried and that the balance of convenience favours the making of the order: see Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at 68 (per Gleeson CJ and Crennan J), 81-84 (per Gummow and Hayne JJ). 10 In Smith v Operative Painters and Decorators' Union of Australia, Western Australian Branch (1992) 44 IR 357 at 362-3, Lee J, referring to s 221(1)(a) of the Industrial Relations Act 1988 (Cth), which was in the same terms as s 204(1)(a) said: "The purpose of s 221 and the question to answer when the making of an order is considered thereunder is what will best assist the due conduct of the inquiry, the interests of the organisation and its members and the public interest in the orderly conduct of the affairs of the organisation. The personal interests of candidates do not take precedence over these considerations." 11 I considered that Ms Asmar had established the necessary prima facie case. I formed this view for the same reasons that I concluded in Asmar (No 1) that reasonable grounds existed for her application. 12 The balance of convenience strongly favoured a delay in the conduct of the ballots for all contested positions in the Branch. Draft ballot papers had been prepared. Those ballot papers contained the names of all candidates for all contested positions. The lists of offices and names of candidates covered both sides of an A4 sized sheet of paper. Ms Asmar's name did not appear amongst the candidates for the positions of Branch Secretary or Branch Delegate to National Council. Had her nominations been accepted, her position on the ballot paper for these two offices would have been drawn by lot. If her application is successful she will be entitled to have her name added to list of names for each of the two positions which she wishes to contest. There will, presumably, also need to be a new drawing of lots. 13 The Australian Electoral Commissioner advised the Court that, although in theory it would be practicable to conduct elections for all offices other than the two for which Ms Asmar sought to be a candidate, this would require a reprinting of the ballot paper. It would also mean that members of the Branch would receive two sets of ballot papers at different times. This would roughly double the cost of postage and have the potential to confuse the members. The delay in the conduct of the ballots will, it may be hoped, be relatively short. 14 No party contended that the organisation and its members would suffer any prejudice should a stay be granted. 15 In these circumstances I considered it appropriate to grant Ms Asmar's application. The directions will ensure that a final hearing of the application will be able to take place in a little over two weeks. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate: Dated: 9 November 2012