FEDERAL COURT OF AUSTRALIA Asmar, in the matter of an election for office in the Victorian No 1 Branch of the Health Services Union [2014] FCA 997 Citation: Asmar, in the matter of an election for office in the Victorian No 1 Branch of the Health Services Union [2014] FCA 997 File number: VID 522 of 2014 Judge: NORTH J Date of judgment: 8 September 2014 Legislation: Fair Work (Registered Organisations) Act 2009 (Cth) ss 182, 200, 201, 204, 206, 329 Date of hearing: 8 September 2014 Place: Melbourne Division: FAIR WORK DIVISION Category: No Catchwords Number of paragraphs: 21 Solicitor for the Applicant: Mr J Borgeest of Slater & Gordon Solicitor for the Candidates: Mr M Addison of Maddison & Associates Solicitor for the Returning Officer on behalf of the Australian Electoral Commission: Mr R McClure of Australian Government Solicitor Counsel for the Health Services Union: Mr E White Solicitor for the Health Services Union: Holding Redlich IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 522 of 2014 ASMAR, IN THE MATTER OF AN ELECTION FOR OFFICE IN THE VICTORIAN NO 1 BRANCH OF THE HEALTH SERVICES UNION JUDGE: NORTH J DATE OF ORDER: 8 SEPTEMBER 2014 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The Health Services Union (HSU), the returning officer and the candidates in the elections referred to in paragraph 2 be notified of the Inquiry by letter from the solicitors for the applicant: (a) informing them of the time and place fixed; (b) annexing copies of the application and this order; (c) informing them of affidavit material filed by the applicant available upon request. 2. Until the completion of this proceeding in relation to the elections for the positions of Branch Secretary, Branch Assistant Secretary and National Council Delegate in the Health Services Union Victoria 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, Branch Trustee, Ordinary Member of the Branch Committee or National Council Delegate in the Branch. 3. On or before 16 September 2014 the applicant file and serve any affidavit material on which she intends to rely. 4. On or before 19 September 2014, the HSU or any candidate in any of the elections referred to in paragraph 2 file and serve any affidavit on which that party intends to rely. 5. On or before 22 September 2014, the returning officer file any affidavit upon which he intends to rely. 6. On or before 25 September 2014, the applicant file contentions of fact and law. 7. On or before 1 October 2014, HSU, the returning officer and candidates in the elections referred to in paragraph 2 file contentions of fact and law. 8. The trial be by affidavit, with a right to cross-examine deponents subject to two days' written notice to the party relying on such deponent's evidence. 9. The matter be fixed for trial for two days commencing on a date to be fixed. 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 FAIR WORK DIVISION VID 522 of 2014 ASMAR, IN THE MATTER OF AN ELECTION FOR OFFICE IN THE VICTORIAN NO 1 BRANCH OF THE HEALTH SERVICES UNION JUDGE: NORTH J DATE: 8 SEPTEMBER 2014 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 Before the Court is an application under ss 200(1) and 204(1) of the Fair Work (Registered Organisations) Act 2009 (Cth) (the Act). 2 Section 200(1) provides: When member of organisation may apply for inquiry (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. reasonable grounds 3 The applicant contends that there are reasonable grounds for an inquiry into the eligibility for nomination of certain candidates for an election of the Health Services Union (HSU) Victoria No. 1 Branch. The ballot for the election was to open on 9 September 2014. The applicant also applies for interim orders restraining the returning officer on behalf of the Australian Electoral Commission from taking further steps in the conduct of the election. 4 The issue before the Court is whether, pursuant to s 201(b) of the Act, there are reasonable grounds for the application. 5 The applicant has called into question the capacity of two of the candidates to stand for election. Mr Jamie Dylan Martorana is a candidate for the position of Branch Secretary and National Council Delegate. Ms Jayne Govan is a candidate for the position of Branch Assistant Secretary and National Council Delegate. Mr Martorana 6 The applicant contends that Mr Martorana does not fulfil the eligibility requirement for membership prescribed by Rule 3 of the Rules of the Health Services Union (the HSU Rules), in that he is not a person usually employed in one of the areas there specified. The applicant says that Mr Martorana has not worked in the industry in the last four years. 7 Mr Martorana has sworn an affidavit in which he deposes that his normal employment for the past 27 years has been in the health industry in public hospitals. However, his affidavit also explains that he has not worked for the last four years. Mr Martorana deposes that there were medical reasons for his unemployment. He suffered depressive illness, the consequence of losing his home in severe bushfires, and has taken time off from his employment under medical supervision. 8 The question to be determined is whether Mr Martorana remains usually employed in the industry when, against his long history of employment in the industry, he was forced out of employment by factors beyond his control. The applicant contends that the break in Mr Martorana's employment, in circumstances where he has not deposed that he intends to return to such employment in the future, means that Mr Martorana is no longer usually employed in the relevant industry. 9 Whether a person is usually employed is a mixed question of fact and law. The answer in the present case is not immediately clear. Although, in my view, the applicant's case on this issue does not appear strong, I am satisfied that there are reasonable grounds for the Court to undertake an inquiry into Mr Martorana's candidacy for election. Ms Govan 10 The application regarding the second candidate, Ms Govan, proceeds upon a different basis. She is a candidate for both the position of Branch Assistant Secretary and National Council Delegate. The HSU Rules require that a candidate for both positions be a financial member of the union at the time of nomination. 11 The applicant contends that at the time of Ms Govan's nomination, she was not a financial member. The applicant says that on 30 June 2014, Ms Govan was purged from the register of members due to a failure to pay dues to the HSU for 26 weeks. 12 To that contention, Ms Govan responds that she had made an agreement with the HSU to waive fees which were outstanding in 2012. She then says that she entered into an agreement with the HSU to pay back further outstanding fees incurred in 2013. Ms Govan says that the HSU had her banking details, but refused to debit her credit card to take the dues. As a result of the non-payment of dues, her membership was then purged. There is evidence before the Court which sets out the facts and consequences of these issues. 13 The applicant denies any agreement to waive fees was made with the HSU. Thus, the parties are joined on the factual issues. 14 Given that there is a contested issue of fact which would determine Ms Govan's status as a financial member, I am satisfied pursuant to s 201(b) of the Act that there are reasonable grounds for the application for an inquiry in relation to her nomination. interim orders 15 Section 204(1)(a) provides: (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; 16 The applicant applied for an order pursuant to s 204(1)(a) that the returning officer be restrained from taking further steps in the conduct of the election until the outcome of the Court's inquiry. The application was not opposed. It follows that an order pursuant to s 204(1)(a) of the Act should be made. Undertaking as to damages 17 The returning officer argued that the applicant should be required to give an undertaking as to damages in return for the interim restraint on the holding of the election. 18 Mr McClure, who appeared on behalf of the returning officer, explained that the Australian Electoral Commission has expended $13,000 on the printing of materials necessary for the election. He told the Court that even if the inquiry found that the two candidates were eligible, this expenditure could not be salvaged because the printed material could not be used. For instance, the printed documents contain dates which would, in the circumstances, be wrong. 19 The applicant contended that no such undertaking should be granted. Mr Borgeest, the solicitor for the applicant, argued that an undertaking should not be required because no damage was caused by the bringing of the application and consequently, there would never be an order made by the Court against the applicant for damages resulting from the interim injunction. The returning officer published the list of nominees on 28 August 2014. Challenges to the nominations of Mr Martorana and Ms Govan were conveyed in writing by various parties to the returning officer immediately afterwards: on 29 August 2013, on 2 September 2014, and on 4 September 2014. It appears to follow that the printing was undertaken by the returning officer in the knowledge that there was a challenge to the nomination of the two candidates. 20 The applicant also referred to various provisions of the Act which suggest that, at least in the ordinary case, an undertaking as to damages should not be required in such an application. Section 182 of the Act provides that the expenses of conducting an election are to be borne by the Commonwealth. Section 329 gives effect to the principle that there should be no costs awarded in proceedings brought under the Act, except in exceptional circumstances. Section 206(3) has the effect that, even if the parties did not seek interim orders, the Court could act on its own motion to prevent any further step being taken in the election. The Court would make such orders to avoid the inconvenience of holding an election where the nomination not only of the two candidates, but potentially others nominated by the candidates, was in issue, and might render the election useless. 21 It might be too broad to say that the Court should never require an undertaking as to damages in an election inquiry. However, because an inquiry may only be instituted after the Court has determined that there is a reasonable basis for the inquiry, there will be limited circumstances in which it is appropriate for an undertaking as to damages to be required. There is a public interest in the holding of election inquiries which ensure that the statutory regime designed to underpin democratic control of registered organisations operates properly. Applicants should not be impeded by a requirement to give an undertaking as to damages. Additionally, in the present case the applicant should not be required to provide such an undertaking because it is unlikely that any damage was caused to the returning officer or the Australian Electoral Commission which could be attributed to the applicant. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate: Dated: 15 September 2014