Electoral Commissioner, in the matter of an election for offices in the Local Government and Shires Association of New South Wales [2016] FCA 327

FEDERAL COURT OF AUSTRALIA

Electoral Commissioner, in the matter of an election for offices in the Local Government and Shires Association of New South Wales [2016] FCA 327 File number(s): NSD 53 of 2016

Judge(s): BUCHANAN J

Date of judgment: 5 April 2016

Catchwords: INDUSTRIAL LAW – organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth) – error discovered in ballot for offices – inquiry into election conducted – new ballot necessary for some positions – postal ballot ordered

Legislation: Commonwealth Electoral Act 1918 (Cth), s 18 Fair Work (Registered Organisations) Act 2009 (Cth), ss 206(4), 206(4)(d)

Date of hearing: 29 March 2016

Registry: New South Wales

Division: Fair Work Division

National Practice Area: Employment & Industrial Relations

Category: Catchwords

Number of paragraphs: 20

Solicitor for the Applicant: Ms B Griffin of Australian Government Solicitor

Counsel for the Intervener (by leave): Mr J W Nolan

Solicitor for the Intervener (by leave): Carroll and O'Dea Lawyers

ORDERS NSD 53 of 2016

BETWEEN: ELECTORAL COMMISSIONER Applicant

LOCAL GOVERNMENT AND SHIRES ASSOCIATION OF NEW SOUTH WALES Intervener (by leave)

JUDGE: BUCHANAN J DATE OF ORDER: 29 March 2016

The Court makes the following orders pursuant to s 206(4) of the Fair Work (Registered Organisations) Act 2009 (Cth):

1. An order declaring that the election of the following persons to the following offices (the election) on the Board of Directors of the Local Government and Shires Association of New South Wales (the Association) declared 16 October 2015 is void and each such person is declared not to have been elected: (i) Bill Pickering to the office of Vice President Metropolitan/Urban; (ii) Greg Matthews to the office of Vice President Rural/Regional; (iii) Darriea Turley to the office of Director Rural/Regional (2nd elected); (iv) Phyllis Miller to the office of Director Rural/Regional (3rd elected); (v) Lindsay Brown to the office of Director Rural/Regional (4th elected); (vi) Denise Osborne to the office of Director Rural/Regional (5th elected); (vii) Mark Troy to the office of Director Rural/Regional (6th elected); (viii) Ruth Fagan to the office of Director Rural/Regional (7th elected); (ix) Yvonne Keane to the office of Director Metropolitan/Urban (3rd elected); (x) Paul Hawker to the office of Director Metropolitan/Urban (4th elected); (xi) Linda Scott to the office of Director Metropolitan/Urban (5th elected); (xii) Julie Hegarty to the office of Director Metropolitan/Urban (6th elected); (xiii) George Glinatsis to the office of Director Metropolitan/Urban (7th elected). 2. An order that the requirement to conduct the election at the Annual Conference of the Association is dispensed with. 3. An order directing the General Manager of the Fair Work Commission to make arrangements for the conduct of the following steps in the election to be taken: (i) the Returning Officer is to issue an Election Notice for the election for the filling of vacancies arising from the making of Order 1, excluding calling for nominations; (ii) the Association to provide the Returning Officer with a correct roll of voters listing the delegates who have been appointed to represent the Ordinary members of the Association not more than 49 days after the date of the issuing by the Returning Officer of the Election Notice; (iii) the Returning Officer to conduct the election for the offices declared vacant as a postal ballot, commencing not more than 21 days after compliance by the Association with paragraph (ii) and closing not more than 21 days thereafter. 4. An order that the candidates in the election to be conducted pursuant to Order 3 be restricted to those candidates who stood in the election declared void by Order 1, if still eligible at the date of the issuing of the Election Notice, and any such candidate shall be treated as having nominated for the same office as was the subject of the candidate's nomination in the election declared void by Order 1. 5. An order that, where the Rules of the Association are silent, the procedure for the conduct of the election be determined by the Returning Officer in a manner that is not inconsistent with those Rules. 6. An order that the term of office of any person elected in the election to be conducted pursuant to Order 3 shall commence on the date the result of the election is declared and conclude at the conclusion of the Annual Conference of the Association in 2017. 7. Liberty to apply on 48 hours' notice. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.