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. REASONS FOR JUDGMENT BUCHANAN J: 1 The Local Government and Shires Association of New South Wales ("the Association") is an organisation of employers registered as such under the Fair Work (Registered Organisations) Act 2009 (Cth) ("the FW(RO) Act"). 2 At a biennial election for offices of the Association, conducted in conjunction with the Association's Annual Conference on 12 October 2015, an irregularity occurred, whereby some voting delegates (from Hawkesbury City Council) were wrongly included on one roll of voters (Rural/Regional) rather than another (Metropolitan/Urban). The error had the potential to affect the result of the ballot for Vice Presidents and Directors, where the outcome was close and the wrong assignation of the Hawkesbury City Council delegates could have been critical. The error did not affect the ballot for the offices of President or Treasurer as all delegates voted for those positions. 3 The ballot was conducted by the Electoral Commissioner, an office established by s 18 of the Commonwealth Electoral Act 1918 (Cth). When the error was discovered, the Electoral Commissioner made an application to this Court and sought that an inquiry be conducted into the election. 4 On 5 February 2016, I ordered that such an inquiry be held. It was held on 29 March 2016. 5 At the conclusion of the hearing on that day I made the orders sought by the Electoral Commissioner, namely, declaring the election for some positions void and directing that a postal ballot be conducted to fill those offices. 6 At the inquiry, the Association also appeared by leave to support the making of orders declaring the election of the offices of Vice Presidents and some Directors void. The Association also made submissions (referred to hereunder) about how further elections should be conducted. 7 In addition, the Mayor of Bankstown City Council, who had been an unsuccessful candidate for one of the Vice President positions, provided a submission supporting a new postal ballot, supported by a resolution from his Council. 8 What follows are my reasons for making the orders sought by the Electoral Commissioner, including the further steps now necessary to correct the irregularity. 9 There is no dispute that an error occurred in the conduct of the election for positions of Vice Presidents and Directors. The error has been identified. So has the inadvertence which caused it. The error had the capacity to affect the outcome of elections for almost all of the positions of Vice Presidents and Directors as the winning margins were less than the potential for a difference in votes from the correct electors. 10 I was satisfied, therefore, that each of the elections for the affected positions (i.e. both Vice Presidents, the Second to Seventh elected Directors Rural/Regional and the Third to Seventh elected Directors Metropolitan/Urban) should be declared void. 11 The election of the first elected Director Rural/Regional and the first two elected Directors Metropolitan/Urban could not have been affected by the irregularity and those elections were not declared void. 12 The next question was what method of fresh elections should be adopted to regularise the position in respect of the affected offices. 13 By the time the inquiry came on for hearing the parties had agreed what orders should be made to cater for a postal ballot (the remedy sought by the Electoral Commissioner) or a ballot at the October 2016 Annual Conference (the alternative proposed as a matter of principle by the Association). 14 The Association explained its position in its written submissions as follows: 11. As a matter of principle, the Association supports its elections being conducted at annual conferences of members, as has been the custom and practice for many years, and which practice has been sanctioned by the General Manager of the Fair Work Commission as recently as 2013, following the amalgamation that established the Association. If the Court was minded to order that the fresh election be conducted in that way, the Association would not oppose such an approach. … 15 However, the Association accepted that a postal ballot was a viable alternative. 16 Normally, elections for the offices occur each two years at the Annual Conference. The next Annual Conference will occur on 16-18 October 2016, but there would normally have been no need for elections. Waiting even until then, with the governance of the Association disrupted, does not appear to me to be desirable, if it can be readily avoided. Although, under its rules, the Association may function administratively with a greatly reduced number of office holders until further elections are held, there is always the possibility that decisions taken in those circumstances may be seen as not fully representative. 17 The rules of the Association also provide for the convening of a Special Conference but, inevitably, some delay and potentially a much greater cost would be incurred in ordering, or requiring, that a Special Conference be convened. Nobody sought such an order. 18 The current rules of the Association do not provide for a postal ballot but there seems no doubt that I may order one to address the present situation. Section 206(4)(d) of the FW(RO) Act provides that the Court may make: (d) an order (including an order modifying the operation of the rules of the organisation to the extent necessary to enable a new election to be held, a step in relation to an election to be taken again or an uncompleted step in an election to be taken) incidental or supplementary to, or consequential on, any other order under this section. 19 In my view, a postal ballot is the appropriate solution. As I have already indicated, the elections held in 2015 were for a two-year term. There would, therefore, not ordinarily be a ballot of this kind at the 2016 Annual Conference. A postal ballot will be conducted at the cost of the Commonwealth. I favour the view that the irregularity arising from the conduct of the 2015 ballot should be remedied as soon as reasonably practicable. A postal ballot may be completed by about the end of June 2016, leaving the office holders with still a substantial period of office. 20 At the conclusion of the hearing on 29 March 2016, I therefore made the orders which the parties had agreed were appropriate for the conduct of a postal ballot, as well as orders declaring void the election for positions which may have been affected by the irregularity. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate: Dated: 5 April 2016