Menon, in the matter of an election for offices of the Manufacturing Division of the Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2021] FCA 859

1. Pursuant to s 206(6) of the Fair Work (Registered Organisations) Act 2009 (Cth) the inquiry be terminated to the extent that it relates to the election for the office of Divisional Secretary of the Manufacturing Division of the Construction, Forestry, Maritime, Mining and Energy Union. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WHEELAHAN J: 1 On 8 June 2021, Collier J ordered pursuant to s 201 of the Fair Work (Registered Organisations) Act 2009 (Cth) that there be an inquiry into alleged irregularities in respect of the election for offices in the Construction, Forestry, Maritime, Mining and Energy Union (Union), in election number E2020/114 which was being conducted by the Australian Electoral Commission. The orders were made before voting in the election commenced. Her Honour, on 16 June 2021 and prior to the conclusion of voting, fixed the inquiry before me to commence at 10.15 am on 16 August 2021 at the Federal Court of Australia at the Commonwealth Law Courts Building in Melbourne, Victoria, on an estimate of five days. The order was made following the publication of reasons for judgment in which her Honour held that there were reasonable grounds for the inquiry: Menon, in the matter of an election for offices of the Manufacturing Division of the Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 620. 2 The applicant, Mr Menon, is the south east co-ordinator in the Construction and General, Queensland Northern Territory Division Branch of the Union. Fifteen individuals and the Australia Electoral Commission have been given leave to appear at the inquiry. The first to fifteenth named persons are members of the Committee of the Manufacturing Division of the Union. The sixteenth named person is the Australian Electoral Commission. 3 The orders of Collier J do not set out terms of reference for the inquiry that has been ordered. This is not unusual. However, the orders should be understood in the context of the conclusions that her Honour made which led to the making of the orders, and in particular the grounds for suspicion that irregularities had attended the voting process in respect of election E2020/114. The claimed irregularities included that 83 members on the roll for electing Divisional officers had been incorrectly excluded from voting, and further that a number of persons who sought to stand as candidates for election had been incorrectly excluded. 4 Since the order was made for the conduct of the inquiry, the results of the election have been declared. In relation to the office of Divisional Secretary, two candidates stood for election: the applicant; and Mr Michael O'Connor, who is the second named person to whom leave to appear has been given. The results of the voting were as follows - Candidates First Preference Votes Final Votes MENON, Arturo "Bluey" 542 542 O'CONNOR, Michael 1890 1890 5 The court's powers upon an inquiry are set out in the Fair Work (Registered Organisations) Act at s 206(4). The powers include the power to make an order declaring an election or any step in relation to an election to be void, and to declare a person purporting to have been elected not to have been elected. Those powers are subject to a limitation in s 206(5) whereby the court must not make such an order unless the court is of the opinion that the results of the election may have been, or may be, affected by irregularities. In other words, any irregularities found must be material. 6 At a case management hearing before me on 16 July 2021, senior counsel for the named members of the Divisional Committee, Mr Borenstein QC, raised the question whether there was any utility in the inquiry proceeding in relation to the election of Mr O'Connor, foreshadowing a submission that even if there was some irregularity in relation to the qualification of 83 members to vote, any such irregularity could not have been material to the result of the election. Mr Borenstein foreshadowed an application under s 206(6) of the Fair Work (Registered Organisations) Act, which is in the following terms - (6) Without limiting the power of the Court to terminate a proceeding before it, the Court may, at any time after it begins an inquiry into an election, terminate the inquiry or the inquiry to the extent that it relates to specified matters. 7 Mr Borenstein QC submitted that although the formal hearing of the inquiry is not due to commence until 16 August 2021, the inquiry itself had begun for the purposes of s 206(6), because s 201 of the Act provides that the inquiry is taken to have been instituted upon the court fixing the time and place for conducting the inquiry - 201 Instituting of inquiry Where: (a) an application for an inquiry has been lodged with the Federal Court under section 200; and (b) the Court is satisfied that there are reasonable grounds for the application; the Court must fix a time and place for conducting the inquiry, and may give such directions as it considers necessary to ensure that all persons who are or may be justly entitled to appear at the inquiry are notified of the time and place fixed and, where the Court fixes a time and place, the inquiry is taken to have been instituted. 8 I decided to give Mr Borenstein QC an opportunity to discuss the matter with Mr Friend QC, who appeared for the applicant. I adjourned the case management hearing to Friday, 23 July 2021, and I invited the parties to provide to my chambers short written submissions on the question, should the Divisional Committee members for whom Mr Borenstein QC appeared wish to pursue an application before the court. Pursuant to that leave, the Divisional Committee members gave notice that they sought an order that the inquiry into the election for the office of Divisional Secretary of the Manufacturing Division of the Union, to which Mr O'Connor was declared elected, be terminated. Short written submissions were furnished. In consequence, the applicant and the first to fifteenth interested persons submitted a proposed minute of consent order that the inquiry to that extent be terminated. Upon enquiry by my chambers, all active parties gave their consent to the order that I propose, and the Australian Electoral Commission does not oppose the order. 9 I am satisfied that the court has power to terminate the inquiry to the extent that it relates to the election of the Divisional Secretary of the Manufacturing Division of the Union, and I am satisfied that it is appropriate to do so. I will make an order accordingly. The hearing of the inquiry otherwise remains fixed for 16 August 2021. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan.