Tam, D. (inquiry into an election in A.M.W.U. - 2 matters) [1986] FCA 452 - FCA 1986 case summary

Federal Court of Australia|1986-03-21|Before: Keely J

AND IN THE MATTER OF an Application by DORIANO TAM for an Inquiry into an Election for an office in the AMALGAMATED METAL WORKERS UNION

MR P, MOLONEY: I appear for the applicant, Mr Tam, in

MR P. McCUSKER: I appear on instructions of Freeman Turner,

HIS HONOUR: In this matter, the Industrial Registrar on

Reasonable grounds for an inquiry into the question of whether there hawbeen irregularities in or in connection with the electiorg for zone representatives to state conference (of the SA branch of The Amalgamated Metal Workers Union]

That view was based upon his conelusion that the returning officer had erred in rejecting the nomination of Doriano Tam for one of those Positions. Mr Tam is the applicant in these proceedings. The Industrial Registrar considered the information in the application and, after

having inquiries made, he reached the conclusion that the:

Mr Tam with the relevant quarterly periods resulted in him being found ineligible to be a candidate.

and, accordingly, the nomination had been wrongly rejected. The court has been told that since the applications first came before the court there have been discussions between the legal representatives of the applicant on the one

hand and of other interested parties on the other. Today the parties have all been represented before the court namely, one,

The Amalgamated Metal Workers Union; two, The Amalgamated Metal Workers Union (South Australian Branch); three, the returning officer,

Mr B.E. Gausden; four, the candidates who were declared elected unopposed as the five zone representatives.

Those parties joined the applicant in placing before the court a memorandum of agreed facts

which is exhibit A. It is clear from that statement that the nomination of the applicant for the position had been wrongly rejected by the returning officer. Having considered the memorandum of agreed facts lodged on behalf of each of the parties interested, I am satisfied that an irregularity occurred in connection with the election. That irregularity consisted of the wrongful rejection by the returning 'officer of the nomination of the applicant, Doriano Tam, as the Industrial Registrar said in his decision:

The rejection of the applicant's nomination had the consequence that ballots were not necessary and the unopposed candidates were declared elected.

"The court having accepted that errors had occurred in reconciling payments made by Mr Tam as set out earlier and the nomination having been rejected, it necessarily follows that

in the words of section 165(4), "The result of the election may have been affected" by the irregularity. The form of the appropriate orders to be made was the subject of submissions on behalf of the applicant and the other interested parties. The court has already indicated the orders it proposes to make.

One, the election conducted by Mr B.E. Gausden within the South Australian branch of The Amalgamated Metal Workers Union for the offices

the results of which were declared by the returning officer on 19 November 1985, is declared to be void;

Two, Messrs B. Medcalf, J. Finlay, M. Dwyer, aa J. Gresty, and Ms S. Biddle are declared not to

have been elected to the offices of Zone 3 representatives to South Australian branch state conference;

Three, the Industrial Registrar is directed to make arrangements for new elections to be held for the

offices of Zone 3 representatives to state conference; and,

Four, the operation of sub-rule 4 of rule 2 Part D in its application to the conduct of the new elections shall be modified by reading that sub-rule as if there were deleted from it the words:

No later than 26 weeks before the date of the expiration of the term

of office of the holder of the office to which the election relates.

I certify that thi. and the bwo preceding pases £1 a true ccpy ef the Reacess for Judlmeu were1n of sin s.onour

SOUTH AUSTRALIA DISTRICT REGISTRY ) No. SA 7 of 1986 ) )

-" IN THE MATTER OF -'the Conciliation and Arbitration Act, 1904

AND IN THE MATTER OF an Application by DORIANO TAM for an Inquiry into an Election for an office in the AMALGAMATED METAL WORKERS UNION

MR P, McCUSKER: I appear for the union, the returning

HIS HONOUR: If you would just point to the differences.

The other one was the zone representative; this one relates to the delegate to the national conference.

HIS HONOUR: This matter is closely related to matter number

SA 3 of 1986 1n which judgment has just been given. The agreed statements of facts there referred to related to both matters. For the reasons there given I am satisfied that an irregularity occurred in connection with the election of a regional delegate to the national conference for Region B.

As the nomination of the applicant was wrongly rejected, it follows in this matter, as it did in SA 3 of 1986, in the words of section 165(4), "The result of the election may have been affected" by the 1rregularity. The form of the orders was the subject of submissions on behalf of the applicant and the other interested parties and the court has already indicated the orders 1t proposes to make.

2 e Those orders are now made: . " 1. The election conducted by Mr B.E. Gausden~ ~ within the South Australian Branch of the ~ Amalgamated Metal Workers Union for the office of Region B delegate to national conference, the result of which was declared by the returning officer on 16 August 1985, is declared to be void;

Mr H. Kock is declared not to have been elected to the office of (South Australian Branch) Region B delegate to national conference;

The Industrial Registrar is directed to make arrangements for a new election to be held for the office of (South Australian Branch) Region B delegate to national conference.

That is the end of the orders as I understand it: Gentlemen; if there are any quéries or doubts

about it do not hesitate to raise them. I am sorry if that is not available in a typed form but we will see if the transcript can be expedited. At the same time, we realize they do have great pressures on them at present in that direction.

I vertify that 91s and tne one pre ovding pes / are a tie copy of the Re-se ..¢2 Jur tent hereinof hie Neneur |

Tam, D. (inquiry into an election in A.M.W.U. - 2 matters) [1986] FCA 452

At a glance

Court

Decision date

Before

Source

Judgment (43 paragraphs)

Cited By (3)