Sara, in the matter of an inquiry into the election for offices in the Australian Salaried Medical Officers Federation [2018] FCA 844

Sara, in the matter of an inquiry into the election for offices in the Australian Salaried Medical Officers Federation [2018] FCA 844

The election for offices in the Australian Salaried Medical Officers Federation was conducted in accordance with the pre-amendment Constitution, despite amendments taking effect on 13 March 2018. This constituted an 'irregularity' within the meaning of the Fair Work (Registered Organisations) Act 2009 (Cth) because the election failed to provide for new offices, apply new representative ratios, and follow transitional provisions in the amended Constitution. The Court found this irregularity may have affected the result, warranting the voiding of all steps taken and prohibiting further action in the election.

Parties
Applicant: Antony Sara; Other: Australian Electoral Commission
Jurisdiction
Australia
Judgment Date
05 June 2018
Procedural Posture
Inquiry Into Election Irregularities (federal Court) / Final Judgment and Orders After Inquiry
Outcome
Application successful; election and all steps declared void.
Legal Topics
Election Irregularity in Registered Organisation, Effect of Constitutional Amendments on Elections, Application of Statutory and Regulatory Rules to Union Elections
Industrial Law Employment & Industrial Relations Election Irregularity in Registered Organisation Effect of Constitutional Amendments on Elections Application of Statutory and Regulatory Rules to Union Elections

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Parties

Antony Sara

Applicant

Australian Electoral Commission

Other

Procedural Posture

Inquiry Into Election Irregularities (federal Court) / Final Judgment and Orders After Inquiry

Legal Issues

  1. 1 Whether an irregularity occurred in the conduct of the 2017/261 election for ASMOF officers after constitutional amendments came into force
  2. 2 Which version of ASMOF's Constitution applied to the conduct of the 2018 triennial elections for its offices
  3. 3 Whether conducting an election under superseded constitutional rules after amendments took effect constitutes an 'irregularity' under the Fair Work (Registered Organisations) Act 2009 (Cth)

Ratio Decidendi

The election for offices in the Australian Salaried Medical Officers Federation was conducted in accordance with the pre-amendment Constitution, despite amendments taking effect on 13 March 2018. This constituted an 'irregularity' within the meaning of the Fair Work (Registered Organisations) Act 2009 (Cth) because the election failed to provide for new offices, apply new representative ratios, and follow transitional provisions in the amended Constitution. The Court found this irregularity may have affected the result, warranting the voiding of all steps taken and prohibiting further action in the election.

Court Disposition

Application successful; election and all steps declared void.

Orders

  • All steps taken in relation to the Election, including any offices declared, and the Election itself, are void (s 206(4)(a)).
  • The Australian Electoral Commission is to take no further step in the Election (s 206(4)(d)).