Asmar, in the matter of an election for office in the Victorian No 1 Branch of the Health Services Union [2014] FCA 997

Asmar, in the matter of an election for office in the Victorian No 1 Branch of the Health Services Union [2014] FCA 997

There were reasonable grounds for an inquiry. Mr Martorana's eligibility raised a mixed question of fact and law that was not immediately clear, given his long employment history in the industry and four-year absence for medical reasons. Ms Govan's eligibility raised a contested factual issue about whether she was a financial member at nomination. Because the application for interim restraint was not opposed, an order under s 204(1)(a) should be made. No undertaking as to damages was required because such undertakings will be appropriate only in limited election inquiry cases and it was unlikely that any loss to the returning officer or Australian Electoral Commission was attributable to...

Jurisdiction
Australia
Judgment Date
08 September 2014
Procedural Posture
Application Under Ss 200(1) and 204(1) of the Fair Work (registered Organisations) Act 2009 (cth) for an Inquiry Into Alleged Election Irregularities and Interim Orders / Determination of Reasonable Grounds for an Inquiry and Interim Restraint Directions
Outcome
Reasonable grounds for an inquiry were found; interim restraint and procedural directions were made; no undertaking as to damages was required.
Legal Topics
['union Election Inquiry' 'eligibility for Nomination' 'financial Membership' 'interim Restraint of Election' 'undertaking as to Damages']
['industrial Law' 'registered Organisations' 'election Law'] ['union Election Inquiry' 'eligibility for Nomination' 'financial Membership' 'interim Restraint of Election' 'undertaking as to Damages']

Case Brief

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Procedural Posture

Application Under Ss 200(1) and 204(1) of the Fair Work (registered Organisations) Act 2009 (cth) for an Inquiry Into Alleged Election Irregularities and Interim Orders / Determination of Reasonable Grounds for an Inquiry and Interim Restraint Directions

Legal Issues

  1. 1 ["Whether there were reasonable grounds under s 201(b) of the Fair Work (Registered Organisations) Act 2009 (Cth) for an inquiry into Mr Jamie Dylan Martorana's eligibility for nomination." "Whether there were reasonable grounds under s 201(b) of the Fair Work (Registered Organisations) Act 2009 (Cth) for an inquiry into Ms Jayne Govan's eligibility for nomination as a financial member." 'Whether an interim order should be made under s 204(1)(a) restraining the returning officer from taking further steps in the election.' 'Whether the applicant should be required to give an undertaking as to damages.']

Ratio Decidendi

There were reasonable grounds for an inquiry. Mr Martorana's eligibility raised a mixed question of fact and law that was not immediately clear, given his long employment history in the industry and four-year absence for medical reasons. Ms Govan's eligibility raised a contested factual issue about whether she was a financial member at nomination. Because the application for interim restraint was not opposed, an order under s 204(1)(a) should be made. No undertaking as to damages was required because such undertakings will be appropriate only in limited election inquiry cases and it was unlikely that any loss to the returning officer or Australian Electoral Commission was attributable to...

Court Disposition

Reasonable grounds for an inquiry were found; interim restraint and procedural directions were made; no undertaking as to damages was required.

Orders

  • ['The Health Services Union (HSU), the returning officer and the candidates in the elections referred to in paragraph 2 be notified of the Inquiry by letter from the solicitors for the applicant: (a) informing them of the time and place fixed; (b) annexing copies of the application and this order; (c) informing them...