Maher, in the matter of an Application under Section 218 of the Workplace Relations Act 1996 in Relation to Elections

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SUDGMENT No, LRRBunal wh G7

IN THE INDUSTRIAL RELATIONS COURT ) OF AUSTRALTA ) No. VI 2339 of 1996

VICTORIA DISTRICT REGISTRY )

IN THE MATTER OF AN APPLICATION BY KEVIN | MAHER UNDER SECTION 218 OF THE WORKPLACE RELATIONS ACT 1996 IN RELATION TO ELECTIONS IN NATIONAL CONSTRUCTION BRANCH OF THE AUSTRALIAN WORKERS' UNION

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FEDERAL COURT ' Coram: Ryan J . OF AUSTRALIA Date: 5 May 1997 ' F004 , Place: Melbourne O7 JAN 2604 LIBRARY REASONS FOR JUDGMENT RYAN J: This inquiry concerns an election to fill a casual vacancy or casual vacancies, the term of which will expire on

30 June this year. Nominations for elections to fill the same and other offices for the full term of four years to commence on 1 July 1997 closed on $9 April 1997. There is evidence that for most, if not all, of those offices, including those held | ne by persons whose elections to fill casual vacancies in them

have been challenged, there are not sufficient nominations to

require the returning officer to conduct a ballot.

The basis of the present inquiry went to the constitution of the rolls of voters used in the election to fill the casual vacancies. Ixregularities were said to have occurred in the | failure to transfer members from other Branches of the Union to the National Construction Branch ("the NCB") in accordance

with Rule 36(n). As well, it was asserted that certain members

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- 2 - of other Branches who were not eligible for membership of the

NCB and some fifty-two other persons who are not financial members of the Union had been included on the NCB roll for the

election to fill the casual vacancies.

Finally, it was asserted that other persons who had validly become members of the NCB had not been included on the roll. In these circumstances, having regard to the very short time which will elapse during which the casual vacancies will continue to be filled, I consider it a proper exercise of the Court's discretion to terminate the inquiry pursuant to S, 223(5). However, because of the prima facie force of the evidence on which the applicant relied, which has not so far been the subject of a complete challenge in these proceedings and which was sufficient to persuade a Judge of this Court to institute the ingquixy, i consider it appropriate to certify pursuant to s. 343 that the applicant acted reasonably in

applying for the inquiry. I will, therefore, order:

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1. That the directions made by myself on 28 February 1997 be vacated.

2- That the inquiry be terminated.

3. That it be certified pursuant to s, 343 that the

applicant acted reasonably in applying for the inquiry.

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I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment of his Honcur Justice Ryan.

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Associate:

Date: gO Mo 19%

Counsel for Mr K. Maher

Solicitors for Mr K. Maher

Counsel for Messrs Busby, Patterson and Gries

Solicitors for Messrs Busby, Patterson and Gries

Counsel for the Australian Electoral Commission

Solicitors for the Australian Electoral Commission

Date of Hearing

Date of Judgment

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Ms A. Chambers

Maurice Blackburn & Co

Mr P, Punch Carroll & O'Dea

Mx P. Punch Carroll & O'Dea

Mr G. Thorley

Mr G, Thorley

S May 1997

5 May 1997

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