Herrington, in the matter of an election for offices in the Communications Division of the CEPU [2005] FCA 1012

Herrington, in the matter of an election for offices in the Communications Division of the CEPU [2005] FCA 1012

The rules applicable when nominations opened did not include effective transitional provisions for TOA Branch members and therefore prevented those members from voting or nominating for relevant branch offices. Those rules contravened s 142(1)(c) because they were oppressive, unreasonable or unjust. Although the returning officer acted in accordance with the rules and reg 132, the rejection of Mr Dwyer's nominations was based on rules contrary to law and constituted an irregularity with potential to affect the election result.

Jurisdiction
Australia
Judgment Date
24 June 2005
Procedural Posture
Election Inquiry and Application Concerning Rules of an Organisation Under the Workplace Relations Act 1996 (cth) Schedule 1 B / Inquiry Instituted; Orders Made Declaring an Irregularity; Leave to Discontinue the S 163 Application Granted
Outcome
The Court declared that the rejection of Mr Dwyer's nominations constituted an irregularity or irregularities. Leave to discontinue the separate application under s 163 was to be granted.
Legal Topics
['election Inquiry' 'irregularity in Union Election' 'validity of Organisation Rules' 'eligibility to Nominate for Office' "members' Voting Rights" 'powers of Electoral Officials']
['industrial Law' 'statutory Interpretation'] ['election Inquiry' 'irregularity in Union Election' 'validity of Organisation Rules' 'eligibility to Nominate for Office' "members' Voting Rights" 'powers of Electoral Officials']

Case Brief

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Procedural Posture

Election Inquiry and Application Concerning Rules of an Organisation Under the Workplace Relations Act 1996 (cth) Schedule 1 B / Inquiry Instituted; Orders Made Declaring an Irregularity; Leave to Discontinue the S 163 Application Granted

Legal Issues

  1. 1 ['Whether rule changes and transitional arrangements prevented TOA Branch members from voting or standing for branch positions in the 2005 Divisional elections.' "Whether the rejection by the Australian Electoral Commission of Mr Dwyer's nominations constituted an irregularity." 'Whether rules that denied TOA Branch members the ability to vote or nominate contravened s 142(1)(c) of Schedule 1B to the Workplace Relations Act 1996 (Cth).' 'Whether s 193(1)(b) gave an electoral official power, and any obligation, to act despite the rules to avoid irregularities.']

Ratio Decidendi

The rules applicable when nominations opened did not include effective transitional provisions for TOA Branch members and therefore prevented those members from voting or nominating for relevant branch offices. Those rules contravened s 142(1)(c) because they were oppressive, unreasonable or unjust. Although the returning officer acted in accordance with the rules and reg 132, the rejection of Mr Dwyer's nominations was based on rules contrary to law and constituted an irregularity with potential to affect the election result.

Court Disposition

The Court declared that the rejection of Mr Dwyer's nominations constituted an irregularity or irregularities. Leave to discontinue the separate application under s 163 was to be granted.

Orders

  • ["The rejection by the Australian Electoral Commission of Mr Dwyer's nominations for the offices of Divisional Executive Member, Lines and General Section, and Divisional Conference Delegate, Lines and General Section, in the New South Wales Postal and Telecommunications Branch of the Communications Division of the...