Baxter v Dwyer

In the case of Baxter v Dwyer, the applicant sought orders under sections 164 and 164A of the Fair Work (Registered Organisations) Act 2009 (Cth) to enforce the union’s rules and rectify breaches of those rules. The dispute centred on whether the Divisional Executive of the Communications Division of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) could validly determine the request for a plebiscite submitted by branches of the Division, and whether a plebiscite was required in the circumstances. The court was required to determine whether the Divisional Executive could validly determine the request for a plebiscite submitted by branches of the Division, and whether a plebiscite was required in the circumstances.

The court examined the relevant provisions of the Divisional Rules and found that Rule 35(c) provided that a request for a plebiscite could be made by not less than 50% of branches, following decisions made in accordance with the relevant rules. The court found that the request for a plebiscite was validly made under the Divisional Rules. The court also found that the Divisional Executive could determine the validity of the request for itself under the Divisional Rules. The court further found that a plebiscite was required in the circumstances.

The court made orders that the respondents perform and observe the rules of the Communications Division of the CEPU, and in particular, Rule 35, by taking the opinion of the whole of the financial membership of the Communications Division of the CEPU by submitting to a plebiscite of those members the question that the alterations to National Rules 6.1.4 and 6.2 made by the National Council by decision NCD7-2014 on 7 April 2014 be ratified by the Divisional Conference as a matter of urgency. The court also made orders that the respondents direct the 22nd respondent, as Divisional Returning Officer, to conduct the plebiscite of the whole of the financial membership of the Communications Division of the CEPU on the question that the alterations to National Rules 6.1.4 and 6.2 made by the National Council by decision NCD7-2014 on 7 April 2014 be ratified.