Brown v Health Services Union
[2012] FCA 644
•21 June 2012
FEDERAL COURT OF AUSTRALIA
Brown v Health Services Union [2012] FCA 644
Citation: Brown v Health Services Union [2012] FCA 644 Parties: CHRISTOPHER PAUL BROWN AND OTHERS NAMED IN THE SCHEDULE v HEALTH SERVICES UNION AND OTHERS NAMED IN THE SCHEDULE
HSUEAST v NSW MINISTER FOR FINANCE AND SERVICES AND OTHERS NAMED IN THE SCHEDULEFile number(s): NSD 621 of 2012
NSD 735 of 2012Judge: FLICK J Date of judgment: 21 June 2012 Catchwords: INDUSTRIAL LAW – declaration that organisation has ceased to function effectively – no effective means under rules – scheme approved – terms and conditions of scheme – appointment of interim administrator – vacation of all offices – demerger
PRACTICE AND PROCEDURE – New South Wales Industrial Court proceeding – cross vested
PRACTICE AND PROCEDURE – agreed statement of facts – declarations
Legislation: Conciliation and Arbitration Act 1904 (Cth) ss 140, 171D
Commonwealth Constitution s 76(ii)
Companies Act 1961 (NSW) s 366
Corporations Act 2001 (Cth) s 1322
Evidence Act 1995 (Cth) s 191
Fair Work Act 2009 (Cth) s 569
Fair Work (Registered Organisations) Act2009 (Cth) ss 5, 6, 28, 30, 142, 310, 323, 338, 351A
Federal Court of Australia Act 1976 (Cth) ss 21, 23, 37M, 37N
Federal Court Rules 2011 (Cth) rr 4.04, 24.15
Industrial Relations Act 1995 (NSW) ss 3, 217, 239, 290B, 290D
Judiciary Act 1903 (Cth) s 79
Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW)
NSW Trustee and Guardian Act 2009 (NSW) s 41
Uniform Civil Procedure Rules 2005 (NSW) r 33.4
Workplace Relations Act 1996 (Cth) s 196Cases cited: Adams v Hill (1984) 3 FCR 138, considered
Allseas Construction S.A. v Minister for Immigration and Citizenship [2012] FCA 529, cited
Andrews v Australia and New Zealand Banking Group Ltd [2011] FCA 388, 281 ALR 113, cited
AON Risk Services Australia Limited v Australian National University [2009] HCA 27, 239 CLR 175, considered
Attorney-General for the Commonwealth v Breckler [1999] HCA 28, 197 CLR 83, cited
Australian Competition and Consumer Commission v Korean Air Lines Co Ltd [2011] FCA 1360, cited
Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2011] FCA 382, 279 ALR 609, cited
Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56, cited
Australian Competition and Consumer Commission v Real Estate Institute of Western Australian Inc [1999] FCA 18, 161 ALR 79, considered
Australian Securities and Investments Commission v Edensor Nominees Pty Limited [2001] HCA 1, 204 CLR 559, cited
BMI Ltd v Federated Clerks' Union of Australia (NSW Branch) (1983) 76 FLR 141, cited
Bovis Lend Lease v Wily [2003] NSWSC 467, 45 ACSR 612, considered
Comcare v John Holland Rail Pty Ltd (No 5) [2011] FCA 622, 195 FCR 43, cited
Doyle v Australian Workers’ Union (1986) 12 FCR 197, considered
Environment Protection Authority v Ramsey Food Processing Pty Ltd [2009] NSWLEC 152, cited
Federated Cold Storage & Meat Preserving Employees Union of Australasia; Ex parte Gallagher (1983) 79 FLR 26, applied
Fegan v Jackson [2009] FCA 319, 183 IR 292, cited
Fencott v Muller (1983) 152 CLR 570, followed
Galea v Galea (1990) 19 NSWLR 263, considered
Gordon v Carroll (1975) 27 FLR 129, applied
Gray v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2012] FCA 380, questioned
Health World Ltd v Shin-SunAustralia Pty Ltd [2010] HCA 13, 240 CLR 590, cited
Health Services Union [2009] FCA 829, 187 IR 51, cited
Health Services Union [2010] NSWIRComm 107, cited
Huddart Parker Ltd v The Ship Mill Hill (1950) 81 CLR 502, cited
John Robertson & Co Limited (in liquidation) v Ferguson Transformers Pty Limited (1973) 129 CLR 65, considered
Katherine Jackson v Peter James Mylan [2012] NSWSC 552, cited
Keely, Re; Ex parte Ansett Transport Industries (Operations) Pty Ltd (1990) 64 ALJR 495, cited
Kingham v Sutton (No 3) [2001] FCA 1117, cited
Levy v Victoria (1997) 189 CLR 579, cited
Minister for Environment, Heritage and the Arts v PGP Developments Pty Ltd [2010] FCA 58, 183 FCR 10, cited
Moffitt v Vehicle Builders Employees’ Federation of Australia (1985) 11 IR 174, cited
Municipal Officers’ Association of Australia v Lancaster (1981) 54 FLR 129, cited
O’Mara Constructions Pty Ltd v Avery [2006] FCAFC 55, 151 FCR 196, applied
Phillip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457, cited
R v Aird; Ex parte Australian Workers’ Union (1973) 129 CLR 654, cited
R v Cohen; Ex parte Motor Accidents Insurance Board (1979) 141 CLR 577, cited
R v Joske; Ex parte Shop, Distributive and Allied Employees’ Association (1976) 135 CLR 194, applied
R v Porter [2004] NSWCCA 353, 61 NSWLR 384, cited
Re Anti-Cancer Council of Victoria; Ex parte State Public Services Federation (1992) 175 CLR 442, cited
Rural Press Limited v Australian Competition and Consumer Commission [2003] HCA 75, 216 CLR 53, cited
Sankey v Whitlam (1978) 142 CLR 1, cited
Secretary, Department of Health and Ageing v Prime Nature Prize Pty Ltd (in liquidation) [2010] FCA 597, cited
Short v F W Hercus Pty Limited (1993) 40 FCR 511, cited
Solomons v District Court of New South Wales [2002] HCA 47, 211 CLR 119, considered
Sunol v Collier [2012] NSWCA 14, 258 FLR 282, cited
Super John Pty Ltd v Futuris Rural Pty Ltd [1999] NSWSC 627, 32 ACSR 398, considered
Vakauta v Kelly (1989) 167 CLR 568, considered
Wakim, Re; Ex parte McNally (1999) 198 CLR 511, considered
Wilson v Alexander [2003] FCAFC 272, 135 FCR 273, cited
Woolgar v O’Neill [2001] FCA 1149, 108 IR 58, citedJ W Shaw QC, ‘Interpreting Trade Union Constitution Rules’ (1988) 62 Australian Law Journal 690
Date of hearing: 5, 6, 7, 8 and 15 June 2012 Place: Sydney Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 193 Counsel for the Applicants in NSD621/2012: Mr A A Hatcher SC with Mr M A Irving Solicitor for the Applicants in NSD621/2012: Holding Redlich Counsel for the Health Services Union: Mr A A Hatcher SC with Mr M A Irving Solicitor for the Health Services Union: Holding Redlich Counsel for HSUeast: Mr S Crawshaw SC with Mr J V Murphy Solicitor for HSUeast: Slater & Gordon Counsel for Michael Williamson: Mr T A Game SC with Mr I C Latham Solicitor for Michael Williamson: Uther Webster & Evans Counsel for Katherine Jackson: Mr B J A Shields with Mr F Assaf (to 8 June 2012)
Mr D F Rofe QC with Mr A J Tudehope (8 June 2012, 15 June 2012) (in part)
Ms Jackson appeared in person (8 June 2012, 15 June 2012) (in part)Solicitor for Katherine Jackson: Harmers Workplace Lawyers (to 8 June 2012) Counsel for Peter James Mylan: Mr S Crawshaw SC with Mr J V Murphy (to 15 June 2012) Solicitor for Peter James Mylan:
Slater & Gordon (to 15 June 2012) Counsel for the 6th, 8th, 9th, 10th-13th, 15th, 16th, 18th-21st, 23rd-31st, 34th-44th, 46th-48th and 76th Respondents in NSD621/2012: Mr S Crawshaw SC with Mr J V Murphy (to 15 June 2012) Solicitor for the 6th, 8th, 9th, 10th-13th, 15th, 16th, 18th-21st, 23rd-31st, 34th-44th, 46th-48th and 76th Respondents in NSD621/2012: Slater & Gordon (to 15 June 2012) Counsel for the 5th, 7th, 14th, 17th, 22nd, 32nd, 33rd, 45th, 49th-75th, 78th-87th Respondents in NSD621/2012: These respondents did not appear. Counsel for the Commonwealth Minister for Employment and Workplace Relations: Mr H Borenstein SC with Mr R M Niall SC Solicitor for the Commonwealth Minister for Employment and Workplace Relations: Corrs Chambers Westgarth Counsel for the New South Wales Minister for Finance and Services: Mr R Lancaster SC with Mr M J Easton Solicitor for the New South Wales Minister for Finance and Services: Crown Solicitor for the State of New South Wales Counsel for Unions NSW: Mr M Gibian Counsel for the Honourable Michael Francis Moore in his capacity as interim administrator of HSUeast and the HSU East Branch: Mr P Punch, Solicitor (15 June 2012 only) Solicitor for the Honourable Michael Francis Moore in his capacity as interim administrator of HSUeast and the HSU East Branch: Carroll & O’Dea Lawyers (15 June 2012 only) Counsel for Mr Robert Morrey: Mr Morrey appeared in person
Counsel for Ms Katrina Hart: Ms Hart appeared in person Counsel for Ms Julia Batty: Ms Batty appeared in person
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
FAIR WORK DIVISION
NSD 621 of 2012
BETWEEN: CHRISTOPHER PAUL BROWN AND OTHERS NAMED IN THE SCHEDULE
ApplicantAND: HEALTH SERVICES UNION AND OTHERS NAMED IN THE SCHEDULE
Respondent
JUDGE:
FLICK J
DATE OF ORDER:
21 JUNE 2012
WHERE MADE:
SYDNEY
THE COURT MAKES THE FOLLOWING DECLARATIONS AND ORDERS:
1.A declaration under section 323(1) of the Fair Work (Registered Organisations) Act 2009 (Cth) that the HSU East Branch of the Health Services Union has ceased to function effectively and that there are no effective means under the rules of the organisation by which it can be enabled to function effectively.
2.A declaration under section 290B of the Industrial Relations Act 1996 (NSW), that HSUeast has ceased to function effectively and that there are no effective means under the rules of the organisation by which it can be enabled to function effectively.
3.An order under section 323(2) of the Fair Work (Registered Organisations) Act 2009 (Cth), that the scheme attached as Appendix A be approved in relation to the HSU East Branch of the Health Services Union.
4.An order under section 290B(8) of the Industrial Relations Act 1996 (NSW) that the scheme attached as Appendix A be approved in relation to HSUeast.
5.An order that the Honourable Michael Francis Moore be appointed administrator of the HSU East Branch of the Health Services Union under the scheme approved in order 3 above.
6.An order that the Honourable Michael Francis Moore be appointed administrator of HSUeast under the scheme approved in order 4 above.
7.An order that all offices in the HSU East Branch of the Health Services Union of Australia, identified in Annexure A to Appendix A, be vacated.
8.An order that all offices in HSUeast, identified in Annexure B to Appendix A, be vacated.
9.An order that, in the event of any difficulty arising in the course of the implementation of the Scheme, the Administrator, the Applicants or any person represented in the proceeding shall have liberty to apply on 72 hours written notice.
APPENDIX A
Interpretation
1.For the purposes of this Scheme, unless the contrary intention appears:
1.1The Act means the Fair Work (Registered Organisations) Act 2009 (Cth);
1.2The Administrator means the person appointed under clause 2.3 or 15 of the Scheme, as the case may be;
1.3The Court means the Federal Court of Australia;
1.4The Commission means the Industrial Relations Commission of New South Wales;
1.5The demerged Branches means the NSW Branch of the HSU, the Victorian No 1 Branch of the HSU and the Victorian No 3 Branch of the HSU.
1.6HSU means the Health Services Union, an organisation registered under the Act;
1.7HSU East Branch means the Branch of the HSU confirmed by Rule 48(a) of the Rules;
1.8The IR Act means the Industrial Relations Act 1996 (NSW);
1.9The Merger Date means 24 May 2010, being the day on which the Rules were amended to create the HSU East Branch and make consequential amendments;
1.10The NSW Union means HSU East, a State Industrial Organisation registered under the IR Act;
1.11The NSW Union Rules means the rules of the NSW Union;
1.12The Order means the orders of the Court approving this Scheme under s 323 of the Act and s 290B of the IR Act;
1.13The Rules means the Rules of the HSU.
Appointment of Administrator
2.On the making of the Order:
2.1all elected offices in the HSU East Branch (as set out in Annexure A) shall be declared by the Court to be vacant;
2.2clause 2.1 does not affect the continued employment of persons (including organisers) whose employment is not connected with an office vacated as a result of clause 2.1; and
2.3the Honourable Michael Moore shall be appointed by order of the Court as the Administrator of the HSU East Branch.
3.On the making of the Order:
3.1all elected offices in the NSW Union (as set out in Annexure B) shall be declared by the Court to be vacant; and
3.2clause 3.1 does not affect the continued employment of persons (including organisers) whose employment is not connected with an office vacated as a result of clause 3.1; and
3.3the Honourable Michael Moore shall be appointed by order of the Court as the Administrator of the NSW Union.
4.Within seven days of the making of the Order, those persons whose offices are declared vacant in clauses 2 and 3 shall return to the Administrator all property (including credit cards) of the HSU or the NSW Union, as the case may be, in their possession.
5.As and from the making of the Order and for the period of the administration, the Administrator:
5.1shall have and exercise such powers and duties of the Union Council (being the HSU East Branch Committee), the HSU East Branch Officers and the HSU East Branch Executive Committee as are conferred on those bodies by the Rules and the Act;
5.2shall have and exercise such powers and duties of the Union Council of the NSW Union, the Executive Committee of the NSW Union and the Officers of the NSW Union as are conferred on those bodies by the NSW Union Rules and the IR Act; and
5.3without limiting the foregoing, the Administrator shall have power to bring proceedings in the name of the NSW Union, for the recovery of any funds of the NSW Union, misappropriated by any person, and for the imposition of penalties and the awarding of compensation as may be available under the IR Act.
6.For the avoidance of doubt, the Administrator shall have full power to engage such employees and consultants as the Administrator deems necessary to enable the Administrator to carry out the duties and functions conferred on the Administrator under this Scheme.
7.For the further avoidance of doubt and notwithstanding any provisions of the Rules of the HSU, the Administrator may appoint any person deemed suitable to him as a proxy to represent him at any meeting of the National Council or National Executive of the HSU provided that a separate written appointment is made for each such meeting, and each such instrument may provide instructions to the proxy as to how the proxy should vote and must do so in the event of a vote being required on any matter that, in the opinion of the Administrator, may adversely affect the interests of the members of the HSU East Branch. To avoid doubt any such instructions may include a direction to abstain from voting.
8.Without limiting the foregoing, the Administrator may, upon giving 72 hours’ written notice to the Applicants or any person represented in the proceeding, apply to the Court for the appointment of a separate or further Administrator to assist with the administration of the NSW Union, HSU East Branch and the demerged Branches under this Scheme.
9.Further, the Administrator shall ensure that any charges under the Rules or the NSW Union Rules laid against any member be dealt with expeditiously and in accordance with the relevant rules.
10.The Administrator shall co-operate with the investigation conducted by Ian Temby QC and Dennis Robertson and any other investigations of the conduct of officers or employees of the HSU East Branch or the NSW Union.
Roll of Members and Preparation of Accounts
11.The Administrator shall, as soon as is reasonably practicable after the date of the Order, prepare the following lists of members of the HSU East Branch as at the date of the Order, and shall state whether the member was financial or unfinancial as at the date of the Order:
11.1A list of all of the members employed in New South Wales and the Australian Capital Territory (the NSW Members);
11.2A list of all of the members employed in Victoria who would be eligible to a member of the Victoria No 1 Branch in accordance with the Rules as in force immediately before the Merger Date (the No 1 Branch members) if those Rules had continued in force at the time of the Order;
11.3A list of all of the members employed in Victoria who would be eligible to a member of the Victoria No 3 Branch in accordance with the Rules as in force immediately before the Merger Date (the No 3 Branch members) if those Rules had continued in force at the time of the Order.
12.Any person joining the HSU East Branch after the date of the Order shall be placed on the list that would be applicable had they been a member at the date of the Order, and shall for the purposes of the Scheme form part of the respective list.
13.The Administrator shall, as soon is reasonably practicable after the date of the Order cause to be prepared:
13.1Financial accounts, setting out the assets and liabilities, of the HSU East Branch; and
13.2Financial accounts, setting out the assets and liabilities, of the NSW Union.
14.The Administrator shall establish and implement internal control policies and procedures to ensure the HSU East Branch and the New South Wales Union are conducted in accordance with the principles of good corporate governance and to ensure accountability to the members of the HSU East Branch and New South Wales Union.
15.Notwithstanding anything to the contrary in the Rules of the HSU, on the completion of the preparation of the member lists and accounts as referred to in clauses 10 and 12, the Administrator shall:
15.1alter the Rules of the HSU, so as to reinstate them to the form they were in immediately before the Merger Date, in so far as they provided for the NSW Branch, the Victoria No 1 Branch and the Victoria No 3 Branch;
15.2if required, in the opinion of the Administrator, strengthen the financial accountability and good governance of the NSW Branch, the Victoria No 1 Branch and the Victoria No 3 Branch; and
15.3lodge with Fair Work Australia, particulars of the alterations and seek the certification of General Manager of Fair Work Australia under section 159 of the Act.
16.Upon the certification of the alterations referred to in clause 14 (the Amendment Date), (which will, among other things, disband the HSU East Branch and constitute the NSW Branch, the Victoria No 1 Branch and the Victoria No 3 Branch), the Administrator shall, by order of the Court be appointed administrator of the NSW Branch, the Victoria No 1 Branch and the Victoria No 3 Branch to exercise the powers and duties of office holders of those Branches as provided for in the Rules as amended pursuant to the Order of the Court.
17.On the Amendment Date:
17.1the NSW Members shall be assigned to and become members of the NSW Branch;
17.2the No 1 Branch Members shall be assigned to and become members of the No 1 Branch; and
17.3the No 3 Branch Members shall be assigned to and become members of the No 3 Branch.
18.On the Amendment Date, the Administrator shall apportion and distribute the assets and liabilities of the NSW Union and the HSU East Branch to the NSW Union and the demerged Branches having regard to:
18.1the proportion of assets and liabilities that each Branch contributed to the HSU Branch at the Merger Date;
18.2the proportion of assets and liabilities that each Branch contributed to the NSW Union;
18.3the respective number of members of each Branch;
18.4the income and expenses of the HSU East Branch and the NSW Union since the Merger Date; and
18.5what the Administrator considers is fair, just and appropriate in the circumstances.
19.Any member of the HSU or the NSW Union holding real or personal property of the HSU or the NSW Union, whether as registered proprietor, trustee or otherwise, shall, at the request of the Administrator deliver up or transfer such property to the Administrator.
20.The Administrator will take all reasonable steps to ensure that as and from the Amendment Date, dues paid by members, including by way of direct debit or payroll deduction, of the demerged Branches are paid to the respective Branch in which the members are assigned.
21.Notwithstanding anything to the contrary in the Rules of the NSW Union, the Administrator of the NSW Union shall, on the completion of the preparation of the member lists and accounts as referred to in clauses 10 and 12:
21.1alter the Rules of the NSW Union, so as to reinstate them to the form in which they existed immediately before the rule change consented to by the Acting Deputy Industrial Registrar in accordance with the decision of Boland J in Health Services Union [2010] NSWIRComm 107 (30 July 2010);
21.2if required, in the opinion of the Administrator, strengthen the financial accountability and good governance of the NSW Union;
21.3Ensure that the current rule 18A of the rules of the NSW Union provides that persons elected to officers in the NSW Branch of the HSU will be taken to be validly elected to the corresponding office in the NSW Union; and
21.4lodge with the Commission, particulars of the alterations and seek the consent of the Industrial Registrar under section 245 of the IR Act.
22.The Administrator shall develop and implement policies to ensure that after the Amendment Date the NSW Union and the demerged Branches will be representative of and accountable to their members, will be able to operate effectively, will encourage members to participate in the affairs of the Branch to which they belong and will encourage the democratic functioning and control of the Branch.
23.If in the opinion of the Administrator it is necessary or appropriate to do so, the Administrator shall alter the Rules and the NSW Union Rules so as to ensure that after the Amendment Date the NSW Union and the demerged Branches will continue to be representative of and accountable to their members, will continue to be able to operate effectively, will continue to encourage members to participate in the affairs of the NSW Union and the demerged Branches to which they belong, and will continue to encourage the democratic functioning and control of the NSW Union and the demerged Branches and take such steps as are necessary to obtain certification under the Act or consent under the IR Act as the case may be.
Elections
24.The Administrator shall:
24.1on the completion of the steps set out in paragraphs 14 to 22; and
24.2when he is satisfied that the policies referred to in paragraph 21 have been implemented;
request the General Manager of Fair Work Australia to arrange for the conduct of an election for all offices in the demerged Branches by the Australian Electoral Commission.
25.The elections referred to in clause 23 are to be held to fill the vacant offices until the completion of elections to be held in 2014 under rule 29 of the Rules.
26.The Administrator must do all things necessary to facilitate the conduct of the elections, including all those things required to be done by a Committee of Management of an organisation under the Act.
27.During the period of administration the Administrator shall not:
27.1permit the use of the funds or resources of the NSW Union, the HSU East Branch or the demerged Branches for campaigning or electioneering;
27.2permit the employees of the NSW Union, the HSU East Branch or the demerged Branches to campaign or electioneer during their working hours; and
27.3permit any electioneering or campaign material to be posted on the website of the NSW Union, the HSU East Branch or the demerged Branches.
28.The Administrator shall use his best endeavours to ensure the completion of the administration within 120 days of the date of the Order, or such further time as the Court may allow.
29.The Administrator shall cease to act under this Scheme on the declaration of the results of the elections provided for in paragraph 23.
Payment of the Administrator
30.The NSW Union shall pay the fees and expenses of the Administrator of carrying out his functions under this scheme.
ANNEXURE A
List of Officers
Title of Office
Name
General Secretary/Treasurer
WILLIAMSON
Michael Alexander
Deputy General Secretary
MYLAN
Peter James
Deputy General Secretary
BOLANO
Marco
Divisional Secretary
MILLER
Stuart
Divisional Secretary
HAYES
Gerard John
Divisional Assistant Secretary SEYMOUR Kerrie Divisional Assistant Secretary
YEATES
Bryan
Executive President JACKSON Kathy General Representatives - NSW
General Representative CONROY Graham General Representative COWDREY Jodie Therese General Representative FELTHAM Rodney Keith General Representative GIBLETT Zelda Vivienne General Representative GILCHRIST Lachlan General Representative GILKINSON Christine General Representative HALL Adam General Representative HAZELWOOD Kim General Representative HULL Robert Darcy General Representative HUMPHRIES Angela General Representative IRVINE Monique Louise General Representative MCINTOSH Kenneth Hector General Representative MULLER Kim General Representative
O’DONNELL
Michael
General Representative SANTANGELO John General Representative THORBURN Tim General Representative TURELLO Beverley List of Ordinary Members of Union Council
Title of Office
Name
President
POLLARD
Stephen
Vice President
KNIGHT
Iris
Vice President
O’CONNOR
Sean
Ordinary Member
AGIUS
Terry
Ordinary Member
AUGOUSTAKIS
Lia
Ordinary Member BEATON Peter Ordinary Member
BOWLES
Stuart
Ordinary Member BRASIER Shane Ordinary Member BURNS Leanne Ordinary Member BUSH Leigh Ordinary Member CATHERINE Gino Ordinary Member DAVIDSON Brett Ordinary Member DIXON Reuben Ordinary Member DUNLOP Jenny Ordinary Member DUNN Ray Ordinary Member EDWARDS Grahame Ordinary Member FITZROY John Ordinary Member FLYNN Leonie Ordinary Member GOODLOCK Kim Ordinary Member GRAHAM Julie Ordinary Member GRAY Barbara Ordinary Member GRECH Joe Ordinary Member GUYMER Lynnette Ordinary Member HAYNES Sharalyn Ordinary Member HINDSON Mark Ordinary Member HINGE Ted Ordinary Member JOSEPH Sharon Ordinary Member KERR Phillip Ordinary Member MAGNUSSON Lisa Ordinary Member MARTIN Linden Ordinary Member MCCULLOUGH Sharon Ordinary Member NENADOVIC Melica Ordinary Member NEUMANN Deborah Anne Ordinary Member O’BRIEN Patrick Ordinary Member O’NEILL Pauline Ordinary Member PAPARAS Jim Ordinary Member RILEY Vicki Ordinary Member ROWLING Bruce Ordinary Member RUSSELL Lynne Ordinary Member SCIDONE Loredana Ordinary Member SHAO Zi Sheng (Sam) Ordinary Member SHEPHERD Lyn Ordinary Member SIGISMONDI Stephen Ordinary Member SMITH Clarence Ordinary Member STERREY Mark Ordinary Member THOMPSON Lynette Ordinary Member VEALEY David Ordinary Member VILLANUEVA Jimmy Ordinary Member WHEELHOUSE Tammie Ordinary Member WILKINSON Kate National Councillors
Title of Office
Name
National Councillor EDWARDS Grahame National Councillor HARPLEY Steven National Councillor HEWAT Andrew National Councillor MCINTOSH Deirdre National Councillor NENADOVIC Melica National Councillor O’CONNOR Sean National Councillor VESPUCCI Adriana ANNEXURE B
List of Officers
Title of Office
Name
General Secretary/Treasurer
WILLIAMSON
Michael Alexander
Deputy General Secretary
MYLAN
Peter James
Deputy General Secretary
BOLANO
Marco
Divisional Secretary
MILLER
Stuart
Divisional Secretary
HAYES
Gerard John
Divisional Assistant Secretary SEYMOUR Kerrie Divisional Assistant Secretary
YEATES
Bryan
Executive President JACKSON Kathy General Representatives - NSW
General Representative CONROY Graham General Representative COWDREY Jodie Therese General Representative FELTHAM Rodney Keith General Representative GIBLETT Zelda Vivienne General Representative GILCHRIST Lachlan General Representative GILKINSON Christine General Representative HALL Adam General Representative HAZELWOOD Kim General Representative HULL Robert Darcy General Representative HUMPHRIES Angela General Representative IRVINE Monique Louise General Representative MCINTOSH Kenneth Hector General Representative MULLER Kim General Representative
O’DONNELL
Michael
General Representative SANTANGELO John General Representative THORBURN Tim General Representative TURELLO Beverley List of Ordinary Members of Union Council
Title of Office
Name
President
POLLARD
Stephen
Vice President
KNIGHT
Iris
Vice President
O’CONNOR
Sean
Ordinary Member
AGIUS
Terry
Ordinary Member
AUGOUSTAKIS
Lia
Ordinary Member BEATON Peter Ordinary Member
BOWLES
Stuart
Ordinary Member BRASIER Shane Ordinary Member BURNS Leanne Ordinary Member BUSH Leigh Ordinary Member CATHERINE Gino Ordinary Member DAVIDSON Brett Ordinary Member DIXON Reuben Ordinary Member DUNLOP Jenny Ordinary Member DUNN Ray Ordinary Member EDWARDS Grahame Ordinary Member FITZROY John Ordinary Member FLYNN Leonie Ordinary Member GOODLOCK Kim Ordinary Member GRAHAM Julie Ordinary Member GRAY Barbara Ordinary Member GRECH Joe Ordinary Member GUYMER Lynnette Ordinary Member HAYNES Sharalyn Ordinary Member HINDSON Mark Ordinary Member HINGE Ted Ordinary Member JOSEPH Sharon Ordinary Member KERR Phillip Ordinary Member MAGNUSSON Lisa Ordinary Member MARTIN Linden Ordinary Member MCCULLOUGH Sharon Ordinary Member NENADOVIC Melica Ordinary Member NEUMANN Deborah Anne Ordinary Member O’BRIEN Patrick Ordinary Member O’NEILL Pauline Ordinary Member PAPARAS Jim Ordinary Member RILEY Vicki Ordinary Member ROWLING Bruce Ordinary Member RUSSELL Lynne Ordinary Member SCIDONE Loredana Ordinary Member SHAO Zi Sheng (Sam) Ordinary Member SHEPHERD Lyn Ordinary Member SIGISMONDI Stephen Ordinary Member SMITH Clarence Ordinary Member STERREY Mark Ordinary Member THOMPSON Lynette Ordinary Member VEALEY David Ordinary Member VILLANUEVA Jimmy Ordinary Member WHEELHOUSE Tammie Ordinary Member WILKINSON Kate Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
FAIR WORK DIVISION
NSD 735 of 2012
BETWEEN: HSUeast
ApplicantAND: NSW MINISTER FOR FINANCE AND SERVICES AND OTHERS NAMED IN THE SCHEDULE
Respondent
JUDGE:
FLICK J
DATE OF ORDER:
21 JUNE 2012
WHERE MADE:
SYDNEY
THE COURT MAKES THE FOLLOWING DECLARATIONS AND ORDERS:
1.A declaration under section 323(1) of the Fair Work (Registered Organisations) Act 2009 (Cth) that the HSU East Branch of the Health Services Union has ceased to function effectively and that there are no effective means under the rules of the organisation by which it can be enabled to function effectively.
2.A declaration under section 290B of the Industrial Relations Act 1996 (NSW), that HSUeast has ceased to function effectively and that there are no effective means under the rules of the organisation by which it can be enabled to function effectively.
3.An order under section 323(2) of the Fair Work (Registered Organisations) Act 2009 (Cth), that the scheme attached as Appendix A be approved in relation to the HSU East Branch of the Health Services Union.
4.An order under section 290B(8) of the Industrial Relations Act 1996 (NSW) that the scheme attached as Appendix A be approved in relation to HSUeast.
5.An order that the Honourable Michael Francis Moore be appointed administrator of the HSU East Branch of the Health Services Union under the scheme approved in order 3 above.
6.An order that the Honourable Michael Francis Moore be appointed administrator of HSUeast under the scheme approved in order 4 above.
7.An order that all offices in the HSU East Branch of the Health Services Union of Australia, identified in Annexure A to Appendix A, be vacated.
8.An order that all offices in HSUeast, identified in Annexure B to Appendix A, be vacated.
9.An order that, in the event of any difficulty arising in the course of the implementation of the Scheme, the Administrator, the Applicants or any person represented in the proceeding shall have liberty to apply on 72 hours written notice.
APPENDIX A
Interpretation
1.For the purposes of this Scheme, unless the contrary intention appears:
1.1The Act means the Fair Work (Registered Organisations) Act 2009 (Cth);
1.2The Administrator means the person appointed under clause 2.3 or 15 of the Scheme, as the case may be;
1.3The Court means the Federal Court of Australia;
1.4The Commission means the Industrial Relations Commission of New South Wales;
1.5The demerged Branches means the NSW Branch of the HSU, the Victorian No 1 Branch of the HSU and the Victorian No 3 Branch of the HSU.
1.6HSU means the Health Services Union, an organisation registered under the Act;
1.7HSU East Branch means the Branch of the HSU confirmed by Rule 48(a) of the Rules;
1.8The IR Act means the Industrial Relations Act 1996 (NSW);
1.9The Merger Date means 24 May 2010, being the day on which the Rules were amended to create the HSU East Branch and make consequential amendments;
1.10The NSW Union means HSU East, a State Industrial Organisation registered under the IR Act;
1.11The NSW Union Rules means the rules of the NSW Union;
1.12The Order means the orders of the Court approving this Scheme under s 323 of the Act and s 290B of the IR Act;
1.13The Rules means the Rules of the HSU.
Appointment of Administrator
2.On the making of the Order:
2.1all elected offices in the HSU East Branch (as set out in Annexure A) shall be declared by the Court to be vacant;
2.2clause 2.1 does not affect the continued employment of persons (including organisers) whose employment is not connected with an office vacated as a result of clause 2.1; and
2.3the Honourable Michael Moore shall be appointed by order of the Court as the Administrator of the HSU East Branch.
3.On the making of the Order:
3.1all elected offices in the NSW Union (as set out in Annexure B) shall be declared by the Court to be vacant; and
3.2clause 3.1 does not affect the continued employment of persons (including organisers) whose employment is not connected with an office vacated as a result of clause 3.1; and
3.3the Honourable Michael Moore shall be appointed by order of the Court as the Administrator of the NSW Union.
4.Within seven days of the making of the Order, those persons whose offices are declared vacant in clauses 2 and 3 shall return to the Administrator all property (including credit cards) of the HSU or the NSW Union, as the case may be, in their possession.
5.As and from the making of the Order and for the period of the administration, the Administrator:
5.1shall have and exercise such powers and duties of the Union Council (being the HSU East Branch Committee), the HSU East Branch Officers and the HSU East Branch Executive Committee as are conferred on those bodies by the Rules and the Act;
5.2shall have and exercise such powers and duties of the Union Council of the NSW Union, the Executive Committee of the NSW Union and the Officers of the NSW Union as are conferred on those bodies by the NSW Union Rules and the IR Act; and
5.3without limiting the foregoing, the Administrator shall have power to bring proceedings in the name of the NSW Union, for the recovery of any funds of the NSW Union, misappropriated by any person, and for the imposition of penalties and the awarding of compensation as may be available under the IR Act.
6.For the avoidance of doubt, the Administrator shall have full power to engage such employees and consultants as the Administrator deems necessary to enable the Administrator to carry out the duties and functions conferred on the Administrator under this Scheme.
7.For the further avoidance of doubt and notwithstanding any provisions of the Rules of the HSU, the Administrator may appoint any person deemed suitable to him as a proxy to represent him at any meeting of the National Council or National Executive of the HSU provided that a separate written appointment is made for each such meeting, and each such instrument may provide instructions to the proxy as to how the proxy should vote and must do so in the event of a vote being required on any matter that, in the opinion of the Administrator, may adversely affect the interests of the members of the HSU East Branch. To avoid doubt any such instructions may include a direction to abstain from voting.
8.Without limiting the foregoing, the Administrator may, upon giving 72 hours’ written notice to the Applicants or any person represented in the proceeding, apply to the Court for the appointment of a separate or further Administrator to assist with the administration of the NSW Union, HSU East Branch and the demerged Branches under this Scheme.
9.Further, the Administrator shall ensure that any charges under the Rules or the NSW Union Rules laid against any member be dealt with expeditiously and in accordance with the relevant rules.
10.The Administrator shall co-operate with the investigation conducted by Ian Temby QC and Dennis Robertson and any other investigations of the conduct of officers or employees of the HSU East Branch or the NSW Union.
Roll of Members and Preparation of Accounts
11.The Administrator shall, as soon as is reasonably practicable after the date of the Order, prepare the following lists of members of the HSU East Branch as at the date of the Order, and shall state whether the member was financial or unfinancial as at the date of the Order:
11.1A list of all of the members employed in New South Wales and the Australian Capital Territory (the NSW Members);
11.2A list of all of the members employed in Victoria who would be eligible to a member of the Victoria No 1 Branch in accordance with the Rules as in force immediately before the Merger Date (the No 1 Branch members) if those Rules had continued in force at the time of the Order;
11.3A list of all of the members employed in Victoria who would be eligible to a member of the Victoria No 3 Branch in accordance with the Rules as in force immediately before the Merger Date (the No 3 Branch members) if those Rules had continued in force at the time of the Order.
12.Any person joining the HSU East Branch after the date of the Order shall be placed on the list that would be applicable had they been a member at the date of the Order, and shall for the purposes of the Scheme form part of the respective list.
13.The Administrator shall, as soon is reasonably practicable after the date of the Order cause to be prepared:
13.1Financial accounts, setting out the assets and liabilities, of the HSU East Branch; and
13.2Financial accounts, setting out the assets and liabilities, of the NSW Union.
14.The Administrator shall establish and implement internal control policies and procedures to ensure the HSU East Branch and the New South Wales Union are conducted in accordance with the principles of good corporate governance and to ensure accountability to the members of the HSU East Branch and New South Wales Union.
15.Notwithstanding anything to the contrary in the Rules of the HSU, on the completion of the preparation of the member lists and accounts as referred to in clauses 10 and 12, the Administrator shall:
15.1alter the Rules of the HSU, so as to reinstate them to the form they were in immediately before the Merger Date, in so far as they provided for the NSW Branch, the Victoria No 1 Branch and the Victoria No 3 Branch;
15.2if required, in the opinion of the Administrator, strengthen the financial accountability and good governance of the NSW Branch, the Victoria No 1 Branch and the Victoria No 3 Branch; and
15.3lodge with Fair Work Australia, particulars of the alterations and seek the certification of General Manager of Fair Work Australia under section 159 of the Act.
16.Upon the certification of the alterations referred to in clause 14 (the Amendment Date), (which will, among other things, disband the HSU East Branch and constitute the NSW Branch, the Victoria No 1 Branch and the Victoria No 3 Branch), the Administrator shall, by order of the Court be appointed administrator of the NSW Branch, the Victoria No 1 Branch and the Victoria No 3 Branch to exercise the powers and duties of office holders of those Branches as provided for in the Rules as amended pursuant to the Order of the Court.
17.On the Amendment Date:
17.1the NSW Members shall be assigned to and become members of the NSW Branch;
17.2the No 1 Branch Members shall be assigned to and become members of the No 1 Branch; and
17.3the No 3 Branch Members shall be assigned to and become members of the No 3 Branch.
18.On the Amendment Date, the Administrator shall apportion and distribute the assets and liabilities of the NSW Union and the HSU East Branch to the NSW Union and the demerged Branches having regard to:
18.1the proportion of assets and liabilities that each Branch contributed to the HSU Branch at the Merger Date;
18.2the proportion of assets and liabilities that each Branch contributed to the NSW Union;
18.3the respective number of members of each Branch;
18.4the income and expenses of the HSU East Branch and the NSW Union since the Merger Date; and
18.5what the Administrator considers is fair, just and appropriate in the circumstances.
19.Any member of the HSU or the NSW Union holding real or personal property of the HSU or the NSW Union, whether as registered proprietor, trustee or otherwise, shall, at the request of the Administrator deliver up or transfer such property to the Administrator.
20.The Administrator will take all reasonable steps to ensure that as and from the Amendment Date, dues paid by members, including by way of direct debit or payroll deduction, of the demerged Branches are paid to the respective Branch in which the members are assigned.
21.Notwithstanding anything to the contrary in the Rules of the NSW Union, the Administrator of the NSW Union shall, on the completion of the preparation of the member lists and accounts as referred to in clauses 10 and 12:
21.1alter the Rules of the NSW Union, so as to reinstate them to the form in which they existed immediately before the rule change consented to by the Acting Deputy Industrial Registrar in accordance with the decision of Boland J in Health Services Union [2010] NSWIRComm 107 (30 July 2010);
21.2if required, in the opinion of the Administrator, strengthen the financial accountability and good governance of the NSW Union;
21.3Ensure that the current rule 18A of the rules of the NSW Union provides that persons elected to officers in the NSW Branch of the HSU will be taken to be validly elected to the corresponding office in the NSW Union; and
21.4lodge with the Commission, particulars of the alterations and seek the consent of the Industrial Registrar under section 245 of the IR Act.
22.The Administrator shall develop and implement policies to ensure that after the Amendment Date the NSW Union and the demerged Branches will be representative of and accountable to their members, will be able to operate effectively, will encourage members to participate in the affairs of the Branch to which they belong and will encourage the democratic functioning and control of the Branch.
23.If in the opinion of the Administrator it is necessary or appropriate to do so, the Administrator shall alter the Rules and the NSW Union Rules so as to ensure that after the Amendment Date the NSW Union and the demerged Branches will continue to be representative of and accountable to their members, will continue to be able to operate effectively, will continue to encourage members to participate in the affairs of the NSW Union and the demerged Branches to which they belong, and will continue to encourage the democratic functioning and control of the NSW Union and the demerged Branches and take such steps as are necessary to obtain certification under the Act or consent under the IR Act as the case may be.
Elections
24.The Administrator shall:
24.1on the completion of the steps set out in paragraphs 14 to 22; and
24.2when he is satisfied that the policies referred to in paragraph 21 have been implemented;
request the General Manager of Fair Work Australia to arrange for the conduct of an election for all offices in the demerged Branches by the Australian Electoral Commission.
25.The elections referred to in clause 23 are to be held to fill the vacant offices until the completion of elections to be held in 2014 under rule 29 of the Rules.
26.The Administrator must do all things necessary to facilitate the conduct of the elections, including all those things required to be done by a Committee of Management of an organisation under the Act.
27.During the period of administration the Administrator shall not:
27.1permit the use of the funds or resources of the NSW Union, the HSU East Branch or the demerged Branches for campaigning or electioneering;
27.2permit the employees of the NSW Union, the HSU East Branch or the demerged Branches to campaign or electioneer during their working hours; and
27.3permit any electioneering or campaign material to be posted on the website of the NSW Union, the HSU East Branch or the demerged Branches.
28.The Administrator shall use his best endeavours to ensure the completion of the administration within 120 days of the date of the Order, or such further time as the Court may allow.
29.The Administrator shall cease to act under this Scheme on the declaration of the results of the elections provided for in paragraph 23.
Payment of the Administrator
30.The NSW Union shall pay the fees and expenses of the Administrator of carrying out his functions under this scheme.
ANNEXURE A
List of Officers
Title of Office
Name
General Secretary/Treasurer
WILLIAMSON
Michael Alexander
Deputy General Secretary
MYLAN
Peter James
Deputy General Secretary
BOLANO
Marco
Divisional Secretary
MILLER
Stuart
Divisional Secretary
HAYES
Gerard John
Divisional Assistant Secretary SEYMOUR Kerrie Divisional Assistant Secretary
YEATES
Bryan
Executive President JACKSON Kathy General Representatives - NSW
General Representative CONROY Graham General Representative COWDREY Jodie Therese General Representative FELTHAM Rodney Keith General Representative GIBLETT Zelda Vivienne General Representative GILCHRIST Lachlan General Representative GILKINSON Christine General Representative HALL Adam General Representative HAZELWOOD Kim General Representative HULL Robert Darcy General Representative HUMPHRIES Angela General Representative IRVINE Monique Louise General Representative MCINTOSH Kenneth Hector General Representative MULLER Kim General Representative
O’DONNELL
Michael
General Representative SANTANGELO John General Representative THORBURN Tim General Representative TURELLO Beverley List of Ordinary Members of Union Council
Title of Office
Name
President
POLLARD
Stephen
Vice President
KNIGHT
Iris
Vice President
O’CONNOR
Sean
Ordinary Member
AGIUS
Terry
Ordinary Member
AUGOUSTAKIS
Lia
Ordinary Member BEATON Peter Ordinary Member
BOWLES
Stuart
Ordinary Member BRASIER Shane Ordinary Member BURNS Leanne Ordinary Member BUSH Leigh Ordinary Member CATHERINE Gino Ordinary Member DAVIDSON Brett Ordinary Member DIXON Reuben Ordinary Member DUNLOP Jenny Ordinary Member DUNN Ray Ordinary Member EDWARDS Grahame Ordinary Member FITZROY John Ordinary Member FLYNN Leonie Ordinary Member GOODLOCK Kim Ordinary Member GRAHAM Julie Ordinary Member GRAY Barbara Ordinary Member GRECH Joe Ordinary Member GUYMER Lynnette Ordinary Member HAYNES Sharalyn Ordinary Member HINDSON Mark Ordinary Member HINGE Ted Ordinary Member JOSEPH Sharon Ordinary Member KERR Phillip Ordinary Member MAGNUSSON Lisa Ordinary Member MARTIN Linden Ordinary Member MCCULLOUGH Sharon Ordinary Member NENADOVIC Melica Ordinary Member NEUMANN Deborah Anne Ordinary Member O’BRIEN Patrick Ordinary Member O’NEILL Pauline Ordinary Member PAPARAS Jim Ordinary Member RILEY Vicki Ordinary Member ROWLING Bruce Ordinary Member RUSSELL Lynne Ordinary Member SCIDONE Loredana Ordinary Member SHAO Zi Sheng (Sam) Ordinary Member SHEPHERD Lyn Ordinary Member SIGISMONDI Stephen Ordinary Member SMITH Clarence Ordinary Member STERREY Mark Ordinary Member THOMPSON Lynette Ordinary Member VEALEY David Ordinary Member VILLANUEVA Jimmy Ordinary Member WHEELHOUSE Tammie Ordinary Member WILKINSON Kate National Councillors
Title of Office
Name
National Councillor EDWARDS Grahame National Councillor HARPLEY Steven National Councillor HEWAT Andrew National Councillor MCINTOSH Deirdre National Councillor NENADOVIC Melica National Councillor O’CONNOR Sean National Councillor VESPUCCI Adriana ANNEXURE B
List of Officers
Title of Office
Name
General Secretary/Treasurer
WILLIAMSON
Michael Alexander
Deputy General Secretary
MYLAN
Peter James
Deputy General Secretary
BOLANO
Marco
Divisional Secretary
MILLER
Stuart
Divisional Secretary
HAYES
Gerard John
Divisional Assistant Secretary SEYMOUR Kerrie Divisional Assistant Secretary
YEATES
Bryan
Executive President JACKSON Kathy General Representatives - NSW
General Representative CONROY Graham General Representative COWDREY Jodie Therese General Representative FELTHAM Rodney Keith General Representative GIBLETT Zelda Vivienne General Representative GILCHRIST Lachlan General Representative GILKINSON Christine General Representative HALL Adam General Representative HAZELWOOD Kim General Representative HULL Robert Darcy General Representative HUMPHRIES Angela General Representative IRVINE Monique Louise General Representative MCINTOSH Kenneth Hector General Representative MULLER Kim General Representative
O’DONNELL
Michael
General Representative SANTANGELO John General Representative THORBURN Tim General Representative TURELLO Beverley List of Ordinary Members of Union Council
Title of Office
Name
President
POLLARD
Stephen
Vice President
KNIGHT
Iris
Vice President
O’CONNOR
Sean
Ordinary Member
AGIUS
Terry
Ordinary Member
AUGOUSTAKIS
Lia
Ordinary Member BEATON Peter Ordinary Member
BOWLES
Stuart
Ordinary Member BRASIER Shane Ordinary Member BURNS Leanne Ordinary Member BUSH Leigh Ordinary Member CATHERINE Gino Ordinary Member DAVIDSON Brett Ordinary Member DIXON Reuben Ordinary Member DUNLOP Jenny Ordinary Member DUNN Ray Ordinary Member EDWARDS Grahame Ordinary Member FITZROY John Ordinary Member FLYNN Leonie Ordinary Member GOODLOCK Kim Ordinary Member GRAHAM Julie Ordinary Member GRAY Barbara Ordinary Member GRECH Joe Ordinary Member GUYMER Lynnette Ordinary Member HAYNES Sharalyn Ordinary Member HINDSON Mark Ordinary Member HINGE Ted Ordinary Member JOSEPH Sharon Ordinary Member KERR Phillip Ordinary Member MAGNUSSON Lisa Ordinary Member MARTIN Linden Ordinary Member MCCULLOUGH Sharon Ordinary Member NENADOVIC Melica Ordinary Member NEUMANN Deborah Anne Ordinary Member O’BRIEN Patrick Ordinary Member O’NEILL Pauline Ordinary Member PAPARAS Jim Ordinary Member RILEY Vicki Ordinary Member ROWLING Bruce Ordinary Member RUSSELL Lynne Ordinary Member SCIDONE Loredana Ordinary Member SHAO Zi Sheng (Sam) Ordinary Member SHEPHERD Lyn Ordinary Member SIGISMONDI Stephen Ordinary Member SMITH Clarence Ordinary Member STERREY Mark Ordinary Member THOMPSON Lynette Ordinary Member VEALEY David Ordinary Member VILLANUEVA Jimmy Ordinary Member WHEELHOUSE Tammie Ordinary Member WILKINSON Kate Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
FAIR WORK DIVISION
NSD 621 of 2012
BETWEEN: CHRISTOPHER PAUL BROWN AND OTHERS NAMED IN THE SCHEDULE
ApplicantAND: HEALTH SERVICES UNION AND OTHERS NAMED IN SCHEDULE
Respondent
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
FAIR WORK DIVISION
NSD 735 of 2012
BETWEEN: HSU EAST
ApplicantAND: NSW MINISTER FOR FINANCE AND SERVICES AND OTHERS NAMED IN SCHEDULE
Respondent
JUDGE:
FLICK J
DATE:
21 JUNE 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
There has in recent times been considerable disruption and publicity in respect to the activities of what has been identified as the “Health Services Union” or the “HSU”.
More accurately, what is being referred to is a state-registered industrial organisation and an autonomous branch of a federally-registered union. Little distinction has been publicly drawn between the state-registered HSUeast union and the federally-registered HSU East Branch. HSUeast (‘the State Union’) is an organisation of employees registered under the Industrial Relations Act 1996 (NSW) (‘the State Industrial Relations Act’). The HSU East Branch (‘the Federal Branch’) is a branch of the Health Services Union. The Health Services Union (‘the Federal Union’) is an organisation of employees registered under the Fair Work (Registered Organisations) Act2009 (Cth) (‘the Commonwealth Registered Organisations Act”).
The considerable media attention that has attended the activities of the Federal Branch and the State Union may be traced back to at least September 2011. On 10 September 2011 it was widely publicised that Ms Katherine Jackson had referred allegations of corruption levelled at Mr Michael Williamson (the Secretary of the State Union and the Federal Branch as well as the President of the Federal Union) to the New South Wales Police.
The unhappy events in which both the Federal Branch and the State Union have been embroiled have ultimately led (inter alia) to a number of proceedings commenced both in this Court and the Industrial Court of New South Wales.
When the proceedings came before the Court for hearing on Tuesday 5 June 2012 there were four proceedings on foot, namely:
·an application commenced by Ms Katherine Jackson on 20 April 2012. Ms Jackson, describes herself as a Union Official in the State of Victoria. She is the Executive President of the State Union and the Federal Branch as well as the National Secretary of the Federal Union. Her Originating Application sought relief (inter alia) pursuant to s 164 of the Commonwealth Registered Organisations Act;
·an application by the Federal Minister for Employment and Workplace Relations (‘the Federal Minister’). That Application sought a “declaration under section 323(1) of the Fair Work (Registered Organisations) Act 2009 (Cth) that the HSU East Branch has ceased to function effectively and there are no effective means under the rules of the organisation by which it can be enabled to function effectively” as well as similar declaration in respect of the State Union;
·an application commenced on 2 May 2012 by Mr Christopher Paul Brown and several other members of the Federal Union. Mr Brown is the Vice-President of the Federal Union, Branch Secretary of the Tasmanian No 1 Branch of the Federal Union and has also been the Acting National President of the Union since Mr Michael Williamson stepped aside on 23 September 2011. That Originating Application was in substantially similar terms to the Minister’s Originating Application; and
·a proceeding of the New South Wales Industrial Court which was transferred to this Court pursuant to orders made by S G Campbell J of the Supreme Court of New South Wales. His Honour published his reasons for decision for transferring the proceeding before that Court pursuant to the Jurisdiction of Courts (Cross-Vesting) Act1987 (NSW) on 23 May 2012: Katherine Jackson v Peter James Mylan [2012] NSWSC 552. The Applicants in this proceeding sought a declaration in identical terms to the Applications by Mr Brown and the Federal Minister, but pursuant to s 290B of the State Industrial Relations Act.
By the end of the hearing on 7 June 2012, only two proceedings remained. Ms Jackson’s Counsel sought and were granted leave to discontinue her Application on 7 June 2012. A Notice of Discontinuance was filed in Court that day. Senior Counsel for the Federal Minister had earlier sought and was granted leave to discontinue his proceeding on 6 June 2012 and filed a Notice of Discontinuance in Court that day.
Leave was granted to Mr Brown on 6 June 2012 to file an Amended Application. The Application as amended sought (inter alia) declaratory relief under s 290B of the State Industrial Relations Act in respect to the State Union and declaratory relief under s 323 of the Commonwealth Registered Organisations Act in respect to the Federal Branch.
The two remaining proceedings focused attention upon the orders to be made, if any, against the Federal Branch and/or the State Union.
These two proceedings were heard together. Orders were made that the evidence in one proceeding was also to be evidence in the other. Orders were also made that evidence filed in the Federal Minister’s discontinued proceeding would be evidence in the remaining proceedings.
The proceedings commenced in this Court were initially set down for hearing for 3 weeks at a directions hearing on 3 May. At a later directions hearing on 31 May 2012 this estimate was considerably reduced. At that stage it emerged that the parties were in agreement that:
·both the Federal Branch and the State Union had ceased to function effectively; and that
·there were no effective means under the rules of either organisation whereby the difficulties could be effectively resolved.
There was also substantial agreement between the parties as to:
·the facts necessary to resolve each of the proceedings;
·the appropriateness of making declaratory relief that both the Federal Branch and the State Union had ceased to function effectively; and
·the desirability of an administrator being appointed.
Three areas of concern were then identified as requiring particular attention, namely:
· whether the Federal Branch should be “demerged”;
·the terms of the “scheme” to be approved; and
·the identity of the administrator or administrators.
All parties agreed that it would be unnecessary for the Court to resolve the merits of the competing allegations of misconduct by union officials or other persons. The very fact that there were competing allegations being made by and against members, it was said, went to the heart of why both the Federal Branch and the State Union had ceased to function effectively.
Notwithstanding the substantial narrowing of the issues, it remains necessary to address – albeit in less detail than would otherwise have been the case – the following matters:
·the factual background leading to the establishment of the Federal Branch and the State Union in their present form;
·the powers to be exercised by this Court;
·the jurisdiction of the Court, particularly in relation to the orders and declarations sought in respect of the State Union;
·the parties to the two remaining proceedings, including the status of those who are said to have intervened and those who have sought to be heard;
·the factual basis supporting any conclusion that both the Federal Branch and State Union have “ceased to function effectively”;
·the basis upon which it should be concluded that there are “no effective means under the rules” that would enable the Federal Branch or the State union to resolve the difficulties dividing the “factions” and the “antagonism” between those “factions”;
·the basis for granting declaratory relief (if any);
·if declaratory relief is granted, the exercise of the discretion to approve a scheme; and
·the terms of the scheme to be approved, including whether or not there is power to appoint an administrator; whether there should be a vacation of all offices and whether there should be an immediate demerger of the Federal Branch.
A further application foreshadowed on 5 June 2012 – principally by Senior Counsel for the State Union – was the need for this Court to give consideration to the appointment of an interim administrator pursuant to s 290B(3) of the State Industrial Relations Act. Pursuant to s 290B(4) the State Minister, so it was contended on his behalf, also retained power to appoint an interim administrator. That power, it was contended, could be exercised from Monday 11 June 2012 if the Court had not already taken the step of making such an order. This application was deferred until Friday 8 June 2012 in the hope that the State Minister would agree to defer the exercise of any such power as remained with him to enable this Court to resolve the Applications before it on a final basis. Regrettably, and perhaps inexplicably, the State Minister would not commit himself to refraining from exercising or purporting to exercise the power conferred by s 290B(4).
On 8 June 2012 the manner in which the proceedings had been conducted up to that point was challenged. A number of oral applications were either made or (at the very least) foreshadowed by Ms Jackson at that time. Those applications included an application that the Court as presently constituted be disqualified on the grounds of apprehended bias, an application that the proceedings be adjourned, and an application to (in effect) reopen the evidence.
At the conclusion of the hearing on 8 June 2012 the Court appointed the Honourable Michael Moore as an interim administrator of the Federal Branch and the State Union.
The hearing was adjourned part heard until 15 June 2012. The hearing concluded on that day.
THE EMERGENCE OF HSUEAST AND THE FEDERAL HSU EAST BRANCH
The origin of both the Federal Branch and the State Union is relevant in that it throws some light upon:
·the foundations of the so-called “factional” fighting and whether the continued existence of those “factions” and their ongoing disputation are such that the Court should conclude that the Federal Branch and/or the State Union has ceased to “function effectively”;
·whether changes to the rules, particularly in respect to the State Union, were valid – the potential invalidity of those rules assuming possible relevance to both the availability of existing rules to remedy the disputes that had emerged and also the question as to whether there should be a “demerger”; and
·the content of any scheme which the Court may approve.
These origins should thus be briefly recounted.
Within New South Wales, the predecessor of the State Union in its present form was first registered in October 1911. It was then known as the Hospital and Asylum Employees’ Union of New South Wales. In 1924 it changed its name to the Hospital Employees’ Association of New South Wales and in October 1935 it amalgamated with the Crown Employees’ Hospital and Homes Association of New South Wales to form the Amalgamated Hospitals, Homes and Laboratories Employees’ Association of New South Wales. It thereafter underwent a further series of transformations. The evolution of the union has been traced in considerable detail in the July 2010 decision of the New South Wales Industrial Court in Health Services Union [2010] NSWIRComm 107 at [1]-[14] per Boland J.
The Federal Union also has a long lineage. It can be traced back to 1911 when the Hospital and Asylum Attendants and Employees’ Union of Australia was first registered pursuant to the Conciliation and Arbitration Act1904 (Cth). As at 1991 the then Hospital Employees Federation of Australia amalgamated with the Health and Research Employees Association of Australia to form the Health Services Union of Australia, which later changed its name to Federal HSU. For present purposes, it may be noted that immediately prior to 24 May 2010 the Federal HSU consisted of the following branches:
·Victoria No. 1
·Victoria No. 2
·Victoria No. 3
·Victoria No. 4
·Tasmania No. 1
·Tasmania No. 2
·New South Wales
·South Australia
·Queensland
·Western Australia
On 24 May 2010 Fair Work Australia certified rule changes to the Rules of the Federal Union to give effect to the merger of the Victoria No 1 Branch and the Victoria No 3 Branch with the New South Wales Branch. The merged branch became the HSU East Branch.
The July 2010 decision of the New South Wales Industrial Court assumes importance because it was that decision which allowed the state-registered organisation to change its name to HSUeast and also allowed changes to the organisation’s rules. Those changes allowed for members who had been “elected to offices in a State branch of a federal organisation” (such as the Federal Branch) to be taken to be validly elected to the corresponding offices in a state-registered organisation (eg, the State Union).
The State Industrial Relations Act specifically provided for such a rule. Section 239 provided as follows:
Rules may provide for elections for offices in State branch of Federal organisation to be elections for purposes of State organisation
(1) The rules of a State organisation registered under this Chapter may provide that persons elected to offices in a State branch of a Federal organisation are taken to be validly elected to the corresponding offices in the State organisation registered under this Chapter if the Industrial Registrar is satisfied that:
(a) the membership of the State branch of the Federal organisation and the State organisation registered under this Chapter is identical or substantially similar, and
(b) the rules of the State branch of the Federal organisation relating to the election of the holders of offices comply substantially with the requirements relating to election of the holders of offices under this Act.
(2) The regulations may specify circumstances in which:
(a) the membership of organisations is or is not substantially similar for the purposes of subsection (1) (a), or
(b) the rules of an organisation comply or do not comply substantially with the relevant provisions for the purposes of subsection (1) (b).
(3) In this section, State branch of a Federal organisation means a State branch of an organisation registered under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth.
Two of the rule changes proposed were the insertion of rules 18A and 18B:
“18A. ELECTION TO OFFICE
On and from the date upon which the Industrial Registrar consents to this Rule and notwithstanding any other Rule, each person elected to an office in the HSU East Branch (“the Branch”) of the Health Services Union an organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth) (“the Federal Union”), shall be taken to be validly elected to the corresponding office in the Union if the Industrial Registrar is satisfied that: (a) the membership of the Branch and the Union is identical or substantially similar; and (b) the Rules of the Federal Union relating to the election of the holder of the relevant office comply substantially with the requirements relating to the election of the holders of office under the Industrial Relations Act 1996 (NSW). In the event that the Industrial Registrar is not satisfied as to (a) and (b), elections shall be conducted in accordance with the Rules of the Union.”
“18B. NOTICE TO INDUSTRIAL REGISTRY
As soon as the General Secretary of the Union becomes aware that the General Manager of Fair Work Australia has been requested to have an election conducted in the Branch of the Federal Union for any of the elected offices of member of the Union Council, President, Vice-President, General Secretary, Deputy General Secretary, Divisional Secretary, and Assistant Divisional Secretary, he/she shall in relation to that election by statutory declaration filed in the Industrial Registry (New South Wales) provide a summary of the facts relevant to determining whether or not the membership of the Union and the Branch of the Federal Union is identical or substantially similar and together with that statutory declaration file a certified copy of the Rules of the Federal Union relating to elections in that Branch.”
The Acting Deputy Industrial Registrar had refused to approve the proposed rule changes. But, on appeal, the President (Boland J) allowed the appeal and directed the Acting Deputy Industrial Registrar to consent to the rules alterations. In doing so, the President concluded as follows:
State Branch – the decision in Matter No R10/0117
[81] In the decision of 3 June 2010, the Acting Deputy Industrial Registrar determined that the HSU East Branch resulting from the amalgamation of the three federal Branches could not be regarded as a 'State Branch of a Federal Organisation' for the purposes of s 239.
[82] The letter of 16 June 2010 stated that rule 18A (which provided for the election of persons to offices in the HSU East Branch to be taken to be elected to the corresponding office in the State Union) and the related rule 18B should be removed from the rules because the HSU East Branch could not be regarded as a State Branch. By inference, the certification of proposed rules 18A and 18B was refused for that reason.
[83] As the appellant submitted, the letter of 16 June 2010 appears to base the refusal on a determination that the New South Wales Branch no longer exists because of the amalgamation with the Victorian Branches and, therefore, there was no corresponding State branch of a Federal organisation.
…
[87] The New South Wales Branch of the Federal Union (as constituted before the recently certified federal rule change) did not lose its status as a State Branch of a Federal Union because it had other branches of the Federal Union merged into it. As the appellant submitted, pursuant to the Rules, it was the New South Wales Branch that was the host, in terms of the merger.
[88] The purpose of s 239 is to promote harmony and to avoid duplication and unnecessary expense by allowing the rules of a State organisation to provide that persons elected to offices in a State branch of a Federal organisation are taken to be validly elected to the corresponding offices in the State organisation, subject to the relevant criteria being satisfied. It would be to thwart that purpose if a narrow meaning was applied to the words 'State branch of a Federal organisation'. It would mean, for example, that if a State organisation sought to amend its rules to provide that persons elected to offices in a branch of a Federal organisation were to be taken to be validly elected to the corresponding offices in the State organisation, that application presumably would be refused if the branch of the Federal organisation was regionally based or industry or occupationally based because it would not meet the description of 'State branch'. There are a number of prominent examples of Federal organisations with such branches. See for example: the Australian Workers Union; Australian Municipal, Administrative, Clerical and Services Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; and the Construction, Forestry, Mining and Energy Union.
There was no opposition to the proposed rule changes before Boland J.
The complementary Federal Union rule is r 68.
By this process of evolution what was originally the State Hospital and Asylum Employees’ Union of New South Wales emerged as HSUeast. Similarly, what was originally the Hospital and Asylum Attendants and Employees’ Union of Australia later emerged as the Federal HSU. The amalgamation of what were previously the Victoria No 1 and Victoria No 3 branches of the Federal Union with the New South Wales Branch became the HSU East Branch of the Federal Union.
Following amalgamation, certain officers who held positions in the Branches prior to the amalgamation were appointed to positions in the amalgamated Federal Branch. Elections were only held by the Federal Branch. The persons elected to offices in the Federal Branch were taken to have been elected to the corresponding offices in the State Union.
The number of members involved is considerable. The following table sets forth the number of members as at the dates indicated:
Branch Members Date HSU East 54,729 31 December 2011 Victoria No 2 6,408 31 December 2011 Victoria No 4 2,536 31 December 2011 Tasmania No 1 7.978 31 December 2011 Tasmania No 2 36 31 December 2010 South Australia 753 1 January 2011 Queensland 168 2003 Western Australia 5,375 31 December 2011 Pre-Merger New South Wales 35,711 31 December 2009 Victoria No 1 15,187 31 December 2009 Victoria No 3 5,080 31 December 2009
THE POWERS BEING EXERCISED
Declarations are sought that the Federal Branch and State Union have ceased to function effectively and that there are no effective means under the rules which can remedy the situation. Reference is made in the Originating Applications, either as initially filed or as amended, to s 323 of the Commonwealth Registered Organisations Act and to s 290B of the State Industrial Relations Act.
The legislative intention in enacting the Commonwealth Registered Organisations Act is set forth in s 5 of that Act as follows:
Parliament's intention in enacting this Act
(1) It is Parliament's intention in enacting this Act to enhance relations within workplaces between federal system employers and federal system employees and to reduce the adverse effects of industrial disputation.
(2) Parliament considers that those relations will be enhanced and those adverse effects will be reduced, if associations of employers and employees are required to meet the standards set out in this Act in order to gain the rights and privileges accorded to associations under this Act and the Fair Work Act.
(3) The standards set out in this Act:
(a) ensure that employer and employee organisations registered under this Act are representative of and accountable to their members, and are able to operate effectively; and
(b) encourage members to participate in the affairs of organisations to which they belong; and
(c) encourage the efficient management of organisations and high standards of accountability of organisations to their members; and
(d) provide for the democratic functioning and control of organisations; and
(e) facilitate the registration of a diverse range of employer and employee organisations.
(4) It is also Parliament's intention in enacting this Act to assist employers and employees to promote and protect their economic and social interests through the formation of employer and employee organisations, by providing for the registration of those associations and according rights and privileges to them once registered.
Section 323 of the Commonwealth Registered Organisations Act provides:
Federal Court may order reconstitution of branch etc.
(1) An organisation, a member of an organisation or any other person having a sufficient interest in relation to an organisation may apply to the Federal Court for a declaration that:
(a)a part of the organisation, including:
(i)a branch or part of a branch of the organisation; or
(ii)a collective body of the organisation or a branch of the organisation;
has ceased to exist or function effectively and there are no effective means under the rules of the organisation or branch by which it can be reconstituted or enabled to function effectively; or
(b)an office or position in the organisation or a branch of the organisation is vacant and there are no effective means under the rules of the organisation or branch to fill the office or position;
and the Court may make a declaration accordingly.
(2) Where the Court makes a declaration under subsection (1), the Court may, by order, approve a scheme for the taking of action by a collective body of the organisation or a branch of the organisation, or by an officer or officers of the organisation or a branch of the organisation:
(a)for the reconstitution of the branch, the part of the branch or the collective body; or
(b)to enable the branch, the part of the branch or the collective body to function effectively; or
(c)for the filling of the office or position.
(3) Where an order is made under this section, the Court may give any ancillary or consequential directions it considers appropriate.
(4) The Court must not make an order under this section unless it is satisfied that the order would not do substantial injustice to the organisation or any member of the organisation.
(5) The Court may determine:
(a)what notice, summons or rule to show cause is to be given to other persons of the intention to make an application or an order under this section; and
(b)whether and how the notice, summons or rule should be given or served and whether it should be advertised in any newspaper.
(6) An order or direction of the Court under this section, and any action taken in accordance with the order or direction, has effect in spite of anything in the rules of the organisation or a branch of the organisation.
(7) The Court must not under this section approve a scheme involving provision for an election for an office unless the scheme provides for the election to be held by a direct voting system or a collegiate electoral system.
An “organisation” is defined in s 6 of the Commonwealth Registered Organisations Act as an “organisation registered under this Act”. The Federal Union’s status as a registered organisation was not in issue.
I certify that the preceding one hundred and ninety-three (193) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate:
Dated: 21 June 2012
APPENDIX A
Interpretation
1.For the purposes of this Scheme, unless the contrary intention appears:
1.1The Act means the Fair Work (Registered Organisations) Act 2009 (Cth);
1.2The Administrator means the person appointed under clause 2.3 or 15 of the Scheme, as the case may be;
1.3The Court means the Federal Court of Australia;
1.4The Commission means the Industrial Relations Commission of New South Wales;
1.5The demerged Branches means the NSW Branch of the HSU, the Victorian No 1 Branch of the HSU and the Victorian No 3 Branch of the HSU.
1.6HSU means the Health Services Union, an organisation registered under the Act;
1.7HSU East Branch means the Branch of the HSU confirmed by Rule 48(a) of the Rules;
1.8The IR Act means the Industrial Relations Act 1996 (NSW);
1.9The Merger Date means 24 May 2010, being the day on which the Rules were amended to create the HSU East Branch and make consequential amendments;
1.10The NSW Union means HSU East, a State Industrial Organisation registered under the IR Act;
1.11The NSW Union Rules means the rules of the NSW Union;
1.12The Order means the orders of the Court approving this Scheme under s 323 of the Act and s 290B of the IR Act;
1.13The Rules means the Rules of the HSU.
Appointment of Administrator
2.On the making of the Order:
2.1all elected offices in the HSU East Branch (as set out in Annexure A) shall be declared by the Court to be vacant;
2.2clause 2.1 does not affect the continued employment of persons (including organisers) whose employment is not connected with an office vacated as a result of clause 2.1; and
2.3the Honourable Michael Moore shall be appointed by order of the Court as the Administrator of the HSU East Branch.
3.On the making of the Order:
3.1all elected offices in the NSW Union (as set out in Annexure B) shall be declared by the Court to be vacant; and
3.2clause 3.1 does not affect the continued employment of persons (including organisers) whose employment is not connected with an office vacated as a result of clause 3.1; and
3.3the Honourable Michael Moore shall be appointed by order of the Court as the Administrator of the NSW Union.
4.Within seven days of the making of the Order, those persons whose offices are declared vacant in clauses 2 and 3 shall return to the Administrator all property (including credit cards) of the HSU or the NSW Union, as the case may be, in their possession.
5.As and from the making of the Order and for the period of the administration, the Administrator:
5.1shall have and exercise such powers and duties of the Union Council (being the HSU East Branch Committee), the HSU East Branch Officers and the HSU East Branch Executive Committee as are conferred on those bodies by the Rules and the Act;
5.2shall have and exercise such powers and duties of the Union Council of the NSW Union, the Executive Committee of the NSW Union and the Officers of the NSW Union as are conferred on those bodies by the NSW Union Rules and the IR Act; and
5.3without limiting the foregoing, the Administrator shall have power to bring proceedings in the name of the NSW Union, for the recovery of any funds of the NSW Union, misappropriated by any person, and for the imposition of penalties and the awarding of compensation as may be available under the IR Act.
6.For the avoidance of doubt, the Administrator shall have full power to engage such employees and consultants as the Administrator deems necessary to enable the Administrator to carry out the duties and functions conferred on the Administrator under this Scheme.
7.For the further avoidance of doubt and notwithstanding any provisions of the Rules of the HSU, the Administrator may appoint any person deemed suitable to him as a proxy to represent him at any meeting of the National Council or National Executive of the HSU provided that a separate written appointment is made for each such meeting, and each such instrument may provide instructions to the proxy as to how the proxy should vote and must do so in the event of a vote being required on any matter that, in the opinion of the Administrator, may adversely affect the interests of the members of the HSU East Branch. To avoid doubt any such instructions may include a direction to abstain from voting.
8.Without limiting the foregoing, the Administrator may, upon giving 72 hours’ written notice to the Applicants or any person represented in the proceeding, apply to the Court for the appointment of a separate or further Administrator to assist with the administration of the NSW Union, HSU East Branch and the demerged Branches under this Scheme.
9.Further, the Administrator shall ensure that any charges under the Rules or the NSW Union Rules laid against any member be dealt with expeditiously and in accordance with the relevant rules.
10.The Administrator shall co-operate with the investigation conducted by Ian Temby QC and Dennis Robertson and any other investigations of the conduct of officers or employees of the HSU East Branch or the NSW Union.
Roll of Members and Preparation of Accounts
11.The Administrator shall, as soon as is reasonably practicable after the date of the Order, prepare the following lists of members of the HSU East Branch as at the date of the Order, and shall state whether the member was financial or unfinancial as at the date of the Order:
11.1A list of all of the members employed in New South Wales and the Australian Capital Territory (the NSW Members);
11.2A list of all of the members employed in Victoria who would be eligible to a member of the Victoria No 1 Branch in accordance with the Rules as in force immediately before the Merger Date (the No 1 Branch members) if those Rules had continued in force at the time of the Order;
11.3A list of all of the members employed in Victoria who would be eligible to a member of the Victoria No 3 Branch in accordance with the Rules as in force immediately before the Merger Date (the No 3 Branch members) if those Rules had continued in force at the time of the Order.
12.Any person joining the HSU East Branch after the date of the Order shall be placed on the list that would be applicable had they been a member at the date of the Order, and shall for the purposes of the Scheme form part of the respective list.
13.The Administrator shall, as soon is reasonably practicable after the date of the Order cause to be prepared:
13.1Financial accounts, setting out the assets and liabilities, of the HSU East Branch; and
13.2Financial accounts, setting out the assets and liabilities, of the NSW Union.
14.The Administrator shall establish and implement internal control policies and procedures to ensure the HSU East Branch and the New South Wales Union are conducted in accordance with the principles of good corporate governance and to ensure accountability to the members of the HSU East Branch and New South Wales Union.
15.Notwithstanding anything to the contrary in the Rules of the HSU, on the completion of the preparation of the member lists and accounts as referred to in clauses 10 and 12, the Administrator shall:
15.1alter the Rules of the HSU, so as to reinstate them to the form they were in immediately before the Merger Date, in so far as they provided for the NSW Branch, the Victoria No 1 Branch and the Victoria No 3 Branch;
15.2if required, in the opinion of the Administrator, strengthen the financial accountability and good governance of the NSW Branch, the Victoria No 1 Branch and the Victoria No 3 Branch; and
15.3lodge with Fair Work Australia, particulars of the alterations and seek the certification of General Manager of Fair Work Australia under section 159 of the Act.
16.Upon the certification of the alterations referred to in clause 14 (the Amendment Date), (which will, among other things, disband the HSU East Branch and constitute the NSW Branch, the Victoria No 1 Branch and the Victoria No 3 Branch), the Administrator shall, by order of the Court be appointed administrator of the NSW Branch, the Victoria No 1 Branch and the Victoria No 3 Branch to exercise the powers and duties of office holders of those Branches as provided for in the Rules as amended pursuant to the Order of the Court.
17.On the Amendment Date:
17.1the NSW Members shall be assigned to and become members of the NSW Branch;
17.2the No 1 Branch Members shall be assigned to and become members of the No 1 Branch; and
17.3the No 3 Branch Members shall be assigned to and become members of the No 3 Branch.
18.On the Amendment Date, the Administrator shall apportion and distribute the assets and liabilities of the NSW Union and the HSU East Branch to the NSW Union and the demerged Branches having regard to:
18.1the proportion of assets and liabilities that each Branch contributed to the HSU Branch at the Merger Date;
18.2the proportion of assets and liabilities that each Branch contributed to the NSW Union;
18.3the respective number of members of each Branch;
18.4the income and expenses of the HSU East Branch and the NSW Union since the Merger Date; and
18.5what the Administrator considers is fair, just and appropriate in the circumstances.
19.Any member of the HSU or the NSW Union holding real or personal property of the HSU or the NSW Union, whether as registered proprietor, trustee or otherwise, shall, at the request of the Administrator deliver up or transfer such property to the Administrator.
20.The Administrator will take all reasonable steps to ensure that as and from the Amendment Date, dues paid by members, including by way of direct debit or payroll deduction, of the demerged Branches are paid to the respective Branch in which the members are assigned.
21.Notwithstanding anything to the contrary in the Rules of the NSW Union, the Administrator of the NSW Union shall, on the completion of the preparation of the member lists and accounts as referred to in clauses 10 and 12:
21.1alter the Rules of the NSW Union, so as to reinstate them to the form in which they existed immediately before the rule change consented to by the Acting Deputy Industrial Registrar in accordance with the decision of Boland J in Health Services Union [2010] NSWIRComm 107 (30 July 2010);
21.2if required, in the opinion of the Administrator, strengthen the financial accountability and good governance of the NSW Union;
21.3Ensure that the current rule 18A of the rules of the NSW Union provides that persons elected to officers in the NSW Branch of the HSU will be taken to be validly elected to the corresponding office in the NSW Union; and
21.4lodge with the Commission, particulars of the alterations and seek the consent of the Industrial Registrar under section 245 of the IR Act.
22.The Administrator shall develop and implement policies to ensure that after the Amendment Date the NSW Union and the demerged Branches will be representative of and accountable to their members, will be able to operate effectively, will encourage members to participate in the affairs of the Branch to which they belong and will encourage the democratic functioning and control of the Branch.
23.If in the opinion of the Administrator it is necessary or appropriate to do so, the Administrator shall alter the Rules and the NSW Union Rules so as to ensure that after the Amendment Date the NSW Union and the demerged Branches will continue to be representative of and accountable to their members, will continue to be able to operate effectively, will continue to encourage members to participate in the affairs of the NSW Union and the demerged Branches to which they belong, and will continue to encourage the democratic functioning and control of the NSW Union and the demerged Branches and take such steps as are necessary to obtain certification under the Act or consent under the IR Act as the case may be.
Elections
24.The Administrator shall:
24.1on the completion of the steps set out in paragraphs 14 to 22; and
24.2when he is satisfied that the policies referred to in paragraph 21 have been implemented;
request the General Manager of Fair Work Australia to arrange for the conduct of an election for all offices in the demerged Branches by the Australian Electoral Commission.
25.The elections referred to in clause 23 are to be held to fill the vacant offices until the completion of elections to be held in 2014 under rule 29 of the Rules.
26.The Administrator must do all things necessary to facilitate the conduct of the elections, including all those things required to be done by a Committee of Management of an organisation under the Act.
27.During the period of administration the Administrator shall not:
27.1permit the use of the funds or resources of the NSW Union, the HSU East Branch or the demerged Branches for campaigning or electioneering;
27.2permit the employees of the NSW Union, the HSU East Branch or the demerged Branches to campaign or electioneer during their working hours; and
27.3permit any electioneering or campaign material to be posted on the website of the NSW Union, the HSU East Branch or the demerged Branches.
28.The Administrator shall use his best endeavours to ensure the completion of the administration within 120 days of the date of the Order, or such further time as the Court may allow.
29.The Administrator shall cease to act under this Scheme on the declaration of the results of the elections provided for in paragraph 23.
Payment of the Administrator
30.The NSW Union shall pay the fees and expenses of the Administrator of carrying out his functions under this scheme.
ANNEXURE A
List of Officers
Title of Office
Name
General Secretary/Treasurer
WILLIAMSON
Michael Alexander
Deputy General Secretary
MYLAN
Peter James
Deputy General Secretary
BOLANO
Marco
Divisional Secretary
MILLER
Stuart
Divisional Secretary
HAYES
Gerard John
Divisional Assistant Secretary SEYMOUR Kerrie Divisional Assistant Secretary
YEATES
Bryan
Executive President JACKSON Kathy General Representatives - NSW
General Representative CONROY Graham General Representative COWDREY Jodie Therese General Representative FELTHAM Rodney Keith General Representative GIBLETT Zelda Vivienne General Representative GILCHRIST Lachlan General Representative GILKINSON Christine General Representative HALL Adam General Representative HAZELWOOD Kim General Representative HULL Robert Darcy General Representative HUMPHRIES Angela General Representative IRVINE Monique Louise General Representative MCINTOSH Kenneth Hector General Representative MULLER Kim General Representative
O’DONNELL
Michael
General Representative SANTANGELO John General Representative THORBURN Tim General Representative TURELLO Beverley List of Ordinary Members of Union Council
Title of Office
Name
President
POLLARD
Stephen
Vice President
KNIGHT
Iris
Vice President
O’CONNOR
Sean
Ordinary Member
AGIUS
Terry
Ordinary Member
AUGOUSTAKIS
Lia
Ordinary Member BEATON Peter Ordinary Member
BOWLES
Stuart
Ordinary Member BRASIER Shane Ordinary Member BURNS Leanne Ordinary Member BUSH Leigh Ordinary Member CATHERINE Gino Ordinary Member DAVIDSON Brett Ordinary Member DIXON Reuben Ordinary Member DUNLOP Jenny Ordinary Member DUNN Ray Ordinary Member EDWARDS Grahame Ordinary Member FITZROY John Ordinary Member FLYNN Leonie Ordinary Member GOODLOCK Kim Ordinary Member GRAHAM Julie Ordinary Member GRAY Barbara Ordinary Member GRECH Joe Ordinary Member GUYMER Lynnette Ordinary Member HAYNES Sharalyn Ordinary Member HINDSON Mark Ordinary Member HINGE Ted Ordinary Member JOSEPH Sharon Ordinary Member KERR Phillip Ordinary Member MAGNUSSON Lisa Ordinary Member MARTIN Linden Ordinary Member MCCULLOUGH Sharon Ordinary Member NENADOVIC Melica Ordinary Member NEUMANN Deborah Anne Ordinary Member O’BRIEN Patrick Ordinary Member O’NEILL Pauline Ordinary Member PAPARAS Jim Ordinary Member RILEY Vicki Ordinary Member ROWLING Bruce Ordinary Member RUSSELL Lynne Ordinary Member SCIDONE Loredana Ordinary Member SHAO Zi Sheng (Sam) Ordinary Member SHEPHERD Lyn Ordinary Member SIGISMONDI Stephen Ordinary Member SMITH Clarence Ordinary Member STERREY Mark Ordinary Member THOMPSON Lynette Ordinary Member VEALEY David Ordinary Member VILLANUEVA Jimmy Ordinary Member WHEELHOUSE Tammie Ordinary Member WILKINSON Kate National Councillors
Title of Office
Name
National Councillor EDWARDS Grahame National Councillor HARPLEY Steven National Councillor HEWAT Andrew National Councillor MCINTOSH Deirdre National Councillor NENADOVIC Melica National Councillor O’CONNOR Sean National Councillor VESPUCCI Adriana ANNEXURE B
List of Officers
Title of Office
Name
General Secretary/Treasurer
WILLIAMSON
Michael Alexander
Deputy General Secretary
MYLAN
Peter James
Deputy General Secretary
BOLANO
Marco
Divisional Secretary
MILLER
Stuart
Divisional Secretary
HAYES
Gerard John
Divisional Assistant Secretary SEYMOUR Kerrie Divisional Assistant Secretary
YEATES
Bryan
Executive President JACKSON Kathy General Representatives - NSW
General Representative CONROY Graham General Representative COWDREY Jodie Therese General Representative FELTHAM Rodney Keith General Representative GIBLETT Zelda Vivienne General Representative GILCHRIST Lachlan General Representative GILKINSON Christine General Representative HALL Adam General Representative HAZELWOOD Kim General Representative HULL Robert Darcy General Representative HUMPHRIES Angela General Representative IRVINE Monique Louise General Representative MCINTOSH Kenneth Hector General Representative MULLER Kim General Representative
O’DONNELL
Michael
General Representative SANTANGELO John General Representative THORBURN Tim General Representative TURELLO Beverley List of Ordinary Members of Union Council
Title of Office
Name
President
POLLARD
Stephen
Vice President
KNIGHT
Iris
Vice President
O’CONNOR
Sean
Ordinary Member
AGIUS
Terry
Ordinary Member
AUGOUSTAKIS
Lia
Ordinary Member BEATON Peter Ordinary Member
BOWLES
Stuart
Ordinary Member BRASIER Shane Ordinary Member BURNS Leanne Ordinary Member BUSH Leigh Ordinary Member CATHERINE Gino Ordinary Member DAVIDSON Brett Ordinary Member DIXON Reuben Ordinary Member DUNLOP Jenny Ordinary Member DUNN Ray Ordinary Member EDWARDS Grahame Ordinary Member FITZROY John Ordinary Member FLYNN Leonie Ordinary Member GOODLOCK Kim Ordinary Member GRAHAM Julie Ordinary Member GRAY Barbara Ordinary Member GRECH Joe Ordinary Member GUYMER Lynnette Ordinary Member HAYNES Sharalyn Ordinary Member HINDSON Mark Ordinary Member HINGE Ted Ordinary Member JOSEPH Sharon Ordinary Member KERR Phillip Ordinary Member MAGNUSSON Lisa Ordinary Member MARTIN Linden Ordinary Member MCCULLOUGH Sharon Ordinary Member NENADOVIC Melica Ordinary Member NEUMANN Deborah Anne Ordinary Member O’BRIEN Patrick Ordinary Member O’NEILL Pauline Ordinary Member PAPARAS Jim Ordinary Member RILEY Vicki Ordinary Member ROWLING Bruce Ordinary Member RUSSELL Lynne Ordinary Member SCIDONE Loredana Ordinary Member SHAO Zi Sheng (Sam) Ordinary Member SHEPHERD Lyn Ordinary Member SIGISMONDI Stephen Ordinary Member SMITH Clarence Ordinary Member STERREY Mark Ordinary Member THOMPSON Lynette Ordinary Member VEALEY David Ordinary Member VILLANUEVA Jimmy Ordinary Member WHEELHOUSE Tammie Ordinary Member WILKINSON Kate
Schedule
No: (P)NSD621 of 2012
Federal Court of Australia
District Registry: New South Wales
Division: Fair Work
Applicants
Second Applicant: LLOYD ALBERT WILLIAMS
Third Applicant: DANIEL PATRICK HILL
Fourth Applicant: ROSEMARY LOUISE KELLY
Fifth Applicant: JORGE NAVAS
Sixth Applicant: ZITA DARLENE MITCHELL
Respondents
Second Respondent: HSU EAST
Third Respondent: MICHAEL WILLIAMSON
Fourth Respondent: KATHERINE JACKSON
Fifth Respondent: GERARD HAYES
Sixth Respondent: PETER BEATON
Seventh Respondent: LEANNE BURNS
Eighth Respondent: LEIGH BUSH
Ninth Respondent: RAY DUNN
Tenth Respondent: GRAHAME EDWARDS
Eleventh Respondent: JOHN FITZROY
Twelfth Respondent: HELEN GOODLUCK
Thirteenth Respondent: BARBARA GRAY
Fourteenth Respondent: LYNETTE GUYMER
Fifteenth Respondent: SHARALYN HAYNES
Sixteenth Respondent: SHARON JONES
Seventeenth Respondent: LINDEN MARTIN
Eighteenth Respondent: SHARON MCCULLOUGH
Nineteenth Respondent: DEBORAH NEUMANN
Twentieth Respondent: PAULINE O'NEILL
Twenty First Respondent: VICKI RILEY
Twenty Second Respondent: BRUCE ROWLING
Twenty Third Respondent: LYNNE RUSSELL
Twenty Fourth Respondent: ZI ZHENG SHAO
Twenty Fifth Respondent: CLARRIE SMITH
Twenty Sixth Respondent: MARK STERREY
Twenty Seventh Respondent: LYNETTE THOMPSON
Twenty Eighth Respondent: DAVE VEALEY
Twenty Ninth Respondent: GRAHAM CONROY
ThirtiethRespondent: JODIE COWDREY
Thirty First Respondent: RODNEY FELTHAM
Thirty Second Respondent: LACHLAN GILCHRIST
Thirty Third Respondent: CHRISTINE GILCHRIST
Thirty Fourth Respondent: CHRISTINE GILKINSON
Thirty Fifth Respondent: ZELDA GISLETT
Thirty Sixth Respondent: ADAM HALL
Thirty Seventh Respondent: ROBERT HULL
Thirty Eighth Respondent: ANGELA HUMPHRIES
Thirty Ninth Respondent: MONIQUE IRVINE
FortiethRespondent: IRIS KNIGHT
Forty First Respondent: KEN MCINTOSH
Forty Second Respondent: KIM MULLER
Forty Third Respondent: SEAN O'CONNOR
Forty Fourth Respondent: MICHAEL O'DONNELL
Forty Fifth Respondent: STEPHEN POLLARD
Forty Sixth Respondent: JOHN SANTANGELO
Forty Seventh Respondent: TIM THORBURN
Forty Eighth Respondent: BEV TURELLO
Forty Ninth Respondent: MARCO BOLANO
FiftiethRespondent: BRYAN YEATES
Fifty First Respondent: TED HINGE
Fifty Second Respondent: TERRY AGIUS
Fifty Third Respondent: LIA AUGOUSTAKIS
Fifty Fourth Respondent: STUART BOWLES
Fifty Fifth Respondent: SHANE BRASIER
Fifty Sixth Respondent: GINO CATHERINE
Fifty Seventh Respondent: BRETT DAVIDSON
Fifty Eighth Respondent: REUBEN DIXON
Fifty Ninth Respondent: JENNY DUNLOP
SixtiethRespondent: LEONIE FLYNN
Sixty First Respondent: JULIE GRAHAM
Sixty Second Respondent: JOE GRECH
Sixty Third Respondent: MARK HINDSON
Sixty Fourth Respondent: PHILIP ADRIAN KERR
Sixty Fifth Respondent: LISA MAGNUSSON
Sixty Sixth Respondent: MELISSA NENADOVIC
Sixty Seventh Respondent: PATRICK O'BRIEN
Sixty Eighth Respondent: JIM PAPARAS
Sixty Ninth Respondent: LORI SCIDONE
SeventiethRespondent: LYN SHEPHERD
Seventy First Respondent: STEPHEN SIGISMONDI
Seventy Second Respondent: JIMMY VILLANUEVA
Seventy Third Respondent: TAMMIE WHEELHOUSE
Seventy Fourth Respondent: KATE WILKINSON
Seventy Fifth Respondent: STUART MILLER
Seventy Sixth Respondent: KERRIE SEYMOUR
Seventy Seventh Respondent: PETER JAMES MYLAN
Seventy Eighth Respondent: KIM HAZELWOOD
Seventy Ninth Respondent: KIM GOODLOCK
EightiethRespondent: SHARON JOSEPH
Eighty First Respondent: ALICIA ANSET
Eighty Second Respondent: ROBERT BRADLEY
Eighty Third Respondent: PETER BRAVIS
Eighty Fourth Respondent: MELISSA BUTLER
Eighty Fifth Respondent: ANDREW HEWAT
Eighty Sixth Respondent: DEIDRE MCINTOSH
Eighty Seventh Respondent: ADRIANA VESPUCCI
Schedule
No: (P)NSD735 of 2012
Federal Court of Australia
District Registry: New South Wales
Division: Fair Work
Second Respondent: MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS
Third Respondent: HEALTH SERVICES UNION
Fourth Respondent: CHRISTOPHER PAUL BROWN
Fifth Respondent: LLOYD ALBERT WILLIAMS
Sixth Respondent: DANIEL PATRICK HILL
Seventh Respondent: ROSEMARY LOUISE KELLY
Eighth Respondent: JORGE NAVAS
Ninth Respondent: ZITA DARLENE MITCHELL
Tenth Respondent: KATHERINE JACKSON
Second Other: MICHAEL FRANCIS MOORE
13