Brown v Health Services Union (No 2) - [2012] FCA 1014

FEDERAL COURT OF AUSTRALIA
Brown v Health Services Union (No 2) [2012] FCA 1014

Citation: Brown v Health Services Union (No 2) [2012] FCA 1014

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 SCHEDULE

File number(s): NSD 621 of 2012
NSD 735 of 2012

Judge: FLICK J

Date of judgment: 14 September 2012

Catchwords: INDUSTRIAL LAW – reconstitution of union – scheme of administration – extension of time for compliance sought – whether appropriate to grant extension of time – whether extension of time should be effected by order of court or by variation of Scheme

Legislation: Fair Work (Registered Organisations) Act2009 (Cth) s 323
Industrial Relations Act 1996 (NSW) s 290B

Cases cited: Brown v Health Services Union [2012] FCA 644

Date of hearing: 14 September 2012

Place: Sydney (via video link to Melbourne)

Division: FAIR WORK DIVISION

Category: Catchwords

Number of paragraphs: 18

Counsel for the Honourable Michael Francis Moore in his capacity as Administrator of HSUeast and the HSU East Branch: Mr P Punch

Solicitor for the Honourable Michael Francis Moore in his capacity as Administrator of HSUeast and the HSU East Branch: Carroll & O’Dea Lawyers

Counsel for the Commonwealth Minister for Employment and Workplace Relations: Mr S Price

Solicitor for the Commonwealth Minister for Employment and Workplace Relations: Corrs Chambers Westgarth

Counsel for the Applicants in NSD621/2012: Ms E Starkey

Solicitor for the Applicants in NSD621/2012 Holding Redlich

Counsel for the Health Services Union: Ms E Starkey

Solicitor for the Health Services Union: Holding Redlich

Counsel for HSUeast: HSUeast did not appear

Counsel for Michael Williamson: Mr Williamson did not appear

Counsel for Katherine Jackson: Ms Jackson did not appear

Counsel for Peter James Mylan: Mr Mylan did not appear

Counsel for the 5^th – 76^th and 78^th– 87^th Respondents in NSD621/2012: These Respondents did not appear

Counsel for the New South Wales Minister for Finance and Services: The New South Wales Minister for Finance and Services did not appear

Counsel for Unions NSW: Unions NSW did not appear

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
Applicant

AND:
HEALTH SERVICES UNION
AND OTHERS NAMED IN THE SCHEDULE
Respondent

JUDGE:

FLICK J

DATE OF ORDER:

14 SEPTEMBER 2012

WHERE MADE:

SYDNEY (VIA VIDEO LINK TO MELBOURNE)

THE COURT ORDERS THAT:
1.The time for compliance with paragraph 18 of the Scheme of Administration approved on 21 June 2012 (as varied) is extended to 31 October 2012.
2.The time for compliance with paragraph 28 of the Scheme of Administration approved on 21 June 2012 (as varied) is extended by a further 60 days.

Note:Entry of orders is dealt with in r 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

NEW…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FCA 1014
Decision Date: 14 September 2012

CaseChat Overview and Summary

In the case of Brown v Health Services Union (No 2), the applicant, the Administrator, sought an extension of time for compliance with certain provisions of the Scheme of Administration in the Federal Court of Australia. The primary focus of the dispute was the reconstitution of a union, with specific attention to the timeline for holding elections for the demerged branches and the State Union. The Administrator applied for an extension of time to complete the elections, which were scheduled to be conducted by the Australian Electoral Commission. The original 120-day period was considered insufficient, as the elections were not expected to conclude until 23 November 2012, leading to a request for an additional 60 days, making the total compliance period 180 days.

The legal issues before the court involved determining whether it was appropriate to grant the requested extension of time for compliance and whether such an extension should be implemented through an order of the Court or by varying the Schemes. The court needed to balance the administrative necessity for the extension against the statutory provisions and previous decisions concerning the original timeline. The Administrator argued that the extension was necessary to allow for the completion of the elections, while the Health Services Union contended that the extension would undermine the integrity of the reconstitution process.

The court ruled in favour of granting the extension, considering it prudent to approve the additional 60 days, resulting in an overall compliance period of 180 days. The decision was grounded on the rationale that the original 120-day period was insufficient, and the extension would allow for the timely completion of the elections. The court concluded that the extensions should be granted by way of an order of the Court rather than by varying the Schemes. This decision aimed to avoid any potential for further litigation and additional costs associated with modifying the Schemes.

The final orders issued by the court extended the time for compliance with specific paragraphs of the Scheme of Administration. Paragraph 18 was extended to 31 October 2012, while paragraph 28 was extended by an additional 60 days. These orders were intended to facilitate the reconstitution process and ensure that the union's administrative needs were met within a legally compliant framework.

Orders

Orders of the court

1. The time for compliance with paragraph 18 of the Scheme of Administration approved on 21 June 2012 (as varied) is extended to 31 October 2012.

2. The time for compliance with paragraph 28 of the Scheme of Administration approved on 21 June 2012 (as varied) is extended by a further 60 days.

Note: Entry of orders is dealt with in r 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Approval for an extension should be granted. It is considered prudent to approve the extension of 60 days such that the term originally set at 120 days will now become 180 days.CONCLUSIONS The extensions of time for compliance with the Schemes sought by the Administrator should be granted. These extensions of time should be granted by way of an order of the Court extending time, rather than by a variation to the Schemes.THE ORDERS IN NSD 621/2012 AND NSD 735/2012 ARE:1.The time for compliance with paragraph 18 of the Scheme of Administration approved on 21 June 2012 (as varied) is extended to 31 October 2012.2.The time for compliance with paragraph 28 of the Scheme of Administration approved on 21 June 2012 (as varied) is extended by a further 60 days.

Ratio Decidendi

Legal Principle Established

Approval should be given for an extension of the time for compliance. Rather than granting the extension sought, and in order to avoid possibly a further application to the Court and further costs being incurred, the extension should be granted to 31 October 2012. If the sale is not complete by that date, it may well be expected that the Administrator will call for an explanation.THE EXTENSION OF THE PERIOD OF THE ADMINISTRATION – PARA [28] The original term of 120 days was a matter addressed in both the reasons provided on 21 June 2012 and, obviously enough, in the provisions of the Schemes as approved: [2012] FCA 644 at [108]. It was then contemplated that the period of 120 days may not be sufficient. It was for that reason that the Schemes contemplated that an application could be made to extend that period. Unless extended, the 120 day period would expire on 19 October 2012. The basis upon which the extension of time is sought is that elections to be conducted by the Australian Electoral Commission to fill the now vacant offices of the demerged branches (and, in effect, the State Union) will not be concluded until 23 November 2012. The Administrator first wrote to the General Manager of Fair Work Australia in late August 2012 requesting that the elections be conducted by the Commission. The Commission advised in early September 2012 that the timetable for those elections would be as follows: An affidavit filed in support of the application made for the extension of time sets forth the above chronology and correctly says that it “is impossible to know at this stage exactly how long the AEC would need to count the ballots after 23 November before declaring the results, but at least a few days would be required”. Initially, the Administrator sought an extension of 40 days; that was soon revised to seek an extension of 60 days. Approval for an extension should be granted. It is considered prudent to approve the extension of 60 days such that the term originally set at 120 days will now become 180 days.CONCLUSIONS The extensions of time for compliance with the Schemes sought by the Administrator should be granted. These extensions of time should be granted by way of an order of the Court extending time, rather than by a variation to the Schemes.THE ORDERS IN NSD 621/2012 AND NSD 735/2012 ARE:1.The time for compliance with paragraph 18 of the Scheme of Administration approved on 21 June 2012 (as varied) is extended to 31 October 2012.2.The time for compliance with paragraph 28 of the Scheme of Administration approved on 21 June 2012 (as varied) is extended by a further 60 days.

Citation:		Brown v Health Services Union (No 2) [2012] FCA 1014
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 SCHEDULE
File number(s):		NSD 621 of 2012 NSD 735 of 2012
Judge:		FLICK J
Date of judgment:		14 September 2012
Catchwords:		INDUSTRIAL LAW – reconstitution of union – scheme of administration – extension of time for compliance sought – whether appropriate to grant extension of time – whether extension of time should be effected by order of court or by variation of Scheme
Legislation:		Fair Work (Registered Organisations) Act2009 (Cth) s 323 Industrial Relations Act 1996 (NSW) s 290B
Cases cited:		Brown v Health Services Union [2012] FCA 644
Date of hearing:	14 September 2012
Place:	Sydney (via video link to Melbourne)
Division:	FAIR WORK DIVISION
Category:	Catchwords
Number of paragraphs:	18
Counsel for the Honourable Michael Francis Moore in his capacity as Administrator of HSUeast and the HSU East Branch:	Mr P Punch
Solicitor for the Honourable Michael Francis Moore in his capacity as Administrator of HSUeast and the HSU East Branch:	Carroll & O’Dea Lawyers
Counsel for the Commonwealth Minister for Employment and Workplace Relations:	Mr S Price
Solicitor for the Commonwealth Minister for Employment and Workplace Relations:	Corrs Chambers Westgarth
Counsel for the Applicants in NSD621/2012:	Ms E Starkey
Solicitor for the Applicants in NSD621/2012	Holding Redlich
Counsel for the Health Services Union:	Ms E Starkey
Solicitor for the Health Services Union:	Holding Redlich
Counsel for HSUeast:	HSUeast did not appear
Counsel for Michael Williamson:	Mr Williamson did not appear
Counsel for Katherine Jackson:	Ms Jackson did not appear
Counsel for Peter James Mylan:	Mr Mylan did not appear
Counsel for the 5^th – 76^th and 78^th– 87^th Respondents in NSD621/2012:	These Respondents did not appear
Counsel for the New South Wales Minister for Finance and Services:	The New South Wales Minister for Finance and Services did not appear
Counsel for Unions NSW:	Unions NSW did not appear

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 Applicant
AND:	HEALTH SERVICES UNION AND OTHERS NAMED IN THE SCHEDULE Respondent

JUDGE:	FLICK J
DATE OF ORDER:	14 SEPTEMBER 2012
WHERE MADE:	SYDNEY (VIA VIDEO LINK TO MELBOURNE)