Fegan v Jackson

Case [2009] FCA 338

FEDERAL COURT OF AUSTRALIA

Fegan v Kathy Jackson [2009] FCA 338

INDUSTRIAL LAW – organisations – Union rules amended by Branch Committee pursuant to rules of the Union – whether interim orders should be granted requiring National Secretary of the Union to apply forthwith to the Industrial Registrar for certification of rule changes – role of the Industrial Registrar before certification of changes to the rules – test for interim orders – whether interim orders should be granted – application granted

Workplace Relations Act 1996 (Cth) Schedule 1, ss 159, 164, 338(1) of Schedule 1
Workplace Relations (Registration and Accountability of Organisations) Regulations 2003 (Cth) regs 3, 12, 126

R v Joske; ex parte Shop Distributive and Allied Employees’ Association (1976) 135 CLR 194 referred to
McGee v Sanders (No 2) (1991) 32 FCR 397 referred to

Conquo v Jackson [2009] FCA 45 referred to

PAULINE FEGAN v KATHY JACKSON

VID 190 of 2009

KENNY J
9 APRIL 2009
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 190 of 2009
BETWEEN:

PAULINE FEGAN
Applicant
AND:

KATHY JACKSON
Respondent

JUDGE:

KENNY J

DATE:

9 APRIL 2009

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. On 31 March 2009, having had the benefit of the parties’ submissions, I made interim orders sought by the applicant, Pauline Fegan.  I stated that I would deliver reasons at a later date.  What follows are my reasons for making the orders that day.

  2. Ms Fegan brings this proceeding as President of Victoria No. 1 Branch of the Health Services Union, and a member of the Union.  The respondent, Ms Kathy Jackson, is the National Secretary of the Union.

  3. Ms Fegan sought interim orders pursuant to s 164(4) of Schedule 1 to the Workplace Relations Act 1996 (Cth) requiring Ms Jackson to apply forthwith to the Industrial Registrar for certification of changes to the rules of the Union (in so far as they related to the internal management of Victoria No. 1 Branch). These changes were purportedly made by the Branch Committee on 24 February 2009.

  4. In essence, Ms Fegan contended that, under the Union’s rules, Ms Jackson, as National Secretary, was required to apply to the Industrial Registrar for certification of the rule changes.  Counsel for Ms Jackson opposed the making of interim orders sought by Ms Fegan.

  5. The applicant relied on her own affidavit affirmed on 26 March 2009.  The respondent filed no answering affidavits.

    BACKGROUND

  6. For present purposes, the facts can be taken to be as follows:

    (1) The Union is and was at all material times registered under the Workplace Relations Act. The Union has rules registered under that Act.

    (2)There is a dispute within the Branch, which is affecting branch management. 

    (3)On 24 February 2009, at the Branch Committee meeting of Victoria No 1 Branch, the Branch Committee resolved, pursuant to rule 49(d) of the Union’s rules, to amend the Union’s rules in certain specific respects “insofar as they apply to the Victoria No 1 Branch”.  The Branch Committee passed the relevant…

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AGLC
Fegan v Jackson [2009] FCA 338
Case
[2009] FCA 338
Decision Date

CaseChat Overview and Summary

In the Federal Court, Fegan applied for interim orders against Jackson, the National Secretary of a union, to compel her to apply to the Industrial Registrar for certification of rule changes made by the Branch Committee. The Union had rules registered under the Workplace Relations Act and the Branch Committee had amended the rules in certain respects. Fegan had sent a letter to Jackson requesting her to comply with the union's rules and apply to the Industrial Registrar for certification of the changes to the rules. Jackson had not responded to the request, and Fegan was concerned that Jackson had no intention of complying with the requirements of the union's rules or the regulations. The court had to determine whether the interim orders should be granted to require Jackson to apply forthwith to the Industrial Registrar for certification of the rule changes.

The court considered the role of the Industrial Registrar before certification of changes to the rules, and the test for interim orders. The court held that the Registrar had no power to certify a rule change unless it was accompanied by a declaration signed by an authorised officer of the organisation, stating that the rule change was made in accordance with the rules of the organisation. The court also held that the test for interim orders was whether the applicant had made out a prima facie case that the respondent had no real prospect of succeeding at the hearing of the substantive application and that there was no satisfactory way of protecting the applicant's rights other than by the grant of the interim orders. The court found that Fegan had made out a prima facie case that Jackson had no real prospect of succeeding at the hearing of the substantive application and that there was no satisfactory way of protecting Fegan's rights other than by the grant of the interim orders.

The court granted the application for interim orders, requiring Jackson to apply forthwith to the Industrial Registrar for certification of the rule changes. The court also ordered that the application be listed for a directions hearing to determine the appropriate time for the return of the interim orders.

Orders

Orders of the court

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Background

Background to the litigation

The applicant relied on her own affidavit affirmed on 26 March 2009. The respondent filed no answering affidavits. BACKGROUND For present purposes, the facts can be taken to be as follows:(1) The Union is and was at all material times registered under the Workplace Relations Act. The Union has rules registered under that Act.(2)There is a dispute within the Branch, which is affecting branch management. (3)On 24 February 2009, at the Branch Committee meeting of Victoria No 1 Branch, the Branch Committee resolved, pursuant to rule 49(d) of the Union’s rules, to amend the Union’s rules in certain specific respects “insofar as they apply to the Victoria No 1 Branch”. The Branch Committee passed the relevant resolution “with a vote of twelve members in favour and one against”.(4)On 5 March 2009, Ms Fegan sent a letter to Ms Jackson informing her of the Branch Committee’s resolution (referred to in (3) above), and requesting that Ms Jackson comply with rule 49(e) of the Union’s rules by applying to the Industrial Registrar for certification of the changes to the rules. The letter asked Ms Jackson to “confirm by 4.00pm, Thursday 12 March 2009 that you have taken the appropriate steps”. The letter enclosed a copy of the declaration referred to in (5) below.(5)Also on 5 March 2009, Ms Fegan sent a letter to the Industrial Registrar enclosing a declaration signed by Ms Fegan in respect of the changes to the Union’s rules. The declaration was entitled “Notice Under Regulation 126 of the Workplace Relations (Registration and Accountability of Organisations) Regulations 2003” and set out the particulars of the rule alterations. The declaration concluded with the following notation:Declaration by Authorised OfficerIn accordance with reg 126 I, Pauline Fegan, President of the Victoria No 1 Branch of the Health Services Union, pursuant to rule 54(ii) of the Rules of the Health Services Union, declare:(a) that the alteration was made in accordance with the rules of the Health Services Union;(b) that the alteration was made by resolution of the Branch Committee of the Victoria No 1 Branch in accordance with rule 49(d) of the Rules of the Health Services Union on 24 February 2009;(c) that the particulars set out in this notice are true and correct to the best of my knowledge. [Signed] Pauline FeganDate: 3 March 2009(6)On 10 March 2009, Ms Fegan received an email from a Research Officer at the Australian Industrial Relations Commission requesting further information regarding the rule changes. Ms Fegan purported to provide the requested information by letter dated 18 March 2009.(7)On 12 March 2009, Ms Jackson wrote to Ms Fegan acknowledging her 5 March 2009 letter and saying, amongst other things, that Ms Jackson was writing to the Branch Secretary “seeking his advice as to the notice of the meeting in question, the minutes of any resolution, and the manner in which any rule change is said to have been made, in order that I can satisfy myself that the Branch has made rules”. Ms Fegan received this letter on 16 March 2009.(8)On 17 March 2009, Ms Fegan sent an email to Mr Jeff Jackson, the Branch Secretary of Victoria No 1 Branch, requesting that he advise her (amongst other things) as to whether he had: (1) advised the National Secretary of the rule changes passed by the Branch Committee on 24 February 2009; and (2) displayed the rule changes on the Branch’s website.(9)On the same day, 17 March 2009, Mr Jackson sent a letter to Ms Fegan, by fax, stating that he attached the correspondence from and to the National Secretary regarding the rule changes.(10) As at the time of this application for interim orders, Ms Fegan had not been informed whether Ms Jackson intended to apply to the Industrial Registrar for certification of the changes to the Union rules, and Ms Fegan was concerned that Ms Jackson had no intention of complying with what Ms Fegan understood to be the requirements of rule 49(e) or Regulation 126 of the Workplace Relations (Registration and Accountability of Organisations) Regulations 2003 (Cth).LEGISLATION

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KENNY J

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Ratio Decidendi

Legal Principle Established

Established by: KENNY J

Rule 32(f) states that the National Secretary “shall … lodge and file with and furnish to the Industrial Registrar all such documents as are required to be lodged, filed or furnished under the said Act at the prescribed times and in the prescribed manner”. Rule 54, upon which the applicant also relied, deals with the “Branch President”, saying:The President of a branch shall be the official head of the branch and –(i) shall preside at all meetings of the branch and the Branch Committee and preserve order thereat so that business may be conducted in due form with propriety and in conformity with standing orders;(ii) shall sign all documents requiring his/her signature as official head of the branch and shall sign all minutes of the branch duly confirmed in the presence of the meeting confirming the same;(iii) shall instruct the Secretary to call meetings of the Branch Committee and General or Special Meetings of members when necessary;(iv) shall generally ensure the well-being of the Union and its members and the carrying out of the objects of the Union within the area administered by his/her branch. [Emphasis added.]WORKPLACE RELATIONS (REGISTRATION AND ACCOUNTABILITY OF ORGANISATIONS) REGULATIONS 2003 The Workplace Relations (Registration and Accountability of Organisations) Regulations 2003 (Cth) also contain requirements regarding the alteration of Union rules that bear on the present application.Regulation 126 of these Regulations provides that:(1) For subsection 159(1) of the RAO Schedule, if an alteration of the rules (other than the eligibility rules) of an organisation is made, the organisation, within 35 days after the alteration is made, or within any additional period a Registrar allows, must:(a) lodge in the Industrial Registry a notice setting out the particulars of the alteration; and(b) if the organisation has a web site – publish on its web site a notice that the notice mentioned in paragraph (a) has been lodged.(2) The notice must contain a declaration, signed by an officer of the organisation authorised to sign the declaration, stating:(a) that the alteration was made in accordance with the rules of the organisation; and (b) the action taken under those rules to make the alteration; and(c) that the particulars set out in the notice are true and correct to the best of the knowledge and belief of the signatory.(3) A Registrar may refuse to certify, under subsection 159(1) of the RAO Schedule, an alteration of the rules unless this regulation is complied with. Regulation 3 defines “authorised, in relation to a person making, signing or lodging a document in the Industrial Registry” as “a person authorised in accordance with regulation 12”. Regulation 12(1) provides that:(1)An officer of an association, organisation, branch … is authorised to make, sign or lodge any document … under the RAO Schedule or these Regulations if the officer is authorised to do so:(a) by the association, organisation, branch …; or (b) by the rules of the association, organisation, branch …