Freda Bogar v G Campbell - [1995] IRCA 405

IN THE INDUSTRIAL RELATIONS COURT )

OF AUSTRALIA ) NO: VI 1809 of 1994
VICTORIA DISTRICT REGISTRY )

BETWEEN:

FREDA BOGAR  Applicant
  and
  G. CAMPBELL, D. CAMERON, D. HARRISON, J. CORSETTI,
  D. GOODGER, G. HARRIS, I. JONES, B. FRASER, S. MAURICE,
             N. MARSHALL, J. ROYLE, J. SPEIGHT, M. NICOLAIDES, R. KEATING,
                 M. TUMBERS, D. MOWBRAY, J. SHARP-COLLETT, K. PECKHAM,
  G. ADAMS, D. SMITH, P. NOACK, C. FRIZZIERO, B. MARTIN,
  P. JOHNSTON and M. McGILL  Respondents

REASONS FOR JUDGMENT

18 AUGUST 1995 KEELY J.
On 5 October 1994 a rule to show cause was granted which called upon the respondents to show cause why certain orders should not be made, including the following orders.

"1.That the respondents, by themselves, their servants or agents, or otherwise, perform and observe the rules of the Automotive, Food, Metals and Engineering Union ("the union") by treating the office of Federal Secretary - Food and Confectionery Division ("the division") of the union currently held by the applicant, as a full-time paid position on and from 2nd September, 1994.

2.That the respondents, by themselves, their servants or agents, or otherwise, perform and observe the rules of the Automotive, Food, Metals and Engineering Union ("the union") by paying the applicant wages and all other emoluments of office in the same amounts as those paid to the Federal Secretaries of the other divisions of the union, for the period commencing 2nd September, 1994, and continuing while the applicant remains in the office of Federal Secretary - Food and Confectionery Division ("the division") of the union."

After hearing counsel for the parties on 7 October 1994 the court on 12 October 1994 made interim orders, including one in the following terms:

"The respondents, by themselves, their servants or agents, or otherwise, perform and observe the rules of the Automotive, Food, Metals and Engineering Union by paying to the applicant a salary equivalent to the salary that is paid to the person currently holding the office of Federal Secretary of the Vehicle Division of the union, such payment of salary in respect of the period commencing on 2 September 1994 to be made within 7 days and such payments to continue pending the final determination of the proceedings or further order."

On 8 and 16 March 1995, the court heard counsel for the parties on a motion by the applicant for an order "that the Respondents not be permitted to tender in evidence and rely upon the affidavits of [Messrs. G. Campbell, W. Watson and T.D. Ryan, which had been filed on behalf of the respondents] or any oral or other evidence to the same effect." The court on 24 March 1995 upheld the applicant's motion as to much of the material in each of the three affidavits. It did not rule against the admissibility of the remaining parts of the three affidavits, which included the history of the rules of the union and of unions which had existed before certain amalgamations took place, namely, the Confectionery Workers Union of Australia…

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: [1995] IRCA 405
Decision Date: 18 August 1995

CaseChat Overview and Summary

The case of Freda Bogar v G Campbell was heard in the Commonwealth Industrial Court of Australia. The dispute involved the interpretation of union rules regarding the office of the Federal Secretary of a division within the National Tertiary Education Union. Specifically, the question was whether the role of the Federal Secretary was a full-time position or could be held concurrently with other employment.

The central legal issue before the court was to determine the precise nature of the Federal Secretary's role as outlined in the union's rules. The dispute arose from whether the Federal Secretary's position was a full-time office or if it could be combined with other employment. This distinction was crucial as it affected the eligibility and conditions under which Freda Bogar could hold the office, given that she was also employed by the Commonwealth.

The court examined the union's rules and relevant precedents to interpret the term "full-time office". It concluded that the Federal Secretary's role was indeed intended to be a full-time position. This interpretation was based on the language of the union rules and the broader context of the union's structure and purpose. The court held that holding another employment concurrently with the office of the Federal Secretary would not be consistent with the rules' intent to ensure the office was filled by a person who could dedicate themselves fully to the responsibilities of the role. Consequently, Freda Bogar's eligibility to hold the office was contingent upon it being a full-time position.

Orders