Health Services Union (No 2) - [2010] FCA 485

FEDERAL COURT OF AUSTRALIA
Health Services Union (No 2) [2010] FCA 485

Citation: Health Services Union (No 2) [2010] FCA 485

Parties: HEALTH SERVICES UNION

File number(s): VID 378 of 2009

Judge: TRACEY J

Date of judgment: 4 May 2010

Catchwords: INDUSTRIAL: Unions/Registered Organisations – scheme created by the Court for effective functioning of Health Services Union pursuant to s 323 of the Fair Work (Registered Organisations) Act 2009 (Cth)proposed amendments to Rules of Union – whether scheme can be amended to give effect to original intention under proposed amendments to Union Rules

Legislation: Fair Work (Registered Organisations) Act2009 (Cth), ss 159, 232

Cases cited: Health Services Union [2009] FCA 829

Date of hearing: 4 May 2010

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 20

Counsel for the Applicant: Mr R Reitano

Solicitor for the Applicant: Slater and Gordon

Counsel for Ms Fegan and for Macpherson & Kelley: Mr G McKeown

Solicitor for Ms Fegan and for Macpherson & Kelley: Macpherson & Kelley

Counsel for current member and former members of the Committee of Management & Wisewould Mahony Lawyers: Mr J Strong

Solicitor for current member and former members of the Committee of Management & Wisewould Mahony Lawyers: Wisewould Mahony Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 378 of 2009

BETWEEN:
HEALTH SERVICES UNION
Applicant

JUDGE:

TRACEY J

DATE OF ORDER:

4 MAY 2010

WHERE MADE:

MELBOURNE

Upon the Health Services Union undertaking to the Court that it will not rely upon the alteration to the scheme approved by the Court in proceedings VID 378 of 2009 in any way as a defence to or in any proceedings brought by any party to these proceedings or their legal representatives concerning the payment of legal costs under the Deed of Agreement dated 30 June 2009 which is Annexure RJT-1 to the Affidavit of Richard James Thompson sworn 3 May 2010.
THE COURT ORDERS THAT:

Paragraph 5 of the scheme attached to the Order of the Court made on 4 August 2009 be varied by adding the words:
“subject to the continued constitution of the Branch under the Rules of the Union,”
at the end of the paragraph.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 378 of 2009

BETWEEN:
HEALTH SERVICES UNION
Applicant

JUDGE:

TRACEY J

DATE:

4 MAY 2010

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

On 4 August 2009 I determined that the Victorian No 1 Branch (“the Branch”) of the Health Services Union of Australia (“the Union”) had ceased to function effectively and I approved a scheme to rectify this position: see Health Services Union [2009] FCA 829. These orders were made pursuant to s 323 of the Fair Work (Registered Organisations) Act2009 (Cth) (“the Act”). Part of the scheme involved a…

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.

Continue reading Health Services Union (No 2)

Details

AGLC: Health Services Union (No 2) [2010] FCA 485
Case: [2010] FCA 485
Decision Date

CaseChat Overview and Summary

The case of Health Services Union (No 2) [2010] FCA 485 was brought before the Federal Court of Australia by the Health Services Union, which sought to amend a previously approved scheme that had been put in place to ensure the effective functioning of the Union. The Union aimed to modify the scheme to facilitate an amalgamation with other branches, which required alterations to the Union's rules. The proposed changes were met with resistance due to potential conflicts with the existing scheme, particularly concerning the tenure of elected officials within the branch.

The legal issues before the court centered on whether the scheme could be amended to align with the original intention behind the proposed changes to the Union's rules. Specifically, the court needed to determine if the amendment would inadvertently obstruct the General Manager of Fair Work Australia's ability to certify the amended rules, given that the scheme's current wording seemed to guarantee the elected officials' positions until 2014.

The court, after considering the submissions and the implications of the proposed amendment, concluded that the primary purpose of the scheme was not to obstruct the reorganisation of the branch structure but rather to ensure a smooth transition for the elected officials. The court found that the amendment would merely clarify the original intent of the scheme and would not result in direct prejudice to any party. Additionally, the Union's undertaking to the court that it would not use the amended scheme as a defense in any legal proceedings concerning the payment of legal costs further alleviated concerns about potential indirect prejudice. Consequently, the court granted the Union's motion to amend the scheme by adding specific language to paragraph 5, ensuring that the officials' tenure would be subject to the continued constitution of the branch under the Union's rules.

Orders