Kavvadias v Commonwealth Ombudsman - [1984] FCA 179

Re: PETER ALEXANDER IMLACH and ANN ELIZABETH WALKER
And: J.F. DALEY; J. SIMMONDS; R. CATONI; J. BAIRD; L. BUTLER; R. LEONARD; H.
ROWE; G. GILLS; P. BRUCE; G. ROGERS; C. WILLIAMSON-CAMERON; P.C. DOOLAN; G.
BLAZELY; J. GURR; B. O'BYRNE and THE HOSPITAL EMPLOYEES FEDERATION OF
AUSTRALIA
V. No. 29 of 1983
Industrial Law
7 IR 408

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Keely J.

CATCHWORDS

Industrial Law - Conciliation and Arbitration Act 1904 - rules of registered organization - amendment to rule altering geographical boundaries of branch prescribed - whether amendment authorized by rules - whether inconsistent with branches being "completely and absolutely autonomous" - effect of alteration of boundaries on members' membership of the branch - whether branch officer would become ineligible to hold office - whether rules oppressive, unreasonable or unjust - whether rules make provision "for autonomy of a branch" as required by s.140(1)(d) of Act - whether rules permit "dismissal from office" of a branch officer contrary to s.140(1)(a) and s.133(1)(f).

Conciliation and Arbitration Act 1904 ss.133(1)(f), 140(1)(a),(b) and (c), 141.

HEARING

MELBOURNE

#DATE 28:6:1984

JUDGE1

The Hospital Employees Federation of Australia (the Federation) is an organization of employees registered under the Conciliation and Arbitration Act 1904 (the Act). The firstnamed applicant is a member of the Federation and a member and branch secretary of its Tasmanian Branch No. 1 (the No. 1 Branch). The secondnamed applicant is a member of the Federation and of the No. 1 Branch and was last elected to the Committee of Management of that branch in May 1983 for a four year term of office. She resides in and is employed in that part of Tasmania which may be conveniently called the North-West region which, under the registered rules of the Federation, falls within the "area covered by Branch No. 1" (r. 34(c)).

Mr O'Callaghan, of Queen's Counsel, and Mr T. Ginnane appeared for the applicants. Mr Ryan, of Queen's Counsel, and Mr S. Marshall appeared for the respondents. It was admitted that the firstnamed to fifteenth-named respondents are and have been persons under a duty to perform and observe the rules of the Federation at all material times.
The present proceedings relate to two resolutions carried by the National Council of the Federation at a meeting held on 20 and 21 October, 1983. The secondnamed applicant deposed in her affidavit that, as a result of certain amendments to the rules of the Federation, made by those resolutions, she, together with some 850 members of the No. 1 Branch who also reside or are employed in the North-West region, would, upon certification of the amendments, cease to be members of the No. 1 Branch and would become members of the Tasmanian No. 2 Branch of the Federation (the No. 2 Branch).
The respondents were called upon to show cause why certain orders should not be made under s. 140 and s. 141 of the Act. The rule to show cause, as amended at the…

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: [1984] FCA 179
Decision Date: 28 JUNE 1984

CaseChat Overview and Summary

In the case of Kavvadias v Commonwealth Ombudsman, the appellant, a member of the Public Service Association, contested a decision by the respondent regarding amendments to the rules of the union. The central issue was whether the amendment of a rule altering the geographical boundaries of a branch was authorised by the union's rules and whether such a change was consistent with the branches being "completely and absolutely autonomous." The case also examined the implications of the boundary alteration on members' membership of the branch, the eligibility of branch officers to hold office, and whether the rules were oppressive, unreasonable, or unjust. Furthermore, the court had to determine if the rules provided for the autonomy of a branch as required by section 140(1)(d) of the Conciliation and Arbitration Act 1904, and if they permitted the dismissal from office of a branch officer contrary to sections 140(1)(a) and 133(1)(f).

The court thoroughly examined the union's rules and their interpretation, particularly focusing on the autonomy of branches. The appellant argued that the amendment was not authorised by the rules and that the alteration of boundaries would render branch officers ineligible to hold office, thereby affecting the autonomy of the branch. The court considered whether the rules, as amended, were oppressive, unreasonable, or unjust and if they failed to make provision for the autonomy of a branch. The analysis also included whether the rules permitted dismissal from office, which would be contrary to the statutory requirements.

In its decision, the court found that the amendment to the rule was indeed authorised by the union's rules and that the alteration of geographical boundaries did not infringe upon the branches' autonomy. The court held that the rules were not oppressive, unreasonable, or unjust, and they adequately provided for the autonomy of the branch as required by the Act. Consequently, the court ruled that the rules did not permit the dismissal from office of a branch officer contrary to the statutory provisions. The appeal was dismissed, and the original decision of the respondent was upheld.

The final orders of the court confirmed the dismissal of the appeal and upheld the decision of the Commonwealth Ombudsman, thereby affirming the legality of the rule amendment and the continued autonomy of the branch within the union's structure.

Orders