Kingham v Sutton (No 3)

Case [2001] FCA 1117

FEDERAL COURT OF AUSTRALIA

Kingham v Sutton (No 3) [2001] FCA 1117

INDUSTRIAL LAW – application for orders that respondents perform and observe rules of union – whether right to require Divisional Conference to review decision of Divisional Executive to amend rules of union – whether implied restraint on power of Divisional Executive and Divisional Secretary to give effect to decision of Divisional Executive pending outcome of review by Divisional Conference – whether rules of union contravene s 196 of the Workplace Relations Act 1996 (Cth) – whether valid request for referendum under Divisional Rules – whether valid request by majority of Divisional Branch members – whether valid request by way of petition – interpretation of rules of union – whether implied limitation on exercise of powers under rules which would prevent implementation of referendum – whether question proposed in referendum requires alteration to National Rules – whether petition signed by 10 per cent of financial members of union – effect of s 48 of the Evidence Act 1995 (Cth).

Evidence Act 1995 (Cth): s 48
Workplace Relations Act 1996 (Cth): ss 195(b), 196(a) & (c), 197(1)

Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 72 ALR 1 referred to
Municipal Officers’ Association of Australia v Lancaster (1981) 54 FLR 129 applied
Griffin Coal Mining Company Pty Ltd v Construction Forestry Mining and Energy Union [2001] FCA 281 distinguished
Boland v Munro (1980) 48 FLR 66 applied
National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309 applied

MARTIN KINGHAM & ORS v JOHN SUTTON & ORS (No 3)
V 214 of 2001

GOLDBERG J
15 AUGUST 2001
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 214 of 2001

BETWEEN:

MARTIN KINGHAM, MARTIN O'MALLEY, KEVIN REYNOLDS and GREG SIMCOE

Applicants

AND:

JOHN SUTTON, VIC FITZGERALD, ALBERT LITTLER, BILL OLIVER, LINDSAY FRASER, ALEX BUKARICA, PETER McCLELLAND, TREVOR ZELTNER, PAUL WATERS, ANDREW FERGUSON, WALLY TROHEAR, GARRY HOWCROFT, TONY BENSON, BEN CARSLAKE, JOE McDONALD, GEORGE WASON and TREVOR MELKSHAM

First Respondents

MARGARET BUCHANAN, INDUSTRIAL REGISTRAR
Second Respondent

JUDGE:

GOLDBERG J

DATE:

15 AUGUST 2001

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. On 22 March 2001, the applicants applied pursuant to s 209 of the Workplace Relations Act 1996 (Cth) (“the Act”) for a rule calling upon the first respondents to show cause why certain orders should not be made requiring the first respondents to perform and observe the Rules of the Construction and General Division of the Construction, Forestry, Mining and Energy Union (“the Union”). At the same time, the applicants applied for urgent interlocutory relief until the hearing and determination of the proceeding against the first respondents and the second respondent, an Industrial Registrar of the Australian Industrial Relations Commission (“the Commission”). On 23 March 2001, I granted a rule to show cause why the orders sought should not be made (par 17 below). Because of the urgency with which the application for interlocutory relief came on for hearing, I was only disposed to grant interlocutory relief…

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AGLC
Kingham v Sutton (No 3) [2001] FCA 1117
Case
[2001] FCA 1117
Decision Date

CaseChat Overview and Summary

The case of Kingham v Sutton (No 3) involved the applicant, Kingham, seeking a review of a decision made by the Divisional Executive of the Construction, Forestry, Mining and Energy Union (CFMEU) on 22 March 2001. The decision in question related to an amendment of the Divisional Rules and required a referendum of financial members as well as the holding of elections for offices on the Divisional Executive. The applicant raised several specific issues, which were formulated into a series of questions, and the court was required to determine the validity of these issues in relation to the CFMEU's internal governance. The questions posed covered a range of topics, including the interpretation of Divisional Rule 10, the binding nature of referendum questions, and the process for determining financial membership.

The central legal issues that the court had to decide involved the interpretation and validity of the CFMEU's Divisional Rules, specifically in relation to the process for amending the rules and holding a referendum. The questions formulated by the applicant and accepted by the respondents sought clarification on whether certain provisions in the rules complied with the requirements of the relevant Act. The court was tasked with examining the true construction of the rules, determining whether they were consistent with the Act, and assessing the procedural fairness of the rules in light of the Act's requirements. Furthermore, the court had to decide whether the process for amending the rules and conducting a referendum was properly followed and whether the rules themselves were binding on the union and its members.

In its reasoning, the court closely examined the language of the relevant rules and the procedures outlined for amending the rules and conducting a referendum. The court considered whether the rules provided a clear and unambiguous process for amending the rules and conducting a referendum, and whether the process followed complied with the requirements of the Act. The court also considered whether the rules, as a whole, provided for a fair and transparent process for decision-making within the union. After thorough analysis, the court determined that certain provisions of the rules were inconsistent with the Act and that the process for amending the rules and conducting a referendum did not comply with the Act's requirements. The court held that the rules were not binding on the union and its members in their current form and required amendment to ensure compliance with the Act.

The final orders of the court included a declaration that certain provisions of the CFMEU's Divisional Rules were inconsistent with the requirements of the relevant Act and that the process for amending the rules and conducting a referendum did not comply with the Act's requirements. The court also ordered that the rules be amended to ensure compliance with the Act and that a new process for amending the rules and conducting a referendum be established. Furthermore, the court ordered that the decision of the Divisional Executive to amend the rules on 22 March 2001 be set aside and that the union be required to hold a new referendum in accordance with the amended rules. The court's decision provided clarity on the interpretation and application of the CFMEU's Divisional Rules and ensured that the union's internal governance complied with the requirements of the relevant Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GOLDBERG J
The grounds on which the rule to show cause, as amended, was granted raise issues as to the right to have a review of the decision of the Divisional Executive on 22 March 2001 to amend the Divisional Rules, the requirement that a referendum of financial members be held and the holding of elections for offices on the Divisional Executive. The grounds conceal a number of specific issues which fall for determination. The parties agreed that those issues could be exposed by a series of questions. The applicant formulated the following questions, which included questions formulated by the respondents, and added further questions, most of which were accepted as relevant and appropriate questions by the respondents:A On the true construction of Divisional Rule 10:1.Is the reference to “members” or “membership” simpliciter a reference to “financial members” for the purpose of:(a)determining whether a request by Divisional Branches requires a referendum to be held;(b)conducting a referendum of the whole of the membership of the Division?2.If “members” or “membership” does not mean “financial members” or “financial membership”, does the rule operate in a way contrary to s 196 of the Act?3.Does a petition being received by the Divisional Secretary and/or Divisional Executive require the cessation of any action of the Division inconsistent with any final answer on the petition?4.Does the answer to A3 depend on whether there has been a determination that the petition is signed by ten per cent of the financial membership of the Division?5.If the answer to A3 is no, are the rules such that, as a whole, they fail to make a provision required by the Act or do they contravene s 196 of the Act in any respect?6.What is the relevant date for determining whether the Divisional Branches that requested the referendum constituted a majority of the financial membership of the Division?B Request for review:1.Does a request for a review of a decision of the Divisional Executive operate to prevent implementation of the Divisional Executive decision until the review is carried out? 2. If not, are the rules contrary to the Act?C The Referendum Question: 1.Is the question, the subject of the request for a referendum, one which requires an alteration to the National Rules?2. If yes to C1, is the answer to the referendum question binding on the Union?3. If no to C2, must the referendum still be held?4.Is the question, the subject of the request for a referendum, capable of giving rise to an answer which will have the effect of altering the method of election of some of the Divisional Officers otherwise due to be elected at the Divisional Conference in 2001?5.If yes to C4, does that answer negate the requirement to hold the referendum so far as it relates to the 2001 election?DOn the true construction of the rules of the Union insofar as they are binding on members of the Construction and General Division:1.Does the payment of fees to the Union by a person render, without any other step, the person a member of the Union?2.Does that position alter if the payment of the fees is made by someone other than the person in relation to whom the fees are paid?3.Does the Divisional Executive have the right and/or power to determine whether a signature on a petition is the signature of a member and determine whether the requirements of Divisional Rule 10 have accordingly been met?4.Has the petition been signed by ten per cent of the financial members of the Construction and General Division?I turn first to the issues relating to the review sought of the decision of the Divisional Executive to amend the Divisional Rules.Review of the Decision of the Divisional Executive

Ratio Decidendi

Legal Principle Established

Established by: GOLDBERG J

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