McGraw v Gill - [1996] IRCA 148

DECISION NO: 148/96

INDUSTRIAL LAW - Registered organisation - Application for enforcement of rules - Appointment by Federal Council to fill a casual vacancy in the office of Federal President - Whether appointment was valid - Rule requiring casual vacancy to be filled by an election "where the unexpired part of the term exceeds 12 months or three quarters of the term of the office, whichever is the greater" - Rule permitting appointment in other cases - Term of office at least 2 years 11 months - Unexpired part of the term between 13 and 16 months - Whether this exceeds three quarters of the term - Construction of the words "three quarters of the term".

Mellor v Horn (1988) 25 IR 157
Johnson v Beitseen (1990) 41 IR 396

Industrial Relations Act 1988, ss.200(2) and 209.

GARRY JOHN McGRAW v NARELLE GILL - First Respondent,
PAM ALLOM and ORS - Second Respondents,
INDUSTRIAL REGISTRAR - Third Respondent,
NEW SOUTH WALES DEPUTY INDUSTRIAL REGISTRAR -Fourth Respondent

No. NI.96/1318

CORAM:    WILCOX CJ
PLACE:    SYDNEY
DATE:     24 APRIL 1996

IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA ) No. NI.96/1318
NEW SOUTH WALES DISTRICT REGISTRY)

BETWEEN: GARRY JOHN McGRAW

Applicant

AND: NARELLE GILL

First Respondent

PAM ALLOM, CAROLINE ANDRIVON, TERRY BAKER, JOHANNA BREM, GREG BROOME, COLIN COAKLEY, BEV CROSS, GARY DAVERN, DI DAVIS, PETER DENK, FILIPPA ESKE, JOY FULTON, HELEN GLEN, LANCE HARRIS, CHRISTINE HAY, MICHELLE HIGGS, DON HUTCHINSON, JOHN JAWORSKY, LYN KEALY, YVONNE LI, DAMIAN McMANUS, SHIRLEY MILLER, STEVEN REED, EDDIE RONSISVALLE, MICHAEL VON RETH, MARK SLATER, MARNIE SLUICE, ANNETTE STAFFORD, DIEDRE TURTLE, SALLY VALLIS, JOHN WALKER, LANCE WEBB and JENNY WHITEHEAD

Second Respondents

INDUSTRIAL REGISTRAR

Third Respondent

and

NEW SOUTH WALES DEPUTY INDUSTRIAL REGISTRAR

Fourth Respondent

CORAM:    WILCOX CJ
PLACE:    SYDNEY
DATE:     24 APRIL 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

The order nisi granted on 2 April 1996 be discharged.

Note: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA ) No. NI.96/1318
NEW SOUTH WALES DISTRICT REGISTRY)

BETWEEN: GARRY JOHN McGRAW

Applicant

AND: NARELLE GILL

First Respondent

PAM ALLOM, CAROLINE ANDRIVON, TERRY BAKER, JOHANNA BREM, GREG BROOME, COLIN COAKLEY, BEV CROSS, GARY DAVERN, DI DAVIS, PETER DENK, FILIPPA ESKE, JOY FULTON, HELEN GLEN, LANCE HARRIS, CHRISTINE HAY, MICHELLE HIGGS, DON HUTCHINSON, JOHN JAWORSKY, LYN KEALY, YVONNE LI, DAMIAN McMANUS, SHIRLEY MILLER, STEVEN REED, EDDIE RONSISVALLE, MICHAEL VON RETH, MARK SLATER, MARNIE SLUICE, ANNETTE STAFFORD, DIEDRE TURTLE, SALLY VALLIS, JOHN WALKER, LANCE WEBB and JENNY WHITEHEAD

Second Respondents

INDUSTRIAL REGISTRAR

Third Respondent

and

NEW SOUTH WALES DEPUTY INDUSTRIAL REGISTRAR

Fourth Respondent

CORAM:    WILCOX CJ
PLACE:    SYDNEY
DATE:     24 APRIL 1996

REASONS FOR JUDGMENT

WILCOX CJ: This is an application to make absolute an order nisi granted by me on 2 April, 1996. The case concerns the Flight Attendants Association of Australia ("FAAA"), an employee organisation registered under the Industrial Relations Act 1988. Section 209 of that Act entitles a member of 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 McGraw v Gill

Details

AGLC: McGraw v Gill [1996] IRCA 148
Case: [1996] IRCA 148
Decision Date: 24 April 1996

CaseChat Overview and Summary

The case of McGraw v Gill involved an industrial law dispute between McGraw, the applicant, and Gill, the respondent. McGraw sought enforcement of certain rules regarding the appointment of a Federal President of the respondent's registered organisation. The dispute arose after Gill was appointed by the Federal Council to fill a casual vacancy in the office of Federal President. McGraw argued that the appointment was invalid and that the rules required a casual vacancy to be filled by an election where the unexpired part of the term exceeded 12 months or three quarters of the term.

The central legal issues before the court were whether the appointment of Gill was valid under the rules of the respondent's registered organisation and whether the rules necessitated an election to fill the vacancy in the office of Federal President. The court had to interpret the relevant rules and determine whether the Federal Council had the authority to appoint a new Federal President in the circumstances presented.

In examining the rules, the court found that the rules did not explicitly require an election to fill a casual vacancy in the office of Federal President. Instead, the rules allowed for the Federal Council to appoint a new Federal President in such circumstances. The court held that the Federal Council had the authority to make the appointment, and therefore, the appointment of Gill was valid. The court also found that the rules did not mandate an election for filling a casual vacancy when the unexpired term was less than 12 months or three quarters of the term. Consequently, the appointment of Gill was in accordance with the rules, and McGraw's application for enforcement was dismissed.

The court's decision concluded that the appointment of Gill as the Federal President was valid, and the rules did not require an election to fill the casual vacancy in the office of Federal President. The court dismissed McGraw's application for enforcement of the rules, and no further orders were made.

Orders