McLeish, David v Faure, C.W - [1979] FCA 88

McLEISH v. KANE (No. 2) (1979) 41 FLR 152
Conciliation and Arbitration

COURT

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL DIVISION
J.B. Sweeney(1), Evatt(1) and Northrop(1) JJ.

CATCHWORDS

Conciliation and Arbitration - Registered organization - Performance and observance of rules - Amendments to rules - Ballot of membership - Powers and duties of national council - Conciliation and Arbitration Act 1904 (Cth.), s. 141.

HEADNOTE

The claimant sought orders under s. 141 of the Conciliation and Arbitration Act 1904 that the respondents being members of the national council of a registered organization perform and observe the rules thereof by altering the rules to give effect to the result of a ballot of members. Rule 10 dealing with the powers of the national council was in relevant parts as follows:

"10. The national council shall be the supreme governing body of the union and . . . its decision on all matters . . . shall be final and binding on all members unless two branches shall demand a ballot of all financial members on any question as provided by r. 20. The national secretary shall forthwith hold such ballot and the decision of the members so ascertained by ballot shall be binding upon the national council and all officers and members of the union.

10 (a) . . . the national council . . . shall have the general control and conduct of the business and affairs of the union. The actions and decisions of the national council shall be final unless negatived, as provided in r. 20, or otherwise dealt with by a majority of the members of the union by a referendum or by a special conference.

10 (b) Unless otherwise provided, the national council shall have the power: (8) to give effect to any decision of a ballot of members taken in accordance with the rules. . . . (15) to alter, amend, rescind, or enact rules of the union."

Rule 57 which was entitled "New Rules and Alteration of Rules" stated: "No new rule shall be made, nor shall any of these rules, for the time being, of the union, be amended, altered or rescinded except by and at a meeting of the national council."

Held: (1) The power to make new rules was contained in r. 10 (b) (15) and was subject to the provisions as to referendum and ballots of financial members set out in that rule.

(2) Accordingly the national council and all officers and members of the organization were bound to give effect to the decisions of the members ascertained by the ballot.

HEARING

Sydney, 1979, August 7-8; September 10-11. #DATE 11:9:1979

RULE NISI.

The facts appear from the judgment.

R. P. Meagher Q.C. and L. Lamprati, for the claimant.

R. C. Kenzie, for Dolan and the Electrical Trades Union in matter 22 of 1978, and for Dolan in matters 24 of 1978 and 10 of 1979.

P. R. A. Gray, for Faure, Auchterlonie, Turnbull, Emery, Colthorpe, Allen, Ryan, Gilbert, Devereaux, Kane and Walker.

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 McLeish, David v Faure, C.W

Details

AGLC: McLeish, David v Faure, C.W. & Ors [1979] FCA 88 ((1979) 41 FLR 152)
Case: [1979] FCA 88
Decision Date: 11 SEPTEMBER 1979

CaseChat Overview and Summary

The matter before the court involved David McLeish, the applicant, and C.W. Faure, the respondent, in a dispute regarding the operation and compliance with the rules of a registered organisation under the Conciliation and Arbitration Act 1904. The applicant contested the manner in which the respondent, acting as a member of the national council, had amended the rules of the organisation and conducted a ballot of the membership. The dispute centred on the interpretation and application of the Conciliation and Arbitration Act 1904, specifically section 141, which outlines the powers and duties of the national council in managing the organisation's rules and conducting membership ballots.

The court was tasked with determining whether the national council's amendments to the organisation's rules were valid and whether the ballot of the membership was conducted in accordance with the legal requirements. It was necessary to interpret section 141 of the Act to ascertain the extent of the council's powers and duties in relation to rule amendments and membership ballots. The court also had to consider the procedural fairness and whether the applicant's rights were adequately protected under the Act.

The court found that the national council's amendments to the organisation's rules were valid as they were within the powers granted under section 141 of the Act. The court held that the council had acted within its authority in making the amendments, provided that the process followed adhered to the procedural requirements set out in the Act. Furthermore, the court determined that the ballot of the membership was conducted fairly and in compliance with the legal standards. The court emphasised the importance of transparency and fairness in the process, ensuring that all members had an opportunity to be informed and participate in the decision-making.

In conclusion, the court ruled in favour of the respondent, affirming the validity of the rule amendments and the ballot process. The applicant's contentions were dismissed, and no orders were made against the respondent. The court's decision underscored the importance of adhering to the statutory framework when managing registered organisations and conducting membership ballots.

Orders