Muscat, Terry v Abrams, Timothy

[1998] FCA 631

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - Registered organisations - resolution to amend rules - dissolution of Branch

Workplace Relations Act 1966 (Cth), s 258(3)

TERRY MUSCAT v TIMOTHY ABRAMS & ORS
NG 399 of 1998

MADGWICK J
25 MAY 1998

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 399  of   1998

BETWEEN:	TERRY MUSCAT APPLICANT
AND:	TIMOTHY ABRAMS & ORS RESPONDENT
JUDGE(S):		MADGWICK J
DATE OF ORDER:		25 MAY 1998
WHERE MADE:		SYDNEY

THE COURT DECLARES THAT:

1. there has been an invalidity in the management or administration of the Building Construction and Joinery Branch of the Australian Workers’ Union in that its Branch Executive is unable to meet for the purposes of considering and passing resolution required under Rule 36(4) of the rules of the Australian Workers’ Union.

1. the Building Construction and Joinery Branch of the Australian Workers’ Union has ceased to exist or function effectively.

1. the resolution of the National Executive of the Australian Workers’ Union passed on 12 November 1997 seeking the dissolution of the Building Construction and Joinery Branch of the Australian Workers’ Union was valid and appropriate in the circumstances.

THE COURT ALSO ORDERS THAT:

1. the Building Construction and Joinery Branch of the Australian Workers’ Union be dissolved and that the rules of the Australian Workers’ Union be amended accordingly.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 399 of 1998

BETWEEN:	TERRY MUSCAT APPLICANT
AND:	TIMOTHY ABRAMS & ORS RESPONDENT

JUDGE(S):	MADGWICK J
DATE:	25 MAY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

MADGWICK J:  In this matter, the Building Construction and Joinery Branch (“the Branch”) of the Australian Workers Union, which has become defunct, originated from an amalgamation of the former organisation the Australasian Society of Carpenters and Joiners with another organisation, the (then) Federation of Industrial Manufacturing and Engineering Employees (FIME).  After the amalgamation of those two organisations, they were still known as FIME, and FIME in due course amalgamated with the Australian Workers Union.   The amalgamated organisation, after a name change, is now known as the Australian Workers Union (AWU).

The Branch having become defunct, the National Executive resolved to amend the rules so as to delete references to the Branch.  Such a step would amount to the dissolution of the Branch.  The Rules of the AWU provide in Rule 36(4) that:

“No branch shall be dissolved without the consent of the relevant Branch Executive.”

and that:

“This sub-rule shall not be varied in respect of any branch without the consent of the relevant Branch Executive.”

There is no Branch Executive for the Branch.  In 1997 the AWU held elections for all its office holders including, of course, officers within the Branch.  Nominations were duly called.  The only office which attracted any nominations was that of Honorary Branch Secretary.  Two nominations were received and after a ballot Mr Hindle was declared elected.  Mr Hindle was one of those who voted for the dissolution of the Branch.

The AWU’s National Executive perceived that the absence of a Branch Executive necessitated this application to the Court, which is to validate its decisions.  Mr Hindle was among those who personally or by proxy voted both for dissolution of the Branch and to authorise this application.  A letter has been tendered from Mr Hindle indicating that he does not wish to oppose the relief sought from the Court.  The members of the national executive, apart from Mr Muscat, the National Secretary of the AWU, who is the applicant, have been named as the respondents.

It is difficult to know quite what else Mr Muscat and his legal advisers might have done.  I suppose in theory I could put the Union to the trouble, expense and delay of causing national advertisements of this validation application but, in my view, the prospects of any member wishing to oppose or successfully opposing the validation application are so slim that that would be an exercise in pointless punctiliousness, lacking in substance.  In the real world of trade union affairs, if anybody was seriously opposed to this step he or she would have heard about it and have done something about it by now.

I dispense with further service of the application and I make orders in accordance with paragraphs 1 to 5 of the application.

I certify that this and the preceding one (1) page is a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick

Associate:

Dated:             25 May 1998

Solicitor for the Applicant:	McClellands Solicitors
Date of Hearing:	25 May 1998
Date of Judgment:	25 May 1998