O'Connor v Setka

Case [2020] FCAFC 195

FEDERAL COURT OF AUSTRALIA

O’Connor v Setka [2020] FCAFC 195

Appeal from: O’Connor v Setka [2020] FCA 441
File number: VID 263 of 2020
Judgment of: MORTIMER, RANGIAH AND WHITE JJ
Date of judgment: 11 November 2020
Catchwords:

INDUSTRIAL LAW – appeal from judgment dismissing an application under s 164 of the Fair Work (Registered Organisations) Act 2009 (Cth) – consideration of the Court’s power to make an order giving directions for the performance or observance of union rules – internal membership demarcation dispute between divisions of the union involving proper construction of union rules – appeal allowed.

UNION RULES – principles of construction – rules amended from time to time – internal inconsistencies and redundancies – whether regard may be had to deleted or redundant rules.

Legislation:

Fair Work (Registered Organisations) Act 2009 (Cth) ss 161, 164

Federal Court of Australia Act 1976 (Cth) s 21

Industrial Relations Act 1988 (Cth) s 235

Cases cited:

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424

Conquo v Jackson [2009] FCA 45

Cook v Crawford (1982) 62 FLR 34

Griffiths v Minister for Lands, Planning and Environment [2008] HCA 20; (2008) 235 CLR 232

Health & Case Management Limited v The Physiotherapy Network Limited [2018] EWHC 869 (QB)

Ideal Business Centres Pty Ltd v Violin Holdings Pty Ltd atf The Violin Investment Trust [2018] NSWSC 1249

Maxwell v Murphy (1957) 96 CLR 261

MineralImportExport v Eastern Mediterranean Maritime Ltd [1980] 2 Lloyd’s Rep 573

Mopani Copper Mines plc v Millennium Underwriting Ltd [2008] EWHC 1331 (Comm); (2008) 2 All ER (Comm) 976

R v Joske; Ex parte Shop Distributors & Allied Employees Association (1976) 135 CLR 194

The Queen v Isaac; Ex parte Transport Workers’ Union of Australia (1985) 159 CLR 323

The Queen v McKenzie; Ex parte the Actors & Announcers Equity Association of Australia [1982] HCA 6; (1982) 148 CLR 573

Victorian Stevedoring and General Contracting Company Pty Ltd v Dignan (1931) 46 CLR 73

The Queen v Williams; Ex parte Australian Building Construction Employees’ and Builders’ Labourers’ Federation (1982) 153 CLR 402

Division: Fair Work Division
Registry: Victoria
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 141
Date of hearing: 26 August 2020
Counsel for the Appellant: Mr H Borenstein QC with Mr Y Bakri
Solicitor for the Appellant: Slater & Gordon Lawyers
Counsel for the Respondents: Mr C Dowling SC with Mr P Doyle and Mr C Tran
Solicitor for the Respondents: Maurice Blackburn Lawyers

ORDERS

VID 263 of 2020
BETWEEN:

MICHAEL O'CONNOR

Appellant
AND:

JOHN SETKA

First Respondent

ELIAS SPERNOVASILIS

Second Respondent

RALPH EDWARDS (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

MORTIMER, RANGIAH AND WHITE JJ

DATE OF ORDER:

11 NOVEMBER 2020

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The orders made by the primary Judge on 6 April 2020 be set aside.

3.In their place, the Court declares that, under the Rules of the Construction, Forestry, Maritime,…

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AGLC
O'Connor v Setka [2020] FCAFC 195
Case
[2020] FCAFC 195
Decision Date

CaseChat Overview and Summary

In O'Connor v Setka, the Federal Court of Australia heard an appeal against the dismissal of an application under section 164 of the Fair Work (Registered Organisations) Act 2009 (Cth). The dispute centred on an internal membership demarcation issue within the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). The primary legal issues before the court were the proper construction of union rules, specifically considering whether deleted or redundant rules could be taken into account, and the extent of the court's power to issue directives under section 164 of the Act.

The court concluded that certain complex issues concerning the construction of union rules should not be addressed until necessary, to avoid giving an advisory opinion. The court found that the primary judge had erred in dismissing the application and allowed the appeal, setting aside the orders made on 6 April 2020. The court declared that, under the CFMMEU's rules, eligible members pursuant to Rule 2(F) were attached to the Manufacturing Division, not the Construction and General Division. Furthermore, the court issued several directives to the respondents, including ceasing to induce, encourage, or advise members to resign from the Manufacturing Division and refraining from enrolling them in the Construction and General Division. However, the court remitted the consideration of additional relief to the primary judge due to insufficient evidence and submissions.

The court's reasoning emphasised the importance of adhering to the union's rules, particularly concerning the alteration and enforcement of those rules, as outlined in Rules 25 and 26 of the CFMMEU. The court also highlighted the autonomy of each division within the union, as per Rule 27. The final orders included specific directives for the respondents to comply with the union rules and a remittal of additional relief consideration to the primary judge.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders made by the primary Judge on 6 April 2020 be set aside.

3. In their place, the Court declares that, under the Rules of the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU), the persons eligible for membership pursuant to Rule 2(F) are, until alteration of the Rules or a contrary decision by the National Executive (in either case, in accordance with the Rules), attached to the Manufacturing Division and not to the Construction and General Division.

THE COURT ORDERS FURTHER THAT:

4. The First Respondent perform and observe the Rules of the CFMMEU (the Rules) by ceasing, desisting and refraining, by himself, his servants or agents, from inducing, encouraging or advising any members in the Victorian District of the Manufacturing Division eligible for membership pursuant to Rule 2(F) of the Rules (the Members) to resign their membership in the Manufacturing Division of the CFMMEU.

5. The Second Respondent perform and observe the Rules by ceasing, desisting and refraining, by himself, his servants or agents, from inducing, encouraging or advising any of the Members to resign their membership in the Manufacturing Division of the CFMMEU.

6. The Third to Thirtieth Respondents, jointly and severally, perform and observe the Rules by ceasing, desisting and refraining by themselves, their servants or agents, from inducing, encouraging or advising any of the Members to resign their membership in the Manufacturing Division of the CFMMEU.

7. Within seven days, the Respondents issue and deliver a written instruction and direction to all organisers, other employees and officials of the Victoria‑Tasmania Divisional Branch of the Construction and General Division of the CFMMEU (the Branch), to cease, desist and refrain, by themselves, their servants or agents, from inducing, encouraging or advising any of the Members to resign their membership in the Manufacturing Division of the CFMMEU, and by 4.30 pm on 20 November 2020, file and serve an affidavit made by the First Respondent confirming compliance with this order.

8. Within seven days of the making of this order, the Respondents publish a written instruction and direction to all delegates in the Branch, to cease, desist and refrain from inducing, encouraging, or advising any of the Members to resign their membership in the Manufacturing Division and from enrolling any of the Members as members of the CFMMEU in the Branch, and by 4.30 pm on 20 November 2020, file and serve an affidavit made by the First Respondent confirming compliance with this order.

9. The Respondents, jointly and severally, perform and observe the Rules by ceasing, desisting and refraining by themselves, their servants or agents, from enrolling persons who are eligible to be members of the CFMMEU pursuant to Rule 2(F) of the Rules as members of the CFMMEU in the Branch.

10. Consideration of the relief sought by the Appellant in paras [7]‑[13] inclusive of the Amended Originating Application be remitted to the primary Judge for consideration in accordance with these reasons. Subject to any contrary order by the primary Judge, that consideration is to take place on the basis of the evidence and submissions already received by the primary Judge.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

These issues appear to be of some complexity, and although the parties’ submissions adverted to some of them, the Court did not receive detailed submissions concerning them. In our opinion, the Court should defer expressing any view about them until a decision is actually required. To do otherwise would, in effect, be giving an advisory opinion. Conclusion For the reasons given above, we allow the appeal and set aside the orders made by the Judge on 6 April 2020. The parties disagreed as to the further orders which should be made by the Court. The appellant submitted that this Court should make the remaining orders sought in the Notice of Appeal. The respondents on the other hand contended that the form of relief should be remitted wholly to the primary Judge. They submitted that there were some issues concerning the form of relief and, in particular, the identification of the members who would be affected the Court’s orders about which the primary Judge had received evidence and submissions but which had not been reproduced or made to this Court. In our view, it is desirable for this Court to make orders which will bring the matters to finality, so far as that is practicably possible. We accept, however, the respondents’ submission that this Court has not been provided with all the evidence and submissions which would be necessary for that purpose. Accordingly, we will adopt an intermediate position. We will make some of the orders sought by the appellant and remit consideration of the remaining orders to the primary Judge. We make a declaration that under the Rules of the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU), the persons eligible for membership pursuant to Rule 2(F) are, until alteration of the Rules or a contrary decision by the National Executive (in either case, in accordance with the Rules), attached to the Manufacturing Division and not to the Construction and General Division. In addition, we make further orders that:(1)The first respondent perform and observe the Rules of the CFMMEU (the Rules) by ceasing, desisting and refraining, by himself, his servants or agents, from inducing, encouraging or advising any members in the Victorian District of the Manufacturing Division eligible for membership pursuant to Rule 2(F) of the Rules (the Members) to resign their membership in the Manufacturing Division of the CFMMEU. (2)The second respondent perform and observe the Rules by ceasing, desisting and refraining, by himself, his servants or agents, from inducing, encouraging or advising any of the Members to resign their membership in the Manufacturing Division of the CFMMEU.(3)The third to thirtieth respondents, jointly and severally, perform and observe the Rules by ceasing, desisting and refraining by themselves, their servants or agents, from inducing, encouraging or advising any of the Members to resign their membership in the Manufacturing Division of the CFMMEU. (4)Within seven days, the respondents issue and deliver a written instruction and direction to all organisers, other employees and officials of the Victoria‑Tasmania Divisional Branch of the Construction and General Division of the CFMMEU (the Branch), to cease, desist and refrain, by themselves, their servants or agents, from inducing, encouraging or advising any of the Members to resign their membership in the Manufacturing Division of the CFMMEU, and by 4.30 pm on 20 November 2020, file and serve an affidavit made by the first respondent confirming compliance with this order. (5)Within seven days of the making of this order, the respondents publish a written instruction and direction to all delegates in the Branch, to cease, desist and refrain from inducing, encouraging, or advising any of the Members to resign their membership in the Manufacturing Division and from enrolling any of the Members as members of the CFMMEU in the Branch, and by 4.30 pm on 20 November 2020, file and serve an affidavit made by the first respondent confirming compliance with this order. (6)The respondents, jointly and severally, perform and observe the Rules by ceasing, desisting and refraining by themselves, their servants or agents, from enrolling persons who are eligible to be members of the CFMMEU pursuant to Rule 2(F) of the Rules as members of the CFMMEU in the Branch. (7)Consideration of the relief sought by the appellant in paras [7]‑[13] inclusive of the Amended Originating Application be remitted to the primary Judge for consideration in accordance with these reasons. Subject to any contrary order by the primary Judge, that consideration is to take place on the basis of the evidence and submissions already received by the primary Judge.

Ratio Decidendi

Legal Principle Established

Rule 25 provides for the manner in which the Rules may be altered:25 – ALTERATION OF RULES(a)The rules of the Union, or any of them, may be altered, rescinded, varied or made by the National Conference and/or National Executive. Proposals for alterations of rules may be forwarded by Divisions, Branches or any member of the National Executive or delegate to the National Conference and shall be forwarded to members and/or delegates with the notice calling the National Conference or National Executive, as the case may be, or so soon thereafter as is practicable. Provided that National Conference or National Executive may, in session, alter rules of which previous notice has not been given.(b)Alterations to rules may be made, at the discretion of the National Secretary, by postal, telephonic, facsimile, email, written and/or any other means of communication as a ballot of National Conference or National Executive. Such a rule change will have the same effect as a change made in a session of the National Conference or National Executive.(c)Notwithstanding the foregoing provisions of this rule, the rules of the union and/or any of them may be repealed, altered and added to by the National Executive Committee on its own initiative and without any reference to National Conference or National Executive for the purposes of bringing rules into compliance with the Act, the RO Act or the Regulations thereto or to facilitate, assist in or give effect to an amalgamation decided upon by National Executive or National Conference or to overcome objections taken to an application by the Union for an alteration to its rules, for amalgamation or for registration under the RO Act.(d)Provided that no rule change shall be effected without the approval of a Division, by either the National Conference, National Executive or National Executive Committee which affects the existence of that Division or interferes with its autonomy under these rules, including the internal structures of a Division.Rule 26 Rule 26 provides for the binding nature of the Rules:These National Rules and all the rules of the Union, and all alterations, additions or rescissions thereof or thereto, shall apply to and be binding on all Divisions, Branches, and Divisional Branches in all sections of the Union and all members who now, or who may hereafter, belong to the Union until they are made or become null and void according to the law.(Emphasis added)Rule 27 Rule 27 provides for the establishment of the Divisions of the Union. It provides (relevantly):(i)There shall be Divisions of the Union established, in accordance with the Rules of the Union. Such divisions shall be established on a basis of industry or occupation.Provided that upon the amalgamation of the Maritime Union of Australia and the Textile, Footwear and Clothing Union of Australia with the Union there shall be four (4) Divisions of the Union as follows:(a) the Construction and General Division;(b) the Manufacturing Division;(c) the Mining and Energy Division; and(d) the Maritime Union of Australia Division.(ii)Each Division shall have autonomy to decide matters which do not directly affect the members of another Division without any interference by any other body within the Union, including but not limited to:(a) The industrial interests of its members.(b) The election of officers within the Division.(c) Matters arising from the objects of the Division.(d) Structure of the Division.(iii) Each Division shall have autonomy in relation to its funds and property. (iv)Each Division shall have rules and have power to make, alter or rescind such rules, to be called Divisional Rules. Without limiting the generality of the foregoing paragraph, each Division shall have power to determine policy for that Division, not inconsistent with the rules and policy of the Union as decided by National Conference or National Executive.…