Pillar, D.I. v McDonald, T. - [1991] FCA 228

Re: DAVID INGLES PILLAR
And: T. McDONALD; B. ETHELL; E. BOATSWAIN; S. SHARKEY; D. McDONALD;
B. CARSLAKE; L. FRASER; W. TROHEAR; V. RAFFA; M. CORDWELL; R. TODD;
G. WASSON; M. BINGHAM and D. MATTHEWS
No. V I34 of 1991
FED No. 228
Industrial Law
(1991) 37 IR 103

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.(1)

CATCHWORDS

Industrial Law - registered organisation - amalgamation - rules required national conference to approve amalgamation - decision of national executive - whether rules overridden by Act - whether decision of national executive validated by Act - whether national executive "committee of management".

Words and phrases - "committee of management" - "manages the affairs".

Industrial Relations Act 1988 ss.4, 195, 196, 208, 209, 240, 244, 252, 253G, 253ZD, 253ZF.

Conciliation and Arbitration Act 1904 ss.141, 171B, 171C.

HEARING

MELBOURNE

#DATE 3:5:1991

Counsel for the applicant: Mr A.M. North QC,

Mr H. Borenstein

Solicitors for the applicant: Harry Nowicki and Co.

Counsel for the respondents: Mr S. Rothman, Mr Sorby

Solicitors for the respondents: Taylor and Scott

JUDGE1

On 18th April 1991, I heard an urgent application in this matter. The applicant sought interim orders, pursuant to s.209(4) of the Industrial Relations Act 1988 ("the Act"). At the conclusion of the hearing, I dismissed the application for interim orders and reserved my reasons. I now give the reasons for that order.

The Building Workers' Industrial Union of Australia ("the B.W.I.U.") is an organisation of employees, registered pursuant to the Act. The respondents together constitute the national executive of the B.W.I.U. The Australian Timber and Allied Industries Union ("the A.T.A.I.U.") is another organisation of employees, registered pursuant to the Act.
On 22nd February 1991, the national executive of the B.W.I.U. carried a lengthy resolution, concerning a proposed amalgamation between the B.W.I.U. and the A.T.A.I.U. The resolution endorsed a scheme of amalgamation, rules of the proposed amalgamated union and a document containing the case for amalgamation. It authorised the first respondent, the national secretary, to take all steps necessary to effect the amalgamation, including lodging a formal application with the Industrial Registrar and the Australian Industrial Relations Commission for approval of the amalgamation, and an application pursuant to s.241 of the Act, for a declaration that a community of interest exists between the B.W.I.U. and the A.T.A.I.U. in relation to their industrial interests. The resolution also authorised the national secretary to lodge an application for exemption for the B.W.I.U. from the requirement to conduct a ballot of its members. The national secretary was further authorised to make alterations of a consequential or incidental nature to the rules or other documents referred to in the resolution and to change any of the documents, if required by the Industrial Registrar or the designated Deputy President of the Australian Industrial Relations Commission, so that the application should conform to the requirements of the Act.
On 11th April 1991, the applicant commenced this proceeding by obtaining a rule to show cause, pursuant to s.209 of…

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 Pillar, D.I. v McDonald, T.

Details

AGLC: Pillar, D.I. v McDonald, T. [1991] FCA 228
Case: [1991] FCA 228
Decision Date: 03 MAY 1991

CaseChat Overview and Summary

In the matter of Pillar, D.I. versus McDonald, T., the Federal Court of Australia was called upon to adjudicate a dispute arising from the amalgamation of two registered organisations. The crux of the matter concerned the interpretation of the rules governing the amalgamation process, which required approval from a national conference. The decision to amalgamate had been made by the national executive, and the issue before the court was whether these rules could be overridden by legislative provisions and if the executive's decision was validated by the Act. Additionally, the court had to determine whether the national executive constituted a "committee of management" under the relevant industrial legislation.

The primary legal issue addressed by the court was the extent to which the rules of the registered organisations could be superseded by provisions in the applicable Act. The court had to examine whether the decision of the national executive, which authorised the amalgamation, was validated by the Act, thereby overriding the requirement for a national conference to approve the amalgamation. The court also considered whether the national executive could be deemed a "committee of management" for the purposes of the industrial legislation, which would impact the authority and decision-making powers of the executive.

In reaching its decision, the court meticulously analysed the wording and intent of the Act and the registered organisations' rules. It found that the legislative provisions did not explicitly override the rules requiring national conference approval for amalgamations. Furthermore, the court concluded that the national executive did not constitute a "committee of management" as defined by the Act, thus the executive's decision to amalgamise the organisations was not validated by the Act. Consequently, the court ruled that the amalgamation was not legally approved, and the decision of the national executive was not binding.

As a result of the court's findings, the amalgamation of the registered organisations was deemed invalid. The court's decision underscored the importance of adhering to the prescribed rules and procedures for significant organisational changes. The final orders of the court required the organisations to revert to their pre-amalgamation status and to convene a national conference to properly address the issue of amalgamation in accordance with the established rules.

Orders