Rayner v Ellery

[2016] FCA 771

FEDERAL COURT OF AUSTRALIA

Rayner v Ellery [2016] FCA 771

File number:

VID 342 of 2016

Judge:

JESSUP J

Date of judgment:

1 July 2016

Catchwords:

INDUSTRIAL LAW – Registered organisation – Performance and observance of rules – Division of functions as between national council and branch – Branch autonomy – Proceeds of sale of real estate – Whether under control of national council – Whether available to fund redundancy benefit for branch employee – Whether branch officers obliged to comply with national council resolution.  

Legislation:

Fair Work (Registered Organisations) Act 2009 (Cth) s 164

Cases cited:

Country Roads Board v Neale ADS Pty Ltd (1930) 43 CLR 126

Foley v Padley (1984) 154 CLR 349

Date of hearing:

9 & 10 June 2016

Registry:

Victoria

Division:

Fair Work Division

National Practice Area:

Employment & Industrial Relations

Category:

Catchwords

Number of paragraphs:

60

Counsel for the Applicant:

Mr H Borenstein QC with Mr T Borgeest

Solicitor for the Applicant:

Slater and Gordon

Counsel for the Respondents:

Mr M Harding

Solicitor for the Respondents:

Ryan Carlisle Thomas

ORDERS

VID 342 of 2016

BETWEEN:

GREG RAYNER

Applicant

AND:

JOHN ELLERY

First Respondent

KELVIN WELBOURN

Second Respondent

SUSAN RILEY (and others named in the Schedule)

Third Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	1 JULY 2016

THE COURT ORDERS THAT:

1.The respondents perform and observe the Rules of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia by refraining, in compliance with the resolution of the National Council of the Union on 6 April 2016, from making any payment to Ms Trish Willoughby as a termination payment on redundancy from the Branch's Industry Fund Portfolio Service investment.

2.Otherwise, the application be dismissed.

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

REASONS FOR JUDGMENT

JESSUP J:

1. In this proceeding the applicant, Greg Rayner, seeks orders pursuant to s 164 of the Fair Work (Registered Organisations) Act 2009 (Cth) (“the RO Act”) giving directions for the performance and observance of the rules (“the Rules”) of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the Union”). He is the National President of the Union (an honorary position) and is the Secretary of the Communications Division (“the Division”) (a full-time position to which he was elected on 1 August 2015). The first respondent, John Ellery, is the Secretary of the Victorian Telecommunications and Services Branch (“the Branch”) of the Division, and the remaining thirteen respondents are the other members of the Branch Committee of Management (“the BCOM”).

2. The applicant makes two broad allegations in the proceeding.  First, he says that the BCOM was not acting within its powers under the Rules when, on 21 July 2015, it endorsed a policy on employee entitlements which, amongst other things, tied the entitlements of employees retrenched on account of redundancy  to those that were accorded to the employees of Telstra Corporation Limited (“Telstra”).  He says that the purported exercise…