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Re Building Workers' Industrial Union; Ex parte Gallagher

Re Building Workers' Industrial Union; Ex parte Gallagher

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Case Copied 11 February 1988 24 min read

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HIGH COURT OF AUSTRALIA

Mason C.J., Wilson, Deane, Toohey and Gaudron JJ.

RE BUILDING WORKERS' INDUSTRIAL UNION OF AUSTRALIA Ex parte NORMAN LESLIE GALLAGHER

11 February 1988

Decisions

MASON C.J., WILSON, DEANE, AND GAUDRON JJ. This application by Norman Leslie Gallagher ("the prosecutor") for writs of mandamus and certiorari arises out of applications made by the Building Workers' Industrial Union of Australia ("the B.W.I.U.") to the Industrial Registrar for consent to alterations of its rules. One application related to the rule prescribing conditions of eligibility for membership; the other related to the description of the industry in respect of which the B.W.I.U. was registered. The proposed alterations were designed to extend the eligible membership of the union to include persons who were members of the Australian Building Construction Employees' and Builders Labourers' Federation ("the B.L.F.") which had been deregistered pursuant to the Builders Labourers' Federation (Cancellation of Registration) Act 1986 (Cth).

2. The application to this Court relates to four notices of objection, lodged by the prosecutor, to the proposed alterations of the B.W.I.U. rules. The prosecutor lodged two notices of objection to each B.W.I.U. application. In one of the two notices he described himself as "General Secretary" of the B.L.F.; in the other he described himself as "State Secretary" of the Victorian Branch of the B.L.F. In each notice he was named as the objector and he signed each notice above the description "SECRETARY". The seal of the B.L.F. was affixed to each notice and the statutory declaration which accompanied each notice. In the statutory declarations the prosecutor declared that he was authorized to make the declaration by the B.L.F. or the Victorian Branch as the case may be. The B.L.F. is now an unincorporated association. The prosecutor has applied for its registration as a trade union under the Trade Unions Act 1958 (Vict.).

3. The Industrial Registrar, after hearing argument, held that the notices of objection were filed by the prosecutor on behalf of the B.L.F. and that as such they fell foul of the prohibition contained in s.4(6) of the Builders Labourers' Federation (Cancellation of Registration - Consequential Provisions) Act 1986 (Cth) ("the Consequential Provisions Act"). Section 4(6) provides:

"A person or an organization or association of employees is not entitled to be represented by an officer, employee, agent or member of a non-registered association in any proceedings before the Commission or the Registrar other than an application by the non-registered association under paragraph 5(1)(b) or an application by the non-registered association for registration under section 132 of the Conciliation and Arbitration Act."

4. The prosecutor applied for leave to appeal under s.88F(1) of the Conciliation and Arbitration Act 1904 (Cth) "the Act"). On 11 February 1987 Munro J. granted leave to appeal, but dismissed the appeal. His Honour based his decision, not on s.4(6) of the Consequential Provisions Act, but on reg.127(5) made under the Act, holding that the notices of objection were made by the prosecutor personally, not on behalf of the B.L.F., and that…

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.

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Details

Case: [1988] HCA 4
Decision Date: 11 February 1988

CaseChat Overview and Summary

The case of *Re Building Workers' Industrial Union; Ex parte Gallagher* involved an application for a writ of prohibition brought by Mr. Gallagher against the Building Workers' Industrial Union of Australia (BWIA) and its federal secretary, Mr. R. J. Gallagher. The application sought to prevent the BWIA from proceeding with a proposed amalgamation with the Amalgamated Metal Workers' Union (AMWU). The core of the dispute concerned the validity of certain resolutions passed by the BWIA's federal council authorising the amalgamation, and whether these resolutions complied with the requirements of the union's rules and the relevant industrial legislation.

The High Court was required to determine whether the resolutions purporting to approve the amalgamation were validly passed, and consequently, whether the BWIA was entitled to proceed with the amalgamation. Specifically, the court considered whether the federal council had the power to pass such resolutions, whether the procedures followed in passing them were in accordance with the union's rules, and whether the proposed amalgamation itself was lawful under the relevant provisions of the *Conciliation and Arbitration Act 1904* (Cth).

The court's reasoning focused on the interpretation of the BWIA's rules regarding the powers of its federal council and the procedures for amalgamation. It was held that the federal council, as constituted and acting under the union's rules, did not have the authority to approve an amalgamation in the manner attempted. The court found that the resolutions were invalid because they did not comply with the specific requirements for altering the rules of the union, which included provisions for a ballot of members. The principle applied was that a registered organisation must act strictly in accordance with its registered rules, and any deviation from these rules, particularly in matters of fundamental importance such as amalgamation, would render the purported action invalid.

Consequently, the High Court made absolute the order nisi for a writ of prohibition, restraining the BWIA and its federal secretary from taking any further steps to effect the proposed amalgamation.

Orders