Re Health Services Union - [2009] FCA 829

FEDERAL COURT OF AUSTRALIA
Health Services Union, in the matter of Health Services Union [2009] FCA 829
INDUSTRIAL LAW – Unions/Registered Organisations - Applications under s 323 of the Fair Work (Registered Organisations) Act 2009 (Cth) - Whether an organisation has ceased to function effectively - Whether there are effective means under the Rules of the organisation by which the organisation can be enabled to function effectively - Whether the Federal Court has jurisdiction to determine applications under s 323 in light of legislative amendments
Conciliation and Arbitration Act 1904 (Cth) s 171D
Fair Work (Registered Organisations) Act 2009 ss 323, 338, 399
Workplace Relations Act 1996 (Cth) ss 323, 338, 339
Re Application of Gallagher; Re Federated Cold Storage & Meat Preserving Employees Union of Australia (1983) 6 IR 78 referred to
Re Joske; Ex parte Shop Distributive and Allied Employees Association (1976) 135 CLR 194 cited
HEALTH SERVICES UNION
VID 378 of 2009
TRACEY J
4 AUGUST 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 378 of 2009

FAIR WORK DIVISION

BETWEEN:
HEALTH SERVICES UNION
Applicant

JUDGE:

TRACEY J

DATE OF ORDER:

4 AUGUST 2009

WHERE MADE:

MELBOURNE

THE COURT DECLARES THAT:
1.The Victorian No. 1 Branch (“the Branch”) of the Health Services Union (“the Union”) has ceased to function effectively and there are no effective means under the rules of the Union by which it can be enabled to function effectively.

THE COURT ORDERS THAT:
2.A Scheme is approved in the form attached for the taking of action by the National Executive of the Union to enable the Branch to function effectively.
3.In the event of any difficulty arising in the course of the implementation of the Scheme the Applicant, the Administrator or any person represented in the proceeding shall have liberty to apply on 72 hours’ written notice.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

ATTACHMENT
SCHEME TO ENABLE THE VICTORIA No. 1 BRANCH OF THE HEALTH
SERVICES UNION TO FUNCTION EFFECTIVELY
1.On the making of the Order approving the Scheme the National Executive shall forthwith declare all elected offices in the Branch vacant as of the date of the appointment of the Administrator in paragraph 6 below and from that date such offices shall be vacant.
2.The National Executive of the Union shall, in writing and within seven days of the Order of the Court request the General Manager of Fair Work Australia to arrange for the conduct of an election of all offices in the Branch by the Australian Electoral Commission.
3.The Administrator must do all things necessary to facilitate the conduct of the election including all those things required to be done by a Committee of Management of an organisation under s 189 of the Fair Work (Registered Organisations) Act 2009 (Cth).
4.For the purposes of paragraph 2 the said elections must be conducted:
(1)in accordance…

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 Re Health Services Union

Details

AGLC: Re Health Services Union [2009] FCA 829
Case: [2009] FCA 829
Decision Date: 4 August 2009

CaseChat Overview and Summary

The parties involved in this case were the Health Services Union and its affiliated branches, with the National Executive of the Union seeking to implement a scheme aimed at ensuring the effective functioning of the Branch. The dispute was brought before the Federal Court of Australia, where the court was tasked with examining the legal validity and appropriateness of the scheme proposed by the National Executive. The core legal issue before the court was whether the proposed scheme complied with the relevant industrial and union laws, particularly focusing on the balance of power between the National Executive and the Branch, and whether it was procedurally fair and justifiable.

The court delved into the intricate dynamics of union governance and the powers vested in the National Executive to manage and oversee the functioning of its branches. It assessed whether the scheme was necessary to address legitimate concerns about the effectiveness of the Branch, and if it adhered to the procedural fairness principles, including adequate notice and opportunity for the Branch to respond. The court also examined whether the scheme was proportionate and did not unduly infringe upon the autonomy of the Branch.

Upon reviewing the evidence and arguments presented, the court concluded that the scheme was both necessary and lawful. It determined that the National Executive had acted within its powers and that the scheme was procedurally fair and proportionate. Therefore, the court approved the scheme in the form attached, allowing the National Executive to proceed with its implementation. The court also provided a mechanism for any party to seek further review if difficulties arose during implementation, ensuring ongoing judicial oversight.

Orders

Orders of the court

2. A Scheme is approved in the form attached for the taking of action by the National Executive of the Union to enable the Branch to function effectively.

3. In the event of any difficulty arising in the course of the implementation of the Scheme the Applicant, the Administrator or any person represented in the proceeding shall have liberty to apply on 72 hours’ written notice.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

TRACEY J

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Ratio Decidendi

Legal Principle Established

Established by: TRACEY J

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IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 378 of 2009
FAIR WORK DIVISION

JUDGE:	TRACEY J
DATE OF ORDER:	4 AUGUST 2009
WHERE MADE:	MELBOURNE