Roughan, P.J. v Day, L.A. - [1990] FCA 671

Re: PATRICK JOHN ROUGHAN
And: LESLIE ALBERT DAY; TERENCE RICHARD HANNAN; WALTER CURRAN; JOHN L. RUDDER;
JOHN SWALLOW; GRAHAN WARREN and JIM L. READ
No. N I16 of 1990
FED No. 671
Industrial Law
34 IR 282

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Wilcox J.(1)

CATCHWORDS

Industrial Law - Rule amendments - Amendments to abolish elective office - Amendments not yet certified - Position of recently elected office bearer - Effect of amendments on position of office bearer after rules are certified by Industrial Registrar - Officer's entitlement to remuneration.

Industrial Relations Act 1988, ss.205, 209

HEARING

SYDNEY

#DATE 29:11:1990

Counsel for the Applicant: F.L. Wright

Solicitors for the Applicant: Geoffrey Edwards and Co

Counsel for the Respondent: W.R. Haylen, QC

Solicitors for the Respondent: Maurice May and Co

ORDER

The respondents perform and observe the rules of the Australasian Meat Industry Employees' Union:

(a) by treating as null, void and of no effect the resolution adopted by the Federal Executive of the said union at its meeting of 4 October 1990 which was entitled "Resolution re employment of Assistant Federal Secretary"; and

(b) by recognising the applicant, Patrick John Roughan, as Assistaznt Federal Secretary, and remunerating him in accordance with the resolution of the Federal Council of 6 September 1974, until such time (if ever) as the rule amendments adopted by the Federal Council of the said union at its meeting of 3-7 September 1990 are certified by the Industrial Registrar pursuant to s.205 of the Industrial Relations Act 1988.

Save as aforesaid the order nisi be discharged.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. (See also Order 37 rule 2(3))

JUDGE1

This case concerns the validity of a resolution of the Federal Executive of the Australasian Meat Industry Employees' Union ("the Union") relating to the employment of the applicant, Patrick John Roughan. The Union is an organisation registered under the Industrial Relations Act 1988. Mr Roughan brings the proceeding pursuant to s.209 of that Act, claiming that the resolution, which was passed on 4 October 1990, constitutes a breach of the Union's rules.

The facts

For many years the rules of the Union have made provision for an elective office styled "Assistant Federal Secretary". Rule 25.5(i) states that "(t)he election of Assistant Federal Secretary shall take place every fourth year." The sub-rule goes on to dictate procedures for the election of an Assistant Federal Secretary, all financial members being entitled to vote. The Assistaznt Federal Secretary is a member of the Federal Council of the Union - see rule 11(a) - and Federal Executive - see rule 14.
Upon a number of occasions the Federal Council has passed resolutions concerning the position of the Assistant Federal Secretary. On 10 September 1970 Federal Council decided that the weekly salary of the Assistant Fedeal Secretary should be fixed at an amount $20 less than the salary of the Federal Secretary. Plainly, the…

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 Roughan, P.J. v Day, L.A.

Details

AGLC: Roughan, P.J. v. Day, L.A. & Ors [1990] FCA 671 (34 IR 282)
Case: [1990] FCA 671
Decision Date: 29 NOVEMBER 1990

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Roughan, P.J. v Day, L.A. addresses the legal implications of rule amendments within a union regarding the position and remuneration of an elected office bearer. The dispute involves Patrick John Roughan, who was elected as the Assistant Federal Secretary of the Australasian Meat Industry Employees' Union, and the Union's Federal Executive, represented by L.A. Day. The crux of the matter lies in the union's rule amendments that abolished the position of Assistant Federal Secretary and the subsequent effects on Roughan's position and entitlement to remuneration.

The primary legal issues before the court were whether the rule amendments had any effect on Roughan's position prior to their certification by the Industrial Registrar, and if so, what the implications were for his recognition as Assistant Federal Secretary and his entitlement to remuneration. The court had to determine whether Roughan's election prior to the certification of the amendments meant that the union was required to treat the position as valid and remunerate him accordingly.

The court found that since Roughan was elected as Assistant Federal Secretary before the rule amendments were certified, his position was valid and should be recognised. The court ruled that the union must treat the resolution abolishing the position as null and void until the amendments are certified. Consequently, Roughan is to be recognised as the Assistant Federal Secretary and remunerated in accordance with the pre-existing union rules until the amendments are formally certified by the Industrial Registrar.

The court's final order mandates that the respondents, the union and its executive, treat the resolution abolishing the Assistant Federal Secretary position as null and void, and recognise Roughan in that role, paying him as stipulated by the union's rules prior to the amendments. The order also stipulates that this arrangement remains in place until the amendments are certified by the Industrial Registrar.

Orders

Orders of the court

The respondents perform and observe the rules of the Australasian Meat Industry Employees' Union:

(a) by treating as null, void and of no effect the resolution adopted by the Federal Executive of the said union at its meeting of 4 October 1990 which was entitled "Resolution re employment of Assistant Federal Secretary"; and

(b) by recognising the applicant, Patrick John Roughan, as Assistaznt Federal Secretary, and remunerating him in accordance with the resolution of the Federal Council of 6 September 1974, until such time (if ever) as the rule amendments adopted by the Federal Council of the said union at its meeting of 3-7 September 1990 are certified by the Industrial Registrar pursuant to s.205 of the Industrial Relations Act 1988.

Save as aforesaid the order nisi be discharged.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. (See also Order 37 rule 2(3))

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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