Sharp v Sutton and Construction, Forestry, Mining and Energy Union - [1996] IRCA 388

DECISION NO: 388/96

CATCHWORDS

INDUSTRIAL LAW - REGISTERED ORGANISATIONS - "Amalgamation" of registered organisation with deregistered association - Whether amalgamation valid - Division 7 Part IX Industrial Relations Act 1988 not applicable - No other impediment to amalgamation under general law - Whether the Builders Labourers' Federation's (BLF) rule changes and agreements to amalgamate effective - Whether its Federal Council had power to effect an amalgamation with a registered organisation - Nature of rule changes necessary for amalgamation - New rules validly adopted - Sufficiency of notice of meeting - Whether assets of the BLF barred from transfer by the BLF (De-recognition) Act and Orders-in-Council - Construction of Orders-in-Council - Disposition of assets of BLF valid unless avoided by the Custodian - Jurisdiction of the Court to determine the question of validity of disposition of assets - Whether claim of invalidity colourable

Industrial Relations Act 1988 (Cth) ss. 258, 293

BLF (De-recognition) Act 1985 (Vic) s. 7(3)

Sutton v Sharp (1994) 1 IRCR 259

Henderson v Bank of Australasia (1910) 45 Ch. D. 330

Betts & Co v McNaghten [1910] 1 Ch. 430

Torbock v Lord Westbury [1902] 2 Ch. 871

McLure v Mitchell (1974) 24 FLR 115

Efstathis v The Greek Orthodox Community of St George (1989) 1 Qd. R. 146

Boland v Munro (1979) 48 FLR 66

Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations for Queensland (1995) 132 ALR 198

Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410

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IAN GORDON SHARP v JOHN DAVID SUTTON and CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and COMMONWEALTH OF AUSTRALIA
VI 95/4819

THE STATE OF VICTORIA v JOHN DAVID SUTTON and CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and COMMONWEALTH OF AUSTRALIA
VI 95/4820

JOHN ATKINSON and ORS v JOHN DAVID SUTTON and CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and COMMONWEALTH OF AUSTRALIA
VI 95/4821

JOSEPH FERGUSON and ORS v JOHN DAVID SUTTON and CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and COMMONWEALTH OF AUSTRALIA
VI 95/4822

Spender, Ryan and North JJ
Melbourne
23 August 1996

IN THE INDUSTRIAL RELATIONS COURT    )
)
OF AUSTRALIA  )    No VI 95/4819
)
VICTORIA DISTRICT REGISTRY     )

ON APPEAL FROM A DECISION OF A SINGLE JUDGE OF THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA

BETWEEN: IAN GORDON SHARP
(Appellant)

AND: JOHN DAVID SUTTON
(First Respondent)

AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
(Second Respondent)

AND: COMMONWEALTH OF AUSTRALIA
(Intervenor)

CORAM: Spender, Ryan and North JJ
PLACE: Melbourne
DATE: 23 August 1996

MINUTES OF ORDER

THE COURT ORDERS:

That the appeal be dismissed.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT    )
)
OF AUSTRALIA  )    No VI 95/4820
)
VICTORIA DISTRICT REGISTRY     )

ON APPEAL FROM A DECISION OF A SINGLE JUDGE OF THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA

BETWEEN: THE STATE OF VICTORIA
(Appellant)

AND: JOHN DAVID SUTTON

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 Sharp v Sutton and Construction, Forestry, Mining and Energy...

Details

AGLC: Sharp v Sutton and Construction, Forestry, Mining and Energy Union [1996] IRCA 388
Case: [1996] IRCA 388
Decision Date: 23 August 1996

CaseChat Overview and Summary

The case of Sharp v Sutton and Construction, Forestry, Mining and Energy Union involved a dispute between the plaintiff, Sharp, and the defendants, Sutton and the Construction, Forestry, Mining and Energy Union (CFMEU). The central issue was the validity of an amalgamation between the Builders Labourers' Federation (BLF), a registered organisation, and the CFMEU, which was a deregistered association. Sharp challenged the amalgamation, arguing that it was not valid under the Industrial Relations Act 1988 or the general law. The court was tasked with determining whether the amalgamation was lawful and whether the BLF's rule allowing amalgamation with deregistered associations was consistent with the requirements of the Act and the common law.

The court examined whether the Industrial Relations Act 1988 applied to the amalgamation, specifically Division 7 Part IX, which deals with mergers and amalgamations of registered organisations. The court found that this division did not apply to the amalgamation in question, as it was enacted after the amalgamation had taken place. The court then considered whether there were any other impediments to the amalgamation under the general law. It found that there were no other legal barriers to the amalgamation, and that the BLF's rule permitting amalgamation with deregistered associations was valid and consistent with the requirements of the Act and the common law.

In conclusion, the court determined that the amalgamation between the BLF and the CFMEU was valid and not impeded by the Industrial Relations Act 1988 or the general law. The court held that the BLF's rule allowing such amalgamations was lawful, and that there were no other legal impediments to the merger. The final orders of the court upheld the validity of the amalgamation and dismissed Sharp's challenge to it.

Orders