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Sherrif v Townsend

Sherrif v Townsend

Case [1980] FCA 44 3 April 1980

Judicial Review

Unconscionable Conduct

Breach of Contract

Administrative Law

Employment & Labour Law

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Re: GARRY EARNEST SHERRIF & OTHERS
And: LEONARD CECIL TOWNSEND & OTHERS (1980) 48 FLR 20
V. Nos. 12 & 17 of 1979
N.S.W. Nos. 26 & 31 of 1979
Industrial Law - Conciliation and Arbitration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA & NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Smithers(1), Evatt(2) and Northrop(3) JJ.

CATCHWORDS

Industrial law - whether rules contravene section 140 of the Conciliation and Arbitration Act - failure of rules to provide for branch status - disproportionate representation on Federal Council - control of committees - failure of rules to provide for separate election for each office - exclusion of officers from election to offices - validity of elections and resolutions where rules invalid - validation of invalid proceeding pursuant to s.171C of the Act - Scheme for the constituting of Federal Council - approval of scheme by the Court - principles applicable - collective body.

Conciliation and Arbitration - Registered organization - Rules - Failure to make provision required by Conciliation and Arbitration Act - Oppressive, unreasonable or unjust - Failure to provide branch status for sub-branch - Representation of branches on federal council - Right of member to stand for offices of secretary and delegate - Failure of rules to provide separate election for each office - Election of office bearers - Collegiate electoral system - Federal council as college - Autonomy of branches - Participation of branches in State industrial systems - Requirement that rules provide for control of committees by members - Committees, federal council ceasing to exist or function effectively - Reconstitution of federal council - Conflicting schemes submitted - Power of court to approve different scheme - Action to be taken by collective body - Federal council appropriate body to take action - Conciliation and Arbitration Act 1904 (Cth), ss. 4, 118C, 132 (2), 133 (1) (a), (b), (c), (d), (db), 133A, 133AA, 136A, 140 (1) (a), (c), (d) (5C), (5D), (7), 141 (8A), 171D, 171D (2) - Conciliation and Arbitration Regulations 1956, reg. 115 (1) (c), (d), (2).

Conciliation and Arbitration - Registered organization - Performance and observance of rules - Acts and decisions made by invalidly constituted federal council - Validation of acts and decisions - Conciliation and Arbitration Act 1904 (Cth), ss. 141, 171C, 171C (2).

HEADNOTE

Four proceedings under the Conciliation and Arbitration Act 1904 ("the Act") were heard together. They each related to the Vehicle Builders Employees' Federation of Australia ("the federation") a registered organization.

V. 12 of 1979

By rule nisi the claimants, members of the Geelong sub-branch committee of management, sought orders: (i) that various rules of the federation contravened s. 140 (1) of the Act; (ii) under s. 141 of the Act that the respondents being various members of the federal council perform and observe the rules of the federation by treating as null and void the election of certain officers and the purported alteration of certain rules.

Held: (1) Per curiam - The orders sought that r. 39 contravened…

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 Sherrif v Townsend

Details

AGLC: Sherrif, G.E & Ors v. Townsend, L.C. & Ors [1980] FCA 44 ((1980) 48 FLR 20)
Case: [1980] FCA 44
Decision Date: 03 APRIL 1980

CaseChat Overview and Summary

Sherrif v Townsend involved a dispute concerning the rules of an organisation, which was brought before the court to determine whether they contravened section 140 of the Conciliation and Arbitration Act. The case was heard in the Industrial Court of Australia. The primary issue before the court was whether the rules of the organisation were invalid due to their failure to provide for branch status, disproportionate representation on the Federal Council, control of committees, separate elections for each office, and the exclusion of officers from certain elections. The court was also required to consider whether the elections and resolutions held under these invalid rules were valid and if the invalid proceedings could be validated under section 171C of the Act.

The court examined the principles applicable to a collective body as outlined in the Conciliation and Arbitration Act. It was established that a collective body should have rules that ensure fair representation and the ability for members to participate in the decision-making process. The court found that the rules in question did not provide for branch status, resulting in unequal representation on the Federal Council. Additionally, the rules did not allow for separate elections for each office and excluded officers from certain elections, which led to an imbalance in the representation and decision-making process within the organisation. The court concluded that these deficiencies rendered the rules invalid under section 140 of the Act.

Upon determining the invalidity of the rules, the court assessed whether the elections and resolutions held under these rules were valid. The court found that the invalid rules did not invalidate the proceedings if they could be validated under section 171C of the Act. The court approved a scheme proposed by the parties to constitute the Federal Council in a manner that addressed the identified deficiencies. The scheme ensured fair representation and provided for separate elections for each office, thereby remedying the invalidity of the rules. The court's decision validated the proceedings and provided a framework for the organisation to operate in compliance with the Act.

The court's final orders included the validation of the proceedings held under the invalid rules and the approval of the proposed scheme for constituting the Federal Council. The court emphasised the importance of ensuring fair representation and adherence to the principles outlined in the Conciliation and Arbitration Act. This decision serves as a reminder for organisations to regularly review and update their rules to maintain compliance with the Act and ensure the fair representation of their members.

Orders