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Skourdoumbis v Findlay

Skourdoumbis v Findlay

Case [2002] FCA 638 21 May 2002

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FEDERAL COURT OF AUSTRALIA
Skourdoumbis v Findlay [2002] FCA 638
INDUSTRIAL LAW - organisation – rules - validity - rule providing for numbers of delegates elected by divisional branches to divisional conference - lack of proportion between the membership of divisional branches and relative voting power on divisional conference - referendum of all members of division could direct divisional conference – delegates to divisional conference constitute electoral college for election of divisional executive and part of electoral college for election of national officers – whether conditions, obligations or restrictions on members that are oppressive, unreasonable or unjust – effect of change of objects of Act and purposes of registration of organisations under Act - whether contravention in rule relating to numbers of delegates to divisional conference or in rules as a whole
INDUSTRIAL LAW - organisation – rules – performance and observance - referendum of financial members of division – requests by divisional branch committee of management and by petition of members of division within one divisional branch – proposal for amendments to rules - whether divisional branch unfinancial - requirement to “pay” sustentation fees – whether satisfied by set off against greater debt owed by divisional office to divisional branch – whether enough signatories to petition financial members – whether proposed rule amendments would contravene Act – whether divisional executive entitled to refuse to conduct referendum
WORDS & PHRASES - “pay”
Workplace Relations Act 1996 (Cth) ss 3(f), 3(g), 187A, 196(c), 208, 209
Conciliation & Arbitration Act 1904 (Cth) ss 2(e), 2(f), 140(1)(c)
Industrial Relations Act 1988 (Cth) s 196(c)
Workplace Relations and Other Legislation Amendment Act 1996 (Cth)
McLeish v Kane (1978) 22 ALR 547 followed
McLeish v Faure (1979) 25 ALR 403 followed
Luckman v Australian Postal and Telecommunications Union (1978) 28 ALR 393 considered
Sherriff v Townsend (1980) 30 ALR 223 considered
Willingale v Australian Federated Union of Locomotive Enginemen (1982) 62 FLR 129 considered
Scott v Rolfe (1979) 36 FLR 249 considered
Cook v Crawford (1982) 43 ALR 83 considered
Willingale v Australian Federated Union of Locomotive Enginemen (1983) 68 FLR 149 considered
Lawley v Transport Workers’ Union of Australia (1987) 22 IR 114 followed
Burwood Cinema Ltd v Australian Theatrical and Amusement Employees’ Association (1925) 35 CLR 528 considered
R v Dunphy; Ex parte Maynes (1978) 139 CLR 482 considered
Egan v Maher (1978) 20 ALR 421 considered
Griffiths v Ansett Pilots Association [2001] FCA 1215 followed
Drake Personnel (New Zealand) Ltd v Taylor [1996] 2 NZLR 644 referred to
Gladstone Milk Bar Ltd v Henning [1998] 3 NZLR 183 referred to
LEO SKOURDOUMBIS v ALEX FINDLAY, RICK FOWLER, GREGORY COLIN WILLIAMS, EDWARD NORMAN HARRIS, BRADLEY PARKER, MICHAEL MITTEN, FRANK VARI, MICHAEL HARITOU, JAMES ROBERT EMERY, STEPHEN ROWE, CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION AND JOHN MAITLAND
V 281 of 2001
JOE PATTI v MICHAEL HARITOU, ALEX FINDLAY, RICK FOWLER, GREGORY WILLIAMS, EDWARD HARRIS, BRADLEY PARKER, MICHAEL MITTEN, JOHN MAITLAND AND CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
V 636 of 2001
GRAY J
21…

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 Skourdoumbis v Findlay

Details

AGLC: Skourdoumbis v Findlay [2002] FCA 638
Case: [2002] FCA 638
Decision Date: 21 MAY 2002

CaseChat Overview and Summary

In the case of Skourdoumbis v Findlay, the dispute centred on the validity and observance of rules within the Construction, Forestry, Mining and Energy Union (CFMEU). The Industrial Relations Court was called upon to examine the legality of certain provisions within the union's rules, specifically regarding the election of delegates to a divisional conference and the financial obligations of divisional branches. The primary legal issues the court needed to address were whether these rules contravened provisions of the Workplace Relations Act 1996, and if so, whether such contraventions rendered the rules invalid or merely required alteration.

The court delved into the provisions of the Act, particularly sections 196(c) and 196(d), which pertain to the fairness of organisational rules and the requirement for referendums to be held by financial members of a division. The court found that the rule providing for an unequal number of delegates based on the size of divisional branches was disproportionate and thus contravened s 196(c). Additionally, the court examined the interpretation of the term "pay" in the context of "sustainment fees" and concluded that setting off debts did not satisfy the obligation to pay. The court also found that the divisional executive was not entitled to refuse a referendum requested by the divisional branch committee of management and a petition of members within one divisional branch.

In light of these findings, the court discharged certain paragraphs of a rule to show cause and ordered the CFMEU to alter its rules to eliminate the identified contravention. The court mandated the union to file an affidavit detailing the rule alterations and the procedures followed. Parties opposing the alterations had to file statements of contentions, and the union was required to respond. The consolidated proceeding was adjourned to allow the union to implement these changes, ensuring compliance with the Act and the fair observance of organisational rules within the union.

Orders

Orders of the court

1. Paragraphs 1, 2 and 3 of the rule to show cause granted in matter no. V 281 of 2001 be discharged.

2. The rule to show cause granted in matter no. V 636 of 2001 be discharged.

3. Otherwise, the consolidated proceeding be adjourned to 9 September 2002, for the purpose of giving the Construction, Forestry, Mining and Energy Union an opportunity to alter its rules.

4. On or before 16 August 2002, the Construction, Forestry, Mining and Energy Union file and serve an affidavit, setting out the alterations it has made to its rules to eliminate the contravention of s 196(c) of the Workplace Relations Act 1996 (Cth) identified in the reasons for judgment in this proceeding and the procedures followed to alter those rules.

5. On or before 23 August 2002, any party wishing to contend that the rules as altered fail to eliminate the contravention identified in the reasons for judgment in this proceeding or are otherwise in contravention of the Workplace Relations Act 1996 (Cth), or that the alterations to the rules have not been made validly, file and serve a statement of contentions of fact and law, stating particulars of the contention, and any affidavit on which that party seeks to rely.

6. On or before 30 August 2002, the Construction, Forestry, Mining and Energy Union file and serve any statement of contentions of fact and law, and any affidavit on which it may seek to rely, in answer to any such contention.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J

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Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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Citations

AGLC Citation

Skourdoumbis v Findlay [2002] FCA 638

Most Recent Citation

Commissioner of Taxation v Rozman [2010] FCA 324

Cases citing this decision · 2 of 2 shown

Quality Publications Australia Pty Limited v Commissioner of Taxation
[2012] FCA 256 Para 15

…uf Finance Corporation Pty Ltd v Zurich Australia Insurance Ltd (1993) 32 NSWLR 735 at 740 per Giles J; Skourdoumbis v Findlay (2002) 114 IR 318; 190 ALR 554 at [83]-[84] per Gray J. The statement of de Jersey CJ in an obiter dictum in Starco Developments Pty Ltd v Ladd [1999] 2 Qd R 542 at [4] that a party directing a debtor t…
Commissioner of Taxation v Rozman
[2010] FCA 324 Para 23

…ose arrangements: cf. Fruehauf Finance Corporation Pty Ltd v Zurich Australia Insurance Ltd (1993) 32 NSWLR 735 at 740 per Giles J; Skourdoumbis v Findlay (2002) 190 ALR 554 at 582-583 [83]-[84] per Gray J. The statement of de Jersey CJ in an obiter dictum in Starco Developments Pty Ltd v Ladd [1999] 2 Qd R 542 at 546 [4] that…

View all 2 citing cases →

Cases cited in this decision · 12 of 12 shown

Kingham v Sutton
[2002] FCA 506 Para 6

…which a right to check the financial status of each person who signed the petition was asserted by the Divisional Executive. Compare Kingham v Sutton [2002] FCA 506.…
Griffiths v Ansett Pilots Association
[2001] FCA 1215 Para 12

…embers of the FFTS Union Division, so long as it does not depart from the substance of the request. Compare Griffiths v Ansett Pilots Association [2001] FCA 1215 at [30] – [34]. In my view, r 15, although not ideal, is adequate to save the decision-making process within the FFTS Union Division from contravening s…
Willingale, Bernard Jack v Australian Federated Union of Locomotive Enginemen
[1983] FCA 39 Para 8

…tolerable. See Scott v Rolfe (1979) 36 FLR 249; Cook v Crawford (1982) 43 ALR 83; and Willingale v Australian Federated Union of Locomotive Enginemen (1983) 68 FLR 149. It has also been held that the principles are not restricted to the composition of national decision-making bodies. They were applied in Lawley v Tr…
Cook v Crawford
[1982] FCA 133 Para 8

…it clear that some imbalance between numerical strength and voting representation was tolerable. See Scott v Rolfe (1979) 36 FLR 249; Cook v Crawford (1982) 43 ALR 83; and Willingale v Australian Federated Union of Locomotive Enginemen (1983) 68 FLR 149. It has also been held that the principles are not restricted…
Scott, Kevin Charles v Rolfe, Arthur George Wetford
[1979] FCA 76 Para 8

…1982) 62 FLR 129. Other cases made it clear that some imbalance between numerical strength and voting representation was tolerable. See Scott v Rolfe (1979) 36 FLR 249; Cook v Crawford (1982) 43 ALR 83; and Willingale v Australian Federated Union of Locomotive Enginemen (1983) 68 FLR 149. It has also been held that…
McLeish v Kane
[1978] FCA 97

…1)(c) Industrial Relations Act 1988 (Cth) s 196(c) Workplace Relations and Other Legislation Amendment Act 1996 (Cth) McLeish v Kane (1978) 22 ALR 547 followed McLeish v Faure (1979) 25 ALR 403 followed Luckman v Australian Postal and Telecommunications Union (1978) 28 ALR 393 considered Sherriff v Townsend (1980) 30 AL…
Egan, Barry Thomas v Maher, John Bernard
[1978] FCA 39 Para 7

…date. See R v Dunphy; Ex parte Maynes (1978) 139 CLR 482 at 495 per Mason J, with whom Barwick CJ, Stephen, and Aickin JJ concurred and Egan v Maher (1978) 20 ALR 421 at 477 – 483 per Northrop J, with whom Evatt J concurred. It is therefore necessary for the applicant to ask the Court to apply the presumption of co…
R v Dunphy; Ex parte Maynes
[1978] HCA 19 Para 7

…ose rules as they stand at the date when judgment is given, and as they operate on the facts that exist at that date. See R v Dunphy; Ex parte Maynes (1978) 139 CLR 482 at 495 per Mason J, with whom Barwick CJ, Stephen, and Aickin JJ concurred and Egan v Maher (1978) 20 ALR 421 at 477 – 483 per Northrop J, with whom…
Burwood Cinema Ltd v Australian Theatrical and Amusement Employees' Association
[1925] HCA 7 Para 14

…es and in the resolution, usually by awards, of those disputes. See Burwood Cinema Ltd v Australian Theatrical and Amusement Employees’ Association (1925) 35 CLR 528, especially at 551 per Starke J. Since 1996, organisations are no longer given such a prominent position in the operation of the WR Act. The constituti…
[1979] FCA 38
[1979] FCA 38 Para 6

…that case contravenes a provision like s 196(c) cannot be predicted with certainty. As the Court, constituted by the same judges, in McLeish v Faure (1979) 25 ALR 403 at 416 said, there is a: “spectrum over which rules dealing with the weighting of the voting power at meetings of branch delegates to or members of f…
[1996] 2 NZLR 644
[1996] 2 NZLR 644 Para 16

…to pay at a particular time can be satisfied by payments made earlier than that time. See Drake Personnel (New Zealand) Ltd v Taylor [1996] 2 NZLR 644 and Gladstone Milk Bar Ltd v Henning [1998] 3 NZLR 183.…
[1998] 3 NZLR 183
[1998] 3 NZLR 183 Para 16

…ts made earlier than that time. See Drake Personnel (New Zealand) Ltd v Taylor [1996] 2 NZLR 644 and Gladstone Milk Bar Ltd v Henning [1998] 3 NZLR 183.…

Legislation cited in this decision · 4

Workplace Relations Act 1996 (Cth)
187A, 196(c), 208, 209, 3(f), 3(g) 7 mentions (from Para 1)
Industrial Relations Act 1988 (Cth)
196(c) 2 mentions (from Para 1)
Conciliation and Arbitration Act 1904 (Cth)
1 mention (from Para 1)
Workplace Relations and Other Legislation Amendment Act 1996 (Cth)
1 mention (from Para 1)