McLeish, David v. Faure, C.W. & Ors [1979] FCA 72

McLeish, David v. Faure, C.W. & Ors [1979] FCA 72

The Court may, in the exercise of its discretion under s.21 of the Federal Court of Australia Act 1976, declare that a proposed alteration to the rules of a registered organisation is not contrary to s.140(1) of the Conciliation and Arbitration Act 1904, notwithstanding the Registrar has not yet certified the alteration under s.139(4), particularly where all parties agree and it resolves the controversy. The proposed alterations in this case are not contrary to s.140(1).

Parties
Claimant: David McLeish; Respondent: C.W. Faure; Respondent: I. Auchterlonie; Respondent: E.J. Turnbull; Respondent: N.D. Kane; Respondent: G.C. Colthorpe; Respondent: C.J. Emery; Respondent: K.B. Gilbert; Respondent: S.D. Allen; Respondent: T.D. Rynn; Respondent: J.R. Devereaux; Respondent: M.A. Walker; Respondent: C.O. Dolan
Jurisdiction
Australia
Judgment Date
23 July 1979
Procedural Posture
Industrial Law Registered Organisation Dispute / Application for Declaration Regarding Rule Alterations and Preliminary Determination of Validity Prior to Registrar Certification
Outcome
Declaration made; hearing otherwise adjourned for parties to consider further applications for consequential orders if necessary.
Legal Topics
Registered Organisations, Union Rule Alterations, Jurisdiction of Court, Certification Procedures, Declarations of Right
Industrial Law Administrative Law Registered Organisations Union Rule Alterations Jurisdiction of Court Certification Procedures Declarations of Right

Case Brief

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Parties

David McLeish

Claimant

C.W. Faure

Respondent

I. Auchterlonie

Respondent

E.J. Turnbull

Respondent

N.D. Kane

Respondent

G.C. Colthorpe

Respondent

C.J. Emery

Respondent

K.B. Gilbert

Respondent

S.D. Allen

Respondent

T.D. Rynn

Respondent

J.R. Devereaux

Respondent

M.A. Walker

Respondent

C.O. Dolan

Respondent

Procedural Posture

Industrial Law Registered Organisation Dispute / Application for Declaration Regarding Rule Alterations and Preliminary Determination of Validity Prior to Registrar Certification

Legal Issues

  1. 1 Whether the Federal Court can consider the validity of alterations to union rules prior to certification by the Registrar under s.139(4) of the Conciliation and Arbitration Act 1904
  2. 2 Whether the proposed alterations to the rules of the Electrical Trades Union of Australia are contrary to s.140(1) of the Conciliation and Arbitration Act 1904

Ratio Decidendi

The Court may, in the exercise of its discretion under s.21 of the Federal Court of Australia Act 1976, declare that a proposed alteration to the rules of a registered organisation is not contrary to s.140(1) of the Conciliation and Arbitration Act 1904, notwithstanding the Registrar has not yet certified the alteration under s.139(4), particularly where all parties agree and it resolves the controversy. The proposed alterations in this case are not contrary to s.140(1).

Court Disposition

Declaration made; hearing otherwise adjourned for parties to consider further applications for consequential orders if necessary.

Orders

  • The Court declares pursuant to s.21 of the Federal Court of Australia Act 1976 that the alteration to the rules of the Electrical Trades Union of Australia approved by a majority of financial members of the Union at a ballot completed on 23 March 1979 is not contrary to s.140(1) of the Conciliation and Arbitration...