Rayner v Ellery [2016] FCA 771

Rayner v Ellery [2016] FCA 771

The BCOM acted within its rule 54 mandate in adopting the Telstra redundancy payment standard, because Branch practice had long aligned salaries and some conditions with Telstra standards, no relevant BCOM member stood to benefit, and the resolution was not shown to be tainted by an improper purpose or breach of fiduciary obligation. The National Council resolution of 6 April 2016 was not within power under rule 7.1.1 because the Branch's financial circumstances did not directly affect another division, but it was within power insofar as it protected the corpus of the proceeds of the Cromwell Street property sale: under rule 7.1.2.8 the National Council could authorise the 2006 sale on...

Jurisdiction
Australia
Judgment Date
01 July 2016
Procedural Posture
Application Under S 164 of the Fair Work (registered Organisations) Act 2009 (cth) for Orders for Performance and Observance of Registered Organisation Rules / Final Judgment and Orders
Outcome
Application allowed in part; otherwise dismissed.
Legal Topics
['performance and Observance of Rules' 'division and Branch Powers' 'branch Autonomy' 'national Council Resolutions' 'redundancy Payments' 'union Funds and Property' 'conditional Authorisation of Sale of Real Property']
['industrial Law' 'registered Organisations' 'employment and Industrial Relations'] ['performance and Observance of Rules' 'division and Branch Powers' 'branch Autonomy' 'national Council Resolutions' 'redundancy Payments' 'union Funds and Property' 'conditional Authorisation of Sale of Real Property']

Case Brief

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Procedural Posture

Application Under S 164 of the Fair Work (registered Organisations) Act 2009 (cth) for Orders for Performance and Observance of Registered Organisation Rules / Final Judgment and Orders

Legal Issues

  1. 1 ['Whether the Branch Committee of Management acted within its powers under the Rules when it resolved to apply Telstra redundancy payment conditions to Branch employees.' 'Whether the Branch Committee of Management resolution adopting the Telstra redundancy payment standard was invalid because it was not made bona fide for the purposes for which the power was conferred.' 'Whether the National Council resolution of 6 April 2016 was within power under rule 7.1.1 as a matter affecting more than one division or concerning the business and affairs of the Union.' 'Whether the National Council resolution of 6 April 2016 was within power under rule 7.1.2.8 as an assertion of conditions attached to the 2006 authorisation of the sale of the Cromwell Street property.' 'Whether the respondents were obliged under divisional rule 77(a) to comply with the National Council resolution by refraining from using the Industry Fund Portfolio Service investment to make a redundancy payment to Ms Trish Willoughby.']

Ratio Decidendi

The BCOM acted within its rule 54 mandate in adopting the Telstra redundancy payment standard, because Branch practice had long aligned salaries and some conditions with Telstra standards, no relevant BCOM member stood to benefit, and the resolution was not shown to be tainted by an improper purpose or breach of fiduciary obligation. The National Council resolution of 6 April 2016 was not within power under rule 7.1.1 because the Branch's financial circumstances did not directly affect another division, but it was within power insofar as it protected the corpus of the proceeds of the Cromwell Street property sale: under rule 7.1.2.8 the National Council could authorise the 2006 sale on...

Court Disposition

Application allowed in part; otherwise dismissed.

Orders

  • ["The respondents perform and observe the Rules of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia by refraining, in compliance with the resolution of the National Council of the Union on 6 April 2016, from making any payment to Ms Trish...