William Mark Wheeler v John Forster & B. Oliver [1980] FCA 125

William Mark Wheeler v John Forster & B. Oliver [1980] FCA 125

The words "and abide by the regulations governing that fund" in r.25 contravened s.140(1)(a) because the fund was a superannuation or other fund for full-time officials within s.133A(2)(e), yet its operation and control were left to regulations that were not certified rules. Those words were severable, but because the organization's rules as a whole still failed to provide for the operation and control of the fund, the Court could not direct the respondents to contribute to it under s.141. The claimant's requested orders were therefore refused, while findings were made under s.141(8A) and the matter was adjourned to allow the organization an opportunity to alter its rules.

Jurisdiction
Australia
Judgment Date
11 September 1980
Procedural Posture
Application Under S.141 of the Conciliation and Arbitration Act 1904 for Directions to Perform and Observe Rules of a Registered Organization. / Reasons for Judgment and Orders on Preliminary Issue Concerning the Validity of R.25 and the Order Nisi.
Outcome
The claimant's orders under the order nisi were refused except to the extent of findings under s.141(8A); the offending words in r.25 were found invalid, no order was made on the broader rules defect at that time, and the matter was adjourned.
Legal Topics
['registered Organizations' 'union Rules' 'retiring Fund for Full Time Officials' 'validity of Rules' 'certified Rules' 'operation and Control of Superannuation or Other Fund']
['industrial Law'] ['registered Organizations' 'union Rules' 'retiring Fund for Full Time Officials' 'validity of Rules' 'certified Rules' 'operation and Control of Superannuation or Other Fund']

Case Brief

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Procedural Posture

Application Under S.141 of the Conciliation and Arbitration Act 1904 for Directions to Perform and Observe Rules of a Registered Organization. / Reasons for Judgment and Orders on Preliminary Issue Concerning the Validity of R.25 and the Order Nisi.

Legal Issues

  1. 1 ['Whether the Court could order the respondents under s.141 to perform and observe r.25 by contributing to the retiring fund in accordance with regulations not certified as rules.' 'Whether the words "and abide by the regulations governing that fund" in r.25 contravened s.140(1)(a) because they failed to conform with s.133A(2)(e).' 'Whether the rules of the Australasian Society of Engineers failed to make provision required by s.133A(2)(e) for the operation and control of the fund provided for in r.25.' "Whether it was necessary to determine the respondents' additional objections based on Reg.115 and s.140(1)(c) and (da)."]

Ratio Decidendi

The words "and abide by the regulations governing that fund" in r.25 contravened s.140(1)(a) because the fund was a superannuation or other fund for full-time officials within s.133A(2)(e), yet its operation and control were left to regulations that were not certified rules. Those words were severable, but because the organization's rules as a whole still failed to provide for the operation and control of the fund, the Court could not direct the respondents to contribute to it under s.141. The claimant's requested orders were therefore refused, while findings were made under s.141(8A) and the matter was adjourned to allow the organization an opportunity to alter its rules.

Court Disposition

The claimant's orders under the order nisi were refused except to the extent of findings under s.141(8A); the offending words in r.25 were found invalid, no order was made on the broader rules defect at that time, and the matter was adjourned.

Orders

  • ['That part of r.25 of the rules of the Australasian Society of Engineers which reads "and abide by the regulations governing that fund" contravenes s.140(1)(a) of the Conciliation and Arbitration Act 1904.' 'The rules of the Australasian Society of Engineers contravene s.140(1)(a) of the Act in that such rules fail...