Re Australian Building Construction Employees and Builders Labourers Federation [1978] FCA 1

Re Australian Building Construction Employees and Builders Labourers Federation [1978] FCA 1

The purported levy was not validly imposed because the Federal Council decision was endorsed only by the Victorian and Queensland Branches and not by a majority of branches. Accordingly the levy did not break the financial membership of Mr. Rix, Mr. Olive, Mr. Mason or their nominators. The nominations of Mr. Olive, Mr. Mason and the second nomination of Mr. Rix were out of time because they were not received in the specified post office box by 5 p.m. on 8 July 1977. Mr. Rix's nomination of 7 July 1977 was in time and should not have been rejected for unfinanciality; that rejection was an irregularity which may have affected the election for General Secretary.

Jurisdiction
Australia
Judgment Date
23 January 1978
Procedural Posture
Inquiries Into Union Elections Under the Conciliation and Arbitration Act, 1904 / Reasons for Judgment After References by the Registrar Under S.160
Outcome
No irregularity occurred in the cases of Mr. Olive and Mr. Mason because their nominations were out of time. Mr. Rix's timely nomination was wrongly rejected, creating an irregularity that may have affected the election for General Secretary. The Court proposed to declare Mr. Gallagher's election void and adjourned...
Legal Topics
['union Election Inquiries' 'validity of Nominations' 'financial Membership' 'validity of Levies' 'endorsement of Federal Council Resolutions' 'postal Receipt of Nominations']
['industrial Law' 'conciliation and Arbitration' 'registered Organisations'] ['union Election Inquiries' 'validity of Nominations' 'financial Membership' 'validity of Levies' 'endorsement of Federal Council Resolutions' 'postal Receipt of Nominations']

Case Brief

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Procedural Posture

Inquiries Into Union Elections Under the Conciliation and Arbitration Act, 1904 / Reasons for Judgment After References by the Registrar Under S.160

Legal Issues

  1. 1 ['Whether the applicants and their nominators were financial members when nominations were lodged, having regard to a levy purportedly imposed in November 1974.' 'Whether a Federal Council decision to impose a levy under Rule 8(4) was validly endorsed by a majority of branches.' 'Whether adoption or acceptance of minutes or reports amounted to endorsement of the Federal Council decision.' 'Whether nominations posted before the advertised closing time but not received in the specified post office box by that time were lodged in time.' 'Whether the Federal Returning Officer was disqualified because he was an employee of the Federation at the time of appointment.' 'What effect any irregularity had on the election for General Secretary.']

Ratio Decidendi

The purported levy was not validly imposed because the Federal Council decision was endorsed only by the Victorian and Queensland Branches and not by a majority of branches. Accordingly the levy did not break the financial membership of Mr. Rix, Mr. Olive, Mr. Mason or their nominators. The nominations of Mr. Olive, Mr. Mason and the second nomination of Mr. Rix were out of time because they were not received in the specified post office box by 5 p.m. on 8 July 1977. Mr. Rix's nomination of 7 July 1977 was in time and should not have been rejected for unfinanciality; that rejection was an irregularity which may have affected the election for General Secretary.

Court Disposition

No irregularity occurred in the cases of Mr. Olive and Mr. Mason because their nominations were out of time. Mr. Rix's timely nomination was wrongly rejected, creating an irregularity that may have affected the election for General Secretary. The Court proposed to declare Mr. Gallagher's election void and adjourned...

Orders

  • ['Further hearing adjourned to allow submissions to be made as to the orders.' 'Proposed order declaring the election of Mr. Gallagher to be void.' 'Proposed order directing the Industrial Registrar either to make arrangements for a new election or for the steps on and from receipt of the nominations to be taken to...