Molomby, thomas v William Gibbs & ors [1979] FCA 47

Molomby, thomas v William Gibbs & ors [1979] FCA 47

The specific power to appoint employees is vested by rule 14(d) and (e) in the federal conference and not in the federal interstate executive or individuals unless clearly delegated. There was no evidence of such delegation. Therefore, the personal respondents could not appoint an industrial advocate without such authority. Rule 17(a), properly construed, incorporates the proportional voting mechanisms of rule 19(b), allowing branch committees’ postal votes to equate to conference decisions, and is not void or contrary to the Act.

Parties
Claimant: Thomas Molomby; Respondent: William Gibbs; Respondent: Clement Holdsworth; Respondent: Peter Wells; Respondent: Sidney Bowers; Respondent: Lawrence Jensen; Respondent: Australian Broadcasting Commission Staff Association
Jurisdiction
Australia
Judgment Date
23 May 1979
Procedural Posture
Application Under the Conciliation and Arbitration Act, 1904 / Judgment at First Instance
Outcome
Application granted in part, refused in part
Legal Topics
Union Governance, Delegation of Powers, Interpretation of Union Rules, Performance and Observance of Rules
Industrial Law Union Governance Delegation of Powers Interpretation of Union Rules Performance and Observance of Rules

Case Brief

Summary, issues, holding and outcome

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Parties

Thomas Molomby

Claimant

William Gibbs

Respondent

Clement Holdsworth

Respondent

Peter Wells

Respondent

Sidney Bowers

Respondent

Lawrence Jensen

Respondent

Australian Broadcasting Commission Staff Association

Respondent

Procedural Posture

Application Under the Conciliation and Arbitration Act, 1904 / Judgment at First Instance

Legal Issues

  1. 1 Whether the federal interstate executive or individuals had power to appoint an industrial advocate without express delegation from federal conference
  2. 2 Whether Rule 17(a) of the Association's rules was void for being oppressive, unreasonable or unjust
  3. 3 Interpretation of Rule 17(a) with respect to voting procedures and compliance with the Conciliation and Arbitration Act, 1904

Ratio Decidendi

The specific power to appoint employees is vested by rule 14(d) and (e) in the federal conference and not in the federal interstate executive or individuals unless clearly delegated. There was no evidence of such delegation. Therefore, the personal respondents could not appoint an industrial advocate without such authority. Rule 17(a), properly construed, incorporates the proportional voting mechanisms of rule 19(b), allowing branch committees’ postal votes to equate to conference decisions, and is not void or contrary to the Act.

Court Disposition

Application granted in part, refused in part

Orders

  • The respondents (Gibbs, Holdsworth, Wells, Bowers, Jensen) are ordered to refrain from appointing or purporting to appoint an industrial advocate for the Association unless and until the federal conference of the Association delegates to them the power to do so.
  • All other relief sought by the applicant is refused.