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Federal Court of Australia FEDERAL COURT OF AUSTRALIA O’Connor v Setka [2020] FCAFC 195 Appeal from: O’Connor v Setka [2020] FCA 441 File number: VID 263 of 2020 Judgment of: MORTIMER, RANGIAH AND WHITE JJ Date of judgment: 11 November 2020 Catchwords: INDUSTRIAL LAW – appeal from judgment dismissing an application under s 164 of the Fair Work (Registered Organisations) Act 2009 (Cth) – consideration of the Court’s power to make an order giving directions for the performance or observance of union rules – internal membership demarcation dispute between divisions of the union involving proper construction of union rules – appeal allowed. UNION RULES – principles of construction – rules amended from time to time – internal inconsistencies and redundancies – whether regard may be had to deleted or redundant rules. Legislation: Fair Work (Registered Organisations) Act 2009 (Cth) ss 161, 164 Federal Court of Australia Act 1976 (Cth) s 21 Industrial Relations Act 1988 (Cth) s 235 Cases cited: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 Conquo v Jackson [2009] FCA 45 Cook v Crawford (1982) 62 FLR 34 Griffiths v Minister for Lands, Planning and Environment [2008] HCA 20; (2008) 235 CLR 232 Health & Case Management Limited v The Physiotherapy Network Limited [2018] EWHC 869 (QB) Ideal Business Centres Pty Ltd v Violin Holdings Pty Ltd atf The Violin Investment Trust [2018] NSWSC 1249 Maxwell v Murphy (1957) 96 CLR 261 MineralImportExport v Eastern Mediterranean Maritime Ltd [1980] 2 Lloyd’s Rep 573 Mopani Copper Mines plc v Millennium Underwriting Ltd [2008] EWHC 1331 (Comm); (2008) 2 All ER (Comm) 976 R v Joske; Ex parte Shop Distributors & Allied Employees Association (1976) 135 CLR 194 The Queen v Isaac; Ex parte Transport Workers’ Union of Australia (1985) 159 CLR 323 The Queen v McKenzie; Ex parte the Actors & Announcers Equity Association of Australia [1982] HCA 6; (1982) 148 CLR 573 Victorian Stevedoring and General Contracting Company Pty Ltd v Dignan (1931) 46 CLR 73 The Queen v Williams; Ex parte Australian Building Construction Employees’ and Builders’ Labourers’ Federation (1982) 153 CLR 402 Division: Fair Work Division Registry: Victoria National Practice Area: Employment and Industrial Relations Number of paragraphs: 141 Date of hearing: 26 August 2020 Counsel for the Appellant: Mr H Borenstein QC with Mr Y Bakri Solicitor for the Appellant: Slater & Gordon Lawyers Counsel for the Respondents: Mr C Dowling SC with Mr P Doyle and Mr C Tran Solicitor for the Maurice Blackburn Lawyers Respondents: O’Connor v Setka [2020] FCAFC 195 ORDERS VID 263 of 2020 BETWEEN: MICHAEL O'CONNOR Appellant AND: JOHN SETKA First Respondent ELIAS SPERNOVASILIS Second Respondent RALPH EDWARDS (and others named in the Schedule) Third Respondent ORDER MADE BY: MORTIMER, RANGIAH AND WHITE JJ DATE OF ORDER: 11 NOVEMBER 2020 THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The orders made by the primary Judge on 6 April 2020 be set aside. 3. In their place, the Court declares that, under the Rules of the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU), the persons eligible for membership pursuant to Rule 2(F) are, until alteration of the Rules or a contrary decision by the National Executive (in either case, in accordance with the Rules), attached to the Manufacturing Division and not to the Construction and General Division. THE COURT ORDERS FURTHER THAT: 4. The First Respondent perform and observe the Rules of the CFMMEU (the Rules) by ceasing, desisting and refraining, by himself, his servants or agents, from inducing, encouraging or advising any members in the Victorian District of the Manufacturing Division eligible for membership pursuant to Rule 2(F) of the Rules (the Members) to resign their membership in the Manufacturing Division of the CFMMEU. 5. The Second Respondent perform and observe the Rules by ceasing, desisting and refraining, by himself, his servants or agents, from inducing, encouraging or advising O’Connor v Setka [2020] FCAFC 195 i any of the Members to resign their membership in the Manufacturing Division of the CFMMEU. 6. The Third to Thirtieth Respondents, jointly and severally, perform and observe the Rules by ceasing, desisting and refraining by themselves, their servants or agents, from inducing, encouraging or advising any of the Members to resign their membership in the Manufacturing Division of the CFMMEU. 7. Within seven days, the Respondents issue and deliver a written instruction and direction to all organisers, other employees and officials of the Victoria-Tasmania Divisional Branch of the Construction and General Division of the CFMMEU (the Branch), to cease, desist and refrain, by themselves, their servants or agents, from inducing, encouraging or advising any of the Members to resign their membership in the Manufacturing Division of the CFMMEU, and by 4.30 pm on 20 November 2020, file and serve an affidavit made by the First Respondent confirming compliance with this order. 8. Within seven days of the making of this order, the Respondents publish a written instruction and direction to all delegates in the Branch, to cease, desist and refrain from inducing, encouraging, or advising any of the Members to resign their membership in the Manufacturing Division and from enrolling any of the Members as members of the CFMMEU in the Branch, and by 4.30 pm on 20 November 2020, file and serve an affidavit made by the First Respondent confirming compliance with this order. 9. The Respondents, jointly and severally, perform and observe the Rules by ceasing, desisting and refraining by themselves, their servants or agents, from enrolling persons who are eligible to be members of the CFMMEU pursuant to Rule 2(F) of the Rules as members of the CFMMEU in the Branch. 10. Consideration of the relief sought by the Appellant in paras [7]-[13] inclusive of the Amended Originating Application be remitted to the primary Judge for consideration in accordance with these reasons. Subject to any contrary order by the primary Judge, that consideration is to take place on the basis of the evidence and submissions already received by the primary Judge. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. O’Connor v Setka [2020] FCAFC 195 ii REASONS FOR JUDGMENT THE COURT: 1 The Rules of the Construction, Forestry, Maritime, Mining and Energy Union (the Union or the CFMMEU) now provide for there to be four Divisions of the Union, established on the basis of industry or occupation. The four Divisions are: (a) the Construction and General Division; (b) the Manufacturing Division; (c) the Mining and Energy Division; and (d) the Maritime Union of Australia Division. 2 Each Division has a degree of autonomy in relation to matters which do not directly affect the members of another Division and with respect to its funds and property. Each has its own rules (known as Division Rules) and the members in each may elect their own officers. The members of the Union are allocated to the particular Division covering the industry or employment of the member and may belong to one Division only. 3 The Manufacturing Division is divided into Districts, one of which is the Victorian District. 4 The Construction and General Division is divided into Divisional Branches, one of which is the Construction and General Division, Victoria-Tasmania Divisional Branch (the Construction Branch). 5 The matter which gives rise to the present appeal is a dispute as to whether certain members of the Union in Victoria (being persons who are within eligibility Rule 2(F)) are properly allocated to the Manufacturing Division or to the Construction and General Division. 6 The dispute arose in about August 2019 when the respondents, or at least some of them, began to encourage members of the Manufacturing Division in Victoria to “resign” from that Division and to “join” the Construction and General Division instead. The primary Judge found that over 200 members employed on construction sites and working in floor laying, glass and cabinet making occupations in Victoria have since resigned from the Manufacturing Division and have joined the Construction and General Division. 7 The appellant is a member of the Union, its National Secretary, and the Divisional Secretary of its Manufacturing Division. He brought an application under s 164 of the Fair Work O’Connor v Setka [2020] FCAFC 195 1 (Registered Organisations) Act 2009 (Cth) (the RO Act) seeking orders for the observance and performance of the Rules of the Union, as well as orders (viewed generally) directed to restoring the membership of the 200 or so members to the Manufacturing Division, and restraining the respondents from further encouragement of its members to join the Construction and General Division. In addition, he sought a declaration pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) that persons who are eligible to be members of the Union pursuant to Rule 2(F) of the Rules in Victoria are not eligible to be members of the Construction and General Division. 8 The respondents to his application (who are also the respondents on the appeal) are the members of the Divisional Branch Management Committee (the DBMC) of the Construction Branch. Subject to review by the Divisional Branch Council, the DBMC has the care, control, superintendence, management and administration of the affairs of the Construction Branch (including dealing with applications for membership) and may exercise all of the powers of the Divisional Branch Council. 9 The appellant’s application raised issues concerning the proper construction and application of the Rules of the Union. The primary Judge rejected the construction for which the appellant contended and dismissed his application: O’Connor v Setka [2020] FCA 441.
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