FEDERAL COURT OF AUSTRALIA In the matter of an application by the Transport Workers' Union of Australia [2000] FCA 1267 INDUSTRIAL LAW - application by registered organisation seeking a determination by the Court of the questions whether an invalidity or invalidities have occurred in the management or administration of certain of its branches Workplace Relations Act 1996 (Cth) s258 Bramich v Transport Workers Union of Australia (2000) 97 FCR 204, [2000] FCA 135 referred to IN THE MATTER OF AN APPLICATION BY THE TRANSPORT WORKERS' UNION OF AUSTRALIA UNDER SECTION 258 OF THE WORKPLACE RELATIONS ACT 1996 (CTH) V 248 of 2000 MARSHALL J MELBOURNE (HEARD IN HOBART) 15 SEPTEMBER 2000 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 248 of 2000 IN THE MATTER OF AN APPLICATION BY THE TRANSPORT WORKERS' UNION OF AUSTRALIA UNDER SECTION 258 OF THE WORKPLACE RELATIONS ACT 1996 (CTH) JUDGE: MARSHALL J DATE OF ORDER: 15 SEPTEMBER 2000 WHERE MADE: MELBOURNE (HEARD IN HOBART) THE COURT ORDERS THAT: 1. The Court declares that between 6 July 1998 and 31 March 2000, invalidities occurred in the management and administration of the applicant, which invalidities were constituted by:- (a) all the actions, decisions, resolutions and determinations; and (b) all the consequences of failures to act, decide, resolve and determine; which were reliant upon or consequent upon the applicant's Federal Council resolution of 6 July 1998 to disband its Tasmanian Branch and were done or not done by the applicant's Federal Council, its Federal Committee of Management, the members of those committees of management and employees employed out of its Federal Office. 2. The Court declares that between 1 July 1999 and 31 March 2000, invalidities occurred in the management and administration of the Victorian Branch of the applicant, which invalidities were constituted by:- (a) all the actions, decisions, resolutions and determinations; and (b) all the consequences of the failures to act, decide, resolve and determine; which were reliant upon or consequent upon the applicant's Federal Council resolution of 20 May 1999 to attach its members in Tasmania to its Victorian Branch with effect from 1 July 1999, and were done or not done by that branch's committee of management, the members of that committee of management and employees employed out of the branch office and/or out of offices operated by the applicant and/or its Victorian Branch in Tasmania. 3. The Court declares that between 6 July 1998 and 31 March 2000, invalidities occurred in the management and administration of the Tasmanian Branch of the applicant, which invalidities were constituted by all the consequences of failures to act, decide, resolve and determine which were reliant upon or consequent upon the applicant's Federal Council resolution of 6 July 1998 to disband that branch and were done or not done by that branch's committee of management, the members of the committee of management of the branch and/or any persons employed by the applicant out of its Federal Office and/or offices it operated in Tasmania and/or out of the Victorian Branch offices and/or out of the offices the applicant and/or its Victorian Branch operated in Tasmania. 4. The Court orders that, save for the failure of the applicant to pay superannuation contributions on behalf of Mr Barry Hansch for the period from 28 October 1998 until 20 April 1999:- (a) each and every invalidity referred to in paragraphs 1, 2 and 3 of this order be rectified; and (b) the consequences of all such invalidities be negatived; and (c) all acts, matters or things rendered invalid by or because of each invalidity are validated. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 248 of 2000 IN THE MATTER OF AN APPLICATION BY THE TRANSPORT WORKERS' UNION OF AUSTRALIA UNDER SECTION 258 OF THE WORKPLACE RELATIONS ACT 1996 (CTH) JUDGE: MARSHALL J DATE: 15 SEPTEMBER 2000 PLACE: MELBOURNE (HEARD IN HOBART) REASONS FOR JUDGMENT 1 On 20 April 2000, the Transport Workers' Union of Australia ("the Union") applied to the Court pursuant to s258 of the Workplace Relations Act 1996 (Cth) ("the Act") to seek a determination by the Court of the questions whether an invalidity or invalidities have occurred in: (a) the management or administration of the Union; and/or (b) the management or administration of the Victorian Branch, or in the alternative, the Victorian/Tasmanian Branch of the Union; and/or (c) the management or administration of the Tasmanian Branch of the Union. 2 Certain action taken by the Union and the organs of it referred to in the preceding paragraph have had a pale of invalidity cast over them consequent upon the judgment of the Full Court in Bramich v Transport Workers Union of Australia (2000) 97 FCR 204, [2000] FCA 135. Similarly, certain actions which would have been taken but for the purported disbandment, have not been taken in connection with the operation of the Tasmanian Branch of the Union. 3 The only persons who sought to be made parties to the proceeding commenced by the Union were Messrs Hansch, Lawrence and Fisher who were also the applicants in proceeding T5 of 2000. The reasons for judgment in that proceeding dated today's date should be read together with the reasons for judgment in this proceeding. The evidence in each matter was, by consent, treated as evidence in the other matter. 4 The only relevant ground of objection to the grant of relief under s258 of the Act which was raised by Messrs Hansch, Lawrence and Fisher was contained in paragraph 5 of their contentions of fact and law which provided that: "B Hansch will be subject to substantial injustice if this dismissal is now validated as he has at all times held himself ready, willing and able to continue his duties of elected organiser pending the result of litigation in this matter and will be deprived of his entitlements to remuneration for the period from the 7th September, 1998 to at least the 31st of March, 2000." 5 For the reasons set out in the judgment in matter T5 of 2000 which is dated today's date, the Court is of the view that Mr Hansch is not entitled to any remuneration other than the payment of superannuation contributions on his behalf for the period 28 October 1998 to 20 April 1999. In my view, substantial injustice would be caused to Mr Hansch if the failure to make those payments was validated. He has a lawful entitlement to have that money paid into his superannuation account and will suffer financially if those payments are not made. 6 Otherwise, there is no relevant allegation of any substantial injustice occurring to any person as a result of the Court making the validation orders sought by the Union. 7 I am prepared to make those orders as I accept that the decision to disband the Tasmanian Branch in July 1998 was taken in good faith and in the bona fide belief that Rule 23 of the registered rules of the Union was valid in its entirety. 8 Accordingly, I consider it appropriate to make the following orders: 1. The Court declares that between 6 July 1998 and 31 March 2000, invalidities occurred in the management and administration of the applicant, which invalidities were constituted by:- (a) all the actions, decisions, resolutions and determinations; and (b) all the consequences of failures to act, decide, resolve and determine; which were reliant upon or consequent upon the applicant's Federal Council resolution of 6 July 1998 to disband its Tasmanian Branch and were done or not done by the applicant's Federal Council, its Federal Committee of Management, the members of those committees of management and employees employed out of its Federal Office. 2. The Court declares that between 1 July 1999 and 31 March 2000, invalidities occurred in the management and administration of the Victorian Branch of the applicant, which invalidities were constituted by:- (a) all the actions, decisions, resolutions and determinations; and (b) all the consequences of the failures to act, decide, resolve and determine; which were reliant upon or consequent upon the applicant's Federal Council resolution of 20 May 1999 to attach its members in Tasmania to its Victorian Branch with effect from 1 July 1999, and were done or not done by that branch's committee of management, the members of that committee of management and employees employed out of the branch office and/or out of offices operated by the applicant and/or its Victorian Branch in Tasmania. 3. The Court declares that between 6 July 1998 and 31 March 2000, invalidities occurred in the management and administration of the Tasmanian Branch of the applicant, which invalidities were constituted by all the consequences of failures to act, decide, resolve and determine which were reliant upon or consequent upon the applicant's Federal Council resolution of 6 July 1998 to disband that branch and were done or not done by that branch's committee of management, the members of the committee of management of the branch and/or any persons employed by the applicant out of its Federal Office and/or offices it operated in Tasmania and/or out of the Victorian Branch offices and/or out of the offices the applicant and/or its Victorian Branch operated in Tasmania. 4. The Court orders that, save for the failure of the applicant to pay superannuation contributions on behalf of Mr Barry Hansch for the period from 28 October 1998 until 20 April 1999:- (a) each and every invalidity referred to in paragraphs 1, 2 and 3 of this order be rectified; and (b) the consequences of all such invalidities be negatived; and (c) all acts, matters or things rendered invalid by or because of each invalidity are validated. 9 The making of these orders is designed to remedy the effect of all actions taken or failed to be taken as a result of two judgments of this Court dealing with the consequences of actions taken by the Federal Council of the Union on 6 July 1998, 20 May 1999 and 31 March 2000 as referred to in the reasons for judgment delivered today in matter T5 of 2000. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 15 September 2000 Counsel for the Applicant: Mr J Green Solicitor for the Applicant: John Green Counsel for the Respondent: Mr R Hinkley Solicitor for the Respondent: Mr J Smith Date of Hearing: 1, 2 and 3 August 2000 Date of Judgment: 15 September 2000