Anthony Ross Benson v Construction, Forestry, Mining & Energy Union and Stan Sharkey, John Sutton, Max Cordwell, Bobby Devine, Stephen Hevey, Dickie Post, Paul Ridgeway, Laurie Verrell, Ron Edwards, Gary Taylor and Roy Smedley [1995] IRCA 323

INDUSTRIAL LAW - RULES OF REGISTERED ORGANISATION - Amendments to rules to omit reference to an office - Office held by applicant pursuant to an appointment made under transitional rules adopted at time of amalgamation of applicant's former union with larger union - Validity of amendments - Time when amendments were intended to take effect - Whether amendments invalid as providing for removal from office of a person elected to an office in an organisation where the person has not been found guilty of misconduct or ceased to be eligible - Applicant not "elected" to office in the respondent organisation - Distinction between removal from office and abolition of office - Whether there was an implied limitation on power of organisation's rule-making bodies excluding an amendment of the transitional provisions - Whether amendments imposed obligations on members that are oppressive, unreasonable or unjust - Court's powers as to orders. Industrial Relations Act 1988, ss.195, 196 and 209. ANTHONY ROSS BENSON v.CONSTRUCTION, FORESTRY, MINING & ENERGY UNION and STAN SHARKEY, JOHN SUTTON, MAX CORDWELL, BOBBY DEVINE, STEPHEN HEVEY, DICKIE POST, PAUL RIDGEWAY, LAURIE VERRELL, RON EDWARDS, GARY TAYLOR and ROY SMEDLEY No. TI 94/0200 CORAM: WILCOX CJ PLACE: SYDNEY (HEARD IN HOBART) DATE: 21 JULY 1995

IN THE INDUSTRIAL RELATIONS COURT) OF AUSTRALIA ) No. TI 94/0200 TASMANIA DISTRICT REGISTRY ) BETWEEN: ANTHONY ROSS BENSON Applicant AND: CONSTRUCTION, FORESTRY, MINING & ENERGY UNION and STAN SHARKEY, JOHN SUTTON, MAX CORDWELL, BOBBY DEVINE, STEPHEN HEVEY, DICKIE POST, PAUL RIDGEWAY, LAURIE VERRELL, RON EDWARDS, GARY TAYLOR and ROY SMEDLEY Respondents CORAM: WILCOX CJ PLACE: SYDNEY (HEARD IN HOBART) DATE: 21 JULY 1995 MINUTES OF ORDER THE COURT ORDERS THAT: 1. It be declared that the following amendments to the rules of the Construction, Forestry, Mining and Energy Union ("the CFMEU"), as certified by the Deputy Industrial Registrar on 27 May 1994, are null and void: (a) the amendment of rule 37(ix) of the rules of the Building Unions Division ("the Divisional rules") so as to insert after the initials "ACT" the words "and Tasmania"; (b) the amendments to rule 42(a)(ii) of the Divisional rules so as to: (i) delete the words "and an Assistant Secretary (Painters)"; and (ii) insert a new sentence: "On and from the date of certification of this Rule, the position of Divisional Branch Assistant Secretary of the Tasmanian Divisional Branch is abolished"; (c) the amendments to rule 42(ix)(a)(v) of the National rules so as to: (i) delete the words "and Assistant Secretary" and "and Secretary"; and (ii) to substitute for the words and numbers "seventeen" and "four (4)" the words and numbers "sixteen (16)" and "three (3)" respectively; and (d) the amendments to the Schedule of Officers referred to in rule 42(xiv)(a) of the National rules so as to delete from under the sub-heading "Building Unions Tas Divisional Branch" the position "Divisional State Assistant Secretary" and the name "T Benson". 2. The respondents other than the CFMEU be ordered to perform and observe the rules of the CFMEU by: (a) permitting and ensuring that the applicant, Anthony Ross Benson, is able fully to perform the duties and functions of his office as Assistant Secretary of the Tasmanian Divisional Branch of the Building Unions Division of the CFMEU; and (b) ensuring that the CFMEU pays to the said applicant the salary and emoluments of his said office to which he was entitled under the rules of the CFMEU, in the form they took apart from the said amendments. 3. There be liberty to apply in respect of any consequential order sought by any party. Note: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.