High Court upholds new FW Act registration provision

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High Court upholds new FW Act registration provision

A union that represents school and college principals in Victoria and South Australia survived a challenge from another union when the High Court found s26A of the Fair Work (Registered Organisations) Act 2009 to be valid.

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A union that represents school and college principals in Victoria and South Australia survived a challenge from another union when the High Court found s26A of the Fair Work (Registered Organisations) Act 2009 to be valid. 
 

Section 26A
 states that a registered association’s registration will remain valid even if its rules did not at some stage contain provisions that either terminated the membership of, or precluded from membership, persons ‘of a particular kind or kinds’. Such provisions in union rules are intended to ‘purge’ the union of people who are no longer eligible to be members of it. Without the existence of s26A, an organisation that lacked such provisions in its rules would otherwise have been invalidly registered.

The union in question, the Australian Principals’ Federation (APF), survived a legal challenge from the Australian Education Union (AEU), ending a battle between the two unions fought over several years that ultimately went to the High Court.

Dismissing the AEU’s appeal against a decision of a Full Court of the Federal Court, the High Court found s26A to be valid and within the Commonwealth’s constitutional power to legislate. Section 26A commenced on 1 July 2009, and was introduced after an earlier Federal Court decision that the APF’s registration was invalid because its rules lacked the required provisions.

The APF therefore remains on Fair Work Australia’s register of organisations.

Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19 (4 May 2012) 
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