Adlam v Noack - [1998] FCA 898

FEDERAL COURT OF AUSTRALIA
Industrial Law - application for order to observe and perform rules of organisation - interim order pending trial - applicant and first respondent elected officials - allegation of harassment including sexual harassment of applicant by first respondent - whether inconsistent with exercise of powers and functions of first respondent under the Rules to make interim order restricting communication between applicant and first respondent
Workplace Relations Act 1966, s 209
Matter No. SG 91 of 1998
CAROLYN JENNIFER ADLAM v PAUL NOACK and DOUGLAS CAMERON
VON DOUSSA J
ADELAIDE
22 JULY 1998

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SG 91 of 1998

BETWEEN:

CAROLYN JENNIFER ADLAM
APPLICANT

AND:

PAUL NOACK and DOUGLAS CAMERON
RESPONDENTS

JUDGE:

VON DOUSSA J

DATE OF ORDER:

22 JULY 1998

WHERE MADE:

ADELAIDE

Upon an undertaking being given by the respondent Douglas Cameron that he will:
(a)instruct the South Australian Branch President, Mr Ian Curry, of The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“the Union”) to liaise with the South Australian Assistant State Secretary of the Union, Mr Rod Parham, and with him to take responsibility for administrative duties concerning the South Australian Branch of the Technical and Supervisory Division of the Union during the currency of interim orders herein; and
(b)to extend the instructions given pursuant to order 2 of the interim orders made herein on 16 July 1998 to run for the duration of interim orders herein

IT IS ORDERED THAT:
1.Subject to order 3 hereof, pending the hearing the determination of the rule to show cause the respondent Paul Noack refrain from communicating with the applicant in any way whether at work or at home or at any other place otherwise than in writing delivered to the applicant by a third party.
2.Pending the hearing and determination of the rule to show cause the respondent Paul Noack refrain from performing or seek to perform any administrative duties in relation to or concerning either the Technical and Supervisory Division of the Union or the applicant.
3.The preceding two orders shall not prevent the respondent Paul Noack from attending meetings that he is entitled to attend in his capacity as State Secretary of the Union under the rules of the Union and participating in the business of such meetings in the ordinary way.
4.Pending the hearing and determination of the rule to show cause the respondent Paul Noack shall not engage in any conduct calculated to harass the applicant and shall not encourage, instruct, authorise or incite any person to engage in any act or behaviour calculated to harass the applicant.

5. Further consideration of these proceedings adjourned to
6. Liberty to all parties and the Union to apply on 3 days notice.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SG 91 of 1998

BETWEEN:

CAROLYN JENNIFER ADLAM
APPLICANT

AND:

PAUL NOACK and DOUGLAS CAMERON
RESPONDENTS

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adlam v Noack

Details

AGLC: Adlam v Noack [1998] FCA 898
Case: [1998] FCA 898
Decision Date: 22 JULY 1998

CaseChat Overview and Summary

The matter before the Federal Court of Australia in Adlam v Noack concerns an application for interim orders under the Workplace Relations Act 1996, brought by Carolyn Jennifer Adlam against Paul Noack and Douglas Cameron. Adlam, an elected official of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU), alleges that Noack, the State Secretary of the South Australian Branch of the AMWU, has engaged in a campaign of harassment, including sexual harassment, against her. The dispute revolves around the proper enforcement of the union's rules and policies, particularly its Sexual Harassment Policy, and whether interim orders can be made to prevent Noack from harassing Adlam while allowing him to perform his duties as State Secretary.

The legal issues before the court were whether interim orders could be made under section 209 of the Workplace Relations Act to restrain Noack from harassing Adlam, and whether such orders would prevent him from performing his duties as State Secretary. The court considered the implications of the union's rules, the need to balance the rights of the parties, and the importance of maintaining the efficient operation of the union pending the final resolution of the case.

Justice von Doussa found that the allegations made by Adlam, if proven, would constitute a breach of the union's Sexual Harassment Policy and could justify interim orders. The court held that it was appropriate to make orders that restrained Noack from harassing Adlam, but these orders needed to be carefully crafted to allow Noack to perform his duties as State Secretary without interference. The court accepted an undertaking from Cameron, the National Secretary of the AMWU, to allocate administrative duties concerning the Technical and Supervisory Division of the Union to another official during the interim period, thereby mitigating the impact of the orders on Noack's ability to perform his duties.

The court made interim orders that Noack refrain from communicating with Adlam except in writing delivered by a third party, refrain from performing administrative duties concerning the Technical and Supervisory Division of the Union or Adlam, and refrain from engaging in conduct calculated to harass Adlam. Noack was permitted to attend and speak at meetings in his capacity as State Secretary. The parties were granted liberty to return to court if the interim orders did not achieve a workable situation.

This case underscores the importance of balancing the rights of union officials and members while ensuring compliance with the union's rules and policies, particularly in cases of alleged harassment. The court's approach reflects a careful consideration of the need for interim relief that does not unduly interfere with the functioning of the union.

Orders