Harry Kotsabas v Martin Kingham
[1994] IRCA 93
•28 Oct 1994
IN THE INDUSTRIAL RELATIONS COURT )
)
OF AUSTRALIA ) No. VI 1304 of 1994
)
VICTORIA DISTRICT REGISTRY )
B E T W E E N :
HARRY KOTSABAS
Applicant
- and -
MARTIN KINGHAM, VINCE RAFFA, BILL OLIVER, RAY CARTER,
DEREK CAFFERTY, PETER GRUNDY, WAYNE TORPY, DIRK VAN DAM,
VICTOR NICOLI, BERNARD GIAGNACOVA, GERARD LAVERY,
ROY WILLIAMS, FRANK O'GRADY, MALCOLM RATEL, JOHN McPARTLIN,
PATRICK LENNON, DAVID NOONAN, JOHN LOH, DAVID PILLAR,
JOHN CANNING, ZELKO PRAZAK, MALCOLM NEWHAM, K. HUGHES,
M. GARCIA, P. BOYLE, M. EVANS, J. SUTTON, L. FRASER, C. BATES,
T. BURKE, W. TROHEAR, M. CORDWELL, B. CARSLAKE, G. WASON,
D. MATTHEWS, A. RANKIN, T. CARROLL, K. REYNOLDS, A. LITTLER,
W. ETHELL, P. WATERS, V. FITZGERALD, S. SHARKEY, J. MAITLAND,
T. SMITH, T. MAHER, C. NORTHOVER, M. O'CONNOR, F. WILKS,
F. HAWKINS, J. McGIRR, G. McARTHUR, O. COOK, G. HILLIER, G. SHAW,
S. MURPHY, R. JUDD, E. BUTCHER, R. LAND, P. NEILSON, B. WATSON,
L. MOORE, D. BEAN, G. WOOD, B. O'NEIL, G. CHILDS, G. BETTS,
J. VAN CAMP, M. GREY, G. DAY, D. McINTYRE, S. WALES, V. ROBERTSON,
D. FRATER, L. KYRIACOU and A. FINLAY
Respondents
CORAM: Keely J.
PLACE: Melbourne
DATE: 28 October 1994
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The respondents, other than Mr D. Cafferty, be ordered to perform and observe the rules of the Construction, Forestry, Mining and Energy Union by:
permitting and taking all steps to ensure that the applicant is able to fully perform the duties and functions of his office as an organiser in the Building Unions Division, Victorian Divisional Branch of the union in accordance with the rules thereof;
taking steps to ensure that in accordance with the terms of the office held by the applicant the union pays him the salary and emoluments of his office at a rate fixed in accordance with the rules;
treating as null and void the purported decision of the Committee of Management of the Victorian Divisional Branch on 1 June 1994 to make the applicant redundant and to abolish the position held by him, and directing M. Kingham to give effect to that decision; and
refraining from taking steps to amend the rules of the union to abolish the office occupied by the applicant, or to have certified by the Industrial Registrar a purported amendment to that effect, with effect from any date earlier than 2 January 1997.
All future hearing dates are vacated as are all directions for the filing of documents.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT )
)
OF AUSTRALIA ) No. VI 1304 of 1994
)
VICTORIA DISTRICT REGISTRY )
B E T W E E N :
HARRY KOTSABAS
Applicant
- and -
MARTIN KINGHAM, VINCE RAFFA, BILL OLIVER, RAY CARTER,
DEREK CAFFERTY, PETER GRUNDY, WAYNE TORPY, DIRK VAN DAM,
VICTOR NICOLI, BERNARD GIAGNACOVA, GERARD LAVERY,
ROY WILLIAMS, FRANK O'GRADY, MALCOLM RATEL, JOHN McPARTLIN,
PATRICK LENNON, DAVID NOONAN, JOHN LOH, DAVID PILLAR,
JOHN CANNING, ZELKO PRAZAK, MALCOLM NEWHAM, K. HUGHES,
M. GARCIA, P. BOYLE, M. EVANS, J. SUTTON, L. FRASER, C. BATES,
T. BURKE, W. TROHEAR, M. CORDWELL, B. CARSLAKE, G. WASON,
D. MATTHEWS, A. RANKIN, T. CARROLL, K. REYNOLDS, A. LITTLER,
W. ETHELL, P. WATERS, V. FITZGERALD, S. SHARKEY, J. MAITLAND,
T. SMITH, T. MAHER, C. NORTHOVER, M. O'CONNOR, F. WILKS,
F. HAWKINS, J. McGIRR, G. McARTHUR, O. COOK, G. HILLIER, G. SHAW,
S. MURPHY, R. JUDD, E. BUTCHER, R. LAND, P. NEILSON, B. WATSON,
L. MOORE, D. BEAN, G. WOOD, B. O'NEIL, G. CHILDS, G. BETTS,
J. VAN CAMP, M. GREY, G. DAY, D. McINTYRE, S. WALES, V. ROBERTSON,
D. FRATER, L. KYRIACOU and A. FINLAY
Respondents
CORAM: Keely J.
PLACE: Melbourne
DATE: 28 October 1994
REASONS FOR JUDGMENT
This matter was heard with matter No. VI 1070 of 1994 in which reasons for judgment were delivered today. These reasons should be read in conjunction with those reasons for judgment. Mr Kotsabas' counsel adopted all of the submissions put by the applicant in that case. He referred to certain differences in relation to Mr Kotsabas, for example that he was not a former organiser of the Operative Painters and Decorators Union but was a former full-time elected organiser of the Building Workers' Industrial Union. However, the arguments advanced on his behalf were essentially the same, except as to the National Executive's resolution on 1 July 1994 relating to the removal and transfer of the fourth paragraph of National Rule 42(ix)(a)(i).
The respondents' counsel did not advance any separate submissions as to why the orders sought by Mr Kotsabas should not be made if the court upheld the applicant's submission in matter No. VI 1070 of 1994 that there was no power to make the decisions under challenge. In fact on 27 October 1994 he submitted that, on the conclusions expressed by the court as to the absence of power, the court "ought to make absolute the rule to show cause in relation to Mr Kotsabas".
Subject to certain amendments which were the subject of submissions by the parties, the rule to show cause will be made absolute.
I certify that this and the preceding page is a true copy of the reasons for judgment herein of the Honourable Justice Keely.
Associate:
Dated: 28 October 1994
Solicitors for the applicant : Gill Kane & Brophy
Counsel for the applicant : Mr P. G. Misso
Solicitors for the respondents : Holding Redlich
Counsel for the respondents : Mr H. Borenstein
Dates of hearing : 19, 20, 21 and 27 October 1994
Date of judgment : 28 October 1994
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