FEDERAL COURT OF AUSTRALIA
Jolly v Sharma [2025] FCAFC 20
Appeal from: Jolly v Sharma [2024] FCA 171 File number: VID 203 of 2024 Judgment of: RANGIAH, WHEELAHAN AND RAPER JJ Date of judgment: 4 March 2025 Catchwords: INDUSTRIAL LAW — appeal – where the primary judge dismissed application for declaratory relief – whether rules of an industrial association impose conditions, obligations or restrictions that are oppressive, unreasonable or unjust – no error by primary judge demonstrated – appeal dismissed Legislation: Commonwealth Conciliation and Arbitration Act 1904 (Cth) s 140(1)(c)
Fair Work Act 2009 (Cth) s 3
Fair Work (Registered Organisations) Act2009 (Cth) ss 5, 5(1), 5(2), 5(3), 9, 27(a), 60(1)(d), 94, 140(1), 141(1), 142, 142(1)(c), 143, 154A, 163, 163(1), 163(2), 163(7), 164, 164B(3), 166, 182(1), 186, 283, 286(1), 287(1) and 287
Industrial Relations Act 1988 (Cth) s 196(c)
Workplace Relations Act 1996 (Cth) s 142(1)(c)) of Sch 1 and s 196(c)
Cases cited: Allen v Townsend (1977) 31 FLR 431
Bramich v Transport Workers Union of Australia (2000) 97 FCR 204
Cook v Crawford (1982) 43 ALR 83
Doyle v Australian Workers’ Union (1986) 12 FCR 197
Hodder v Australian Workers’ Union (1985) 9 FCR 498
Imlach v Daley (1985) 7 FCR 457
McLeish v Kane (1978) 22 ALR 547
Municipal Officers’ Association of Australia v Lancaster (1981) 37 ALR 559
R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 25 ALR 497
Division: Fair Work Division Registry: Victoria National Practice Area: Employment and Industrial Relations Number of paragraphs: 118 Date of hearing: 12 August 2024 Counsel for the Appellant: Mr H Borenstein KC with Mr Y Bakri Solicitor for the Appellant: Aen Legal Counsel for the First to Fifteenth and Twenty-Third Respondents: Mr WL Friend KC with Mr C Massy Solicitor for the First to Fifteenth and Twenty-Third Respondents: Gordon Legal Counsel for the Sixteenth to Twenty-Second Respondents: The Sixteenth to Twenty-Second Respondents filed submitting notices ORDERS
VID 203 of 2024 BETWEEN: PARIS JOLLY
Appellant
AND: VIKRANT SHARMA
First Respondent
DARREN LAMONT
Second Respondent
BRIAN PENZA (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
RANGIAH, WHEELAHAN AND RAPER JJ
DATE OF ORDER:
4 MARCH 2025
THE COURT ORDERS THAT:
1.The appeal is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
Factual background
[5]
The relevant statutory provisions
[18]
The Union’s Rules
[29]
The reasons of the primary judge
[45]
The appellant’s submissions
[55]
The respondents’ submissions
[61]
Consideration
[69]
THE COURT:
The appellant appeals from the judgment of a single judge of the Court in Jolly v Sharma [2024] FCA 171. By that judgment, the primary judge dismissed the appellant’s proceeding which sought declaratory and other relief against the respondents.
The proceeding stems from a long-standing dispute within the…
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- AGLC
- Jolly v Sharma [2025] FCAFC 20
- Case
- [2025] FCAFC 20
- Decision Date
CaseChat Overview and Summary
The court found that the rules of the Union do not impose oppressive, unreasonable, or unjust conditions, obligations, or restrictions on the members allocated to the VLD. The court held that the absence of any rule requiring funding of the VLD would not amount to the imposition of any "condition, obligation or restriction" on members allocated to the VLD. The court also held that the rules of the Union do not fail to make specific provision for funds to be provided to the VLD to enable the VLD to carry out its prescribed functions under the rules. The court found that the primary judge's decision was not erroneous and dismissed the appeal.
Orders
Orders of the court
1. The appeal is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The respondents submit that there was no error in the judgment of the primary judge. Consideration The appellant’s grounds of appeal allege, in summary, that the primary judge erred by failing to hold that the Rules impose conditions, obligations or restrictions upon members allocated to the VLD that are oppressive, unreasonable or unjust. More specifically, the appellant complains that:(a)the Rules fail to make specific provision for funds to be provided to the VLD to enable the VLD to carry out its prescribed functions under the Rules;(b)the Rules do not contain any requirement that the VLD be provided with a sufficient proportion of membership contributions to enable the VLD to effectively discharge its prescribed duties and functions under the Rules. Section 142(1)(c) of the Act provides, relevantly, that the rules of an organisation:…must not impose on…members, of the organisation, conditions, obligations or restrictions that, having regard to Parliament’s intention in enacting this Act (see section 5) and the objects of this Act and the Fair Work Act, are oppressive, unreasonable or unjust; Where the rules of an organisation contravene s 142(1)(c), the Court retains a discretion whether to make a declaration under s 163(2) or s 164B(3): see R v Spicer; Ex parte Foster (1958) 100 CLR 163 at 168; Cook v Crawford (1982) 43 ALR 83 at 156–158. Section 142(1)(c) requires that regard must be had to the objects of the Fair Work Act. Section 3 of the Fair Work Act refers, inter alia, to recognition of the right to freedom of association and the right to be represented. Section 142(1)(c) also requires that regard must be had to Parliament’s intention in enacting the Act. That intention is stated in s 5(1) and (2) to be to “enhance relations within workplaces” and “reduce the adverse effects of industrial disputation” by specified means, including by requiring organisations to meet the standards set out in the Act. Under s 5(3), those standards include ensuring that organisations are able to operate effectively; encouraging the efficient management of organisations; and providing for the democratic functioning and control of organisations. The expression “having regard to” requires that Parliament’s intention be taken into account, considered and given due weight: see R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 25 ALR 497 at 504, 508; Municipal Officers’ Association of Australia v Lancaster (1981) 37 ALR 559 at 578–579. The first question is whether the absence of any rule requiring funding of the VLD would amount to the imposition of any “condition, obligation or restriction” on members allocated to the VLD. The appellant identifies the “condition” imposed by the Rules on such members as that their industrial representation is to be provided by the VLD but is to be provided without any allocation of funding. The asserted “obligation” is that the members’ elected representatives are to provide representation and administration of the VLD, but without any allocation of any funding. The asserted “restriction” is that the members are deprived of any source of revenue for the VLD to provide its representational functions. As was the case before the primary judge, the respondents do not dispute that the Rules may impose a relevant condition, obligation or restriction. Like the primary judge, we will proceed on the basis of the respondents’ apparent concession.