Jolly v Sharma

Case [2024] FCA 1511

FEDERAL COURT OF AUSTRALIA

Jolly v Sharma [2024] FCA 1511

File number(s): VID 1213 of 2024
Judgment of: NESKOVCIN J
Date of judgment: 20 December 2024
Catchwords: INDUSTRIAL LAW - Application for interim orders under s 164(4) of the Fair Work (Registered Organisations) Act 2009 – whether there is a prima facie case that resolutions made by the Australian Rail, Tram and Bus Industry Union are invalid – whether there is a serious question to be tried – whether the balance of convenience favours the grant of interim orders– application dismissed
Legislation:

Conciliation and Arbitration Act 1904 (Cth) s 141

Fair Work (Registered Organisations) Act 2009 ss 142(1)(c),164, 329(1)
Cases cited:

4th Dimension Transport Pty Ltd v Australian Couriers Pty Ltd [2022] FCA 1500

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46

Bradto Pty Ltd v State of Victoria (2006) 15 VR 65; [2006] VSCA 89

CIP Group Pty Ltd v So (No 3) [2023] FCA 518

Isignthis Ltd v ASX (2020) 143 ACSR 679; [2020] FCA 567

Johnson v Cameron [2002] FCA 948

Jolly v Sharma [2024] FCA 171

MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 877

OD Transport Pty Ltd v Western Australian Government Railways Commission (1986) 13 FCR 270

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1; [1998] HCA 30

R v Joske; ex parte Shop Distributive and Allied Employees Association (1976) 135 CLR 194; [1976] HCA 48

Samsung  Electronics Co. Ltd v Apple Inc. (2011) 217 FCR 238; [2011] FCAFC 156
Division: Fair Work Division
Registry: Victoria
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 65
Date of hearing: 17 December 2024
Counsel for the Applicant: H Borenstein and Y Bakri
Solicitor for the Applicant: AEN Legal
Counsel for the Respondents: CA Massy
Solicitor for the Respondents: Gordon Legal

ORDERS

VID 1213 of 2024
BETWEEN:

PARIS JOLLY

Applicant
AND:

VIKRANT SHARMA

First Respondent

ALEX CLAASSENS
Second Respondent

SHAYNE KUMMERFELD (and others named in the Schedule)
Third Respondent

ORDER MADE BY:

NESKOVCIN J

DATE OF ORDER:

20 DECEMBER 2024

THE COURT ORDERS THAT:

1.The application for interim relief pursuant to s 164(4) of the Fair Work (Registered Organisations) Act 2009 (Cth) is dismissed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

NESKOVCIN J

  1. This is an application for interim orders under s 164(4) of the Fair Work (Registered Organisations) Act 2009 (FW(RO) Act). The applicant, Mr Paris Jolly, is a member of the Australian Rail, Tram and Bus Industry Union and the Branch Divisional Secretary of the Victorian Branch Locomotive Division (the VLD). The first respondent, Mr Vikrant Sharma, is the Branch Secretary of the Victorian Branch of the Union.

  2. The Union is an organisation registered under the FW(RO) Act and operates pursuant to Rules that have force under Ch 5 of the FW(RO)…

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Details
AGLC
Jolly v Sharma [2024] FCA 1511
Case
[2024] FCA 1511
Decision Date

CaseChat Overview and Summary

In the Federal Court, Jolly sought interim orders under the Fair Work (Registered Organisations) Act 2009, challenging resolutions made by the Australian Rail, Tram and Bus Industry Union. The applicant, Jolly, argued that the resolutions were invalid, and sought relief on the basis that there was a serious question to be tried and that the balance of convenience favoured the grant of interim orders. Jolly claimed that the resolutions were made under duress and that the union had acted in bad faith. Jolly also argued that the resolutions had the effect of allowing the union to engage in activities that were outside the scope of its registered constitution.

The court had to decide whether there was a prima facie case that the resolutions were invalid, whether there was a serious question to be tried, and whether the balance of convenience favoured the grant of interim orders. The court considered the evidence and submissions presented by both parties, including the affidavits of Jolly and Sharma, and the documentation relating to the resolutions.

The court found that there was a prima facie case that the resolutions were invalid, but the case was not a strong one. The court considered that Jolly had not established that the balance of convenience strongly favoured the grant of interim orders. The court noted that the union had a significant number of members and that the resolutions in question had been in place for some time. The court also considered the potential harm that the grant of interim orders might cause to the union and its members. The court concluded that Jolly had not adduced sufficient evidence to establish that the balance of convenience strongly favoured the grant of interim orders.

The application for interim relief was dismissed. The court ordered that the application for interim relief pursuant to s 164(4) of the Fair Work (Registered Organisations) Act 2009 (Cth) is dismissed.

Orders

Orders of the court

1. The application for interim relief pursuant to s 164(4) of the Fair Work (Registered Organisations) Act 2009 (Cth) is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons set out below, I am satisfied that the applicant has a prima facie case that the impugned resolutions are invalid, but it is not a strong case. I do not consider, however, that that the applicant has established that the balance of convenience strongly favours the grant of the interim orders and I would dismiss the application.BACKGROUND The VLD is a Branch Division of the Victorian Branch of the Union. The VLD has approximately 1,273 members. In practice, the VLD operates on a day to day basis as a separate entity within the Union. Prior to December 2022, the VLD had two full-time paid officials: the Branch Divisional Secretary, Mr Marc Marotta, and the (current) Assistant Branch Divisional Secretary, Mr Jim Chrysostomou. The VLD office also included an employed lawyer and two other staff members. In late 2022, Mr Marotta contested the position of Branch Secretary at the election. This meant that he could not stand to be re-elected as VLD Branch Divisional Secretary. Mr Marotta was unsuccessful in the Branch election and, on 21 December 2022, his term as VLD Branch Divisional Secretary ended. Immediately after that, he was employed by the VLD as an ‘Executive Officer’. On 24 July 2023, Ms Pearljit Singh, a member of the Branch allocated to the Administrative Supervisory, Technical and Professional Branch Division, registered the business name “Independent Transport Union” (ITU). On 28 July 2023, MM Industrial Consultant Pty Ltd was registered. Mr Marotta is its sole director and shareholder. On 8 August 2023, Mr Marotta resigned as Executive Officer of the VLD and received from the VLD a termination payment of $204,947.78, including $67,315.64 for sick/personal/carers leave credits to which, it is alleged, he had no contractual or other legal entitlement. On 9 August 2023, Mr Marotta resigned his membership of the Union. From 10 August 2023, Mr Marotta commenced providing services to the ITU and, from 11 August 2023, MM Industrial was engaged by the VLD to provide services to the VLD. On 19 September 2023, Mr Tanyol Beyit and Mr Mario Monteleone were appointed officers of the ITU while each was a member of the Union allocated to one of the Rail Divisions. On 2 October 2023, Mr Beyit emailed a resignation form to the Victorian Branch. The metadata identified Mr Marotta as the author of the resignation form. Ms Singh and Mr Monteleone also emailed resignation forms to the Branch which appeared identical to the form emailed by Mr Beyit. On 2 October 2023, the ITU sent a mass email to Union members which, amongst other things, stated that: The ITU have engaged experienced and specialist support including long standing unionist and experienced industrial relations representative Marc Marotta, who will represent YOUR interests in dealings with management.Marc is currently representing RTBU members that have been ignored or threatened by current RTBU officials. Marc has over 50 years’ experience in the rail industry and 30 years' in negotiating the best outcomes for his members. Marc has worked hard for the Locomotive Division of the RTBU and now we have engaged him to get you the best deal. If you want professional and responsive representation, the ITU will provide it.…If you want a better union – resign from the dysfunctional organisation that uses your union dues for the wrong reasons and join the ITU whose focus is your work conditions and defending your workplace rights.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The prima facie case is not a strong one. In those circumstances, the balance of convenience should strongly favour the grant of the interim orders. For the above reasons, I am not persuaded that the applicant has adduced sufficient evidence to establish that the balance of convenience strongly favours the grant of interim orders.CONCLUSION I am satisfied that there is a prima facie case that the impugned resolutions are invalid, but I consider that the case is not a strong one. However, the applicant has not established that the balance of convenience strongly favours the grant of the interim orders. For the reasons set out above, I would dismiss the application.

Ratio Decidendi

Legal Principle Established

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