FEDERAL COURT OF AUSTRALIA
Jolly v Sharma [2024] FCA 171
File number: VID 632 of 2023 Judgment of: SNADEN J Date of judgment: 6 March 2024 Catchwords: INDUSTRIAL LAW – industrial associations – applicant an officer of a division within an industrial association – where applicant applied to the Fair Work Commission for orders to permit withdrawal of his division from the remainder of the industrial association – where branch of the association later made decisions concerning a bank account under the control or effective or partial control of the applicant’s division – whether resolutions were made in breach of the association’s rules – whether resolutions reflect the existence within the association’s rules of provisions that impose conditions, obligations or restrictions that are oppressive, unreasonable or unjust – whether passage of resolutions was brought about by branch secretary because of applicant’s disaffiliation application and, thereby, amounted to adverse action in contravention of s 340 of the Fair Work Act 2009 (Cth) – whether passage of resolutions amounted to the imposition of penalty, forfeiture or disability of any kind – application dismissed Legislation: Conciliation and Arbitration Act 1904 (Cth) s 140
Fair Work Act 2009 (Cth) ss 340, 341, 342, 360, 361, 362, 539, 545, 546
Fair Work (Registered Organisations) Act 2009 (Cth) ss 94A, 140, 142, 163, 164, 164A, 164B, 320
Industrial Relations Act 1988 (Cth) s 196
Workplace Relations Act 1996 (Cth) sch 1 s 196
Cases cited: Allen v Townsend (1977) 16 ALR 301
Belan v National Union of Workers [2000] FCA 1828
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
Browne v Dunn (1893) 6 R 67
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243
Curwen v Vanbreck Pty Ltd (2009) 26 VR 335
Fair Work Ombudsman v Australian Workers’ Union (2017) 271 IR 139
General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605
Imlach v Daley (1985) 7 FCR 457
Khiani v Australian Bureau of Statistics [2011] FCAFC 109
McLeish v Kane (1978) 22 ALR 547
Municipal Officers’ Association of Australia v Lancaster (1981) 37 ALR 559
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1
Division: Fair Work Division Registry: Victoria National Practice Area: Employment and Industrial Relations Number of paragraphs: 189 Date of hearing: 30 October-1 November 2023 and 3 November 2023 Counsel for the Applicant: Mr H Borenstein KC with Mr Y Bakri Solicitor for the Applicant: RTBU - Victorian Locomotive Division Counsel for the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth and Twenty-Third Respondents: Mr C Massy with Ms E Brumby and Mr D Murphy Solicitor for the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth,…
Continue reading Jolly v Sharma
Sign in free to access the full text
Details
- AGLC
- Jolly v Sharma [2024] FCA 171
- Case
- [2024] FCA 171
- Decision Date
CaseChat Overview and Summary
In the Federal Court of Australia, Jolly v Sharma involved a dispute between the applicant, Jolly, an officer of a division within an industrial association, and Sharma, concerning Jolly's application to the Fair Work Commission for orders to permit the withdrawal of his division from the remainder of the industrial association. The crux of the case was whether certain resolutions passed by the association's branch, which affected a bank account under Jolly's division's control, were made in breach of the association's rules and whether these resolutions constituted oppressive, unreasonable, or unjust conditions, obligations, or restrictions. Additionally, the court examined whether the passage of these resolutions was due to Jolly's disaffiliation application and thus amounted to adverse action under section 340 of the Fair Work Act 2009 (Cth). Furthermore, the case explored whether the resolutions amounted to the imposition of any penalty, forfeiture, or disability.
The primary legal issues the court needed to decide included the validity of the resolutions passed by the branch of the industrial association, the interpretation of the association's rules, and whether these resolutions were passed for improper motives or due to errors in understanding the association's rules. The court had to determine if the resolutions were beyond the branch's authority under the association's rules and whether any errors in fact or law rendered the resolutions invalid. Additionally, the court assessed whether the resolutions constituted oppressive, unreasonable, or unjust conditions, obligations, or restrictions, and whether they amounted to adverse action under the Fair Work Act.
The court found that there was no basis to reject the democratic structure of the association's divisions or the rules governing them under section 142(1)(c) of the Fair Work (Registered Organisations) Act 2009 (Cth). The court dismissed Jolly's claims under section 163 of the Fair Work (Registered Organisations) Act, concluding that there was no merit in the argument that the resolutions were passed based on erroneous legal premises. The court also held that even if the resolutions were passed based on a misunderstanding of the association's rules, it did not render them invalid. The court reasoned that an error of fact or law did not necessarily invalidate a resolution passed by an executive body within an organisation.
The court dismissed Jolly's application, concluding that there were no grounds to interfere with the resolutions passed by the association's branch. The court found that the resolutions were within the branch's authority under the association's rules, and any errors in understanding the rules did not invalidate them. The court further held that the resolutions did not amount to oppressive, unreasonable, or unjust conditions, obligations, or restrictions, nor did they constitute adverse action under the Fair Work Act.
The primary legal issues the court needed to decide included the validity of the resolutions passed by the branch of the industrial association, the interpretation of the association's rules, and whether these resolutions were passed for improper motives or due to errors in understanding the association's rules. The court had to determine if the resolutions were beyond the branch's authority under the association's rules and whether any errors in fact or law rendered the resolutions invalid. Additionally, the court assessed whether the resolutions constituted oppressive, unreasonable, or unjust conditions, obligations, or restrictions, and whether they amounted to adverse action under the Fair Work Act.
The court found that there was no basis to reject the democratic structure of the association's divisions or the rules governing them under section 142(1)(c) of the Fair Work (Registered Organisations) Act 2009 (Cth). The court dismissed Jolly's claims under section 163 of the Fair Work (Registered Organisations) Act, concluding that there was no merit in the argument that the resolutions were passed based on erroneous legal premises. The court also held that even if the resolutions were passed based on a misunderstanding of the association's rules, it did not render them invalid. The court reasoned that an error of fact or law did not necessarily invalidate a resolution passed by an executive body within an organisation.
The court dismissed Jolly's application, concluding that there were no grounds to interfere with the resolutions passed by the association's branch. The court found that the resolutions were within the branch's authority under the association's rules, and any errors in understanding the rules did not invalidate them. The court further held that the resolutions did not amount to oppressive, unreasonable, or unjust conditions, obligations, or restrictions, nor did they constitute adverse action under the Fair Work Act.
Orders
Orders of the court
1. The application be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
I do not consider that there is anything in the democratic makeup of the six Victorian branch divisions (or the rules that contemplate their existence and involvement in the affairs of the branch) that suffices to offend against s 142(1)(c) of the FW(RO) Act. There is no occasion to grant relief under s 163 as Mr Jolly contends and this aspect of his case must be rejected.Conclusions regarding s 163 Mr Jolly’s claims to relief under s 163 of the FW(RO) Act are not made out and must, accordingly, be rejected.THE CASE ADVANCED UNDER S 164 Mr Jolly contends that the 9 August Resolutions were passed on the erroneous understanding that the state of affairs authorised by the 2017 Resolution was contrary to the RTBU Rules. That those who voted to pass the 9 August Resolutions did so because they were of the view that what the 2017 Resolution purported to authorise was contrary to what the RTBU Rules require may be accepted—indeed, is not materially controversial. There are two questions that arise for consideration. The first concerns the correctness of the understanding just acknowledged: were those who voted in favour of the 9 August Resolutions correct to take the view that the 2017 Resolution sought to authorise what the RTBU Rules prohibit? The second issue goes to whether or not it should matter either way: even assuming that the understanding that is acknowledged to have animated the passage of the 9 August Resolutions was wrong, is that something that invalidates their passage or otherwise enlivens the possibility of relief pursuant to s 164 of the FW(RO) Act? For reasons that might become apparent, I consider it prudent to address those questions in the reverse order.Would it matter if the factual premise underpinning the 2017 Resolution was wrong? In Allen v Townsend (1977) 16 ALR 301 (Smithers, Evatt and Northrop JJ), this court accepted that a resolution of an executive body within an organisation that was passed for reasons that were not genuinely related to its administration or to the promotion of its objects was amenable to relief equivalent to that which Mr Jolly now seeks under s 164 of the FW(RO) Act. There, the court accepted that the motives that animated the passage of the resolution that was sought to be impugned were sufficiently removed from the proper administration of the organisation, such that what was passed was not something whose passage was authorised by the organisation’s rules. Here, Mr Jolly contends that equivalent reasoning should apply so as to vitiate the passage of the 9 August Resolutions: in other words, that the false legal premise that animated those who voted in favour of the resolutions suffices to take what was approved beyond what the Victorian Branch executive was authorised to approve under the RTBU Rules. It is, I think, one thing to accept that a resolution that is passed for ulterior or improper purposes—or whose passage is a product of fraud or deliberate misstatement—might be impugned as beyond what an executive or administrative decision‑making body is impliedly authorised to decide. It is quite another to suggest that an organisation’s rules only authorise the passage of resolutions that are relevantly unaffected by errors of fact or law.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.