FEDERAL COURT OF AUSTRALIA
Koc v Diamond (No 2) [2022] FCA 640
File number: VID 73 of 2022 Judgment of: BROMBERG J Date of Judgment: 19 May 2022 Date of publication of reasons: 1 June 2022 Catchwords: INDUSTRIAL LAW – s 164 Fair Work (Registered Organisations) Act 2009 (Cth) – performance and observance of union rules – where charges laid against applicant – whether rules of Australian Rail, Tram and Bus Industry Union require charges to be heard and determined by Branch Executive or National Executive – whether applicant a Branch or National Office Bearer – whether Branch Executive can validly delegate to the National Executive the function of hearing and determining the charges – application granted Legislation: Fair Work (Registered Organisations) Act 2009 (Cth)
Industrial Relations Act 1988 (Cth)
Cases cited: Australian Workers Union v Bowen No. 2 (1948) 77 CLR 601
Haritou v Skourdoumbis [2002] FCA 116
Meehan v Jones (1982) 149 CLR 571
O’Connor v Setka [2020] FCAFC 195
O'Connor v Setka [2020] FCA 441
R v McKenzie; Ex parte Actors and Announcers Equity Association of Australia (1982) 148 CLR 573
ResMed Ltd v Australian Manufacturing Workers’ Union (No 2) (2017) 249 FCR 408
Division: Fair Work Division Registry: Victoria National Practice Area: Employment and Industrial Relations Number of paragraphs: 66 Date of hearing: 9 May 2022 Counsel for the Applicant: Mr H Borenstein QC with Mr Y Bakri Solicitor for the Applicant: Davies Lawyers Counsel for the Respondents: Ms L Saunders Solicitor for the Respondents: Slater & Gordon Lawyers ORDERS
VID 73 of 2022 BETWEEN: TARIK KOC
Applicant
AND: MARK DIAMOND
First Respondent
SHAYNE KUMMERFIELD
Second Respondent
LUBA GRIGOROVITCH (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
BROMBERG J
DATE OF ORDER:
19 MAY 2022
THE COURT DECLARES THAT:
1.The National Executive of the Australian Rail, Tram and Bus Industry Union of Australia (the Union) is not, in the prevailing circumstances, authorised by the rules of the Union to investigate, hear or determine the charges of gross misbehaviour made by Kathryn Breakwell against the applicant on or about 2 October 2021 as well as an addendum to those charges made on or about 11 November 2021.
THE COURT ORDERS THAT:
2.The respondents, in their capacity as members of the National Executive of the Union, perform and observe the rules of the Union by ceasing, desisting and refraining, by themselves or by their servants or agents, from taking any further action or steps to investigate, hear or determine the charges of gross misbehaviour made by Kathryn Breakwell against the applicant on or about 2 October 2021 as well as an addendum to those charges made on or about 11 November 2021.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMBERG J:
The applicant, Mr Koc, seeks an order under s 164 of the Fair Work (Registered Organisations) Act 2009 (Cth) (Act
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- AGLC
- Koc v Diamond (No 2) [2022] FCA 640
- Case
- [2022] FCA 640
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the National Executive of the Union had the authority to hear and determine charges of gross misbehaviour against Koc. This hinged on the interpretation of the Union's rules, specifically whether the rules mandated that such charges be heard and determined by the Branch Executive or if the Branch Executive could validly delegate this function to the National Executive. Additionally, the court had to ascertain whether Koc was considered a Branch or National Office Bearer, which could affect the applicable rules and procedures for handling such charges.
The Federal Court found that the Union's rules did indeed require that charges of gross misbehaviour be heard and determined by the Branch Executive. The court also determined that Koc was not a Branch Office Bearer, and thus the Branch Executive could not validly delegate the function of hearing and determining the charges to the National Executive. Consequently, the respondents were required to cease any further action or steps to investigate, hear or determine the charges against Koc. The application was granted, and the respondents were ordered to refrain from any further investigation or determination of the charges in question.
The court's decision was definitive in halting the respondents' actions and provided clarity on the jurisdictional scope of the National Executive in relation to the handling of charges under the Union's rules. The orders required the respondents to desist from any further investigation, hearing, or determination of the charges against Koc, thereby ensuring compliance with the Union's established procedures.
Orders
Orders of the court
2. The respondents, in their capacity as members of the National Executive of the Union, perform and observe the rules of the Union by ceasing, desisting and refraining, by themselves or by their servants or agents, from taking any further action or steps to investigate, hear or determine the charges of gross misbehaviour made by Kathryn Breakwell against the applicant on or about 2 October 2021 as well as an addendum to those charges made on or about 11 November 2021.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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