Koc v Diamond (No 2)

Case [2022] FCA 640


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

Scott v Jess (1984) 3 FCR 263

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:

  1. The applicant, Mr Koc, seeks an order under s 164 of the Fair Work (Registered Organisations) Act 2009 (Cth) (Act

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Details
AGLC
Koc v Diamond (No 2) [2022] FCA 640
Case
[2022] FCA 640
Decision Date

CaseChat Overview and Summary

The case of Koc v Diamond (No 2) involved the applicant, Koc, challenging the actions of the respondents, Diamond and others, in their capacities as members of the National Executive of the Australian Rail, Tram and Bus Industry Union. The dispute centred around the handling of charges of gross misbehaviour against Koc, with Koc contending that the National Executive had no jurisdiction to hear and determine the charges as required by the Union's rules. The matter was heard in the Federal Court of Australia.

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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