Paris Jolly - [2023] FWCFB 117

[2023] FWCFB 117

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.94(1) RO Act—Withdrawal from amalgamation

Paris Jolly

(D2023/1)

JUSTICE HATCHER, PRESIDENT

DEPUTY PRESIDENT GOSTENCNIK
ACTING COMMISSIONER BISSETT

SYDNEY, 21 JULY 2023

Application for ballot to decide whether the Locomotive Division of the Victorian Branch should withdraw from the Australian Rail, Tram and Bus Industry Union (RTBIU) – interlocutory application by RTBIU for the Commission to dismiss, strike out or not decide certain matters raised in several paragraphs of an amended application – statutory construction – proper construction of s 94A(2)(b) of the RO Act – whether s 94A(2)(b) requires a binary or graduated assessment of the capacity of the new organisation to promote and protect the economic and social interests of its members – interlocutory application granted

Background

Paris Jolly is the Divisional Secretary of the Victorian Branch Locomotive Division (VLD) of the Australian Rail, Tram and Bus Industry Union (RTBIU). By application made on 2 February 2023 and amended on 26 April 2023 (Amended Application), Mr Jolly applies under s 94 of the Fair Work (Registered Organisations) Act 2009 (Cth) (RO Act) for a ballot to be held to decide whether the VLD should withdraw from the RTBIU. Mr Jolly has, in accordance with directions made by the Commission, filed a witness statement dated 3 April 2023 in support of his application. The RTBIU opposes the application.

Mr Jolly contends and the RTBIU accepts that the VLD is a ‘constituent part’ in relation to the RTBIU because it is a ‘separately identifiable constituent part’ under paragraph (b) of the definition of ‘separately identifiable constituent part’ in s 93 of the RO Act. He contends, and the RTBIU accepts, that the VLD became part of the RTBIU as a result of an amalgamation under Division 7 of Part IX of the Industrial Relations Act 1988 (Cth) (IR Act) between the Australian Federated Union of Locomotive Enginemen, the Australian Railways Union, the Australian Tramway and Motor Omnibus Employees’ Association and the National Union of Rail Workers of Australia which took effect on 1 March 1993 (1993 Amalgamation). It is also uncontroversial that the IR Act is a predecessor law as defined in s 93 of the RO Act for the purposes of s 94(1)(a).

Because Mr Jolly’s application is made more than five years after the 1993 Amalgamation, Mr Jolly also asks the Commission to accept the application pursuant to s 94A(1) of the RO Act after the end of the five-year period referred to in s 94(1)(c). He advances two alternative bases in support of his contention that it is ‘appropriate’ to accept the application under s 94A(1).

First, he contends that the Commission must accept the application after the five-year period under s 94A(3) having regard to the RTBIU’s alleged record of not complying with workplace or safety laws to which the VLD has not contributed. The RTBIU says in response to this contention that the matters particularised in Mr Jolly’s witness statement as constituting…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Paris Jolly [2023] FWCFB 117
Case: [2023] FWCFB 117
Decision Date: 21 JULY 2023

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application for a ballot to determine whether the Locomotive Division of the Victorian Branch should withdraw from the Australian Rail, Tram and Bus Industry Union (RTBIU). The RTBIU subsequently filed an interlocutory application, requesting that the Commission dismiss, strike out, or not decide certain matters raised in several paragraphs of an amended application by the Locomotive Division. The central issue before the Commission was the proper interpretation of section 94A(2)(b) of the relevant Act, specifically whether this provision mandates a binary or graduated assessment of the capacity of the new organisation to promote and protect the economic and social interests of its members.

The Commission examined the legislative language and context of section 94A(2)(b) to determine its intended scope and application. It was crucial to understand whether the provision demands a clear-cut, binary decision or if it allows for a more nuanced, graduated assessment of the new organisation's capacity. The Commission considered the purpose of the legislation, the practical implications of each interpretation, and relevant case law and legislative history. After thorough analysis, the Commission found that the provision does indeed permit a graduated assessment, allowing for a more detailed and context-specific evaluation of the new organisation's capacity.

Consequently, the Commission granted the interlocutory application by the RTBIU. It decided to dismiss, strike out, or not decide the matters raised in the specified paragraphs of the amended application, finding them to be inconsistent with the proper construction of section 94A(2)(b) as permitting a graduated assessment. This decision provided clarity on the interpretation of the statutory provision and ensured that the Commission's proceedings would be aligned with the legislative intent. The final orders included dismissing, striking out, or not deciding the specified matters in the amended application, thus facilitating a fair and legally sound process for the ballot application.

Orders