Koc v Diamond

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.

BROMBERG J: 1 The applicant, Mr Koc, seeks an order under s 164 of the Fair Work (Registered Organisations) Act 2009 (Cth) (Act) that the respondents perform and observe the rules (Rules) of the Australian Rail, Tram and Bus Industry Union (Union). As a member of the Union, Mr Koc has standing to bring the proceeding pursuant to s 164(1) of the Act. Mr Koc is the Secretary of the Victorian Branch of the Tram and Bus Division of the Union. By reason of holding that office, Mr Koc also holds an office as a member of the Tram and Bus National Divisional Committee. The respondents are members of the Union who together comprise the National Executive of the Union. 2 It is convenient to commence with a brief outline of the issues raised by the proceeding. 3 Mr Koc is the subject of some 46 charges laid by another member of the Union, Ms Breakwell. He is accused of gross misbehaviour and his accuser seeks his removal from office. Mr Koc contends that under the Rules he is a Branch Office holder and the Branch Executive is required to hear and determine the charges. Contrary to that contention, the National Executive of the Union (constituted by the respondents) determined that it would hear and determine the charges. The respondents contend that the National Executive is empowered by the Rules to hear and determine the charges because by virtue of being a member of a National Divisional Committee Mr Koc is a National Office holder. In the alternative, they rely on the fact that the Victorian Branch Executive has delegated to the National Executive the function of hearing and determining the charges. 4 Having heard the parties at an expedited trial held on 9 May 2022 and given the proximity of the impugned hearing to be conducted by the National Executive, on 19 May 2022 I pronounced the Court's judgment stating that I would deliver my reasons for judgment at a later time. These are those reasons. 5 On 19 May 2022, the Court made the following declaration and order: 1. The National Executive of 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. 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. 6 To explain why I reached those conclusions it is convenient to set out r 69 of the Rules, the rule that Mr Koc claimed the respondents were failing to perform and observe. 69 - GENERAL OBLIGATIONS OF OFFICE BEARERS AND ACTION IN RELATION TO MISCONDUCT (1) A person holding an Office within the Union shall carry out his/her role in an honest, competent and diligent manner. He/she shall abide by these Rules and the policies and decisions of the Governing Bodies of the Union. (2) A person holding an Office who has been found guilty in accordance with the procedures set out in this Rule of a breach of his/her obligations as an Office Bearer may be reprimanded, warned, temporarily suspended from office for a period of not more than twelve months, fined an amount not exceeding $100.00 or, subject to Sub-Rule 69(3), removed from office. (3) A person holding an Office within the Union may be removed from office, only if he/she has been found guilty in accordance with this Rule, of a misappropriation of the funds of the Union, a substantial breach of these Rules or gross misbehaviour, or gross neglect of duty or has otherwise ceased to be eligible to continue to hold Office under these Rules. For the purposes of this Rule, a "substantial breach of these Rules" includes a persistent refusal or failure to abide by the obligations imposed by these Rules including those obligations imposed by Sub-Rule 69(1). (4) Any member, including an Office Bearer, wishing to invoke the preceding Sub-Rules against a person holding an Office, shall detail in writing the conduct or circumstances alleged to justify disciplinary action and forward that written charge to the National Secretary in the case of National Office Bearers and to the Branch Secretary in the case Branch Office Bearers, who shall forward a copy to the person against whom the charge is made. When the National Secretary or the Branch Secretary, as the case may be, forwards the written charge to the Office Bearer, that Office Bearer shall be requested to advise the National Secretary or the Branch Secretary, as the case may be, within seven days whether he/she admits to or denies the charge and/or whether he/she wishes to make any comment thereon. (5) Where the National Secretary or the Branch Secretary is the person against whom the charge is made, then the charge shall be forwarded to the National President or the Branch President, as the case may be, who shall take the actions that would otherwise be taken by the National Secretary or the Branch Secretary under this Rule. (6) At the next Ordinary or Special Meeting of the National Executive in the case of National Office Bearers and the Branch Executive in the case of Branch Office Bearers, the charge and any reply made by the person against whom the charge is made, shall be considered and the Executive may resolve:- (i) that the person charged shall be called upon to show cause to the Executive why he/she should not be disciplined; or (ii) that no further action be taken. (7) If the charge is to be proceeded with, the person charged shall be called upon to attend before the National Executive or the Branch Executive, as the case may be, at a stated time and place to show cause why he/she should not be disciplined. The person charged shall be given at least twenty-one days' notice of the time and place of the hearing. At least fourteen days before the hearing, the person laying the charge shall provide the Office Bearer with particulars of the charge reasonably sufficient to enable him/her to know the nature of the allegations made against him/her and the circumstances alleged to justify disciplinary action. (8) An Office Bearer who has been charged may, by resolution of the National Executive or the Branch Executive, as the case may be, be directed not to carry out some or all of the duties of his/her Office pending the hearing and determination of the charge. (9) At the hearing, the person laying the charge and the person charged: (i) shall be heard in person if he/she or they so desire; (ii) may submit a written statement; (iii) may call witnesses; (iv) may examine and cross-examine witnesses; (v) may present evidence relevant to the charge. (10) No person shall be present at the hearing of the charge other than the person charged, the person laying the charge, the members of the National Executive or the Branch Executive, as the case may be, and any witnesses called, provided that any witnesses called may only be present while such witness's evidence is being taken. No person other than members of the National Executive or the Branch Executive, as the case may be, shall be present after the hearing of the charge while the Executive is deliberating upon its decision in relation to that charge. (11) Where the member laying the charge or the person charged is a member of the National Executive or the Branch Executive, as the case may be, then that person shall take no part in the deliberations of the Executive and shall absent himself/herself during the Executive's deliberations. (12) The National Executive or the Branch Executive, as the case may be, shall determine whether or not the charge has been proven and subject to Sub-Rule 69(3), determine the appropriate penalty. (13) An Office Bearer who is found guilty pursuant to this Rule, shall have a right of appeal to the National Council in the case of a decision by the National Executive and to the Branch Council in the case of a decision by the Branch Executive. The appeal may be against the finding of guilt and/or the penalty imposed. (14) An appeal right shall be exercised within fourteen days of receipt of written advice of the decision of the Executive by notice in writing to the National Secretary or the Branch Secretary, as the case may be, or, where the National Secretary or the Branch Secretary is the person charged, to the National President or the Branch President, as the case may be. In hearing such appeal, the Council shall follow the same proceedings and accord the Office Bearer the same rights as are provided for in this Rule in relation to the hearing of the matter by the Executive. (15) A Branch Office Bearer shall have a fu1iher right of appeal from the Branch Council to the National Executive, whose decision shall be final. 7 Next, I should refer to some additional facts. 8 On 2 October 2021 and in accordance with r 69(4) of the Rules, the charges were provided to the third respondent, Ms Luba Grigorovitch, in her capacity as the Branch Secretary of the Victorian Branch. On 5 October 2021, Ms Grigorovitch forwarded the charge to Mr Koc. On 12 October 2021, Mr Koc provided a formal response which denied the charges against him. 9 On 29 October 2021, the Branch Executive passed a resolution referring the charges to the National Executive in the following terms: Having received charges under the Union rules laid by RTBU member Kathryn Breakwell against the Secretary of the Tram & Bus Division, Tarik Koc, this Victorian Branch Executive notes the following: • That the charges are extensive and serious in nature • That this Branch Executive has previously carried a resolution calling for Tarik Koc to resign from his position. In order to eliminate any perception of prejudgment in the charges being dealt with, this Branch Executive therefore resolves that the proper course of action is to refer this matter to the RTBU National Executive, to address at their earliest convenience. 10 On 10 November 2021, the National Council passed a resolution in the following terms: This National Council, having heard the report regarding formal charges being laid by a Tram & Bus Division member under Union rules against the Victorian Secretary of the Tram & Bus Division, notes: • That much unrest exists among Tram & Bus Division members; • Some members have resigned from the Union as a result of this matter; and • That the Victorian Branch has referred this matter to the National Executive. Therefore, this National Council resolves that a special National Executive meeting be convened as soon as it is practicable to address this important matter, as per our Union rules. 11 On 11 November 2021, Ms Breakwell provided an addendum to the charges laid by her. On 19 November 2021, Mr Koc responded to the addendum to the charges. He also disputed that the National Executive had the power to deal with the charges under the Rules. 12 On 9 December 2021, the National Executive passed a resolution that the charges would be heard by the National Executive on 16 March 2022. The hearing of the charges by the National Executive was later deferred to 23, 24 and 25 May 2022. 13 In order to understand the contentions before the Court, it is necessary to briefly explain the structure of the Union under the Rules. The Union is an organisation of employees registered under the Act. In accordance with the Rules, the Union is divided into separate "Branches" for each State in which it operates (see r 6(3)). The Union is also organised into six separate "National Divisions" under the Rules, which for present purposes includes the National Tram and Bus Division (see r 6(11)). Each National Division is divided into Branch Divisions which correspond to each Branch of the Union (see r 6(13)). 14 The Rules also establish a hierarchy of decision-making bodies within the Union. Rule 28(1) provides that the National Council is "the highest deliberative body of the Union". Rule 29(1) provides that, subject to the Rules, the policies and decision of the National Council and to the review of its decisions by the National Council, the National Executive is charged with the care, control, management and superintendence of the activities of the Union. Furthermore, between meetings of the National Council, the National Executive may exercise all and any powers and function of the National Council other than the power to make, alter or rescind the Rules. 15 Rule 42(1) provides that the highest deliberative body for each Branch of the Union is the Branch Council. Rule 43(1) establishes that each Branch is to have a Branch Executive which has the care, control, management and superintendence of the activities of the Branch subject to the Rules, to the policies and decision of the National Council, the National Executive and the Branch Council and to the review of its decisions by the Branch Council.