Federal Court of Australia

Koc v Diamond (No 2) [2022] FCA 640

ORDERS

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) 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.

Is Mr Koc a National Office Bearer?

16    The central question is whether, by reason of the offices he holds, the Rules classify Mr Koc as a National Office Bearer. The respondents contend that they do and that under r 69 the National Executive is therefore empowered to hear and determine the charges.

17    The term “National Office Bearers” utilised in r 69 (and elsewhere) in the Rules is not defined. However, there are various definitions given by r 3 which assist to ascribe a definitive meaning to that term. The term “Office” is defined as “all positions specified in these Rules as National Offices or Branch Offices”. “Office Bearer” is defined as “a person holding an Office”. An “Officer” is “a person who holds an Office in the Union”. “National Offices” means “the Offices specified in Sub-Rule 31(1)” and “Branch Offices” means “the Offices specified in Parts X to XV”.

18    The National Office Bearers referred to by r 69 are therefore those persons who hold one or more of the National Offices listed in r 31(1). Rule 31(1) provides:

(I)    The National Offices are:-

National President

National Vice-President (Rail)

National Vice-President (Road)

National Vice-President (Affirmative Action - Women)

National Secretary

Assistant National Secretary

Assistant National Secretaries (Divisional)

Branch Delegates to the National Executive

National Divisional Delegates from the Branch to the National Council

Representatives to a National Divisional Committee

19    It is not in contest that, as a Branch Divisional Secretary, Mr Koc is the holder of a Branch Office and that by virtue of holding that Office he is a member of the National Divisional Committee for the Tram and Bus Division.

20    The Office of Branch Divisional Secretary is not listed in r 31(1). However, the respondents say that Mr Koc is a National Office Bearer because he holds a National Office as a person holding an Office of the kind last listed in r 31(1) being the National Office described as “Representatives to a National Divisional Committee”.

21    The phrase Representatives to a National Divisional Committee is not defined. On its face and given the context provided by the other descriptions listed in r 31(1), the phrase appears to be a descriptor of a title to a position which is elsewhere referred to in the Rules. That is the nature of each and every other descriptor listed in r 31(1). As the descriptor alludes to persons who are members of a National Divisional Committee, to ascertain its meaning it is necessary to refer to r 40 which deals with how that body is constituted. Rule 40(1) provides that there shall be a National Divisional Committee for each Division established by the National Council of the Union. Rule 40(2) then sets out the composition of a National Divisional Committee:

A National Divisional Committee shall comprise the Assistant National Secretary for the National Division, the Branch Divisional Secretaries, and those National Divisional Delegates from the Branch to the National Council which represent that National Division. Where a Branch has combined National Divisions, the combined National Divisional Delegates from the Branch to the National Council shall have the right to attend National Divisional Committee meetings of the Division included in the Branch combined Division. The National President, the National Vice-Presidents, the National Secretary and the Assistant National Secretary shall all be ex-officio members of each National Divisional Committee.

22    As will be noted, the descriptor Representatives to a National Divisional Committee is not a position title included in r 40(2).

23    However, the respondents contended that the descriptor Representatives to a National Divisional Committee as listed in r 31(1) encompasses any member of a National Divisional Committee who is not otherwise named by r 31(1) as being a holder of a National Office. The descriptor was said to be intended to be “a catch-all term to catch everyone who is left”, that is, every member not otherwise listed in r 31(1). The respondents contended that as Branch Divisional Secretaries are the only members of a National Divisional Committee not otherwise listed in r 31(1), the description Representatives to a National Divisional Committee effectively meant Branch Divisional Secretaries. For that reason, the respondents contended that Mr Koc held a National Office and was a National Office Bearer.

24    I reject that contention. To explain why it is necessary to further examine the text of rr 31(1) and 40(2) and, as will become apparent, particularly instructive to do so taking into account the original form of those rules. Mr Koc’s submissions primarily relied on the original form of r 40(2) to contend that the sole target of the descriptor Representatives to a National Divisional Committee was a position title identified by r 40(2) in its original form but which, by reason of an amendment made in 1998, is no longer listed in that rule.

25    It is convenient to begin by making some observations about the scheme of the Rules and particularly the rationale the Rules seem to apply in differentiating between an Office recognised as a National Office and an Office recognised as a Branch Office.

26    There are three governing bodies within the national structure of the Union dealt with in Part V of the Rules under the heading “National Governing Bodies and Office Bearers”. They are the National Council (r 28), the National Executive (r 29) and the National Divisional Committees (r 40).

27    Each of those governing bodies are conferred with powers in relation to the management of the affairs of the Union and the determination of the policy for the Union. By reason of those characteristics (as well as others), members of those governing bodies hold an “office” within the meaning of that term in the Act (see s 9(1)). By reason of s 141(1) of the Act, the rules of an organisation like the Union must provide for the powers and duties of holders of offices and for the removal of holders of offices. Predecessor legislative provisions (see s 4 and s195(b)(i) and (iii) of the Industrial Relations Act 1988 (Cth)) to those to which I have here referred were relevantly identical in 1993 when the Rules were first adopted and subsequently registered.

28    It is unlikely in that context that the requirements made by those legislative provisions were not taken into account by the framers of the Rules so that a position created by the Rules which the Act (or its predecessor) regarded as an office was not also intended to be recognised as an Office under the Rules. In that respect it should be inferred that the draftsperson strived for validity and compliance with the Act’s requirements. As Mason J said in Meehan v Jones (1982) 149 CLR 571 at 589 in relation to a contract (the Rules being a contract between members), the traditional constructional doctrine is that courts should be astute to adopt a construction which will preserve the validity of the instrument.

29    Another relevant observation is that in relation to each of the governing bodies in question some of their members are members by virtue of holding another Office in the Union and some are members solely by reason of being elected to an Office in the governing body in question. Although the composition of each governing body is also set out in each of rr 28, 29 and 40, r 9(2) lists the composition of those bodies as follows:

The structure and composition of the National Governing Bodies of the Union shall be as follows:-

National Council:

Members of the National Executive

National Divisional Delegates from the Branch to the National Council.

National Executive:

National President

National Vice-President (Rail)

National Vice-President (Road)

National Vice-President Affirmative Action (Women)

National Secretary

Assistant National Secretary

Assistant National Secretaries (Divisional)

Branch Secretaries

Branch Delegates to the National Executive.

National Divisional Committees:

Assistant National Secretary (Divisional)

Branch Divisional Secretaries

National Divisional Delegates from the Branch to the National Council

National President                                                      )

National Vice-President (Rail)                                      )

National Vice-President (Road)                                    )

National Vice-President Affirmative Action (Women)      ) Ex-officio

National Secretary                                                     )

Assistant National Secretary                                       )

30    The members of National Council comprise National Divisional Delegates from the Branch to the National Council and members of the National Executive. The National Divisional Delegates from the Branch to the National Council are elected into such an Office (see r 28(3)). Those Offices in the National Council are recognised by r 31(1) as an Office and in particular categorised as a National Office. The other members of the National Council are each members of the National Executive. Those persons also hold an Office in the National Council but do so by virtue of holding an Office in the National Executive. There can be no doubt that the Rules intend to recognise that those Offices are held in the National Council just as the Rules have done in relation to the other class of members of the National Council. If that be so, as I think must be the case, a question arises as to what category of Office in the National Council the members of the National Executive hold. As there are only two available categories identified by the Rules, the question is, are those Offices in the National Council, National Offices or Branch Offices?

31    If the Rules did not expressly provide to the contrary, the natural implication is that offices in a national governing body were intended to be characterised as National Offices. However, it seems to me that the Rules do expressly provide to the contrary by adopting a rationale or scheme that:

(i)    the Office held by a person elected into a National Office, as well as any ex-officio Office held by such a person by reason of holding the National Office, are each Offices which are characterised as a National Office; and

(ii)    the Office held by a person elected into a Branch Office, as well as any ex-officio Office held by such a person by reason of holding the Branch Office, are each Offices which are characterised as a Branch Office.

32    That rationale is apparent from r 31(1) in the context of the composition of each of the governing bodies in question.

33    Every member of the National Council who is elected into a National Office is recognised by r 31(1) as holding a National Office, not only in that person’s primary Office but implicitly in any Office held in an ex-officio capacity. For the National Council all but the Branch Secretaries are persons elected into a primary Office categorised as a National Office. The Office of Branch Secretary is not listed in r 31(1) as a National Office. Nevertheless, it must be concluded that Branch Secretaries hold an Office in the National Council. In circumstances where all other members of the National Council are recognised by the Rules as holding an Office in the National Council it is inconceivable that Branch Secretaries do not. Clearly, Branch Secretaries hold such an Office but, consistently with the rationale or scheme in question, as Branch Secretaries are elected to a primary Office which is categorised by the Rules as a Branch Office (see rr 47(1) and 48), the Office they hold in the National Council is also categorised by the Rules as a Branch Office and, for the purposes of the Rules, Branch Secretaries are Branch Office Bearers and not National Office Bearers despite holding an Office in a national governing body of the Union.

34    The same rationale is apparent in relation to the National Executive, where all but Branch Secretaries are elected into what the Rules categorise as a National Office. For essentially the same reasons as I have given in relation to the National Council, Branch Secretaries must be regarded as holding an Office in the National Executive and that Office is categorised by the Rules as a Branch Office.

35    I turn then to consider the National Divisional Committees. The same rationale is there apparent as well, but only on the assumption that the descriptor Representatives to a National Divisional Committee in r 31(1) does not encompass the Office of a Branch Divisional Secretary in a National Divisional Committee. In the case of a National Divisional Committee, all members must be regarded as holding an Office. Other than Branch Divisional Secretaries, all those persons have been elected to an Office (see rr 31(2) and (3), 32(1) and (2), and 33(1) and (3)) categorised by the Rules as a National Office. All those persons are also recognised by r 31(1) as holding a National Office. Branch Divisional Secretaries are not recognised by r 31(1) as holding a National Office because, consistently with the rationale in question, they have been elected to a primary Office recognised by the Rules as a Branch Office and the Office they hold in the National Divisional Committee is accordingly regarded by the Rules as a Branch Office. Thus, Branch Divisional Secretaries are regarded by the Rules as Branch Office Bearers despite holding an Office in a national governing body of the Union.

36    The assumption I have made that Branch Divisional Secretaries are not intended to be encompassed in the description Representatives to a National Divisional Committee is well supported by a textual analysis, including by reference to the historical predecessor of r 40(2), to which I shall shortly turn. However, that construction is also to be preferred because without it the rationale which I have identified would operate in relation to the National Council and the National Executive but not the National Divisional Committee. It is doubtful that the Rules intended an inconsistent approach across three of its closely related national governing bodies. The respondents’ suggestion that the Office of a Branch Secretary is treated inconsistently by the Rules from the treatment of a Branch Divisional Secretary because, in relation to the Branch Secretary, the Rules are seeking to preserve State-based branch autonomy is unpersuasive.

37    Textually, the descriptor Representatives to a National Divisional Committee is an inapt means for providing a “catch-all” to refer to all members of a National Divisional Committee not otherwise listed in r 31(1) as holding a National Office. It is difficult to accept that such a descriptor would have been utilised for that purpose when a descriptor, such as “All members of a National Divisional Committee not otherwise listed”, was available to be utilised and is an obviously superior means of clearly identifying what the respondents contend was the intended target. That the descriptor had a different target is confirmed when consideration is given to the predecessor terms of the current terms of rules rr 31(1) and 40(2).

38    In the Rules as registered upon the formation of the Union in 1993 (Original Rules) both rr  31(1) and 40(2) were in a different form to their current form. The evidence before me includes the Original Rules as well as the resolutions of the Branch Council which dealt with amendments made in August of 1998 and include what appear to be explanatory notes provided to the National Council explaining the basis for the amendments then proposed.

39    In the Original Rules, r 40(2) was in the following terms (emphasis added):

A National Divisional Committee shall comprise the Assistant National Secretary for the National Division, the Branch Divisional Secretaries, and those National Divisional Delegates from the Branch to the National Council which represent that National Division together with a representative, elected by and from the relevant Branch Council, of any National Division within a Branch which, by reason of the provisions of Sub-Rule 28(3), is not represented on the National Council. The National President, the National Vice-Presidents and the National Secretary shall all be ex-officio members of each National Divisional Committee.

40    When read with the content of r 28(3) it becomes clear that what was intended by the emphasised words was that a National Division within a Branch with insufficient members to entitle that National Division within a Branch to elect a National Divisional Delegate from the Branch to the National Council, would nevertheless be entitled to elect a representative of the Divisional Branch as a member of the relevant National Divisional Committee.

41    The emphasised words were removed by the 1998 amendments. Those amendments also added the sentence, of no relevance for current purposes, which continues to appear in the Rules as the penultimate sentence of r 40(2). The purpose of the removal of the emphasised words was explained to the National Council as “[d]elete the circumstances whereby R.40(2) allows a Branch Council to elect a representative to attend the one day National Divisional Committee Meeting prior to the National Council even though the Division has less than 100 members”.

42    Rule 31(1) was also amended by the 1998 amendments in a relevantly minor way by the removal of “Senior National Vice-President” and “Junior National Vice-President” and their replacement with the descriptor “National Vice-President”. Of significance for present purposes is that the words Representatives to a National Divisional Committee were not omitted from r 30(1).

43    Mr Koc contended that the descriptor Representatives to a National Divisional Committee which appeared in r 31(1) of the Original Rules was intended to refer to “a representative” of the kind referred to in the words emphasised. Although the members there referred to are not referred to by title, they are the only members of the National Divisional Committee listed in r 40(2) of the Original Rules for whom the description “representative” was used. That each of those persons is characterised as “a representative” is consistent with the rationale for the emphasised words which I have described at [39] above. All of that being so, in my view, it is likely that those members and no other member of the National Divisional Committee were intended to be encompassed by the descriptor Representatives to a National Divisional Committee in r 31(1) of the Original Rules. That those members, and not any other members of a National Divisional Committee, were targeted for separate recognition as National Office holders by r 31(1) is also consistent with the rationale of the Rules discussed at [31] above for categorising Offices as either National or Branch Offices.

44    It follows that in the Original Rules, the descriptor Representatives to a National Divisional Committee did not encompass a Branch Divisional Secretary. There being no basis for concluding that the meaning of that descriptor has altered, I conclude that the descriptor Representatives to a National Divisional Committee as contained in r 31(1) of the Rules, does not encompass a Branch Divisional Secretary.

45    I have of course taken into account that when the 1998 amendments were made, the descriptor in question was not deleted from r 31(1) even though by the 1998 amendments some revision was made to another part of that sub-rule. On the construction which seems to me to be clearly preferable, the descriptor should have been deleted. The fact that it was not suggests infelicitous drafting. I note in that respect that the position of Representative to a National Divisional Committee does not appear in the list of members of National Divisional Committees set out in r 9(2) and by reference to the Original Rules it appears that it never has. It is possible that the error in the Original Rules may be the reason why the descriptor was erroneously not deleted from r 31(1) in 1998, but even if that is not so, the ongoing inconsistency between r 9(2) and r 31(1) supports the idea that infelicitous drafting is not foreign to the Rules and not an uncommon feature of union rules generally. As prior authority has identified, the rules of registered organisations are not to be construed as though they had been drafted by skilled technicians and are to be given a sensible practical construction: see R v McKenzie; Ex parte Actors and Announcers Equity Association of Australia (1982) 148 CLR 573 at 576-577 (Gibbs CJ; Mason, Aickin and Wilson JJ agreeing); ResMed Ltd v Australian Manufacturing Workers’ Union (No 2) (2017) 249 FCR 408 at 413 [14] (Siopis, Bromberg and Katzmann JJ); O’Connor v Setka [2020] FCAFC 195 at 23-24 [76]-[77] (Mortimer, Rangiah and White JJ); O'Connor v Setka [2020] FCA 441 at 33 [99] (O’Callaghan J).

46    For those reasons, I accept Mr Koc’s first contention that he is not a National Office Bearer and for that reason the National Executive is not authorised by the Rules to hear and determine the charge brought against him.

What if Mr Koc is both a Branch Office Bearer and a National Office Bearer?

47    Mr Koc put an alternative submission based on the possibility that, contrary to his primary submission, the Court determined that he was both a Branch Office Bearer and a National Office Bearer. Given my conclusion that Mr Koc is not a National Office Bearer, it is not necessary for me to determine the correctness of that alternative contention but, in case I am wrong, I will provide a brief account of why I consider that the construction contended for by Mr Koc is to be preferred to that for which the respondents contended.

48    Mr Koc contended that if he was both a Branch Office Bearer and a National Office Bearer the Rules would nevertheless require that the charges be heard and determined at first instance by the Branch Executive. Mr Koc’s construction accepted that under r 69, Branch Office Bearer and National Office Bearer are not mutually exclusive categories in the sense that the same person can only be characterised as one or the other. That is because it is possible for the same person to hold a National Office whilst simultaneously holding a Branch Office. With certain exceptions not relevant for present purposes, so much is provided for by r 35.

49    In the context of a charge being laid against a person simultaneously holding both a Branch Office and National Office, Mr Koc contended that r 69 operates in an office specific manner so that a charge relating to conduct referrable to the holding of a Branch Office is to be dealt with by the Branch Executive and a charge relating to conduct referrable to the holding of a National Office is to be dealt with by the National Executive. As all of the charges relate to conduct occurring in or in relation to the performance by Mr Koc of his Branch Office as Victorian Branch Divisional Secretary, Mr Koc contended that the Branch Executive is required to hear and determine those charges at first instance.

50    The respondents did not put in contest the proposition that all of the alleged conduct relied upon in substantiation of the charges was conduct carried out by Mr Koc in his capacity as the Victorian Branch Divisional Secretary. They did, however, put in contest the construction of r 69 relied upon by Mr Koc. In doing so, they observed that conduct by a person holding dual Offices may not necessarily be neatly allocated as between the two Offices held. For instance, conduct which brings the Union into disrepute and constitutes gross misbehaviour may not conveniently be categorised as referrable to one Office held but not the other. Furthermore, conduct of that kind may warrant disciplinary action in relation to each Office including the loss of each Office.

51    That observation raises a potential difficulty with the construction contended for by Mr Koc. It is somewhat answered by construing r 69 as intending that a charge must be Office specific. Nevertheless, the prospect of the same conduct being dealt with twice under two separate charges remains an unattractive consequence.

52    To be balanced against that potential imperfection is the support given to Mr Koc’s construction by the office specific reference made to “an Office” in r 69(1) and (3). The construction contended for by Mr Koc is also consistent with the general theme of the Rules that matters relevant to a particular area of operation, such as a Branch or the National Office of the Union, are to be dealt with by the governing body or bodies responsible for that particular area. That is consistent with the fact that Branches and Divisions of the Union are afforded a significant degree of autonomy in relation to matters affecting those Branches or Divisions alone and not the Union generally.

53    The real difficulty for the respondents is that in the search for a sensible construction of r 69, insofar as it deals with the eventuality of a dual Office-holder being the subject of a charge, they contend for a construction which is far less attractive. The respondents say that the one charge against a dual Office-holder may be dealt with at first instance under r 69 by either the Branch Executive or the National Executive or both thereof. That construction would give rise to a potential overlap in relation to each and every charge brought against a dual Office-holder and thus a possibility of not only the same charge being dealt with twice but that inconsistent results could be arrived at in the multiple determinations involved. The respondents’ contention that the governing bodies could be expected to resolve the potential for overlap sensibly in the absence of r 69 providing a resolution, is unpersuasive. That is so because that rationalisation is no answer to the gaping imperfection in the respondents’ construction. However, if it is an answer it would also be an answer to the far narrower imperfection which is raised on Mr Koc’s construction.

54    For those reasons, if it had been necessary to decide the issue, I would have preferred the construction contended for by Mr Koc.

Did the Branch Executive validly delegate the power to hear the charges to the National Executive?

55    In the alternative and on the assumption that r 69 was not the direct source of the National Executive’s power to hear and determine the charge, the respondents also contended that the National Executive could validly hear and determine the charge because the Branch Executive had, by its resolution of 29 October 2021, delegated to the National Executive the function of hearing and determining the charge. Mr Koc contended that this alternative contention must be rejected because the Branch Executive does not have the power to delegate the hearing and determination function conferred upon it by r 69 of the Rules.

56    It is only necessary to consider this issue in the prevailing circumstances. Whether the Rules enable another governing body of the Union to hear and determine a charge which cannot be determined by the governing body to which that function has been conferred by the Rules, is not a question that arises for determination.

57    The resolution of the Branch Executive of 29 October 2021 noted that the Branch Executive had previously carried a resolution calling for Mr Koc to resign from his position and justified the purported referral of the charge to the National Executive “[i]n order to eliminate any perception of prejudgment”. That, however, was not relied upon by the respondents as a basis for contending that the Branch Executive could not validly hear and determine the charge. Mr Koc was right to contend that no challenge has been made by him to the capacity of the Branch Executive to hear and determine the charge and that if he did seek the recusal of some or all members of the Branch Executive he would need to demonstrate that the members of the Branch Executive were “invincibly biased” against him: Australian Workers Union v Bowen No. 2 (1948) 77 CLR 601 at 631; Haritou v Skourdoumbis [2002] FCA 116 at 3 [13] (Finkelstein J).

58    Although the respondents accepted that the Victorian Branch Executive was able to hear and determine the charges, the respondents contended that the referral of the charges by the Branch Executive to the National Executive was a proper exercise of the managerial power provided to the Branch Executive by the Rules. They contended that it was a properly made decision with a proper basis. That circumstance was said to be sufficient to enliven the power impliedly given to the Branch Executive by r 43(1) to delegate its hearing and determination function in relation to the charges.

59    Rule 43(1) provides:

The Branch Executive shall be the Committee of Management of the Branch. Subject to these Rules, to the policies and decisions of the National Council, the National Executive and the Branch Council and to the review of its decisions by the Branch Council, it shall have the care, control, management and superintendence of the activities of the Branch and between meetings of the Branch Council, it may exercise all or any of the powers and functions of the Branch Council other than the power to make, alter or rescind Parts X to XVI of these Rules but it shall not act contrary to any policy or decision of the Council and shall not rescind, alter, vary or revoke any policy or decision of the Branch Council. All decisions within the powers of a Branch Executive shall have full force and effect unless and until disallowed by the Branch Council.

60    The Rules do not expressly provide for the power to delegate for which the respondents contended. That, however, is not to say that a power for the Branch Executive to delegate one or other of its functions is not capable of being encompassed within the power of “care, control, management and superintendence” conferred upon the Branch Executive by r 43(1). Nor would recognising that a power to delegate is conferred by r 43(1) entail reliance upon an implied rule and, as Mr Koc contended, offend the principle in Scott v Jess (1984) 3 FCR 263 at 283 (Gray J).

61    However, the problem with the respondents’ alternative case and the reason why it must be rejected, is that the Branch Executive’s power under r 43(1) is, as that rule makes clear, “Subject to these Rules”. Any power that the Branch Executive may have under r 43(1) to delegate one or other of its functions cannot be exercised in a manner contrary to the Rules.

62    The Rules, and in particular r 69, requires that a charge brought against a Branch Office Bearer be heard and determined by the Branch Executive. Rule 69 further provides for a right of appeal from a finding of guilt made by a Branch Executive to the Branch Council and then to the National Executive (see r 69(15)).

63    A delegation of the kind contended for by the respondents would circumvent the requirements made by the Rules, not only in relation to the forum for the initial hearing and determination of a charge but also the two-tiered appeal process provided for by r 69. The Branch Executive is not empowered by r 43(1), by way of delegating its functions or otherwise, to alter the operation of the Rules. The powers that are conferred upon the Branch Executive by r 43(1) must be exercised in conformity with the specific requirements made by the Rules.

64    In so far as reliance was made by the respondents upon the resolution of National Council set out at [10] above, it is of no assistance. That resolution should not be construed as intending to empower the National Executive to hear and determine the charges. No such submission was made by the respondents and, in any event, because the power of National Council is itself “subject to [the Rules]” no such empowerment could have been validly conferred (see r 28(1)). If the purpose of the resolution was to provide approval or support for National Executive to hear and determine the charges, that approval was not capable of validating conduct which the Rules do not authorise.

65    For those reasons, the alternative basis relied upon by the respondents must also be rejected.

Costs

66    Given the limitation imposed on the making of an order as to costs by s 329 of the Act, I presume that no order for costs is sought and accordingly no such order will be made.

Associate:

Dated:    1 June 2022

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