AJ Mills & Sons Pty Ltd v Transport Workers' Union of New South Wale

AJ Mills & Sons Pty Ltd v Transport Workers' Union of New South Wale - [2010] NSWIRComm 107 - NSWIRComm 2010 case summary — Zoe

[35]

(l) one Councillor from the Australian Capital Territory (elected by the members of the Branch from members in the ACT) (2) All of the above shall be holders of offices of the Union within the meaning of the Industrial Relations Act 1996 provided however that with the exception of the Union President and Vice-Presidents, there shall not be more than one member of any sub-branch. (3) All of the members of the Council shall have a vote on the Council except for the Divisional Secretaries, the Assistant Divisional Secretaries and any other employees of the Branch who hold office. (4) Where a member of the Union Council becomes the President or a Vice-President, he/she shall cease to be and act as a member of the Union Council and the office previously held shall be a casual vacancy and filled in accordance with rule 18. (5) The Union Council shall meet quarterly or more frequently in person or by any other means, and thirteen members shall provide a quorum. In the event of an emergency the Union President shall convene a meeting of the Union Council; where possible, giving seven (7) days' notice. If the circumstances warrant, a meeting may be called at less notice but decisions made at such a meeting shall be subject to endorsement by the next ordinary meeting of Union Council or by the next meeting of which seven days' notice has been given. (6) The Union Council shall be the committee of management of the Union. (7) Notwithstanding anything elsewhere in these rules, (I) Subject to paragraph (ii) herein, the Union Council and Officers who held office immediately prior to the certification of this rule shall continue to hold those offices and comprise the Union Council until elections for the Union Council are held and persons take office in the offices referred to in sub-rule (1) of this rule; (II) The President and Vice Presidents rule shall continue to hold those offices until elections for the offices of President and Vice Presidents are held in accordance with rule 17(f) and (g) of these rules and persons take office in those offices. Note 1 - The eight Area Health Services ('AHS') as constituted by section 17, and specified in Schedule 1, of the Health Services Act 1997, as at 1 October 2005, with these being Sydney South West AHS, Sydney West AHS (incorporating the Children's Hospital at Westmead), South Eastern Sydney and Illawarra AHS, Northern Sydney and Central Coast AHS, Greater Western AHS, Greater Southern AHS, North Coast AHS and Hunter and New England AHS."

[40]

Rule 18A Reference to New South Wales Branch of the Federal Union changed to HSU East ; Rule 20 Reference to New South Wales Branch of the Federal Union changed to HSU East . Proposed rule 20(g) is as follows: Subject to rule 6(6), in the case of an office of a full time paid officer if the person elected to the corresponding office in the HSU East Branch ("the Branch") of the Health Services Union, an organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth), has not been a financial member of the Union for a period of not less than twelve months prior to his/her nomination for election to the corresponding office in the Branch or was not a financial member of the Union as at the date of his/her nomination for election to the corresponding office in the Branch. Rule 39 Change in name and composition of the Audit and Compliance Committee and in particular to include members from Victoria. The proposed rule is as follows : An Audit and Compliance Committee consisting of the President, four members of Union Council from New South Wales appointed by the Union Council and four members of the Union Council from Victoria appointed by the Union Council shall meet regularly to receive a report and recommendations from the General Secretary in relation to the current state of the Union's finances. Such a report will include details of Union income and expenditure and set and monitor budget targets if necessary. The Committee may refer a matter to the Union's Council. Consequential changes were sought to other rules. 16 Earlier, on 15 April 2010, the HSU had also applied under s 239 of the IR Act for persons elected in a Branch of a Federal Union to be taken as being validly elected to the corresponding office in the HSU. 17 On 3 June 2010, the Acting Deputy Industrial Registrar refused consent in Matter No R10/0159. In a letter dated 3 June 2010 to the General Secretary of the HSU it was stated: It would seem incongruous to allow the incorporation of rule provisions that would be inconsistent with the jurisdiction of the Act. The letter did not otherwise elaborate on the reason for refusing consent. 18 On 3 June 2010, the Acting Deputy Industrial Registrar also refused the application in Matter No R10/0117. In a letter to the General Secretary of the HSU, the Acting Deputy Industrial Registrar stated: The said section 239, allows for persons elected to offices in a State branch of a Federal organisation to be taken as being validly elected to the corresponding office in a 'State' registered organisation, if the Registrar is satisfied that the membership of both organisations are identical or substantially similar.

[51]

(c) an organisation of employers that is incorporated under the Corporations Act 2001 of the Commonwealth, the Associations Incorporations Act 2009 or any other Act, other than a federally registered organisation (a separate organisation ). 24 Section 217(2) provides that a federal organisation of employees is not able to apply for registration unless the application is made with the consent of each registered State organisation of employees whose constitutional coverage extends to all or any of the class of members proposed to be covered by the federal organisation. 25 Section 218(1)(k) and (l) provide criteria for registration in the case of federal organisations. Section 221(1)(c) requires that when the Industrial Registrar grants an application for registration, there must immediately be recorded in the register, details of whether the organisation is a State, federal or separate organisation. Section 222 provides for the incorporation of State (but not federal) organisations on registration. 26 Section 223 provides for the continuation of registration of industrial organisations (i.e., State organisations) that were registered immediately before the introduction of the 1996 Act and provides that such organisations were required to ensure that their rules complied with the requirements of the 1996 Act within two years of its commencement (with the power given to the Industrial Registrar to alter the rules of such an organisation upon failure to comply). 27 Section 224 provides that an industrial organisation (which would include a State or federal organisation) must have an office in New South Wales registered with the Industrial Registrar. 28 Section 226, setting out the grounds on which registration may be cancelled, provides a particular basis on which a federal organisation may be deprived of registration under the State Act. 29 Part 4 of Ch 5 deals with the regulation of State organisations. Sections 233 to 248 provides for the regulation of State organisations (i.e. bodies caught by s 217(1)(a) or formerly registered State unions embraced by s 223). These provisions include s 235, which sets out the general requirements for rules of State organisations and s 237, which requires rules to provide for procedural and administrative matters including, '(q) the registered office of the organisation (which must be within New South Wales)'.

[54]

(b) the rules of an organisation comply or do not comply substantially with the relevant provisions for the purposes of subsection (1) (b). (3) In this section, State branch of a Federal organisation means a State branch of an organisation registered under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth. 31 Clause 26 of the Industrial Relations (General) Regulation 2001 provides as follows: 26 Rules for elections - State and Federal organisations (1) For the purposes of section 239 (1) (a) of the Act, the membership of a State branch of a Federal organisation and the membership of a State organisation registered under Chapter 5 of the Act is substantially similar if the Industrial Registrar is satisfied that the membership would be substantially similar but for the fact that persons employed in the Australian Capital Territory are members of the State branch of the Federal organisation. (2) For the purposes of section 239 (1) (b) of the Act, the rules of a State branch of a Federal organisation comply substantially with the requirements relating to election of the holders of offices under the Act if the Industrial Registrar is satisfied that the rules would comply substantially with those rules but for the fact that the rules cover persons employed in the Australian Capital Territory. 32 I do not think it follows from cl 26 that where a State branch of a federal organisation has members in more than one State, or rules that have coverage in more than one State, that the only circumstance where the Registrar may be satisfied that a State branch of a federal organisation and a State organisation are substantially similar, is where the membership or the rules coverage extends only to the Australian Capital Territory. In other words, I do not consider the inference to be drawn from cl 26 is that unless there is a relevant regulation, a State branch of a federal organisation cannot be substantially similar to a State organisation if the State branch has membership or rule coverage extending beyond the limits of one State other than as provided in cl 26. 33 What cl 26 does indicate, is recognition by the legislature that a State branch of a federal organisation may have membership or rule coverage extending beyond one State. Section 239(2) states only that the regulations may specify circumstances in which substantial similarity is to be taken to exist. It is not mandatory that it is only by regulation that a State branch of a federal organisation that has membership or rule coverage extending beyond one State may be taken to be substantially similar to a State organisation. Section 239(2) is merely facultative and not determinative of whether the two bodies are substantially. 34 Section 245 provides: 245 Alteration of rules of State organisation (1) An alteration of the rules of a State organisation does not take effect unless the Industrial Registrar consents to the alteration.

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45 Thus, it becomes a question of statutory construction as to what the legislature meant in framing the terms of Ch 5 of the IR Act, in particular s 217. Did the Acting Deputy Industrial Registrar err in refusing to certify the proposed rule changes for the reason that the changes would enable the HSU to enrol and represent employees living and working outside New South Wales? Principles of statutory interpretation 46 Section 33 of the Interpretation Act provides: In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object. 47 As it was stated in AJ Mills & Sons Pty Ltd v Transport Workers' Union of New South Wales [2009] NSWIRComm 135; (2009) 187 IR 56 at [55]-[57] in relation to the rules governing statutory interpretation: [55] In interpreting a statute the courts must determine what parliament meant by the words it used, not what parliament intended to say: Re Bolton & Others; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410 at 459; Harrison v Melhem [2008] NSWCA 67 per Spigelman CJ at [14] and [16]. [56] The approach to statutory interpretation '(a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means ... one may discern the statute was intended to remedy': CIC Insurance Ltd v Bankstown Football Club Limited [1997] HCA 2; (1997) 187 CLR 384 at 408. See also Project Blue Sky Inc & Others v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]; Zoological Parks Board of New South Wales and Australian Workers' Union, New South Wales [2004] NSWIRComm 85; (2004) 135 IR 56 at [44]. [57] Extrinsic materials may be considered for certain specified purposes in ascertaining the meaning of legislation: see s 34 of the Interpretation Act. However, the content of any extrinsic material cannot be used to simply rewrite the terms of the statutory provision: Newcastle City Council v GIO General Limited [1997] HCA 53; (1997) 191 CLR 85 at 113 per McHugh J. Further, the history of the legislation, whilst not decisive in itself, may shed light on the intention of the legislature: Donald Gifford, Statutory Interpretation , (1990) Law Book Co at 91 and the cases referred to therein. 48 Section 34 of the Interpretation Act relevantly provides: 34 Use of extrinsic material in the interpretation of Acts and statutory rules (1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:

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(b) whether the person does so on the person's own behalf or on behalf of some other person. 54 There is nothing in the definition of 'employee', 'employer' or 'industry' to suggest that eligibility for membership of the representative bodies are to be confined to those employees living and working in New South Wales. 55 In Unions NSW v Carter Holt Harvey Wood Products Australia Pty Ltd [2006] NSWIRComm 2; (2006) 149 IR 361 the Full Bench had occasion to consider whether the IR Act evinced an intention to cover employees in New South Wales whose employment was covered by a federal award. In overturning the decision in Moore v Newcastle City Council; Re Civic Theatre Newcastle (1997) 43 NSWLR 614; (1997) 77 IR 210, the Full Bench stated: [55] The presumption that the Full Bench in Moore appears to have proceeded upon was that in the context of the use of the word "employee", unless there was an express or implied reference in the Act to its application to Federal awards then it had to be concluded the NSW Act did not evince an intention to cover federal award employees. We do not consider that was the correct approach. We consider the presumption should have been that the legislature intended the Act to apply to all employees in New South Wales, unless the contrary intention was shown. ... 56 I do not consider that the decision in Unions NSW is authority for the proposition that only employees who live and work exclusively in New South Wales are eligible for membership of a State organisation. Unions NSW was not concerned with an 'extraterritoriality' issue; it was not concerned with whether the IR Act applied to employees who lived and worked outside New South Wales, but rather whether it applied to all employees within New South Wales. 57 That brings me to s 217. That provision refers to 'employees' in the context of State organisations (s 217(1)(a)) and federally registered organisations (s 217(1)(b)). I do not think it is arguable that the legislature intended that 'employees', as that term is used in s 217, was to have two separate meanings. That is to say, that the reference to 'employees' in s 217(1)(a) is limited to employees living and working in New South Wales, whereas the reference to 'employees' in s 217(1)(b) is not so limited. An employee who is a member of a federally registered organisation capable of being registered under the IR Act (s 217(1)(b)) may obviously include an employee in a State other than New South Wales or in a Territory. It seems to me that the single meaning to be given to the word 'employees' in s 217 is that prescribed by s 5 of the IR Act. No distinction is made in s 217 or anywhere else in the IR Act between the employees who constitute the membership of a State organisation and employees who constitute the membership of the federal organisation. 58 As I have sought to explain later in this judgment, the passage of the IR Act in 1996 introduced a new scheme for the registration and regulation of industrial organisations. That scheme allows a federal organisation without branches, and having officers resident outside New South Wales and elected by persons outside New South Wales, to be registered under the IR Act. The scheme does provide that the system of regulation of federal organisations registered under the IR Act and State organisations be kept relevantly separate. That is, the legislation contains specific and detailed provisions relating to the incorporation and regulation of State organisations whilst facilitating the registration (and separate regulation) of federal organisations. But once a federal organisation, or a branch thereof, is registered as an organisation under the IR Act, it has the rights of an industrial organisation and can act on behalf of its members in exercising those rights.

[90]

The provisions also enable the regulation of elections and amalgamations in a manner which may be consistent with the provisions of the Federal legislation, thereby ensuring greater comity between the two systems. This comity will be further assisted by allowing the Industrial Registrar to allow the rules of a State organisation to provide that persons elected to offices in a State branch of a Federal organisation are taken to be validly elected to the corresponding offices in the State organisation where the membership of the two organisations is identical or substantially similar. This provision should be interpreted broadly, so as to ensure that organisations are not put to the cost of unnecessary elections just because of minor disparities in coverage. 66 By providing that federal organisations, or branches of federal organisations, may be registered organisations under the IR Act without attracting corporate status, the relevant provisions of the IR Act address the problem of dual registration under both the federal and State systems that arose in Moore v Doyle (1969) 15 FLR 59. Federal organisations or branches of such organisations may gain the benefit of having access to the New South Wales system of industrial relations, but in doing so are not incorporated under the State IR Act and, therefore, the problem of a dual corporate personality is avoided. 67 Importantly, s 239 of the IR Act, as the Minister stated in the second reading speech, also provides for greater comity between the federal and State systems by allowing the Industrial Registrar to allow the rules of a State organisation to provide that persons elected to offices in a State Branch of a Federal organisation are taken to be validly elected to the corresponding offices in the State organisation where, inter alia, the membership of the two organisations is identical or substantially similar. This provision is to be interpreted broadly. 68 It is apparent that the legislature has sought to overcome some of the old rigidities affecting the registration and regulation of industrial organisations in a federation of States by allowing federal organisations and their branches to gain registration in New South Wales and to provide for greater comity between the federal and State systems by recognising that a State organisation and a State branch of a Federal organisation may be substantially similar, indeed, identical. It is clear from the Minister's second reading speech that the intention was to avoid duplication and unnecessary cost. In those circumstances, there seems to be no discernible purpose in these proceedings in construing the IR Act in a narrow fashion by excluding from eligibility for membership of, or office in, a State organisation those employees who may live and work in another State or Territory, where what is sought to be achieved is harmonisation between a branch of the federal organisation and the State organisation, consistent with the provisions of s 239. 69 Of course, there must be a point when a State organisation that has interstate employees as members loses its character as a State organisation. That is to be tested by asking whether the organisation has the necessary nexus with New South Wales. The HSU, with Victorian and ACT members, will have a sufficient connection or nexus with New South Wales. More than two-thirds of its members will be employed in New South Wales, working under awards of the Industrial Relations Commission of New South Wales. 70 Further, the HSU is a State organisation registered under the IR Act; it is subject, at all times, to the provisions of that Act. The provisions of the IR Act in Ch 5 conferring benefits on members (Pt 4, Div 4), and controlling officers (Pt 4, Divs 5 and 6) would apply to interstate members and officers of the HSU on the basis that the sufficient connection is that the HSU is registered under the IR Act. Unlike the position considered in cases such as Moore v Doyle and McQuillan v Bodkin [1960] 59 AR (NSW) 373 the interstate members and officers of the HSU are not sought to be covered as members and officers of a different body outside the jurisdiction.

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72 It may be accepted that circumstances could exist where amendments to the rules of a State organisation that extended its coverage to other States would fundamentally change the conditions of eligibility for membership. In Australian Rail, Tram and Bus Industry Union v Australian Federated Union of Locomotive Employees, Qld Union of Employees [2008] AIRCFB 362; (2008) 172 IR 47 ('ARTBIU v AFULE'), the Australian Federated Union of Locomotive Employees, Queensland Union of Employees (the State AFULE) applied for registration under the Workplace Relations Act 1996 (Cth) as a transitionally registered association. As such, pursuant to reg 4.2 of Pt 4 of Ch 6 of the Workplace Relations Regulations 2006 (Cth) it did not have to satisfy one of the criteria for registration set by s 19 of Sch 1 of the Act, namely, that there was no prospect of overlapping coverage with another registered organisation. Because the union met the other criteria for registration set by s 19, its application was successful. The Australian Rail, Tram and Bus Industry Union, which had parallel coverage with the newly registered union, brought an appeal against that grant of registration. 73 In upholding the appeal the Full Bench reasoned that because s 19 of Sch 1 to the Workplace Relations Act required the Australian Industrial Relations Commission to register 'the association', by necessary implication the conditions of eligibility of the applicant association must be the same before and after registration or else the Commission would not be registering the applicant association but some entity other than the association. Accordingly, where through registration under the Workplace Relations Act an association with industrial coverage restricted to one State by operation of that State's legislation would change its conditions of membership, so as to be able to enrol and represent employees outside that State, the registered organisation would become a fundamentally different body from the association which applied for registration. 74 The Full Bench stated at [7]: It is a central fact in this case that this eligibility rule does not have any geographic limitation. The State AFULE's right to enrol employees, however, was also governed by the operation of the relevant provisions of the State Act. Under that Act, the State AFULE's registration was, of course, limited to Queensland and it follows that the operation of its eligibility rule was limited to employees in the State of Queensland. Because this territorial limitation arises from the operation of the State Act, and not from the terms of the eligibility rule, upon the State AFULE's registration under the WR Act, the conditions of eligibility of the newly created organisation would extend to employees of the relevant kind throughout the Commonwealth.

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And at [26]: … There is nothing more fundamental to the nature of an association than its conditions of eligibility for membership. In this case the applicant association, the State AFULE, was unable (by operation of the State Act) to enrol and represent employees outside Queensland. The eligibility rule of the organisation which the Vice President registered was not so limited. The conditions of eligibility for membership of the registered organisation were fundamentally different to the conditions of eligibility for membership of the applicant association. For this reason the registered organisation was a fundamentally different body to the association which applied for registration. 75 Other than stating it was because of the operation of the Industrial Relations Act 1999 (Qld), it was not explained in the decision why the Full Bench came to the view that the State AFULE's registration was limited to Queensland and that, therefore, the operation of its eligibility rule was limited to employees in the State of Queensland. There was no discussion about the terms of the State Act. However, senior counsel for the appellant in the present proceedings, who appeared for the appellant in ARTBIU v AFULE, assured me that it was conceded for the respondent that its eligibility rule was limited to employees in the State of Queensland. This explains why there was no further consideration of that central fact. 76 In any event, an examination of the provisions of Ch 12 of the Queensland Act dealing with industrial organisations reveals a different approach to registration and regulation than what exists under the IR Act. There is no counterpart to s 217, for example. 77 In the present proceedings what is sought to be achieved is that the HSU, as a State organisation, becomes substantially similar to the State branch of the federal organisation, namely, the HSU East Branch. There is no attempt by the HSU to extend its coverage in the sense considered in ARTBIU v AFULE. That case may be distinguished.

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88 The purpose of s 239 is to promote harmony and to avoid duplication and unnecessary expense by allowing the rules of a State organisation to provide that persons elected to offices in a State branch of a Federal organisation are taken to be validly elected to the corresponding offices in the State organisation, subject to the relevant criteria being satisfied. It would be to thwart that purpose if a narrow meaning was applied to the words 'State branch of a Federal organisation'. It would mean, for example, that if a State organisation sought to amend its rules to provide that persons elected to offices in a branch of a Federal organisation were to be taken to be validly elected to the corresponding offices in the State organisation, that application presumably would be refused if the branch of the Federal organisation was regionally based or industry or occupationally based because it would not meet the description of 'State branch'. There are a number of prominent examples of Federal organisations with such branches. See for example: the Australian Workers Union; Australian Municipal, Administrative, Clerical and Services Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; and the Construction, Forestry, Mining and Energy Union. 89 I propose to quash the decision of the Acting Deputy Industrial Registrar in Matter No R10/0117. In normal circumstances that would clear the way for the application to be approved. However, I note Mr Pasfield's evidence that: Following the certification of the alterations to the Rules of the Federal HSU on 24 May 2010, I am instructed by Mr Michael Williamson, the General Secretary of the HSU East Branch of the Federal HSU that he made application for membership of the State HSU on behalf of all financial members of that Branch not members of the State HSU in accordance with Rule 68(c) of the Rules of the Federal HSU. I am further instructed that the process under Rule 68(c) has yet to be finalised. 90 I note also that on about 17 June 2010 the HSU filed a Name Change Application. That application is not the subject of this appeal, however, given my decision in this appeal there would be no basis for refusing certification of this rule alteration. HSU-East is not the same name as that of an organisation registered under the IR Act and does not have a name that is so similar to such a name as to be likely to cause confusion (see s 218(h)).

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