Belan v National Union of Workers

Background 4 Because the restitution proceedings have been settled, it is necessary to focus only on the background and evidence which is relevant to the enforcement proceedings. From this point, I will refer to the applicants and respondents in those proceedings only. The enforcement proceedings are brought against a background which involves two events of significance. The first was the execution of the 202 Agreement and the other was a dispute between members of the NUW in NSW and a large grocery wholesaler, Davids Distribution Pty Ltd ("Davids Distribution") which resulted in litigation in the Supreme Court of NSW and this Court.

The execution of the 202 Agreement 5 The following is a summary of events leading to the execution of the 202 Agreement drawn from a chronology provided by the parties (which I understand is agreed to by the parties) and documents tendered during the hearing. I should note that counsel for the applicants objected to much of this material being used to construe the 202 Agreement. 6 The NSW Union was first registered in NSW under state law in 1908. The NUW was first registered under federal law in 1912. On 22 March 1991 what was then called the National Conference of the NUW discussed amalgamations in NSW. On 28 March 1991 a firm of solicitors wrote to Mr Belan giving advice concerning a letter of 13 March 1991 he had received from Mr Sword. In very general terms the advice concerned the registration under state law of a branch of an organisation registered under federal law and whether there was any requirement under federal law that state branches have autonomy. The firm took issue with certain legal propositions on these matters advanced by Mr Sword in the earlier letter. 7 A meeting of the National Conference of the NUW in July 1991 passed a motion directing branches that proposed amalgamations in NSW not proceed except with the approval of what was then called the National Executive Committee. The minutes of the meeting reveal a discussion about the legal complexities of a state branch amalgamating with a union registered in the state where that union was not registered under federal law (or part of an organisation registered under federal law). I should add, parenthetically, that this narrative is not intended to reflect my understanding of the legal position though its complexity cannot be doubted. Rather, it is intended to provide an account of the debate which was going on within the NUW in the terms in which the debate occurred. It was a debate which ultimately led to the execution of the 202 Agreement. The minutes also reveal an apparent difference of opinion between Mr Sword and Mr Belan on the question of whether the NSW Union should proceed to amalgamate with other unions registered in that State. 8 Commencing in early August 1991, discussions took place between representatives of the federal office of the NUW and representatives of the NSW Branch/NSW Union. In late August 1991 a draft agreement (for approval under s 202) was sent to Mr Belan. The progress of negotiations was noted by the National Executive Committee at a meeting on 10 September 1991. On 19 September 1991, Mr Belan forwarded to Mr Sword a proposal and a draft agreement. By letter dated 14 October 1991, Mr Sword put a counter proposal to Mr Belan. In the letter Mr Sword indicated that the agreement in its "current" form would not address the problems that had been earlier identified by National Conference. In particular, he indicated it did not resolve the question of the National Conference retaining authority in a variety of matters or the question of the rules of, I infer, the NUW and the NSW Union being brought into conformity. 9 Shortly after sending the letter of 14 October 1991, Mr Sword became aware that the NSW Branch intended to proceed with proposed amalgamations. This led to further correspondence and discussions though by mid-November 1991, an application had been made to the Registrar of the then Industrial Commission of New South Wales to further the amalgamation of the NSW Union with another (or other) union(s). On 20 November 1991 a report was presented to a meeting of the National Executive Committee concerning events in NSW. The Committee resolved to recommend a resolution for consideration and adoption by the National Conference concerning finances and administration within NSW. 10 In early December 1991 Mr Sword and Mr Belan negotiated further about an agreement. On 12 December 1991 Mr Sword wrote to Mr Belan proposing drafts of certain clauses to be included in a proposed agreement. One proposed clause was to the effect that the NSW Union would be bound by decisions of National Conference on matters of national significance but would have autonomy to decide matters not directly affecting members of NUW outside NSW (clause 6). Another was that property be held jointly in the names of and for the benefit of the NSW Union and the NSW Branch (on behalf of the NUW) (clause 8). Another proposed clause (clause 9) concerned sustentation fees. Proposed clause 11 concerned amendments to the rules of the NSW Union. It provided for notice to be given to the General Secretary of the NUW of proposed changes to the rules so that any concerns of the General Secretary could be taken into account but that otherwise the NSW Union could alter or rescind its rules with a proviso that they "not conflict with the rules of the organisation". On 13 December 1991 Mr Sword and Mr Belan signed an agreement agreeing to the inclusion of some of the clauses proposed by one or the other side, agreeing in principle to an approach to be reflected in a clause and a timetable to finalise agreement on all matters. 11 Negotiations continued and on 1 May 1992 Mr Sword wrote to Mr Belan enclosing a draft said to reflect agreement they had reached. It included clause 11, which appears to be in the same terms as had been proposed in the letter of 12 December 1991. It also included an attachment setting out proposed alterations to the rules of the NUW and another attachment setting out proposed alterations to the rules of the NSW Union. It included a rule, rule 47A (the precursor to r 48A mentioned later), dealing with an agreement under s 202 and a provision that the rule (rule 47A) could not be altered, amended, revised, rescinded or added to without consent of the National Council of the NUW. In June 1992 an amalgamation took place at a federal level and an amalgamation took place at a state level involving the NSW Union. 12 Between 3 and 7 August 1992 the National Council met and reviewed the proposed s 202 agreement which was, at that time, also being scrutinised by the NSW Branch. On 30 September 1992 the National Committee of Management was informed by Mr Sword (a matter confirmed by Mr Belan) that an agreement was ready for signing subject to minor amendments. On 26 October 1992 the 202 Agreement was executed. On 1 or 2 December 1992, application was made to the Federal Commission for approval of the 202 Agreement. On 27 January 1993 the application was before Deputy President Acton and, on that occasion, various minor amendments were identified by the parties. After the amendments were made, a direction was made by the Deputy President on 2 February 1993 that the particulars of the agreement be entered by the Industrial Registrar. The Deputy President published reasons for so directing on the same day: see Print K6490.

The Davids Distribution litigation 13 The parties prepared, at my direction, chronologies of the litigation between the NUW and Davids Distribution. There are differences between the chronologies but they are not, in my opinion, material differences. In late 1997 there was disagreement between Davids Distribution and the NSW Branch of the NUW associated with the renewal of an enterprise agreement concerning three workplaces. Industrial action occurred at one workplace and Davids Distribution notified a dispute to the Industrial Relations Commission of NSW ("the NSW Commission"). Davids Distribution later indicated it proposed to seek an award from the NSW Commission. 14 At this time, the NSW Branch requested that the NUW alter its policy on enterprise bargaining. The alteration sought was to enable a branch to initiate bargaining periods under the WR Act to permit protected action to be taken as provided by that Act. A postal ballot of the National Council was held which altered the policy as requested. In April 1998 the NSW Branch initiated, on behalf of the NUW, a bargaining period in accordance with the provisions of the WR Act. The following day, Davids Distribution filed an application for an award in the NSW Commission and, the day after that, notified a dispute to that Commission. Later in April 1998 the NSW Branch initiated a further bargaining period which led to an application (under the WR Act) by Davids Distribution to the Federal Commission for orders that the bargaining period be suspended or terminated and orders that the Federal Commission cease dealing with the industrial dispute. Before this application was served on the national office of the NUW, that office was not aware of the initiation (by the NSW Branch) of the bargaining periods. In the result, proceedings were, by early May 1998, on foot in both the NSW Commission and the Federal Commission. The application by Davids Distribution to the Federal Commission was dismissed on 12 June 1998. 15 On 5 May 1998, the national office requested the NSW Branch to provide that office with a briefing on the history of, and what had occurred in, the dispute. On 15 May 1998 Mr Sword wrote to Mr Belan about the matter and, inter alia, confirmed that Mr Belan, as secretary of the NSW Branch, had authority to act on behalf of the NUW to seek an enterprise agreement with Davids Distribution. On 16 June 1998 the NSW Branch gave two notices of an intention to take industrial action in accordance with s 170MO of the WR Act. They were both later withdrawn. At the time, the national office was not advised that the notices were being given. The proposed industrial action (at least as to one of the notices) was an indefinite strike due to commence on 19 June 1998. At this time Davids Distribution sought the relisting of proceedings that had earlier been before the NSW Commission. On 18 June 1998 Davids Distribution advised its workforce, inter alia, that the legal advice it had was that the contemplated action was not protected action. A further notice was given (under the WR Act) by the NSW Branch on the same day of an intention to take industrial action. Proceedings continued in both the Federal Commission and the NSW Commission and on 24 June 1998 a judge of the NSW Commission made an order which, I infer, was that there be no industrial action between 24 June 1998 and 31 December 1998. 16 There were some stoppages in late June 1998 and on 8 July 1998 industrial action commenced at all three workplaces in question (or at least two of them), and pickets formed at the entrance to each site. On 9 July 1998 letters were sent by Davids Distribution to 35 employees engaged in the action contending that they were interfering with the movement of trucks and threatening dismissal. On 10 July 1998, solicitors acting for Davids Distribution wrote to the national office threatening to sue the NUW for damages in respect of the industrial action. In a chronology prepared on behalf of Mr Sword, it is said that this was the first time the national office or any of its officials knew that industrial action was being taken by members of NUW. On the same day the dispute order made by the judge of the NSW Commission was set aside on appeal. Also on that day Davids Distribution dismissed 35 employees at one of the workplaces, Mr Sword wrote to Mr Belan requesting a report about the industrial action and a certificate was issued by a member of the Federal Commission pursuant to s 166A(6) of the WR Act. 17 On 13 July 1998 a judge of the Supreme Court of NSW made, on the application of Davids Distribution, ex parte orders against the NUW and Mr Belan restraining them from, in substance, preventing access to the three workplaces. On the same day a letter was sent on behalf of Mr Sword to Mr Belan saying that the NUW was planning to seek the removal of the orders but that, in the meantime, they should be complied with. On 14 July 1998 the orders were read to NUW members who were picketing (it is not clear whether this was at one or all of the workplaces). On that and the following day Mr Belan and Mr Sword communicated with each other (orally and in writing) to the effect that the orders should and would be complied with. On 15 July 1998 a meeting of members and delegates of the NUW in NSW discussed the orders. Also on that day Davids Distribution was given leave in the Supreme Court of New South Wales to file a notice of motion calling on the NUW and Mr Belan to show cause why they should not be punished for contempt. The motion was returnable on 17 July 1998. 18 On 16 July 1998 the National Committee of Management met by phone and resolved that all officers and members of the NUW take all steps necessary to ensure compliance for the orders of the Supreme Court and sought to assume control of the dispute. On 17 July 1998 the orders were varied by another judge of the Supreme Court. During the latter part of July 1998 more employees of Davids Distribution were dismissed. At this time, the company alleged that the orders were still being breached. The contempt proceedings commenced on 27 July 1998 and concluded, after 13 hearing days, on 20 August 1998. From July 1998 until the end of the year, requests were made by Mr Sword to Mr Belan that the NSW Union commence reinstatement proceedings in the NSW Commission. This did not occur. On 11 August 1998 proceedings were commenced in this Court seeking declarations and injunctions preventing the dismissal of more of the employees and the reinstatement of employees earlier dismissed. In the proceedings in this Court (heard by North J), various unsuccessful attempts were made in mid-August 1998 by representatives of the NUW and its NSW Branch to formulate undertakings acceptable to the Court. However a form of undertaking was agreed to at a meeting of members of the NSW Branch involved in the industrial action and on either 26 or 28 August 1998 undertakings were given to this Court and an order made effectively reinstating dismissed employees and preventing further dismissals. Those orders were continued by this Court on two occasions in September 1998. 19 On 13 November 1998 the Supreme Court of NSW found the NUW and Mr Belan guilty of contempt. Mr Belan was reported commenting on the matter in a NSW newspaper the following day which appears to have led to a decision of the National Committee of Management of 30 November 1998 directing that there be no comment about proceedings without the express approval of the Committee or Mr Sword. 20 On 1 December 1998 North J gave judgment making further interlocutory orders in the proceedings in this Court. In early December 1998 appeals were lodged against that judgment and (in both this Court and the Supreme Court) the contempt judgment of 13 November 1998. It is unnecessary to detail the litigation which followed.

The issues in outline 21 In order to deal properly with the issues raised, it will be necessary to set out in some detail the terms of the 202 Agreement, changes made to the rules of the NUW in 1999 and various resolutions of governing bodies within the NUW passed in 1998 and 1999. However, the issues raised in these proceedings can be outlined now. 22 At a meeting of the National Committee of Management held on 30 November 1998 four resolutions were passed. One required the NSW Branch to pay the legal expenses of the NUW for the proceedings arising out of the Davids Distribution litigation ("the legal expenses resolution"). Another resolution effectively prohibited officers of the NSW Branch from commenting on that litigation ("the no comment resolution"). The others sought to limit the officers of the NSW Branch from taking advantage of certain provisions in the WR Act concerning industrial action and enterprise bargaining ("the enterprise bargaining resolution" and the "bargaining period resolution"). These various resolutions are challenged on the basis that they were not authorised by the rules, are contrary to various provisions of the rules (at that time) and are contrary to the 202 Agreement. 23 Also challenged in these proceedings are alterations to the rules of the NUW. In February 1999, the rules were altered by the National Council to create a Central Branch. That branch was, by alteration of the rules, a transmogrification of a branch established for members of the NUW who were foremen and supervisors. The alterations also provided for the allocation of members of other branches to that branch. These alterations are said to be contrary to the 202 Agreement, involve an inappropriate conferral of power on the National Committee of Management and the National Council to allocate members between branches and are contrary to s 196 of the WR Act. 24 In June 1999 further alterations were made to the rules of the NUW. They constituted significant amendments to rule 71, which was a rule concerning the functioning of the NSW Branch. It is contended that these alterations were made contrary to the provisions of the 202 Agreement and result in rules which contravene s 196 of the WR Act. Further alterations were made by the National Council to the rules in October 1999 to modify the scheme established in February 1999 concerning the Central Branch. These alterations are challenged on the same basis as the alterations made in February 1999.

The Terms of the 202 Agreement 25 As already noted, of central importance to these proceedings is the 202 Agreement. Counsel for the applicants and counsel for the respondents were prepared to accept that it was executed on 26 October 1992. They were also prepared to accept that the 202 Agreement considered by the Federal Commission in January and February 1993 was made up of several documents even though only one (or perhaps two), in terms, appears to have been made for the purposes of s 202 at least in any direct sense. I apprehend that this approach is one of convenience as the documentation suggests that what is being treated as the 202 Agreement is a number of agreements or executed instruments which may have been made progressively and not on the same occasion. However I am content to adopt the approach of counsel. 26 The 202 Agreement contained four elements. The first element was an agreement executed by Mr Sword on behalf of the NUW and Mr Belan on behalf of the NSW Union. Those bodies agreed that members of the NSW Union who were not eligible to be members of the NUW under the latter's eligibility rules, were eligible to be members of the NUW subject to the remainder of the agreement. 27 The second element was a signed memorandum of agreement between the NUW and the NSW Union. It provided: MEMORANDUM OF AGREEMENT RECITAL 1. The National Union of Workers, New South Wales Branch, is an industrial union of employees registered pursuant to the Industrial Arbitration Act 1940 [NSW] ("the union"). 2. The National Union of Workers is an organisation registered pursuant to the Industrial Relations Act 1988 [Cth] ('the organisation'). 3. The union and the organisation shall jointly be referred to herein as "the parties". 4. In order to achieve constructive and co-operative relations the parties have agreed to enter into an agreement pursuant to Section 202 of the Industrial Relations Act 1988 [Cth] ("the proposed Section 202 agreement"). 5. Consistent with the proposed Section 202 agreement the organisation agrees that its rules shall be altered subsequent to the approval of the amalgamation and subsequent to the execution of the section 202 agreement so as to give effect to the proposed section 202 agreement. 6. Consistent with the proposed section 202 agreement, the union agrees that its Rules shall be altered subsequent to the approval of the amalgamation and subsequent to the execution of the section 202 agreement so as to give effect to the section 202 agreement. NOW IT IS AGREED

1. There shall be a program for giving effect to this agreement in the order appearing below: (i) The organisation and the union shall enter into this memorandum of agreement with the intention to give effect to its terms in accordance with the below mentioned program in the order there shown; (ii) Upon the completion of the amalgamation of the Union pursuant to the Industrial Arbitration Act 1940 [NSW] and the completion of the amalgamation of the organisations pursuant to the Industrial Relations Act 1988 [Cth] the union and the amalgamated organisation shall enter into an agreement pursuant to section 202 of the Industrial Relations Act 1988 [Cth] as specified in Schedule A hereto: (iii) Subsequent to the execution of the s 202 Agreement referred to in (ii) above, the organisation shall as soon as practicable amend its rules in accordance with the provision of Schedule B hereto: (iv) Subsequent to the execution of the s 202 Agreement referred to in (ii) above, the union shall as soon as practicable vary its rules in accordance with the schedule hereto marked with the letter "C";
2. Subject to the above program the parties agree: (i) The union agrees with the organisation to enter into a s 202 Agreement between the union and the organisation in accordance with the terms of Schedule A hereto and the union agrees to alter its rules in accordance with the terms of Schedule C hereto; and (ii) the organisation agrees to amend its rules in accordance with the terms of Schedule B hereto.
3. The unions will take all steps available to support, promote and encourage the amalgamation of the organisation with any other organisations. 28 The third element in the 202 Agreement was the document referred to as the proposed 202 Agreement in the memorandum set out in par 27 above. This proposed agreement took the form of an agreement between the NUW and the NSW Union. It provided: The National Union of Workers is an organisation of employees registered pursuant to the Industrial Relations Act 1988 (Cth) and in this agreement called "the organisation", and the National Union of Workers, New South Wales Branch is an industrial union of employees registered pursuant to the Industrial Arbitration Act 1940 (NSW) and in this agreement called "the union", hereby agree that the members of the union who, under the eligibility rules of the organisation, are not eligible to be members of the organisation are, subject to the provisions set out in the schedule, eligible to become such members. SCHEDULE 1. A person who is a member of the union shall be entitled to exercise all the rights of membership of the organisation which, without limiting the generality of any other provisions of this document or being limited in any way thereby, shall include, subject to compliance with the rules of the organisation, the following. (a) the right to vote in all elections of the organisation: (b) the right to nominate and be nominated for office in the organisation: (c) to attend meetings of the organisation and to vote at those meetings in accordance with the rules of the organisation: (d) to qualify for office in accordance with the provisions of the rules of the organisation. (e) to qualify for voting in accordance with the provisions of the rules of the organisation. 2. Members of the union shall be subject to the same rules and obligations as are prescribed by the rules of the organisation on members of the organisation, 3. Entrance fees and contributions payable by any person on application to join the union and/or the organisation, for membership or continuous membership of the union and/or the organisation, shall be in accordance with the rules of the organisation. 4. Upon payment of entrance fees and contribution, in accordance with paragraph 3 herein, those persons shallautomatically receive membership in both the union and the organisation. 5. All moneys received by the union and/or the organisation by way of entrance fees, membership contributions, levies, fines or otherwise shall vest in the union and/or the organisation pursuant to the rules of the union and/or the organisation. 6. The union shall be bound by decisions of National Conference of the organisation on matters of National significance. The union shall have autonomy to decide matters which do not directly effect [sic] members of the organisation outside the State of New South Wales. 7. The Secretary of the union shall have power to execute all documents, instruments, industrial or other agreement and initiating process and behalf of the union. 8. The NSW (NUW) Branch funds of the organisation and the funds of the union shall be held in joint accounts in the name of and for the benefit of the union and the NSW (NUW) Branch of the organisation jointly. All real property situated in NSW held in the name of theunion (or any of its constituent State unions prior to amalgamation) or the organisation (or any of its previously constituent NSW Branches) shall be henceforth held by and in the nameof and for the benefit of both the union and the organisation as tenants in common and in equal shares. 9. Sustentation fees shall be fixed by the National Council and payable in accordance with the Rules of the organisation and shall be calculated on the entire membership of the union and the organisation NSW (NUW) Branch (whichever is greater) from time to time. 10. The membership contributions payable by members of the union shall be prescribed in conformity with the rules of the organisation provided that where the determination of the contributions within a range fixed by the National Council of the organisations is made by the NSW (NUW) Branch Committee of Management, such determination shall always be made in conjunction with and in conformity with determinations by the union. 11. The Secretary of the union shall consult with the General Secretary of the organisation in writing, providing him with at least one months notice of the union's rule alteration proposals. Such consultation shall be in an effort to ensure the consistency of rules, as between the union and the organisation. The union Secretary shall take into account all reasonable concerns expressed by the General Secretary of the organisation prior to any action designed to effect any proposed union rule change. Subject to compliance with the above procedure, the union shall have rules and the powers to make, alter or rescind such rules, provided that the union shall, subject to the requirements or [sic] legislation, ensure that alterations or rescissions to rules shall not conflict with the rules of the organisation. 12. Immediately upon signature of this agreement, the union shall take all reasonable steps to ensure that any prior agreement between the Federated Storemen and Packer's Union of Australia, New South Wales Branch, the Federated Rubber and Allied Workers' Union of Australia, New South Wales Branch and the United Sales Representatives and Commercial Travellers Guild of Australia, New South Wales Branch, industrial unions of employees registered pursuant to the provisions of the Industrial Arbitration Act 1940 (NSW) and the Trade Union Act 1881 (NSW) and the organisation (or any other organisation for which it is the successor organisation) shall be complied with. 13. The union, its officers and its members shall complement the activities of the organisation and shall apply and implement the policy of the organisation. 14. This agreement is made by the organisation which is an organisation of employees registered pursuant to the provisions of the Industrial Relations Act 1988 and the union which is an industrial union of employees registered pursuant to the provisions of the Industrial Arbitration Act 1940 (NSW) and the Trade Union Act 1881 (NSW), pursuant to Section 202 of the Industrial Relations Act 1988, provided that this agreement does not purport to determine the legal status created by the registration of the organisation and the union, respectively, pursuant to that legislation. 15. The parties indicate their desire to minimise, through the establishment of administrative and industrial procedures, any adverse impact that dual registration may create. 16. The officers of the union shall conform with all relevant obligations prescribed by the rules of the organisation to the extent that such obligations are not expressly prescribed in the union's rules. 29 The fourth element of the 202 Agreement was made up of two parts. The first was alterations to be made to the rules of the NUW to give effect to the 202 Agreement (attachment (or schedule) B) and the other was the alterations to be made to the rules of the NSW Union also to give effect to the agreement (schedule C). The proposed alterations to the rules of the NUW included the addition of a rule 71. The following extract contains proposed rule 71 in the schedule to the 202 Agreement. However, for convenience, the extract is intended also to illustrate the form rule 71 was in immediately before the contentious alterations were made to the rule in June 1999. That is, a version of the rules certified as at 20 April 1998. The text which is not in bold and the text which is italicised together constitute proposed rule 71 as it was in the schedule. The text which is either in bold or not in bold (but not italicised) is rule 71 as it was on 20 April 1998: (1) The following provisions shall apply in respect of the NUW Branch in the State of New South Wales (in this rule called "the New South Wales Branch"). Nothing contained in this rule shall affect the application of any other rule to the New South Wales Branch and to the holders of offices within and to the members of the Branch, except insofar as this rule may be inconsistent with another rule in which event the provisions of this rule shall prevail to the extent of any such inconsistency. For the purpose of this rule the 'State Trade Union' shall mean the National Union of Workers New South Wales Branch, an industrial union of employees registered under the Industrial Relations Act 1996 (NSW). (2) Intention of Rule The provisions of this Rule are intended to promote consistency between the operations, administration, funds and resources of the NSW Branch and the State Trade Union in an orderly and expeditious fashion. (3) Continuity of Membership Any member of the State Trade Union who becomes a member of the Union shall be deemed to be a financial member of the Union to the extent that they are a financial member of the State Trade Union at the time of becoming a member of the Union. (4) Financial Membership Arrangements Any period of financial membership of the State Trade Union immediately preceding membership of the Union shall be deemed to be financial membership of the Union for all purposes of these Rules. (2)(2)(6) Entrance Fee No entrance fee shall be payable by any person who is a member of the State Trade UnionNational Union of Workers, New South Wales Branch, an industrial union of employees registered under the Industrial Relations Act 1940 ('the State trade union')National Union of Workers, New South Wales Branch, an industrial union of employees registered under the Industrial Relations Act 1940 ("the State trade union") or its predecessor at the time of becoming a member of the union. (3)(3)(5) Membership Contribution (a) Any person signing an application for membership of the State trade union or the union or paying the prescribed contribution for membership to the State trade union or the union shall pay the prescribed contribution to the State Secretary or the NSW (NUW) (NUW) Branch of the union. (b) Payment by a person to the State trade union of the prescribed membership contribution under the rules of the State trade union shall also constitute an application for membership of the union and payment by a person to the NSW (NUW) (NUW Branch of the union of the prescribed membership contributionsunder an application for membership of the State trade union s under an application for membership of the State trade union provided that a member shall be required to make only one membership contribution in order to have full financial membership of the State trade union and the union. (4)(4)(7) Sustentation Fees (a) On or about the amalgamation date tOn or about the amalgamation date tThe Secretary of the NSW (NUW) (NUW) Branch shall make sustentation payments to the National CouncilCouncil Conference pursuant to Rule 33(a). (b) The State trade union has agreed to ensure pursuant to a Section 202 agreement that the membership contributions received by it from each member pursuant to it's [sic] rules shall be included in the calculation of the amount of sustentation payments to bed [sic] provided by the Branch Secretary of the NSW (NUW) (NUW) Branch pursuant to the the Rule 33(a). Save and except that any payment made shall be deemed for the purpose of these rules to have been made by the Branch Secretary of the NSW (NUW) (NUW) Branch except insofar as a greater obligation would attach to the State trade union in which case the State trade union shall make such greater payment pursuant to this rule for so long as the said agreement remains in force (5)(5)(8) Unfinancial Members Each member of the union who is also a member of the State trade union who fails to pay contributions or levies as prescribed herein shall be deemed to be unfinancial until all such contributions or levies have been paid. (6) Membership of the State Trade Union. Membership of the State trade union of persons prior to their becoming members of the union as prescribed therein shall be counted as membership of the union for all purposes of the rules of the union (6) Membership of the State Trade Union Membership of the State trade union of persons prior to their becoming members of the union as prescribed therein shall be counted as membership of the union for all purposes of the rules of the union (7)(7)(9) Powers and Constitution of the Branch Committee of Management (i) The Branch Committee of Management shall manage and control the affairs of the Branch including Division of the Branch including Division of the Branch and shall consist of: (a) the Branch Secretary or their nominee; (b) the Branch President or their nominee; (c) the Branch AssistantSecretary (if any) or their nominee;of each Divisionof each Division (d) the Branch Vice President or their nominee; (d) (d)(e) the the threeTrustees; and in addition theretoin addition thereto (e)(e)(f) members from each Division Division of the areas of eligibility defined in sub-rules (B), (C), (D), (F), (G), (HA) and (I) of Rule 5 - Conditions of Eligibilitydetermined as follows: A For the purposes of this sub-rule, the areas of eligibility defined in sub-rules (B), (C), (D), (F), (G), (HA) AND (I) of Rule 5 - Conditions of Eligibility will be grouped into the following 5 areas: Area (1) - Rule 5(B) and (F) Area (2) Rule 5(C) and (I) Area (3) rule 5(D) Area (4) Rule 5(G) Area (5) Rule 5(HA) AABDivision DivisionAreas of eligibility with up to 4,000 members shall be entitled to one one twomembers on the Branch Committee of Management: BB C Areas of eligibilityDivision Division having between 4,001 and 8,000 members shall be entitled to two two threemembers on the Branch Committee of Management: CCDDivision DivisionAreas of eligibility having having between 8,001 and 12,000 members shall be entitled to three three fourmembers on the Branch Committee of Management: DDEDivision DivisionAreas of eligibility beinghavinghaving in excess of 12,000 members shall be entitled to one one fourmembers on the Branch Committee of Management and an additional member forper per each 4,000 members or part thereof above 12,000 members. (ii) [Reserved.] (ii)(ii)(iii) Except as otherwise provided in these Rules, the Branch Committee of Management shall meet quarterly andas often as required by the Branch Secretary who shall give three days notice, save in the case of emergency, of such meetings to all members of the Committee of Management either verbally or by letter, telex, facsimile or telephone. (iii)(iii)(iv) The order of business and standing orders of the union shall apply to all Branch Committee of Management meetings. (iv)(iv)(v) Should any member of the Branch Committee of Management be absent himself himself from three consecutive meetings without reasonable causereasons reasons acceptable to the Branch Committee of Management, they shall be liable to be disciplined pursuanthis seat shall be declared vacant subject his seat shall be declared vacant subject to Rule 42. (v)(v)(vi) The meetings of the Branch Committee of Management shall be presided over by the Branch President who shall be eligible to vote and in addition shall have a casting vote on any question or resolution on which the voting is equal. (vi)(vi)(vii)The Branch Secretary may hold the office of a Sub Branch Secretary in addition to holding the office of Branch Secretary. Where an officer holds both the positions of Branch Secretary and Secretary of a division he/she shall be entitled to two deliberative votes on the Branch Committee of Management. Otherwise eThe Branch Secretary may hold the office of a Sub-Branch Secretary in addition to holding the office of Branch Secretary. Where an officer holds both the positions of Branch Secretary and Secretary of a Division he/she shall be entitled to tow deliberative votes on the Branch Committee of Management. Otherwise eEach member of the Branch Committee of Management shall be entitled to one vote, save for the Branch President who shall have a deliberative vote and a casting vote. (vii)(vii)(viii) The Branch Committee of Management shall have the power to issue a certificate to attend Union meetings to any person who has lost his his theirfinancial union card upon application being made to them them itby any such member. The Branch Committee of Managementshall satisfy itself as to the bona fides of each applicant and shall otherwise take any and all necessary steps to safeguard the interests of the Union before granting any certificate. (viii)(viii) The powers of TtThe Branch Committee of Management shall include havehave the power to: A to ito iImpose levies upon members and Divisions; B to ato aAppoint organisers and industrial officers; and C ddDetermine the allocation of members to Divisions Divisionsareas of eligibility in accordance with Rule 71(9)(i)(f)(A). (ix) Half of the members of the Branch Committee of Management shall form a quorumHalf of the members of the Branch Committee of Management shall form a quorumThe quorum at the meeting of the Branch Committee of Management shall be a majority of the members eligible to attend such meetings. (x) Members of the Branch Committee of Management shall be paid such sum or allowance as may be decided upon by the Branch Committee of Management for attendance at each meeting of the Committee. (xi) For the purpose of Rule 71(9)(i) only persons who are members of the same area of eligibility as the person they are to replace may be appointed as a nominee and such appointment shall be in writing signed by the executive member the nominee is to replace. (xii) The number of Organisers to be elected for office in accordance with this Rule shall be determined by the Branch Committee of Management prior to 31 March in the year of the elections scheduled pursuant to Rule 13. Provided that the power of the Branch Committee of Management pursuant to this sub-rule shall be exercised bona fide having regard to membership fluctuations and strategic considerations relating to representation and recruitment. (xiii) The determination of whether to fill the office of Branch Assistant Secretary will be made by the Branch Committee of Management prior to 31 March in the year of the elections scheduled pursuant to Rule 13. (10) Meetings of Members of the Branch (a) All meetings of the Branch shall be held at the registered office of the Branch or at such other place as may be decided on at a Special Meeting or by the Branch Committee of Management. (b) A General Meeting of the Branch shall be held each quarter. Meetings shall take place on the second Wednesday of February, May, August and November respectively. (c) A special meeting or meetings duly convened in the various centres of the Branch shall be called by the Branch Secretary on being instructed to do so by the Branch Committee of Management to deal with any special business or business hereinafter mentioned in these rules which requires to be dealt with at times other than those prescribed for general meetings. (d) Notice of any special or general meetings shall be given at least three days prior to such meeting by an advertisement in the Sydney Morning Herald and, additionally at the discretion of the Branch Secretary by any other advertisement or by circular. (e) No business shall be transacted at a General or Special Meeting unless 50 financial members are present. (f) No members shall be admitted to or entitled to vote at any meeting unless they are in possession of their financial Union Card or suitable financial document. (g) Meetings shall be opened at 6.30pm and closed no later than 10.00pm provided that meetings may be continued for not more than one hour on a motion for an extension of time moved by any member and carried by a majority of the members present and provided further that the Branch Committee of Management shall have power to authorise meetings at time other than those hereinbefore set out. (11) Requisition for Meetings (a) Upon being requested in writing by 30 financial members of the Branch, the Branch Secretary shall call a General meeting of the Branch to deal with the business set out in such requisition. (b) A member signing a requisition for ameeting shall attend such meeting, unless the member has reasonable cause for such absence. (c) The provisions of paragraph (b) of this Sub-Rule shall be placed on the top of any requisition presented to members for their signature. (d) Notice of any meeting pursuant to this Sub-Rule shall be given at least three days prior to such meeting by an advertisement in the Sydney Morning Herald and, additionally, at the discretion of the Branch Secretary, by any other advertisement or by circular. (8) Divisional Executive Committee (a) Subject to the direction and control of the Branch Committee of Management, the Divisional Executive Committee shall have the power to manage all aspects of the affairs of members of the Division which related solely to the Division. (b) The Divisional Executive Committee shall consist of a Secretary, President, Vice President and such other number of Executive members as may be determined from time to time by the Committee of Management of the Branch, the procedures for such a determination shall be in accordance with Rule 37B(2). (c) Subject to the powers of the Committee of management of the Branch, the Divisional Executive Committee shall be subject to the direction or the express wish of the members of the Division in a special meeting assembled. (d) The Division Executive Committee shall meet as often as required. The Secretary of each Division shall give reasonable notice to the members of the Executive Committee of meetings of such Executive Committee. (e) A majority of the members of the Divisional Executive Committee entitled to vote shall constitute a quorum of the Executive Committee.(8) Divisional Executive Committee (a)( )Subject to the direction and control of the Branch Committee of Management, the Divisional Executive Committee shall have the power to manage all aspects of the affairs of members of the Division which related solely to the Division. (b)( )The Divisional Executive Committee shall consist of a Secretary, President, Vice President and such other number of Executive members as may be determined from time to time by the Committee of Management of the Branch, the procedures for such a determination shall be in accordance with Rule 37B(2). (c)( )Subject to the powers of the Committee of Management of the Branch, the Divisional Executive Committee shall be subject to the direction or the express wish of the members of the Division in a special meeting assembled. (d)( )The Division Executive Committee shall meet as often as required. The Secretary of each Divisional shall give reasonable notice to the members of the Executive Committee of meetings of such Executive Committee. (e)(a) A majority of the members of the Divisional Executive Committee entitled to vote shall constitute a quorum of the Executive Committee. (9)(9)(12)Branch Branch Finance Committee (a) The Branch Branch Finance Committee shall consist of the Branch President or their nominee, the Branch Secretary or their nominee,Secretary of each of the Divisions and Secretary of each of the Divisions and the Trustees of the Branch, and one representative from each of the 5 areas of eligibility set out in rule 71(9)(i)(f)(A) or their individual nominees. (b) The Finance Committee shall meet monthly and at such other time as may be required by the Branch Secretary. (c) Notice of Finance Committee meetings shall be given at least three days prior to such meeting and shall be either verbal or by letter, telex, facsimile or telephone. (d) (d) Subject to the ultimate control and direction of the Committee of Management of the Branch, tSubject to the ultimate control and direction of the Committee of Management of the Branch, tThe Branch Branch Finance Committee shall control control advise the Branch Committee of Management onall matters concerned with finance, shall inspect all accounts in connection with the Branch and recommend to the BranchCommittee of Management of the Branch of the Branch the disbursement of funds. A monthly statement of the the financial transactions of the Branch shall be presented to the BranchCommittee of Management of the Branch of the Branch and to each General Meeting. (d) (e) TThe Finance Committee shall advise the Branch Committee of Management of the Branch of the Branch upon all financial matters and the financial stability of the Branch and how such may be maintained and strengthened. (f) The Financial FinanceFinancial Committee shall be subject to the control and direction of the Branch Committee of Management in all matters and the Branch Committee of Management shall not be bound to accept any advice or recommendation provided to it by the Branch Branch Finance Committee. (g) Any four members shall constitute a quorum of the Branch Finance Committee Any four members shall constitute a quorum of the Branch Finance CommitteeThe quorum of the Finance Committee shall be a majority of the members eligible to attend such meeting. (10)(10)(13) Branch Officers (a) For the purpose of this Rule, an Officer shall mean the Branch Secretary, the Assistant Branch Secretary (if any),the Branch President, a Secretary of a Division, Assistant Secretary of a Division, a President of a Division, a Vice President at a Division, any person elected to the Branch Committee of Management, any person elected to the Division Executive Committee, elected Organiser and Trusteesa Secretary of a Division, Assistant Secretary of a Division, a President of a Division, a Vice President of a Division, any person elected to the Branch Committee of Management, any person elected to the Division Executive Committee, elected organiser and Trustees the Branch Vice President, a member of the Branch Committee of Management, elected Organisers and Trustees but shall not include the Returning Officer, appointed Organisers, Delegates, Scrutineers, Industrial Officers, Research Officers or other employees of the Branch not hereinbefore referred to. (b) Full time paid offices shall be the offices of Branch Secretary, Secretary of a Division, Assistant Secretary of a Division Secretary of a Division, Assistant Secretary of a Division the Assistant Branch Secretary (if any),and elected Organisers. (c) Subject to Rule 76(21) all Branch Officers shall be elected by and from the members of the Branch in accordance with Rule 13. (11)(11)(14) Duties of the Branch Secretary The Branch Secretary's duties shall be to: (a) Prepare annually a balance sheet for audit, keep a debit and credit account between each Sub Branch and the Branch between each Sub-Branch and the Branchof the Branch and also a general account of the receipts receipts incomeand expenditure of the Branch. (b) Attend to and keep a copy of all correspondence. (c) Keep minutes of all meetings or other business transacted by the Branch Committee of Management or Committees thereof. (d) Appoint delegates for the purpose of enrolling members and delegates and collectors for collecting money due by members subject to the endorsement of a Division subject to the endorsement of a Division. (e) Deposit all money in such bank as the Branch Committee of Management may from time to time have decided upon in the name of the Trustees TrusteesNational Union of Workers, New South Wales Branch. (f) Furnish the auditors with all materials and assistance necessary for the performance of their responsibilities pursuant to these rules.the correct amount of the years monetary transactions and produce all bank vouchers and documents in connection therewith. the correct amount of the years monetary transactions and produce all bank vouchers and documents in connection therewith. (g) Deliver all books, papers and the like, within 48 hours if called upon to do so by the Branch Committee of Management. (h) Prepare and forward such returns as are necessary under the current industrial law to those Registrars who are entitled thereto and to subject to Division Secretaries any official information he may receive to subject to Division Secretaries any official information he may receivesubmit to the Committee of Management and other officers of the Branch, as appropriate any official information that may be received. (i) Be in control of the office of the Branch and of organisers, industrial officers and employees therein. He shall bHe shall bBe responsible for the engagement in employment of any clerical or research staff who shall be under the direct control and supervision of the Branch Secretary and shall perform such duties as may be allotted to them. (j) The salary of the Branch Secretary shall be subject to review and determination by the Branch Committee of Management. (12)(12)(15) Duties of Branch President (a) Preside atall meetings of the Branch Committee of Management. (b) Give an impartial decision of of onall questions submitted to him to him. (c) Sign minutes of all proceedings of the Branch Committee of Management. (d)Attend to audits of the Branch's accounts whenever it is possible for him to do so.Attend to audits of the Branch's accounts whenever it is possible for him to do so. (e)(e)(d)Administer impartially the Rules of the Branch. (f)(f)(e) Subject to sub-rule (i)(i)(g), take no part in debate or discussion whatever, except to explain, when necessary, or when requested to give an interpretation of these rules. (g)(g)(f) In addition to exercising a deliberative vote, he shall he shall exercise a casting vote on any question on which the voting is equal. (h)(h)(g) He shall lHe shall lLeave the chair when wishing to speak on any question other than a point of Order until the subject under consideration has been disposed of. (13)(13)(16) Duties of Secretaries of Divisions Secretaries of Divisionsthe Assistant Branch Secretary The duties of Secretaries of Divisions Secretaries of Divisionsthe Assistant Branch Secretary shall be as follows: (a) Attend to and keep a copy of all correspondence relating to the Divisions. Attend to and keep a copy of all correspondence relating to the Divisions.Perform such duties as may be allotted to him by the Branch Secretary. (b) Keep minutes of all meetings or other business transacted by the Divisional Committee of Management and any Sub-Committee thereof and any meetings of members of the Division. (c) Deliver all books, papers and the like related to the Division within 48 hours of being called upon to do so by the Branch Committee of Management or the Divisional Executive Committee. (d) Be in control of the office of the Division and any officers or organisers employed therein who have been elected in accordance with these rules. (e) Perform such duties as may be allotted to his [sic] by the Branch Secretary.Keep minutes of all meetings or other business transacted by the Divisional Committee of Management and any Sub-Committee thereof and any meetings of members of the Division. (c)(e)Deliver all books, papers and the like related to the Division within 48 hours of being called upon to do so by the Branch Committee of Management or the Divisional Executive Committee. (d)(e)Be in control of the office of the Division and any officers or organisers employed therein who have been elected in accordance with these rules. (e)(f)Perform such duties as may be allotted to his [sic] by the Branch Secretary. (f)(b)Assist the Branch Secretary in the performance of the Branch Secretary's duties. (f) (g)(c)Carry out the directions and instructions of the Branch Secretary in respect of their Division. (d)in respect of their Division. Assume the duties of the office of Branch Secretary when the Branch Secretary is officially absent on leave. (14) Duties of the President of a Division The duties of the President of a Division shall be to preside at all meetings of the Division and the Division Executive Committee and upon the minutes being confirmed shall sign the Minute Book in the presence of the meeting. The Divisional President shall be eligible to vote and in addition shall have a casting vote. (15) Duties of Vice President of a Division The Vice President of a Division shall attend all meetings of the Division and shall perform the duties of the Division President in the absence of the Division President. (16) Duties of members of the Division Executive Committee Members of a Division Executive Committee shall, where elected, attend meetings of the Branch Committee of Management and meetings of members of the Division. (14) Duties of the President of a Division The duties of the President of a Division shall be to preside at all meetings of the Division and the Division Executive Committee and upon the minutes being confirmed shall sign the Minute Book in the presence of the meeting. The Divisional President shall be eligible to vote and in addition shall have a casting vote. (15) Duties of Vice President of a Division The Vice President of a Division shall attend all meetings of the Division and shall perform the duties of the Division President in the absence of the Division President. (16) Duties of members of the Division Executive Committee Members of a Division Executive Committee shall, where elected, attend meetings of the Branch Committee of Management and meetings of members of the Division. (17) Duties of the Branch Vice President The Vice President shall assist the President in the maintenance of strict order during all meetings, and discharge the duties of the President during any temporary absence, and shall have power to appoint a member to officiate as Vice President whilst he occupies the chair. (17)(17)(18) Branch Organisers (a) All Branch organisers shall be under the direct supervision and control of the Branch Secretary. (b) The election of organisers shall be in accordance with Rule 13 of these rules. (c) The number of organisers to be elected for office in accordance with these rules shall be determined by the Branch Committee of Management, pursuant to Rule 71(10)(xii), no later than 31st March in the year of an election scheduled pursuant to Rule 13. In the event that no determination is made in the abovementioned timeframe the number of offices in existence at that date shall be the number of offices to be filled in the election. in accordance with the process contained in Rule 37B(2). in accordance with the process contained in Rule 37B(2). (d) The duties, function and area and location of work of organisers shall be determined by the Branch Secretary. (e) Nothing in this rule shall deprive the Branch Committee of Management the overriding and supreme power to govern the affairs of the Branch including the control and management of organisers. (f) Nothing in this rule shall be construed as preventing the Branch Secretary from consulting with a Division Secretary as to any determination made under sub-rule 18(d).Nothing in this rule shall be construed as preventing the Branch Secretary from consulting with a Division Secretary as to any determination made under sub-rule 18(d). (19) Branch Trustees Three Trustees shall be elected and hold office in accordance with these rules. All orders for withdrawal of monies from the bank shall be signed by any two trustees but in the event of two trustees not being available, withdrawals may be signed by one trustee and the Secretary of the Branch. (20) Temporary Absence (a) When an officer is absent from work on account of illness, for furlough or for any other reason, the Branch Committee of Management may appoint a person to perform the duties of the absent officer on a temporary basis. (b) In circumstances of the temporary absence of a member of the Branch Committee of Management, or an elected organiser, the Branch Committee of Management may appoint a person to perform the duties of the absent officer for a period of not more than 3 months providing that in the case of temporary absence of a member of the Branch Committee of Management, the person so appointed is a member of the area of eligibility from which the absent officer has been elected. (21) Financial card Every financial member, on making application to the Secretary of the Branch at the registered office of the Union, shall be supplied with a financial card or suitable financial document, which the member shall carry when seeking work and also when employed, and such a card shall be the property of the Union and shall be produced on demand by any officer or accredited representative of the Union. Any member refusing to produce his financial card when so demanded may be disciplined in accordance with the provisions of rule 39. Any member losing his financial card shall report the same to the Branch Committee of Management within seven (7) days. The Union card issued to members for the preceding year shall be returned to the Branch Secretary prior to receiving the new financial card.

30 The second part of the fourth element of the 202 Agreement was proposed alterations to the rules of the NSW Union. Those alterations included the introduction of an object enabling the NSW Union to enter a 202 Agreement, various other alterations that need not be particularised and the introduction of rule 48A which read: 48.A - SPECIAL RULE - RELATIONS WITH FEDERAL ORGANISATIONS AND AGREEMENTS PURSUANT TO SECTION 202 OF THE INDUSTRIAL RELATIONS ACT 1988 [CTH] (1) Agreements with organisations registered pursuant to the Industrial Relations Act 1988 [CTH] or successor legislation: (a) The Union is authorised by this rule to enter into agreements with organisations registered pursuant to the Industrial Relations Act 1988 [CTH] to the effect that the members of the Union who are ineligible to be members of the organisation are eligible to become members of the organisation in accordance with the agreement. (b) Notwithstanding any other provisions of these rules, persons who are members of the Union bound by such an agreement referred to in subrule (a) shall have rights, entitlements and privileges of membership in the organisation as are provided for in the terms of such agreement. (c) Without limiting the generality of subrule (b) of this rule, a person who is a member of the union bound by the terms of an agreement referred to in subrule (a) of this rule shall be eligible for the following: to vote in all elections of the organisation; to nominate and be nominated for office of the organisation; to attend all meetings of the organisation and vote at these meetings in accordance with the rules of the organisation; to qualify for office in accordance with the provisions of the rules of the organisation; and to qualify for voting in accordance with the provisions of the rules of the organisation in equivalent terms to members of the organisation. (d) The provisions of this rule shall apply to persons elected or appointed as officers of the union. (e) Where there is an inconsistency between the terms of these rules and an agreement made with a federal organisation under this rule, the provisions of the agreement shall apply to the extent of any such inconsistency. (2) Notwithstanding the provisions of these rules, the Committee of Management shall not have power at any time to alter, amend, revise, rescind or add to this rule without the consent of the National Council of the National Union of Workers. (Emphasis added) (3) Nothing in this rule shall affect the application of any other rule except insofar as this rule may be inconsistent with another rule in which event, the provisions of this rule shall prevail to the extent of any such inconsistency. (4) Entrance Fees No entrance fee shall be payable by any person who is a member of the National Union of Workers, an organisation registered under the Industrial Relations Act 1988 [CTH]("the organisation") at the time of becoming a member of the union. (5) Membership Contribution (i) All candidates for membership to the union may forward or cause to be forwarded an application for membership to the State Secretary of the Union or the Secretary of the New South Wales (NUW) Branch of the organisation in a form prescribed by either the Union or the organisation. (ii) An application for admittance to membership of the Union shall constitute an application for membership to the organisation so that a person who has applied for membership to the Union shall be deemed to be a member of both the Union and the organisation as from the date of the said application. (iii) Payment by a person to the organisation or the NSW (NUW) Branch of the organisation of the prescribed membership contribution and entrance fees under the rules of the organisation shall also constitute payment of membership contributions to the Union in accordance with these rules: provided that a member shall be required to make only one membership contribution to have a full financial membership of both the Union and the organisation. (iv) the amount of membership contributions payable by a member shall be in accordance with these rules or in accordance with the applicable provisions of an agreement between the Union and the organisation made pursuant to section 202 of the Industrial Relations Act 1988 [CTH]. (6) Sustentation payments Wherever there exists an agreement made pursuant to Section 202 of the Industrial Relations Act 1988 [CTH] relevantly prescribing the payment of sustentation fees to the organisation, the Union shall make payment of sustentation fees to the organisation in accordance with the terms of that agreement. (7) Unfinancial members Each member of the Union who is also a member of the organisation who fails to pay contributions or levies prescribed herein shall be deemed to be unfinancial until all such contributions or levies have been paid. (8) Membership of the Organisation Membership of the organisation prior to their becoming members of the Union as prescribed herein shall be counted as membership of the Union for all purposes of the rules of the Union. 31 Of this proposed rule, r 48A(2) is of some importance. It is a provision designed to entrench r 48A and make its amendment conditional upon consent being given by the National Council of the NUW.

The rules of the NUW including the challenged alterations to them 32 In order to explain the rules under challenge, is necessary to briefly summarise the structure of the NUW at the time some of the alterations were made. Reference should also be made to the rules relied on in the challenge to the legal expenses, no comment and enterprise bargaining and bargaining period resolutions. The description of the structure of the NUW is by reference to rules certified by a Deputy Industrial Registrar as at 17 April 1998. The eligibility rules were rule 4, description of industry, and rule 5, conditions of eligibility. They reflected the historical development of the NUW and amalgamations between organisations. It is sufficient to refer to rule 5. It contained fifteen sub rules ((A) to (N)). Some were exceptions or provisos and others represented the conditions of eligibility of the amalgam including storemen and packers (B), rubber workers (C), commercial travellers (D) and foremen and supervisors (E). Paragraph (E) is at the centre of the present controversy. It provided: The Union shall also consist of persons employed as:- Foremen, Forewomen, Store Supervisors and Transport Supervisors in the Department of Defence (Naval Establishments) Department of Administrative Services, Department of Productivity, Munitions Factories, Australian Department of Construction and Clothing Factories throughout Australia, where such Establishment and/or Factories are carried on by the Australian Government, and all foremen at all Government undertakings, including Australian National Airlines Commission and the Northern Territory Public Service. (There are two provisos to this paragraph which are not reproduced.) 33 The NUW was (and is) constituted by a number of branches which are governed by committees of management. The NUW was (and is), as an organisation, governed by two bodies. The supreme governing body was the National Council though the management of the NUW on a more frequent basis was undertaken by the National Committee of Management. The powers of the National Council were set out in rule 8 which relevantly provided: 8 - NATIONAL COUNCIL - POWERS (A) The supreme control of the Union is vested in the members of the Union. Subject thereto, the supreme control vested in the members shall be exercised on their behalf by the National Council which shall have the general control and conduct of the business of the Union and in addition to the powers conferred elsewhere upon National Council in the rules without limiting the foregoing the powers of the National Council shall include the following:- (a) To direct the policy of the Union in all matters affecting the interests of the members. (b) To repeal, alter, amend, revise, rescind or add to these rules and interpreting any Rule or Rules subject of disputation and administering the Rules for the general benefit of the members. (c) Disbursement of the funds of the Union to give effect to the objects of the Union. (d) … (e) To establish Branches and to arrange for Branches to amalgamate one with another and to allocate to Branches the territory within which they respectively shall operate and to transfer members from Branch to Branch and to close or disband any Branch or Branches. 34 It can be seen that the National Council was empowered to alter the rules, disperse funds of the NUW and to establish Branches. The exercise of the power in 8A(e) was subject to rule 46(D) which provided: (D) Referenda Concerning the Exercise of Rule 8(A)(e) Powers (a) Where the National Council or National Committee of Management decides to arrange for Branches to amalgamate one with another or to change the territory of a Branch or to transfer members between Branches or to disband a Branch pursuant to a decision under Rule 8(A)(e) then the General Secretary shall as soon as practicable notify the Branch or Branches, affected by certified mail or facsimile of the terms of the decision. (b) A Branch Committee of Management so notified may within 35 days from the date of the notification notify the General Secretary in writing of its request that the decision be submitted to a referendum of the financial members of the Branch. (c) The provisions of Sub-Rule (C) hereof shall apply to the referendum with the necessary changes provided that any decision shall be binding on the Union, its National Council, National Committee of Management and all officers and members of the Union and its Branches. 35 At all material times the manner in which branches were constituted was by the rules. Rule 37 created eight branches. Seven were geographically based (two in Victoria) and one was occupationally based, namely members who were foremen and supervisors admitted to membership in accordance with rule 5(E) which was set out earlier. Rule 37 provided: 37 - BRANCHES OF THE UNION - MEMBERSHIP PART I Queensland There shall be one Branch of the Union in the State of Queensland as follows:-

1. The NUW Branch which shall comprise those persons employed in Queensland eligible for membership of the Union in accordance with any of Rules 5(B), (C), (D), (F), (G) and/or (I) and admitted as members of the Union. New South Wales There shall be one Branch of the Union in the State of New South Wales as follows:-
2. The NUW branch which shall comprise those persons employed in New South Wales and the Australian Capital Territory eligible for membership of the Union in accordance with any of Rules 5(B), (C), (D), (F), (G), (HA) and (I). Victoria There shall be two Branches of the Union in the State of Victoria as follows:-
3. The Manufacturing Branch which shall comprise those persons employed in Victoria eligible for membership of the Union in accordance with any of Rules 5(C) and/or (I) and admitted as members of the Union.
4. The Victorian (General) Branch which shall comprise those persons employed in Victoria eligible for membership of the Union in accordance with any of Rules 5(B), (D), (F) and/or (G) and admitted as members of the Union. Tasmania There shall be one Branch of the Union in the State of Tasmania as follows:‑
5. The NUW Branch which shall comprise those persons employed in Tasmania eligible for membership of the Union in accordance with any of Rules 5 (B), (C), (D), (F), (G) and/or (1) and admitted as members of the Union. South Australia There shall be one branch of the Union in south Australia as follows:‑
6. The NUW Branch which shall comprise those persons employed in South Australia and the Northern Territory eligible for membership of the Union and admitted as members of the Union. Western Australia There shall be one Branch of the Union in Western Australia as follows:‑
7. The NUW Branch which shall comprise those persons employed in Western Australia eligible for membership of the Union in accordance with any of Rule 5(B), (C), (D), (F), (G) and/or (I) and admitted as members of the Union. Foremen and Supervisors
8. There shall be a Foremen and Supervisory Branch of the Union which shall comprise those persons eligible for membership of the Union throughout Australia in accordance with Rule 5(E) and admitted as members of the Union. Provided that any Branch may enter into a written agreement with the Foremen and Supervisory Branch for any of its members performing Foremen and Supervisory functions to become members of the Foremen and Supervisory Branch, any such members shall thereupon become members of the Foremen and Supervisory Branch. (Emphasis added.) 36 The rules provided for the transfer of individual members between Branches. In particular, rule 60 provided: 60 - TRANSFERS Should any member by reason of change of residence or employment desire to transfer from one Branch to another, he shall make application in writing to the Branch Secretary of the Branch of which he is a member, and state his reasons for desiring a transfer. The Branch Secretary shall, subject to Rule 73, upon receipt of the application, grant the transfer and forward to the Branch Secretary of the Branch to which the application member is being transferred the application form and particulars of such member's financial position with the Union. Each Branch shall obtain clearance certificates in the following form for the purpose of transferring members to another Branch or another Union:- … 37 The rules created a mechanism for the resolution of disputes within the NUW. The relevant rule was rule 73 which included a provision concerning disputes between branches about members. It provided: 73 - DISPUTES WITHIN THE UNION In the event of a dispute:- (a) Between any joint office holders concerning the appropriate functioning of that office and the exercise of powers of that office pursuant to these Rules, such dispute shall be referred to the National Committee of Management as soon as practicable for determination. (b) Between any two or more Branches in connection with the enrolment of any person or persons as members of a Branch (or Branches) such dispute shall be referred to the National Committee of Management as soon as practicable for determination. Nothing in this Rule shall be deemed to negate the power of National Council to review the decision of National Committee of Management. Subject to the above proviso, any determination duly made shall be final and binding on all officers and members of the Union. 38 The financial affairs of the NUW were regulated by a series of rules. The first rule dealing with this matter was rule 2 which set out the objects of the NUW and relevantly provided: 2 - OBJECTS The objects of the Union are: (1) … (2) To authorise the National Council and/or Branches to raise funds by contributions, entrance fees, levies, fines, interest from loans and on money lent, interest on bank deposits and/or interest on Commonwealth bonds, debentures, or shares, as may be determined by National Council and/or Branch Committee of management from time to time. … (16) To establish a fund or funds for mutual assistance and support for the carrying out of these objects and to foster co-operation where practicable. (17) To raise funds by levy for the attainment of these objects. 39 Real and personal property owned and/or controlled by the NUW was divided into two classes of funds. One was the National Fund and the other was Branch Funds. The former was dealt with by rule 32 which provided: 32 - NATIONAL FUND (a) The Union shall raise funds through each of its Branches by members payment of entrance fees, contributions and levies or other means and disbursement of such funds shall be made only pursuant to the Rules. (b) The National Fund shall consist of:- (i) Any real or personal property of which the National Council or Tasmanian Branch has or is entitled to have the right of, custody, control and management. (ii) Sustentation fees payable by each Branch pursuant to Rule 33. (iii) Monies received from fines imposed by National Council or Tasmanian Branch and monies raised by special levy on members for the purposes of National Council. (iv) Any interest, rents, dividends or other income derived from the investment or use of the National Fund or the Tasmanian Branch Fund (while such fund existed). (v) Any property acquired wholly or mainly by expenditure of the monies of' the National Fund or the Tasmanian Branch Fund (while such fund existed) or derived from other assets of the National Fund or the Tasmanian Branch Fund (while such fund existed). (vi) The proceeds of any disposal of parts of the National Fund or the Tasmanian Branch Fund (while such fund existed). (c) Subject to the control of the National Council the National Fund shall be under the control of the National Committee of Management. (d) … 40 The various Branch Funds were regulated by rule 34 which provided: 34 - FUNDS AND PROPERTY OF A BRANCH (a) Each Branch except the Tasmanian Branch shall have a Branch Fund which shall be managed and controlled in accordance with the Rules and shall consist of: (i) any real or personal property of which the Branch, by these Rules or by any established practice not inconsistent with these Rules, has, or in the absence of any limited term lease, bailment or arrangement would have, the right of custody, control or management; (ii) the amounts of entrance fees, subscriptions, fines, fees or levies received by the Branch, less so much as is payable by the Branch to the National Council by way of sustentation fees or otherwise; (iii) any interest, rents, dividends, or other income derived from the investment or use of the fund; (iv) any superannuation or long service leave or other fund operated or controlled by the Branch in accordance with these Rules for the benefit of its officer of employees; (v) any sick pay fund, accident pay fund, funeral fund, tool benefit or similar fund operated or controlled by the Branch in accordance with these Rules for the benefit of its members; (vi) any property acquired wholly or mainly by expenditure of the moneys of the fund or derived from other assets of such funds; and (vii) the proceeds of any disposal or parts of such funds and property. (b) All funds and property of a Branch shall be vested in the Branch. (c) The Committee of Management of a Branch may cause any moneys of that Branch which, in its opinion, are in excess of current requirements to be invested. (d) All cheques and other instruments for the withdrawal of any funds of a Branch of the Union from any bank or other account shall be signed by the Secretary of that Branch and one of the members of the Committee of Management of the Branch. (e) Moneys of a Branch of the Union shall be disbursed only upon a resolution of the Committee of Management of the Branch, provided that, for the expenditure of the funds of the Branch on the general administration of the Branch or for purposes reasonably incidental to the general administration of the Branch, the prior authority of the committee of Management of the Branch or a general meeting of members of the Branch shall not be necessary before cheques are signed and/or accounts are paid. 41 It can be seen that under rule 34(a)(ii) that entrance fees and subscriptions paid by members of a branch form part of a Branch Fund less any amount that is paid to the National Council by way of sustentation fees or otherwise. Rule 33 dealt with sustentation fees and provided: 33 - NATIONAL COUNCIL - SUSTENTATION FEES PAYABLE BY EACH BRANCH (a) Each Branch Secretary, with the exception of the Branch Secretary of the Foremen and Supervisory Branch and the Tasmanian Branch, shall pay to the National Council by way of sustentation fees the amount equal to 16 2/3% of membership contributions collected and such payments shall be made monthly and shall be a first charge on all contributions received from members. … 42 The amount each member had to pay by way of contribution was determined in accordance with rule 63 which provided: 63 - MEMBERSHIP CONTRIBUTIONS - IN ALL BRANCHES In the case of all Branches:- (a) Subject to Rule 71 the amount of contributions payable by members shall be the amount from time to time determined by National Council or where the National Council has fixed a range of contributions the amount within that range determined by the Branch Committee of Management. Provided that each Branch in general meeting shall have the power to fix an additional amount of contributions. … (b) All contributions and levies imposed by the National Council for the purposes of the National Council shall be paid to and collected by each Branch Secretary or his authorised Agent on behalf of the National Council. 43 To this point reference has been made to rules of general application concerning the structure and financial arrangements within the NUW. Reference also should be made to certain specific rules concerning the powers vested in various officers or governing organs of the union. The first is rule 27 which dealt with the execution of documents and provided: 27 - AUTHORITY TO EXECUTE DOCUMENTS Industrial Agreements and other instruments or documents to which the Union may be a party shall be made on behalf of the Union in the following manner:‑ (a) An Industrial Agreement (not being an agreement within the meaning of the industrial Relations Act 1988) and any instrument, document or writing not required by law to be under seal of the Union shall be executed with the signature of the General Secretary and the signature of the General President or with the signature of the General Secretary and the signature a [sic] General Vice President. (b) An instrument, document or writing required by law to be under seal of the Union shall be executed under the seal of the Union with the signature of the General Secretary or with the signature of the General President and the signature of the General Vice President. (c) Notwithstanding Sub‑Rules (a) and (b) of this Rule documents related to proceedings under the jurisdiction of the Australian industrial Relations Commission shall be executed with the signature of the General Secretary or, where authorised by National Council or National Committee of Management, Branch Secretaries. 44 Another relevant rule concerning specific powers was rule 53A which dealt with the authorisation of protected industrial action. It provided: 53A - AUTHORISATION OF PROTECTED INDUSTRIAL ACTION Without limiting any other right, power or duty arising under these Rules, industrial action that the Industrial Relations Act entitles the Union to organise or engage in may be authorised by: (a) the National Council; (b) the National Committee of Management; (c) the General Secretary; (d) the Branch Committee of Management of the Branch to whom the members involved in the industrial action belong; or (d) the Branch secretary of the Branch to whom the members involved in the industrial action belong. 45 It is to be recalled that the 202 Agreement contemplated the alteration of the rules of the NUW to insert a new rule 71. That occurred and created a special rule dealing with the NSW Branch. The government of other branches was dealt with by rule 37A which is unnecessary to set out. It is sufficient to note that rule 71 (inserted pursuant to the 202 Agreement), on one view, provided for a greater measure of autonomy for the NSW Branch than was conferred on other Branches by rule 37A. Before the contentious changes were made to rule 71 in June 1999, the rule was altered from the form it had been in as a result of the implementation of the 202 Agreement. The terms of rule 71 immediately before the June 1999 alterations are set out earlier in this judgment. 46 The changes made to rule 71 in 1999 were: By deleting subrules 71(9), 71(10), and 71(13)-(20) inclusive and by renumbering the subrules in rule 71 as follows: Number New number 71(11) 71(9) 71(12) 71(10) 71(21) 71(11)

47 I have already set out the rules relating to the Foremen and Supervisory Branch (contained in rule 37 Part I). It was this rule that was altered in March 1999 (along with other consequential alterations) to create the Central Branch. The critical alteration was to substitute for the relevant part of rule 37, Part I a provision in the following terms: Central There shall be a Central Branch of the Union which shall comprise those persons eligible for membership of the Union throughout Australia in accordance with: (a) Rule 5(E); or (b) any other rule who are allocated as members to the Central Branch pursuant to this rule by the National Committee of Management or the National Council, and admitted as members of the Union. Any person who is allocated to the Central Branch in accordance with paragraph (b) above thereby becomes a member of the Central Branch to the exclusion of any other Branch. 48 The changes made in October 1999 were to alter par (b) of the Central Branch provision in rule 37, Part I which has just been set out, and insert in lieu: (b) any other Part of Rule 5 and whom with their consent the National Council or National Committee of Management notwithstanding any other rule allocates to the Central Branch in order in the circumstances to adequately or more adequately provide for the representation of their industrial and/or other interests as members of the Union, and admitted as members of the Union. 49 The terms of the resolutions which are also challenged in these proceedings should also be set out. The legal expenses resolution was passed by the National Committee of Management on 30 November 1998. It read: The Branch Committee of Management of the Union's Branch in the State of New South Wales ("the NSW Branch") and each member of it is directed to take all steps necessary (including the making of any resolution necessary) to pay all the legal expenses (and associated costs) incurred since 13 July, 1998 by the Union as a registered organisation in the following matters or proceedings. Such payment will be made from the funds of the Branch within fourteen days of the General Secretary forwarding notice of any of those costs addressed to the NSW Branch Secretary of the NSW Branch office. MATTERS OR PROCEEDINGS 3. Supreme Court of NSW No. 11712 of 1998 4. Federal Court of Australia No. VG 382 of 1998 5. Federal Court of Australia Appeal No.1 6. Federal Court of Australia Appeal No. 2 50 The no comments resolution was also passed at that meeting and was in the following terms: The NSW Branch, its Branch Secretary and all of its officers, employees and members are directed not to make any comment to anybody (except in the course of giving instructions to lawyers) about any of the following matters or proceedings without the express written approval of the National Council, National Committee of Management or the General Secretary MATTERS OR PROCEEDINGS 1. Supreme Court of NSW No. 11712 of 1998 2. Federal Court of Australia No. VG 382 of 1998 3. Federal Court of Australia Appeal No.1 4. Federal Court of Australia Appeal No. 2 51 Also passed at that meeting was the enterprise bargaining resolution which read: The General Secretary is directed as a matter of urgency to submit the following matter to the members of the National Council by any of the methods permitted under rule 52 of the Union. The Union's Enterprise Bargaining policy is amended by including the following words at the end of paragraph 6. Notwithstanding anything elsewhere in this policy the Branch Secretary and/or the members of the NSW Branch Committee of Management may not make any application in accordance with the Act or agreements to be certified nor initiate a bargaining period or give notice of protected action under the Workplace Relations Act 1996 without the prior written approval of the General Secretary. 52 The relevant part of the policy read: 6. That in consideration for the establishment of a National Register Branch Secretaries are authorised to sign agreements that are endorsed by their membership and that are not intended to impact upon other Branches of the union or their membership. Branch Secretaries are also authorised to make applications in accordance with the Act for these agreements to be certified, such authority extending to initiating a bargaining period and all steps necessary for the taking of protected action in support of obtaining the certified agreement in accordance with the Act. 53 While the enterprise bargaining resolution was, in terms, a direction to submit proposed alterations to policy for consideration by the National Council, it was not in issue that the applicants' challenge was really to the decision to alter the policy itself (which occurred later). I proceed on that basis. 54 The last resolution passed at the meeting was the bargaining period resolution which read: The Branch Secretary of the NSW Branch and each member of the Branch Committee of the NSW Branch is directed not to take any action to initiate a bargaining period or give notice of intention to take protected action under the Workplace Relations Act 1996. 55 Each of these contentious resolutions was endorsed and adopted by a meeting of the National Council between 15 and 18 August 1999. 56 I now turn to consider the issues raised in the proceedings. It is convenient to commence with the resolutions under challenge. I will later consider the effect of the 202 Agreement. However my conclusion is that the 202 Agreement did not prevent the alterations to rule 71 made in June 1999 nor did it confer autonomy on the NSW Branch (apart from the agreement to include in the rules of the NUW what was then proposed rule 71). Accordingly I will not, when considering the validity of the various resolutions, deal with submissions made by the applicants which assume that the 202 Agreement had some wider and different operation.

The validity of the enterprise bargaining resolution and the bargaining period resolution 57 In order to consider the validity of the enterprise bargaining and bargaining period resolutions reference should be made to relevant provisions in the WR Act. Division 8 of Part VIB deals with negotiations for certified agreements. Section 170MI enables the initiation of a bargaining period by the giving of written notice to other negotiating parties and the Commission. At a specified time after notice is given, the bargaining period commences: see s 170MK. During that period protected action can be taken which confers specified legal immunity in relation to the taking of the action: see ss 170ML and 170MT. For action to be protected action it is necessary for written notice to be given: see s 170MO(2). In addition, for industrial action to be protected action it must be duly authorised: see s 170MR. Authorisation must be by a committee of management (or its agent): see s 170MR(1)(a) which is defined in s 5 as including a committee of management of a branch. Written notice of the authorisation has to be given to the Registrar: see s 170MR(1)(c). 58 In the present case, rule 53A conferred a power on, inter alia, the relevant branch committee of management or branch secretary to authorise protected industrial action (though plainly that authority could only be exercised, with legal effect for the purposes of the WR Act, if it was exercised in accordance with the provisions of that Act). The enterprise bargaining and bargaining period resolutions denied, relevantly, the branch secretary of the NSW Branch authority to apply to have agreements certified, initiate a bargaining period or give notice of protected action or of an intention to take protected action. 59 When a power is conferred on a person or body by an instrument then often the instrument is treated as conferring powers necessary to give effect to the power or incidental to or consequential upon the exercise of the power. That can arise in relation to a power conferred by a statute or a power conferred by the rules of a trade union. An example of the implication of such a power in rules on a trade union is found in Makin v Gallagher [1974] 2 NSWLR 559 at 576. Holland J was faced with a submission that a power conferred by the rules on the federal management committee of a union to suspend or remove officers for various offence included, incidentally, a power to institute an inquiry for evidence of offences. Holland J said (at 576): In my opinion this is a sound submission and is supported by what Lord Selborne said in Attorney-General v Great Eastern Railway Co [(1880) 5 App Cas 473 at 478] "… whatever may fairly be regarded as incidental to, or consequential upon, those things which the Legislature has authorized, ought not (unless expressly prohibited) to be held, by judicial construction, to be ultra vires". This statement is I think also applicable to powers contained in trade union rules: see per Fullagar J, Williams v Hursey [(1959) 103 CLR 30 at 57, 58]. 60 The reference to Williams v Hursey is to a passage in which Fullagar J makes substantially the same use of that dictum of Lord Selborne as Holland J. 61 An example of the application of this principle to a power conferred by statute, where both Makin and Great Eastern Railway were referred to with approval, is found in National Companies and Securities Commission v Bankers Trust Australia Ltd (1989) 24 FCR 217 at 221. Lockhart J referred to both these authorities in support of the proposition that the conferral of the express statutory power of the National Companies and Securities Commission to hold a hearing in private carried with it certain incidental powers. His Honour was in dissent on the principal question whether such incidental powers included a power to keep the evidence private. Beaumont and Einfeld JJ formed the majority, and did not refer to those cases, but affirmed the principle (at 232) that "in aid of [the express power], the Commission was also given, in our opinion, by necessary implication, the power to take all reasonable steps, when viewed objectively, were necessary in order to ensure that the hearing was conducted privately". 62 Applying these principles in the present case, a necessary incident of a power to authorise industrial action which is intended to be protected industrial action is, in my opinion, the power to give written notice both under s 170MO(2) and s 170MR(1)(c). It is true that rule 27 deals with the execution of documents and generally limits the class of people who may sign a document on behalf of the NUW. That rule specifically deals with the execution of industrial agreements. However, it is otherwise a rule of general application concerning the execution of documents (both under seal and more generally) of an indeterminate class. That part of rule 27 which might apply in the present case (para (a)), is a provision of general application, and must yield as a matter of construction, in my opinion, to the specific rule dealing with protected industrial action and the implied power that latter rule clearly confers. Thus, to the extent that the enterprise bargaining and bargaining period resolutions purport to remove the power, they are in direct conflict with the rules. The National Committee of Management and the National Council had no power to remove the power by resolution and could only have done so by amending the rules and amending rule 53A in particular. 63 The two contentious resolutions also remove the power to initiate bargaining periods or to apply for the certification of agreements. In my opinion, the powers conferred (either expressly or impliedly) by rule 53A do not extend to these matters. However rule 71(9) is also relied on by the applicants as is rule 37A. The terms of sub-rule (9) are set out in par 29 above. While that sub-rule (in the form it was in as at 30 November 1998) was repealed in June 1999, it was effective when the enterprise bargaining and bargaining period resolutions were passed. But neither rule 71, and sub-rule (9) in particular, nor rule 37A (which vested in a branch committee of management the government, management and control of the affairs of a branch but subject to any decision of National Council) conferred, in my opinion, a power on either the branch committee of management or an officer of the branch to certify agreements or initiate bargaining periods which the impugned resolutions sought to fetter. Indeed the rules expressly dealt with the power to sign documents on behalf of the NUW (rule 27) and the authority of a branch secretary to sign a document on behalf of the NUW depended on authorisation by the National Council or the National Committee of Management (rule 27(c)). Any authority to sign certified agreements or initiate bargaining periods deriving from a policy of the National Council could be removed by that body. In my opinion the enterprise bargaining and bargaining period resolutions were, in this respect, valid resolutions. 64 No submissions were made as to whether the invalid elements of the resolutions could be severed (if that be an appropriate approach). The matter is best addressed, in my opinion, by simply making declaratory orders concerning the powers of branch officers to give notices under ss 170MO(2) and 170MR(1)(c).

The validity of the legal expenses resolution 65 It is to be recalled that the National Committee of Management passed a resolution on 30 November 1998 directing the NSW Branch to pay the legal expenses of proceedings related to the Davids Distribution dispute. It is also to be recalled that rule 34 dealt with the way Branch Funds were to be managed. It is comparatively clear that the funds of a branch are vested in the branch and are to be managed and controlled by the branch subject to any provision in the rules which might require that branch funds be disbursed other than at the direction of the branch (through its committee of management and officers) for the purposes of the branch. This was really common ground. The point in contention was whether rule 34(a)(ii) provided a mechanism by which the National Committee of Management could effectively direct the payment of moneys from the Branch Fund for a specified purpose. This raises the question of what is meant by "payable by the Branch to the National Council by way of sustentation or otherwise" in rule 34(a)(ii). 66 Counsel for the respondents drew attention to rule 8 which declared that the supreme control of the NUW, which is vested in the members, may be exercised by the National Council. Reference was made, in particular, to para (c) of that rule which conferred a power on the National Council to disburse funds of the NUW to give effect to the objects of the organisation. It was noted that the National Committee of Management could exercise powers of the National Council: rule 29. Reference was made to rule 32 (dealing with the National Fund) which declared that the NUW could raise funds through each of its branches "by members payment of entrance fees, contributions and levies or other means" and that "disbursement of such funds shall be made only pursuant to the Rules". In relation to rule 34, counsel for the respondents submitted that the National Council could require payment of moneys out of a Branch Fund because the word "payable" in rule 34 (a) (ii) meant "able to be required to be paid" and not merely "able to be paid". By this route, it was submitted, the National Committee of Management had power to pass the legal expenses resolution creating an obligation on the NSW Branch to disburse funds from the Branch Fund of the branch. Counsel for the respondents accepted that it may be necessary for any such resolution to be reasonable having regard to the judgment of the Full Court in Ludwig v Harris (1991) 30 FCR 377. 67 Counsel for the applicants submitted that the legal expenses resolution effectively required the NSW Branch to indemnify the NUW for legal expenses incurred through the actions of federal officials. It was not in issue that the legal expenses in question have now been paid by the NUW (I infer from the National Fund). It was submitted that the passing of a resolution by the National Committee of Management did not create a liability to make any payment. The word "or otherwise" had work to do under the rules themselves. Attention was drawn to rule 2 which contained the objects of the NUW. One object (object (16)) was to establish a fund or funds for mutual assistance and support for the carrying out of these objects and foster cooperation where practicable. Another (object (17)) was to raise funds by levy for the attainment of these objects and another (object (37)) was to provide funds from donations, fines, fees, levies and dues and from interest on capital from which payment may be made for the purposes of any of these objects. It was submitted that there is a symmetry between these objects and rule 34. 68 In order to deal with this issue, it is necessary to ascertain what the rules provided about financial matters. That is, what were the powers and obligations of a branch and the powers and obligations at a national level. The National Council had power to fix an amount (or a range) of contribution payable by members: see rule 63(a), though a branch had power to fix an additional amount of contribution: see rule 63 (a). That is, an amount additional to the amount (or the amount within the range) fixed by National Council. A branch could fix an entrance fee greater than the amount prescribed by rule 61: see rule 61 (a). Rule 32 declared that the National Fund consisted of, amongst other things, sustentation fees and moneys received from fines imposed by National Council and moneys raised by special levy on members for the purposes of National Council. A clear implication is that the National Council had power to impose a special levy for its purposes. Rule 37A(2)(i) conferred on a branch committee of management an express power to cancel arrears of contributions, fines or levies. It is not clear whether the branch committee of management also had a power to impose a fine or a levy on members. 69 Significantly, rule 63(b) provided that "all contributions and levies imposed by the National Council for the purposes of the National Council shall be paid to and collected by each Branch Secretary or his authorised Agent on behalf of the National Council". It is probable that "contributions" referred to in this sub-rule were contributions payable as a result of the fixing of an amount by the National Council. Accordingly, insofar as a branch was acting as a collector of moneys due (directly or indirectly) to the National Council it was doing so in relation to contributions and special levies. The contributions were payable indirectly to the National Council as sustentation fees payable under rule 33. That rule also prescribed the percentage of contributions collected by a branch that had to be paid as sustentation fees. Contributions levies and other dues payable by members could be sued for by the general secretary, the branch secretary or a person authorised by a branch committee of management: see rule 52A. 70 The scheme of the rules appears to have been that any moneys collected by the branch on behalf of the National Council (being moneys of the type referred to in rule 63(b), namely contributions and levies imposed by the National Council) would, in the first instance, be collected at a branch level and paid into the Branch Fund but on the basis that the moneys were being held for the National Council and would be remitted to that body (and thereby become part of the National Fund) by the branch either directly (special levies) or indirectly (contributions paid as sustentation fees). That being so, the words "payable by the Branch to the National Council by way of sustentation fees or otherwise" in rule 34(a) fairly clearly comprehended funds collected in the way contemplated by rule 63(b). That is, contributions and special levies which became part of the National Fund has provided for in rule 32(b)(ii) and (iii). As mentioned earlier there was a clear implication in rule 32(b)(iii) that the National Council could impose a fine. Who could be fined and how the fine was collected was not clear from the rules. However that is of no significance for present purposes. 71 In my opinion, the words relied upon by the respondents ("payable … or otherwise") as indicating the National Council had a power deriving from the general power to manage the affairs of the NUW (conferred by rule 8) to order, effectively, the transfer of moneys from a Branch Fund to the National Fund, do not provide the support they are said to provide. I speak of transfer because, as noted earlier, the legal expenses have already been paid. Those words are referable to special levies collected under rule 63(b). Moreover rule 32(a), while appearing in a rule concerning the National Fund, was a rule of general application. It stated the means by which all funds were raised and declared the manner in which they could be disbursed. They could only be disbursed pursuant to the rules. I see no reason to treat the word "disbursement" as restricted to payments made to third parties. That provision can reasonably be treated to relate to any dealings with the funds of the NUW. To treat the general power conferred by rule 8 as authorising a direction resulting in the transfer of funds between a Branch Fund and the National Fund would substantially undermine the clear division created in the rules between those funds, what they contained and who was entitled to deal with them. Ordinarily the protection members of a branch have in relation to branch funds derive from the rules: see Bacon v Day (1989) 25 FCR 495 at 510 but see also Ronher v Waterside Workers Federation of Australia (1988) 90 FLR 370. In my opinion, the National Committee of Management had no power to pass the legal expenses resolution. That is not say, however, that if the NUW incurred a liability to a third party that was the result of the action of a branch, the branch might not be required under the rules to satisfy the liability out of the Branch Fund. However that is not the issue in these proceedings and that question has not been addressed by the parties: but see the observations of Gray J in Bailey v Krantz (1985) 13 IR 326 at 388. In any event, there is, in the present case, now no liability to a third party given that the legal expenses have been paid.

The validity of the no comment resolution 72 The no comment resolution was challenged on essentially two bases. The first was that it imposed on the NSW Branch and its secretary, officers, employees and members a restriction that was unreasonable and excessive and not referable to the valid exercise of any power conferred on the National Committee of Management. The second was that it was inconsistent with the autonomy conferred on the NSW Branch by rule 71(1) and (9). It is to be recalled that on 13 November 1998 the branch secretary of the NSW Branch was found guilty of contempt of the Supreme Court of NSW. Newspaper reports appeared the following day recording Mr Belan commenting on the matter. I do not accept that the resolution of the National Committee of Management was of a character that travelled beyond the exercise of the general power it had to control and conduct the business of the NUW. In the circumstances, the assets of the NUW were at risk in the sense that conduct by anyone who might reasonably be viewed as acting on behalf of the NUW might ultimately lead to a fine for contempt. It was a matter for members of the National Committee of Management to weigh this consideration with considerations concerning the freedom that officers and members would generally have to speak publicly on any issue. It is true that the resolution prohibited "any comment to anybody". However, in my opinion, the resolution should be construed as a prohibition on comment by an officer or member that might be taken to be made in their capacity as an officer or member. So construed it is unexceptionable. 73 For similar reasons, the resolution did not derogate from rule 71(1) and (9) in the form they were in at that time the resolution was passed. I infer that the resolution was passed, at least in part, to protect the assets of the NUW. The National Committee of Management was entitled to assume that any assets of the NUW were at risk if, through the actions of officers or members, the organisation acted in contempt of a superior court of record. Even accepting, for present purposes, that rule 71 may have authorised, in the ordinary course, officers and members of the NSW Branch to speak publicly on industrial issues concerning that branch only without interference, the context was one in which the NUW itself was not only a party to litigation but had been joined as a defendant in contempt proceedings some months earlier. The issues plainly transcended the interests of the NSW Branch. 74 I am not satisfied that the no comment resolution was invalid.

The effect of the 202 agreement on the power to alter the rules and the validity of the June 1999 alterations to rule 71 75 A central question these proceedings is whether the alterations made to rule 71, which have been certified under s 205 of the WR Act, can stand. It is put this way because the applicants contend the alterations can be challenged on several bases. One involves the invocation of ss 208 and 196, another involves the enforcement of the 202 Agreement in the Court's accrued jurisdiction. However the starting point in considering the challenge to the alterations to rule 71 is the proper construction of that agreement. 76 Before turning to the terms of the 202 Agreement reference should be made to applicable principles of construction. They have been considered in the various judgments of the members of a Full Court in McVeigh, in the matter of Piccolo v National Australia Bank Ltd [2000] FCA 187. They are conveniently summarised in the judgment of Finkelstein J who said (at par 29 and following): The starting point for the construction of any instrument is to look at the language used, not just to the particular words in question but at the whole of the instrument, to gather the intention of the parties: Leader v Duffey (1888) 13 App Cas 294. The words actually used must also be construed in light of the surrounding circumstances, such circumstances being proved by recitals (if any) or by extrinsic evidence: Inland Revenue Commissioners v Raphael [1935] AC 96; Reardon Smith Line Ltd v Yngvar Hansen-Tangen (trading as H E Hansen-Tangen) [1976] 1 WLR 989. In some cases it is also permissible to have regard to other instruments. Thus, where several instruments are made as part of one transaction they will be construed together and each will be construed with reference to the other. In Smith v Chadwick (1882) 20 Ch D 27, Jessel MR said (at 62-63): 'that when documents are actually contemporaneous, that is, two deeds executed at the same moment, a very common case, or within so short an interval that having regard to the nature of the transaction the Court comes to the conclusion that the series of deeds represents a single transaction between the same parties, it is then that they are all treated as one deed; and, of course, one deed between the same parties may be read to show the meaning of the sentence, and be equally read, although not contained in one deed, but in several parchments, if all the parchments together in the view of the Court make up one document for this purpose.' The rule applies whether the documents are executed contemporaneously or at different times: see Norton on Deeds 2nd ed (1928) at p 87-89 and the cases there cited. The reason for the rule is that when a series of documents is necessary to give effect to a single transaction each is executed on the faith of the others being executed and each is intended to operate only as part of that transaction and therefore, as a matter of substance, they should be regarded as one: Manks v Whiteley [1912] 1 Ch 735 at 754. It seems that English law has only developed to the point where several instruments representing a single transaction may be read together if the documents are between the same parties: Smith v Chadwick, above, Chitty on Contracts 27th ed (1997) at par 12-057. This is also the position that has been taken in Australia: see Halsbury's Laws of Australia Vol 10, 'Deeds & Other Instruments' par 140-535(1) citing Smith v Chadwick. 77 I now turn to consider the terms of the 202 Agreement. The applicants' case depends in part on the scope of clause 6 (this is found in what I have described as the third element set out in para 28 above). That clause conferred autonomy on the "union" with the qualification that its autonomy to decide matters only extended to matters "which do not to directly effect (this should probably be "affect") members of the organisation outside (NSW)". At one point counsel for the applicants submitted that the word "union" in this clause included or was a reference to the NSW Branch. 78 The document in question (the third element) commenced with a provision specifically intended to invoke s 202. That is, it was a provision containing an agreement of the type contemplated by that section (though that was also achieved in what I earlier described as the first element: see par 26 above) . This provision was, however, cast in terms that made the agreement subject to other terms contained in what was described as the "schedule". Clause 6 was one of the clauses in the schedule. The provision identified the parties to the agreement as being the NUW, described as an organisation of employees registered under the (now) WR Act, and the NSW Union. After the name and status (as a registered industrial union) of the NSW Union were set out, it was said "… in this agreement called 'the union'". Both in that provision and throughout the schedule the dichotomy was maintained between the organisation (the NUW) and "the union". Each reference made sense if the expression "the union" is treated, as the instrument itself indicates should be done, as a reference to the NSW Union. Indeed in clause 8, which dealt with funds, there was a specific reference to the NSW Branch. That reference was necessary because a distinction was sought to be drawn in the clause between the position of the organisation generally and the NSW Branch specifically for the purposes of a provision which dealt with funds of the organisation and the funds of "the union". If one looks beyond the document in question (the third element) to the remainder of what is being treated as the 202 Agreement, the same dichotomy was drawn between the NUW (referred to as the "organisation") and the NSW Union (referred to either as "the union" or "the Union"). Having regard to the language and structure of the 202 Agreement, the words "the union" in clause 6 and more generally appear to be intended to refer to the NSW Union. 79 However it is necessary, ultimately, to ascertain the intention of the parties from the agreement as a whole. In support of a submission that clause 6 was also intended to confer autonomy on the NSW Branch, counsel for the applicants pointed out that the beneficiary of the proposed alterations to the rules (the inclusion of rule 71) was the NSW Branch. The proposed rule 71 conferred a measure of autonomy on the NSW Branch. This indicated, it was submitted, that clause 6 was not simply limited to the autonomy of the NSW Union. The rule simply perfected, in relation to the NSW Branch, the autonomy conferred by the clause. The difficulty with this submission is that it is not consistent, indeed at odds, with the language used. In addition there is no reason to believe that clause 6 was not intended to relate to the NSW Union only and, to the extent that the parties were agreeing to confer autonomy on the NSW Branch, that was achieved (and only achieved) by the inclusion of the proposed rule 71 in the rules of the NUW. In my opinion, clause 6 was directed only to the position of the NSW Union and the expression "the union", was a reference to the NSW Union only. 80 Understood this way, clause 6 was intended to confer limited autonomy on the NSW Union in circumstances in which it was agreeing to be bound by decisions of the National Conference of the NUW "on matters of National significance". It was not intended to confer autonomy on the NSW Branch whose position (in terms of independence from the activities and powers of federal officials or federal governing bodies and other branches) was, at the time, established by the registered rules of the NUW and would be enhanced by the inclusion of proposed rule 71. However even if the autonomy agreed to by clause 6 concerned the autonomy of the NSW Union, it is nonetheless necessary to consider what the effect of one other aspect the 202 Agreement was intended to be. 81 The agreement to introduce rule 71 appears in the fifth of the recitals in the memorandum set out in par 27 above (the second element) and clauses 1(iii) and 2(ii) of that memorandum. In the fifth recital the NUW was agreeing that its rules would be altered "in order to achieve constructive and co-operative relations". Clause 1(iii) provided a program for various events and specifically for the alterations of the rules of the NUW which were to follow an amalgamation of the NSW Union and an amalgamation involving the NUW. In clause 2 the NUW agreed to amend or alter its rules in accordance with a schedule which contained proposed rule 71. It is set out in par 29 above (the first part of the fourth element of the 202 Agreement). What was agreed, in terms, by the NUW was to amend its rules. This it did. What must be considered is whether the NUW was agreeing to amend them on the basis that there was a common understanding that the rule (or at least the substance of the rule having regard to its effect) arising from the amendment would not, itself, be further amended or deleted from the rules. This question can probably be approached two ways (if they be different). The first is to ask whether the agreement to amend also involved agreement to preserve that which had been agreed. The second is to ask whether a term should be implied into the agreement that the rule resulting from the implementation of the agreement would not be further amended (or its substance not altered) or not deleted from the rules. If the answer on either approach is affirmative, then it is necessary to consider whether the NUW breached the 202 Agreement by altering rule 71 in the way it did in June 1999 (the same question might arise in relation to amendments made prior to June 1999 but that is not an issue in these proceedings). 82 I deal firstly with the question of whether a term can be implied. The principles concerning when a term is to be implied in a contract are comparatively well settled. They were recently considered by a Full Court in Riverwood International Australia Pty Ltd v McCormick [2000] FCA 889. The principles can be illustrated by their application, in that matter, by Lindgren J who approached the issue the following way (at par 67): I do not think, for example, that if asked [at the time the contract was made] whether the term in question formed part of their contract, both parties would unhesitatingly have said "Of course" or "It goes without saying" or "Obviously" (cf Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206 at 227 per Mackinnon LJ; Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 121; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 442). Nor do I think it was necessary to give business efficacy to the contract to imply the term in question; the contract operates reasonably and effectively without it (cf BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 (PC) at 282-3; Hawkins v Clayton (1988) 164 CLR 539 at 573). A court must not find a term to be implied merely in order to make the contract "reasonable or fair or prudent" and it is important to recall that "[t]he necessary foundation for the creation of contractual rights and obligations is the agreement of the parties" (Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 401 per Brennan J). 83 In addition, the circumstances in which a term can be implied can be influenced by the express terms of the agreement. The principles governing the construction of a lease (but of more general application) were summarised by Powell JA in Darin Nominees Pty Ltd v Franklin's Selfserve Pty Ltd [1999] NSWCA 209 (noted in 74 ALJ 285). One such principle is that no term can be implied if it is inconsistent with the express terms in the instrument nor can it be implied if it appears on the face of the instrument that the parties adverted to the point and either deliberately rejected it or deliberately abstained from dealing with it. Authority cited by His Honour in support of these propositions were Maritime National Fish Ltd v Ocean Trawlers Ltd [1935] AC 524; Chandler Bros Ltd v Boswell [1936] 3 AllER 179 at 186-187; Heimann v Commonwealth (1938) 38 SR (NSW) 691 at 695. 84 It is necessary to consider the provisions of the 202 Agreement having regard to these principles. The entire agreement dealt with alteration to rules in several ways. First both the NUW and the NSW Union agreed to alter their rules in a specified way. This has already been discussed in relation to the proposed alteration to the rules of NUW. The NSW Union also agreed in clause 2(i) to amend its rules (see the memorandum set out in par 27 above) to include the rules referred to in par 30 above (the second part of the fourth element). 85 The next way the 202 Agreement dealt with rules was in clause 11 of the schedule set out in par 28 above (the third element). That clause required the secretary of the NSW Union to consult with the general secretary of the NUW in relation to proposals to alter the rules of the NSW Union. That clause created a scheme involving notice and consultation before any alteration was to be made to the rules of the NSW Union. The purpose of the scheme was to bring about consistency between the rules of the NSW Union and the NUW. However this purpose was expressed in somewhat qualified terms having regard to the expression "in an effort to ensure the consistency". Moreover the secretary of the NSW Union was only obliged to "take into account all reasonable concerns" of the general secretary. Plainly this clause preserved the power on the NSW Union to alter its rules in whatever way it wished. This was, of course, subject to the proviso expressed in the last sentence of clause 11, namely that "alterations or rescissions to rules shall not conflict with the rules of the (NUW)". In summary, the NSW Union agreed, in relation to any alteration to its rules, to consult, to consider concerns and not create conflict between its rules and the rules of the NUW. 86 The last way the 202 Agreement dealt with alterations of rules was found in the rules agreed to be included in the rules of the NSW Union. It is to be recalled that the NSW Union agreed to include in its rules a special rule, rule 48A, dealing with the execution of an agreement under s 202 and procedures to implement such an agreement. Significantly sub-rule (2) contained a provision designed to entrench rule 48A. It did so by making any alteration to the rule conditional upon consent to the alteration been given by the National Council of the NUW. 87 It is apparent from the 202 Agreement that the parties turned their minds to not only what changes had to be made to the rules of both the NUW and the NSW Union but also how, in the future, rule alterations might be made which impacted on the entire agreement. It is true that this latter matter is addressed only in relation to alterations to the rules of the NSW Union. However it is difficult to accept this does not reflect that it was a matter that was considered by both parties in relation to all rule alterations to which the 202 Agreement was directed. The absence of any reference to the future alterations of the rules of the NUW (that is, alterations following the inclusion of the proposed rule 71) provides a fairly compelling indication that, insofar as the rules of the NUW were concerned, it was not intended that the power of the NUW to alter its rules was to be fettered or limited even in relation to rule 71. 88 Counsel for the applicants submitted, in a variety of ways, that the 202 Agreement must have been intended to limit alterations to rule 71 having regard to the subject matter of that agreement. This submission really raised for consideration the circumstances in which the 202 Agreement was negotiated and concluded. However the submissions proceeded on assumptions that are not self-evident. Whether the NSW Union owned property, whether employees who applied for membership of the union (in a practical and not legal sense) would become members of the NUW or the NSW Union or both and what would happen to their membership contributions and indeed whether the NSW Union had legal existence independently of the NUW were all issues confronting both the NUW and the NSW Union and their officials at the time the 202 Agreement was negotiated and concluded. They were questions that were coming into particular focus because of amalgamations proposed both under state legislation and federal legislation. They were (and are) issues of considerable legal complexity: see Re McJannet; Ex parte the Australian Workers' Union of Employees, Queensland (1995) 184 CLR 620 and The Sweeney Report, Report of the Committee of Inquiry on Co-ordinated Industrial Organisations (1974). The assumptions underpinning the submissions of counsel for the applicants were that these questions would be answered in favour of the NSW Union in the sense that when it entered the 202 Agreement it was relinquishing rights (including property rights) for which it was receiving some benefit in return. There is no basis evident to me for making these assumptions. Indeed it appears to me that the parties to the 202 Agreement were, in a sense, content to avoid having to answer these difficult legal issues (with potentially significant practical consequences) by entering into that agreement. The 202 Agreement was in terms that rendered it unnecessary to answer them. 89 In my opinion a term should not be implied in the 202 Agreement that the rule resulting from the alteration to the rules of the NUW which was agreed to (the adoption of rule 71) would not be susceptible to further alteration either in form or in substance. It is not a term that would have been obvious to the parties to be included had they addressed the question (indeed, as just discussed, the terms of the agreement suggest otherwise). Nor is it a term necessary to give efficacy to the agreement. It was not as if, at the time, there were no constraints on the further amendment of rule 71. Any further alterations to rule 71 would be subject to the rules of the NUW and the democratic processes provided for in the rules concerning their alterations. Members and officials in the NSW Branch (if also members and officials of the NSW Union) would be able to participate in those processes with the objective of preventing alterations to rule 71 or ensuring any alteration was one that was acceptable to them. 90 Moreover the 202 Agreement could be terminated by the Federal Commission on the application of "an interested person": see s 208(8)(b) of the WR Act. There is little reason to doubt that the NSW Union would be an interested person in relation to an agreement to which it was a party: as to the notion of "person interested" more generally see Re Building Workers' Industrial Union of Australia (1987) 18 IR 315; Gallagher v Federated Engine Drivers and Firemans Association of Australasia (1988) 28 IR 35; and Re Victorian Master Pastrycooks Association Inc (1992) 45 IR 91. If alterations were made to rule 71 which were unacceptable to the NSW Union it could apply to cancel the 202 Agreement. If that occurred, of course, the questions referred to in par 82 above might then have to be addressed both by the NSW Union and the NUW. Nonetheless it is difficult to conclude that any implied term of the type under consideration is necessary to give efficacy to the 202 Agreement given the statutory right to apply to have the 202 Agreement terminated and the existence of an opportunity that arises under the rules of the NUW to influence any proposed alterations to rule 71. 91 One further matter should be mentioned. In Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 Dawson J said (at 137): Perhaps, however, express mention should be made of the trial judge's finding that under the law of New York and of Connecticut "every contract imposes upon each party a duty of good faith and fair dealing in its performance and in its enforcement" Restatement of the Law: Contracts (2d), s 205. This, he found, meant no more than that neither party to an agreement may do anything to impede the performance of the agreement or to injure the right of the other party to receive the proposed benefit and was, in substance, an expression of the same principle enunciated by this Court in Secured Income Real Estate (Australia) Ltd v. St Martins Investments Pty Ltd (1979) 144 CLR 596 at 607, quoting the words of Griffith C. in Butt v M'Donald (1896) 7 QLJ 68, at 70-71: "It is a general rule applicable to every contract that each party agrees, by implication, to do all such things as are necessary on his part to enable the other party to have the benefit of the contract." 92 This principle was not expressly referred to by counsel for the applicants though it appeared to underlie much of what was put on their behalf. It may mean, applied to the circumstances of this case, that the NUW would be obliged to ensure that the NSW Union (and perhaps also the NSW Branch) continued to enjoy the benefit of the term of the 202 Agreement involving the inclusion of rule 71. However this approach assumes that the benefit conferred on the NSW Union was not only the inclusion of rule 71 (which occurred) but also the preservation of that rule (in substance if not form) in perpetuity or at least for the currency of the 202 Agreement. For reasons already given, I do not consider that it was intended that the benefit conferred on the NSW Union was in terms as wide as this. 93 In the result, it has been unnecessary to consider whether the NUW could enter an agreement which fettered its capacity to alter its rules. The alteration to rules ultimately involves the exercise of a fundamental democratic right of members of an organisation: see eg Roots v Mutton (1978) 32 FLR 15 at 19.3. The WR Act requires an organisation to have rules dealing with the manner in which the rules may be altered: see s 195(b)(xiii), and contains a statutory mechanism for the consideration of any alteration to the rules: see ss 203 to 206. It may be doubted that an organisation can, by agreement, inhibit its capacity to alter its rules and deny the members this right: see also s 187A(a). It is unnecessary to consider whether the analogy with a company incorporated under the Corporations Law (which cannot, by agreement, deprive itself of a statutory power to alter its articles) is a good one: see Peters' American Delicacy Co Ltd v Heath (1939) 61 CLR 457 at 479. 94 I am satisfied that the 202 Agreement did not prevent the amendments being made to rule 71 which were made by the NUW in June 1999. Accordingly the applicants have not made good the contention that the amendments to rule 71 could not have been made because they involved a breach of the 202 Agreement. Nor have they made good the related submission that the rules are of the type referred to in s 196(c) because they are or resulted from a breach of the 202 Agreement.

The validity of the creation of the Central Branch 95 The applicants have challenged the rules resulting from the alterations to the rules creating the Central Branch. The primary focus of the challenge is the provision in rule 37 constituting the Central Branch and authorising the allocation of members to that branch by the National Council or the National Committee of Management. At the time the alterations to the rules were made creating the Central Branch, the NUW was constituted by branches which, with one exception, were geographically based. However the geographically based branches were limited to members eligible for membership under identified categories found in rule 5 but not including rule 5E. The exception was the Foreman and Supervisory Branch, which was comprised of members who were eligible for membership under rule 5E. This branch was occupationally based. Thus a member who was eligible for membership under rule 5E would not be a member of one of these geographically based branches but would be a member of the Foreman and Supervisory Branch. The proviso to the sub-rule creating the Foreman and Supervisory Branch (set out in par 35 above) allowed for a member in a geographically based branch (who was performing "Foreman and Supervisory functions") to be a member of the Foreman and Supervisory Branch by transferring to it even if the member was not eligible for membership under rule 5E. A transfer of this type would occur if there was a written agreement to that effect between the geographically based branch and the Foreman and Supervisory Branch. 96 All branches were created by rule 37 though the manner in which they were to operate was addressed in many of the other rules of the NUW. While the National Council had express power under rule 8(A)(b) to "alter, amend, revise, rescind or add to" the rules, it also had express power to establish branches, arrange for branches to amalgamate, allocate branches the territory within which they could operate, transfer members from branch to branch and close or disband a branch: see rule 8(A)(e). Under the scheme in the rules as it existed at the time in question, the latter power could be exercised (at least as it related to any reallocation of territory or closing or disbanding a branch) only by exercising the former power. However the exercise of these powers to reallocate territory, transfer members or disband a branch was subject to rule 46(D) which required, inter alia, notice being given to the branch affected and, in substance, affording the branch an opportunity to have members of the branch vote on the question. The result of any such vote was binding on the NUW, the National Council, the National Committee of Management and officers and members of the NUW: see rule 46(D)(c). Thus the power of the National Council to reallocate territory between branches, transfer members between branches or disband a branch was subject to what was, effectively, ratification by the members of the affected branches if a plebiscite was requested by the branch committee of management of the branch or branches involved. It has not been part of the applicants' case in these proceedings that the procedures in rule 46(D) were not followed. 97 There was, immediately before the alterations creating the Central Branch, an anomaly involving the proviso concerning the Foremen and Supervisory Branch (enabling members to transfer from a geographically based branch to that branch) and rule 46(D). The proviso permitted the transfer of a member or members from a geographically based branch with the agreement of the branches involved. This must be viewed, in my opinion, as an exception to the scheme involving the exercise of the power of the National Council to, inter alia, transfer members between branches which might trigger a referendum under rule 46(D). The exception was applicable, at the relevant time, to a limited and specially defined class of member, namely members who were foremen or supervisors. 98 The question that now arises is the effect of the alterations creating the Central Branch which conferred on the National Council or National Committee of Management an express power to transfer or allocate members of an indeterminate class from a geographically based branch to the Central Branch without rule 46(D) coming into play. It should be noted that the exercise of the express power is conditional. It is conditioned by the member or members consenting to the transfer or allocation and by the specification of the purpose for which the transfer or allocation would occur, namely "in order in the circumstances to adequately or more adequately provide for the representation of (the members concerned) industrial and/or other interests" as members of the NUW. That, of itself, is scarcely oppressive, unreasonable or unjust. 99 Counsel for the applicants advanced a number of propositions to the effect that these alterations were contrary to s 196(c) of the WR Act (as creating rules which imposed conditions, obligations or restrictions that are oppressive, unreasonable or unjust) because, inter alia, they conflicted or were inconsistent with other rules. Those rules included rule 71(1) and (9) (at least when the first amendments were made in February 1999) (and, in particular, when those provisions were read with the rights to representation to National Council conferred by rule 7(2)(b)), rule 37A, rule 8B, rule 8A(e) and rules 60 and 73. However the short answer, in my opinion, to each of these propositions is that the National Council has exercised the express power conferred on it by rule 8 to amend the rules. It is not suggested that there was no power to make the alterations. 100 Nor is it suggested that the power to alter the rules is generally not subject to democratic control of the members within the NUW. The NUW can, through the bodies empowered to alter the rules and subject to the rules governing the exercise of the power, modify branch structures and create exceptions to schemes that might otherwise generally operate within the NUW. As the Full Court said in Bramich v Transport Workers Union of Australia (2000) 97 FCR 204 at pars 35-36: … that organisations registered under the Act are not required to establish or maintain branches. As Evatt and Northrop JJ said in Imlach v Daley (1985) 7 FCR 457 at 462: "In industrial jurisprudence, an organisation need not be divided into branches. The existence of an organisation as a corporate body is essential. Branches are established for the purpose of internal management. Branches are not essential for the existence of organisations. Organisations are creatures of the Act. Branches are formed or created by the rules of an organisation or pursuant to powers contained in the rules. There is no doubt some of the provisions of the Act recognise the existence of branches within organisations, but that does not mean that every organisation must have branches." It may also be accepted that the degree of control to be exercised by a federal body over branches, or the extent of the autonomy to be accorded to branches, is a matter for those framing the rules of the organisation from time to time. 101 The question, of course, remains whether any such modification or exception is of a character that, in the result, specific rules or the rules are oppressive, unreasonable or unjust in the way contemplated by s 196(c). However the mere fact that pre-existing structures or schemes have been altered or modified really says nothing about the character, for present purposes, of the rules arising from the alterations. 102 From the perspective of a particular member who becomes a member of the Central Branch (other than by virtue of being eligible for membership under rule 5E), they have consented to becoming a member of that branch and, for any such member, the operation of the scheme creating the Central Branch is unexceptionable at least insofar as it was criticized by the applicants. It appears to be correct, as submitted by counsel for the applicants, that there is no mechanism that permits a member who transfers into the Central Branch to transfer out of that branch at least in the ordinary course. That, however, is no different to the position of a member in a geographically based branch. Moreover a change of residence or employment of a member (which would probably cover most situations where a member, who has consented to transferring in, might wish to transfer out of the Central Branch) can result in a transfer under rule 60. 103 It is nonetheless necessary to consider whether the rules relating to the Central Branch might operate oppressively, unreasonably or unjustly from the perspective of members of the branch from which a member (or group of members) transferring to the Central Branch came or from some other perspective. 104 Reference should be made three specific matters referred to by counsel for the applicants. The first was that under rule 71 (and sub-rules (5) and (7) in particular) (even considered after the amendments made to rule 71 in June 1999) a member of the NSW Union could pay membership contributions to that union which were treated as membership contributions to the NUW. While these parts of rule 71 were drafted in a way that made their effect entirely obscure, I accept that it is probable they operated this way. The secretary of the NSW Branch was then obliged to make sustentation payments to the National Conference pursuant to rule 33. Before the alterations were made to the rules in February 1999 creating the Central Branch, the number of delegates to the National Council was determined by a formula referable to a proportion the contributions received by a particular branch bears to the contributions received by all branches: see rule 7(2)(b)(i). A consequential alteration made when the Central Branch was created, was to amend rule 7 so as to deem certain contributions (those contributed to the National Fund by members of the Central Branch) as contributions received by the Central Branch for the purposes of the formula. Another consequential alteration was to amend rule 32 (the rule dealing with the National Fund) to declare all moneys received by or on behalf of the Central Branch as forming part of the National Fund. 105 Counsel for the applicants appeared to accept that any contributions made by a person who was a member of the NSW Union (but who was allocated to the Central Branch) and collected by the NSW Branch under rule 71 would be treated as contributions received by the Central Branch. So treated, such contributions would influence (by potentially increasing) the number of delegates from Central Branch to the National Council. This was said to be an unjust result because the NSW Union and the NSW Branch were financing the representation of the Central Branch on the National Council. However this submission effectively ignores that the member or members in question would have elected to transfer from the NSW Branch to the Central Branch. There can be, in my opinion, no objection in principle to the representation of members of the Central Branch on National Council by delegates drawn from the branch in numbers corresponding to the proportion members of that branch represent to the membership of the NUW as a whole. All the submission demonstrates is a potential anomaly in the process for collecting the contributions of members of the Central Branch who are also members of the NSW Union and some obscurity in the way the contributions would be treated under the rules. It is a potential anomaly and obscurity which desirably should be clarified by further alterations to the rules. It does not, however, reveal an unfairness of the type contemplated by s 196 if, as I understand is the position, the fundamental attack of the applicants is on the rules creating the Central Branch and rule 37 in its amended form in particular. I should add, parenthetically, that the final form of the rule to show cause advanced by the applicants sought orders in relation to "rule changes" and did not impugn specified rules or parts of rules or the rules generally as contemplated by s 208. However this is ultimately of no consequence given that the applicants have not demonstrated oppression, unreasonableness or injustice in the way they have contended. 106 The second specific matter raised by counsel for the applicants to which reference should be made is the operation of rule 46(D). It was submitted that this rule permitted the entire membership of a branch to vote on whether any section of the membership might be transferred to another branch. By those means the entire membership could prevent a section of the membership being transferred in a way that would diminish the representation of the branch as a whole. The mechanism adopted for transferring or allocating members to the Central Branch also enabled, it was submitted, the National Council or the National Committee of Management to manipulate the electoral system and entrench itself in power. The submission was illustrated by an example which assumed that a majority of members in, for example, New South Wales may be aligned to a particular faction and a significant minority aligned to another faction. The minority could be transferred to the Central Branch thus reducing the number of delegates the majority would be able to elect to National Council or the National Committee of Management. This could happen without the entire branch membership having the opportunity of voting under rule 46(D) on whether the transfer should take place (and preventing it). 107 Two observations may be made about this submission. The first is that there is nothing inherently oppressive, unreasonable or unjust about a rule that may operate in a way that resulted in a group of members securing representation on a governing body of the organisation in a proportion that broadly corresponded with the proportion of their numbers to the membership as a whole. The same can be said of a rule which reduced the representation of a particular group as a result of a reduction in their numbers as a proportion of the membership as a whole. The second observation is that any purported exercise of the power to allocate members (even with their consent) to the Central Branch which was for a purpose for which the power was not conferred (bearing in mind that the allocation must in order to achieve the objective referred to in par (b) of the new Central Branch provision in rule 37) and/or was not a bona fide exercise of the power would expose the members of the body making the allocation to proceedings under s 209: see, for example, the discussion of Burchett J in Ludwig v Harris (supra) at 383. 108 The last matter raised by counsel for the applicants to which specific reference should be made was the potential that a particular workplace might have members of both the Central Branch and the relevant geographically based branch. It was submitted that such a result would be contrary to a principal object of the WR Act, namely paras (f) and (g) of s 3 which refers to, relevantly, freedom of association and employee organisations registered under the Act being representative of and accountable to the members and able to operate effectively. Reference was also made to s 187A(a)-(c). I have some difficulty with this submission. It has long been settled that ordinarily the internal structure of an organisation was a matter for the members of the organisation acting, democratically, through their elected representatives. Even if it was open to this Court, in exercise of the jurisdiction deriving from s 208, to review, in the way suggested, the effect of any particular structure on the manner in which the organisation might function industrially, the concerns raised (such as the majority of members in a workplace being in conflict with the minority who were disenfranchised) are, in my opinion, more illusory than real. I should add that I am not aware of any authority which would support the suggestion that this is an appropriate matter for the Court to determine in the way suggested by the applicants in an application under s 208. The applicants have failed to establish that the rules resulting from the alteration to the rules creating the Central Branch contravene s 196. Conclusion 109 For the preceding reasons I propose to make orders concerning the legal expenses resolution and the enterprise bargaining and bargaining period resolutions. In all other respects the application will be dismissed and the rule to show cause discharged. I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate: Dated: 15 December 2000 Counsel for the Applicant: Mr M Slattery QC and Mr R Goot

Solicitor for the Respondent: Ryan Carlisle Thomas

Dates of Hearing: 21-25 February 2000