THE DEPUTY PRESIDENT: Yes, it's not the most well-constructed piece of legislation I've encountered.

MR SLEVIN: No, and indeed it can be difficult to follow. The way I proposed to deal with it, your Honour, given that there are a limited number of matters that you need to be satisfied of in section 55, was first to describe the application by reference to the documents filed and then take you to the relevant provisions of the Act following that and then ultimately to section 55. So that's the format that I propose to take in taking you through the applications.

And so you'll see that filed with the application is a copy of the scheme and the - it's a very large document and the scheme contains a number of annexures as well. So the first is the - and I think it's probably appropriate that I tender the scheme, your Honour, with its seven annexures. And so I tender the scheme of amalgamation filed with the application under section 44 of the Act dated 20 June 2017.

THE DEPUTY PRESIDENT: Just bear with me. Yes, so we'll mark the scheme of amalgamation between the Construction, Forestry, Mining and Energy Union and the Maritime Union of Australia and the Textile Clothing and Footwear Union of Australia, together with the annexures marked annexure A through G respectively, as exhibit 1.

THE DEPUTY PRESIDENT: They're not referred to in the scheme.

MR SLEVIN: I think what we have - I think the way it works is the alternative schemes which are at annexure A and B - - -

MR SLEVIN: - - - then refer to - and so I think I misled you there, your Honour. One, two, three, so - - -

THE DEPUTY PRESIDENT: That's all right. I'll just - to get - - -

MR SLEVIN: And then annexures M1 to M3 and MD1 and MD2.

THE DEPUTY PRESIDENT: Well, perhaps I'll deal with it this way, Mr Slevin. I will leave the scheme of amalgamation as is, that is, marked as exhibit 1. I'm just trying - well, no, it becomes messy, doesn't it, because annexures A and B are part of the scheme. So - all right. Well, we'll amend the record to indicate that the exhibit 1 is the scheme of amalgamation as earlier indicated together with the annexures marked annexure A to annexure G together with annexures marked M1, M2, M3 and MD1 and MD2. That will be exhibit 1.

MR SLEVIN: And just for the purpose of the record I'll describe exhibit 1, your Honour, because it becomes relevant when I start talking about the requirements of the Act. You'll see that the scheme itself sets out in the introduction the nature of the scheme, describes the parties, then provides an overview of the scheme.

The name is specified at paragraph 7 of the scheme. The assets and liabilities of the organisations are dealt with at paragraphs 8 to 13. The question of eligibility for membership is described on page 4 at paragraphs - from paragraphs 14 to paragraph 17. The structures to be introduced in the proposed amalgamated organisation are described at page 5 and onwards in paragraphs 18 to 20.

And the identification of the various offices in the amalgamated organisation or proposed amalgamated organisation take up a number of pages, you'll see, your Honour, and that are all set out there in detail identifying those offices by description in column A, and then their positions and divisions in column B, and then at column C the date at which the office will end.

Elections are dealt with at paragraph 21 on page 16, general principles for the amalgamation at paragraph 22. The impact on staff of the MUA and TCFUA are described at paragraph 23. The rules of the amalgamated organisation is covered in paragraph 24 which is page 17 by reference to some of the annexures and I'll go to those in a moment.

The question of existing agreements and understandings is dealt with in paragraph 26. Description of the scheme arrangements and the amalgamation provisions of the Act at paragraphs 27 and 28. And the differences between the proposed principal amalgamation and the proposed alternative amalgamation between the CFMEU and the MUA is dealt with at paragraph 29. And the differences between the proposed principal amalgamation and the proposed alternative amalgamation between the CFMEU and the TCFUA in the last paragraph of paragraph 30. So that's the nature of the scheme.

The annexures which are referred to throughout the scheme include the proposed alternative scheme for amalgamation between the CFMEU and the MUA which is annexure A. Annexure B is the proposed alternative scheme for amalgamation for the CFMEU and the TCFUA. I won't take you to those in the same way, your Honour, but you can see on the face of those documents that they also cover the various matters required under the Act in a similar way to the main scheme.

Annexure C is the proposed national rules of the amalgamated organisation. Annexure D is a marked up copy of that same document. By marking it up the scheme provides the particulars of the changes to the CFMEU national rules, and in particular relevant to some discussions this morning, the nature of the changes to eligibility rules and constitution rules, and they show that there are no changes.

Annexure E is the new MUA divisional rules which goes to the proposed new structure and provides for divisional rules for those moving over from the MUA. Annexure F goes to the new manufacturing divisional rules, which takes up those moving over from the TCFUA. Annexure G is a marked up copy of the manufacturing division rules providing particulars of the changes to the rules of the former divisional rules, or I should say the current divisional rules for the CFMEU forestry, furnishing, building products and manufacturing division.

The other annexures relate to the alternative amalgamation schemes, M1 relating to the amalgamation between the CFMEU and the MUA, which is in tab A or annexure A. It's the proposed national rules in that alternative scheme. M2 is a marked up version of the proposed national rules for that alternative scheme, providing the particulars of how the rules will change. M3 is the MUA divisional rules that would apply under that alternative scheme. MD1 and MD2 relate to the other alternative scheme, and that being the amalgamation between the CFMEU and the TCFUA. That's the alternative scheme described at annexure B to the scheme. MD1 is the proposed national rules for that alternative, and MD2 is the proposed national rules marked up and thereby providing particulars of the changes to the rules arising from that alternative scheme.

Your Honour, there's a matter that I need to address in relation to the scheme arising from recent decisions of the General Manager of the Fair Work Commission, Ms O'Neill, that has had an impact on the rules of the CFMEU. What we ask here, your Honour, is for you to exercise your power under section 586 of the Fair Work Act to correct a document, and the document that you're correcting is the scheme for amalgamation. The correction is necessary because as a result of these decisions the General Manager has granted applications made by the CFMEU on 14 July 2016 to alter the rules of the CFMEU.

The consequences of that are that new rules have gone in at rule 2P and 2Q, so the annexures at C and D, M1 and M2 and MD and MD2 of the scheme will need to be corrected to reflect the rules as of the time, or as of today, and that the rules proposed for the amalgamation which are currently 2P and 2Q, so you will see that the new rules from the General Manager are 2P and 2Q. So 2P and 2Q - - -

THE DEPUTY PRESIDENT: So 2P and 2Q - where are we at, R and S now?

MR SLEVIN: That's right, and so that just becomes R and S, so it's just a correction to accommodate the decision of the General Manager.

THE DEPUTY PRESIDENT: It's not a Freudian slip, is it?

MR SLEVIN: I hope not. You will see that the second decision was only handed down yesterday, and Mr Pasfield sounds a cautionary note that some consideration may need to be given for consequential changes if there are references. In that respect we can provide you with any amended documents, but we expect the amendments to be minimal to reflect those corrections by the end of next week. So we ask that that correction be made to the scheme, your Honour.

MR SLEVIN: As to the scheme and the Act subsection (2) of section 40 requires that it contain certain matters, and that's that there be a general statement of the nature of the amalgamation. I have taken you through the scheme and I won't trouble you by asking you to reopen the scheme, but you will see at pages 1 to 6 there's general statements of the nature of the amalgamation in the scheme. There's the overview as well that I drew your attention to, your Honour, and so that requirement is met.

At subparagraph (2)(a)(i) there's a requirement that the scheme indicate the proposed amalgamated organisation, and that's done at page 1 at paragraph 1 and the CFMEU is the proposed amalgamated organisation. Subparagraph (2) of section 40(2) paragraph (a) doesn't apply, it deals with associations being registered. Subparagraph (3) does, that the proposed deregistering organisations be identified, and that's done at page 1 of the scheme at paragraph (2), and the MUA and the TCFUA are the proposed registering organisations.

The requirement in section 40(2) paragraph (b), the particulars of the proposed name be provided, and that's at page 3 paragraph 7. I have already indicated that that name is the Construction Forestry Maritime Mining and Energy Union.

As to paragraph (c) there's no change in the eligibility rules, so it doesn't apply, and the rule changes are to be identified in the scheme, and that's paragraph (d) of subsection (2) of section 40, and those rule changes are identified in the manner I described to you as I took you through the annexures where a marked up copy of the rule is annexed as well to provide easy reference points to any changes arising from the proposed amalgamation.

Section 41 has some work to do in this application as well, in relation to this application as well. It allows for the alternative amalgamation provisions, and subsection (2) requires that the differences in the alternatives to be identified, and that is done in the same way by annexures A and B and annexures M1, M2, M3 and MD1 and MD2. So you can be satisfied that the scheme meets the description in section 41 as well so far as it deals with the alternative proposed amalgamations.

As to section 42, that's Mr Wood's point, in relation to that for current purposes without going to the question of whether this is some validity argument, you will see that - and you have already been taken to the statements filed with the application, and I think it's probably appropriate that I tender those now, your Honour. So first of all I tender the statement of Michael O'Connor, the National Secretary of the CFMEU, dated 20 June 2017 and filed with the application. I tender that on its own, your Honour.

The second statement that I tender is the statement of Mr Crumlin who is the MUA's National Secretary. That's the statement that is marked annexure B to the application and is also dated 20 June 2017. I tender that statement.

The third statement is the statement of Ms O'Neil, who is the National Secretary of TCFUA. That statement is marked annexure C to the application and is dated 20 June 2017.

Can I just draw your attention to Regulation 40 of the (indistinct) organisations regulations.

MR SLEVIN: You will see that Regulation 40 requires that an application under subsection (44)(1) of the Act must - I will go through all of them:

Paragraph (a) be in writing, and (b) state the grounds for making the application, and (c) nominate one of the applicants as the applicant authorised to receive on behalf of the applicant's service of documents relating to the application or the proposed amalgamation and each proposed alternative amalgamation, and (d) be lodged with the FWC.

The purpose of taking you to this at this time was (e):

(e) be lodged with a copy signed by an authorised officer of the applicant whose committee of management passed it of each resolution under subsection (42)(1) of the Act relating to the proposed amalgamation.

The purpose of providing the statements is to meet the requirement in Regulation 40(e), and you can see on the face of the statements that indeed they do what is required by Regulation 40(1)(e) in that they provide, and the requirement in section 42(1) is that:

The scheme for a proposed amalgamation and each alteration of the scheme must be approved by resolution by the committee of management of each existing organisation concerned in the amalgamation.

You will see the format of exhibits 2, 3 and 4 being to identify the committee of management, the meeting at which the scheme was considered and the resolution that was passed in relation to the schemes, and so that's the requirement referred to in the regulation, and that these statements meet the requirement of 41(e) and that clearly goes to the validity of the argument that Mr Wood ran, but also in terms of setting out for you, your Honour, the application that I am describing. I make that point, but that's not to say I don't still need to get some instructions on that point.

MR SLEVIN: Now, section 44(2) paragraph (b) requires that a written outline of the scheme also be filed with the application. A written outline was filed on the application on 20 June. It's an outline of 25 paragraphs and ten pages. I think I should tender that in the same way that I tendered the other documents filed, your Honour, so I tender the outline filed in accordance with section 44(2) paragraph (b).

Your Honour, I have the taken the matter following the provisions of the Act, and the next relevant section in the Act and relevant document that you have before you is the section 46 application made by the CFMEU, that it as a proposed amalgamated organisation be exempt from the requirement that a ballot of members be held, and in accordance with subsection (2) of section 46 you will see that that application was lodged with the section 44 application. It being an application in its own right, your Honour, I don't tender it.

You will see, and this is where we start jumping around in the Act, that section 63 deals with such applications, and that the CFMEU is entitled to make the application, and it's purely based on numbers, it's a numbers game this one, your Honour.

THE DEPUTY PRESIDENT: So it is special circumstances?

MR SLEVIN: Yes, unless there are special circumstances, and we submit that there are no special circumstances here. The numbers are crunched for you in the statements that are attached, and I think I will need to tender those statements, your Honour. The first is a statement of Michael O'Connor which is three paragraphs long, signed by him on 20 June 2017. I tender that statement.

THE DEPUTY PRESIDENT: Yes, just bear with me, I need to bring it up. Yes.

MR SLEVIN: And the second statement is a statement of Padraig Crumlin. It's three paragraphs in length as well and it's signed by him and dated 20 June 2017. I tender that statement.

The third statement attached to the section 46 application is a statement of Michele O'Neil. It's also three paragraphs in length, signed by her on 20 June 2017. I tender that statement.

You see in the grounds of the application, or you see first of all in the statements themselves, in those three exhibits, the numbers are set out, CFMEU's membership being 128,108 members; the MUA's being 12,663; the TCFUA being 3,359, giving a total for the MUA and the TCFUA of 16,022, or as you see in the grounds to the application about 12.5 per cent of the CFMEU's membership, which is half of the number in section 63 of 25 per cent, and so it meets the requirement in section 63. We say there are no special circumstances, and so the - - -

THE DEPUTY PRESIDENT: Mr Slevin, I note in the material that so far as the CFMEU national council resolution is concerned there was a dissenter if you like, but I also note that the union filed the "Yes" case and no opposing "No" case has been filed. Are they matters that I should take into account in determining special circumstances?

MR SLEVIN: Yes. We say there's no special circumstance in there being a dissent in a governing body of a union to start with, your Honour, but certainly - - -

THE DEPUTY PRESIDENT: Dissent coupled with a filed "No" case might have been a matter - - -

MR SLEVIN: That's right, depending on what was said in a company "No" case.

MR SLEVIN: The "No" case of course arises from members as you see from the Act, and indeed there's no "No" case, so there are no special circumstances in any of this material that would preclude the application under section 46 of the exemption to be granted, in my submission, your Honour. The next matter is - - -

THE DEPUTY PRESIDENT: I assume these membership numbers are the same ones that have been notified to the National Executive of the ALP for the purposes of conferences.

MR SLEVIN: I can't assist you there. Section 47 is the next section in the Act that is relevant, and that becomes relevant because there is an application made by the TCFUA for an attendance ballot in part for its membership. For the purposes of subsection (2) of section 47, which requires that such an application be lodged with the section 44 - - -

THE DEPUTY PRESIDENT: I understand the rationale for the application principally because of language difficulties that might be associated with postal ballots. One of the matters that has been exercising my mind on that issue is how do I - assuming I were to allow such to occur how do I make an order requiring an employer to allow the AEC onto its premises to conduct an attendance ballot?

MR SLEVIN: Two answers - I think the first answer to that, your Honour, is I don't think you can make an order, and that the general provisions as to the way the AEC conducts itself would apply, but you don't need to trouble yourself with that because the contents of Ms O'Neil's third statement that I was about to tender, which indicates there's consent from the employers, the 27 employers who are identified. So I might do that methodically by first tendering this statement of Ms O'Neil. The statement is four pages in length and 20 paragraphs. It is signed by Ms O'Neil on the fourth page and dated 20 June 2017. I tender that statement.

MR SLEVIN: And you will see the matter that you have already identified is paragraph 7. Ms O'Neil gives her extensive experience in the industry and then identifies the membership, the nature of the membership of the organisation. She identifies a large percentage of the membership coming from non-English speaking backgrounds, the majority of them being women, and the estimate is 65 to 70 per cent of workers in the industry, you see that at paragraph 8. At 11 you will see the - - -

THE DEPUTY PRESIDENT: Mr Slevin, you don't need to persuade me that this group of members in particular require special arrangements to be made in order that they can properly participate in this decision.

MR SLEVIN: Thank you. Mr Pasfield points out that at paragraph 16 Ms O'Neil refers to discussions with the AEC, and I am instructed that there have been further instructions and that the union and the AEC are well advanced in the preparation for conducting the ballot in the fashion described in the section 47 application, and you will see that description at ground 3, which is page 3 of the application, your Honour, and further information and the like about those workplaces have been provided to the AEC I am instructed.

Then the last of the documents filed, or the last set of documents filed is the form F65 notice of a ballot paper chosen by an organisation and containing alternative amalgamation in relation to a proposed amalgamation, and that provides the notice to the Commission, but in the scheme of the Act it seems there's nothing for you to do other than for the Commission to receive the notice. I don't propose to tender the statement attached to that notice.

THE DEPUTY PRESIDENT: I might simply mark it for identification.

MR SLEVIN: Your Honour, again going through this process of using the Act as a guide in formatting the submissions you will see that with the section - - -

THE DEPUTY PRESIDENT: That's a generous description of the Act.

THE DEPUTY PRESIDENT: It's a generous description of the Act.

MR SLEVIN: Section 48 provides for the "Yes" case, and I note that your Honour has already made reference to having seen the "Yes" cases and noted that there are "No" cases. Just for completion and for the record, your Honour, you will see that the "Yes" cases were lodged with the application as required by section 48, and annexures D, E, F and G to the application are those "Yes" cases. I will tender those separately, your Honour, so annexure D is the "Yes" case for the CFMEU and MUA/TCFUA amalgamation. It's a one page document. I tender that.

THE DEPUTY PRESIDENT: This is the CFMEU "Yes" case.

MR SLEVIN: And that's put on the basis that the exemption under 46 is not granted.

MR SLEVIN: The second is the vote "Yes" to the amalgamation. That's the MUA "Yes" case, your Honour.

The next two are the TCFUA "Yes" cases. So we will start with F, your Honour, which is the English version, the other version being Vietnamese, and that's a document of four pages. I tender that.

THE DEPUTY PRESIDENT: Yes, go ahead. I was just going to jump ahead of you.

MR SLEVIN: Can I just say in relation to that, and I am instructed that it's identical to the English one, your Honour, and it seems to me the pictures and diagrams are the same. I can't help you other than that. Can I say in the application at ground 10 it's indicated that the intention was that the Vietnamese version only go to specific members of the TCFUA who are identified as being Vietnamese speakers. The AEC have indicated in discussions that there's a preference that it be provided to all of the TCFUA voters, and so it's anticipated that will occur. So just to have you fully informed in relation to that "Yes" case, and I do so.

MR SLEVIN: So, your Honour, that's the nature of the applications being made by my client - - -

THE DEPUTY PRESIDENT: And I should also note formally that I alluded to there being no "No" case filed in respect of any CFMEU interests. There are also no "No" cases to the best of my knowledge filed in respect of the MUA interests and the TCFUA interests.

MR SLEVIN: Another matter for your information, and it does impact on the way you deal with the matter is the question of the timing of the ballot. I note section 58 requires the Commission to consult with the Australian Electoral Commission to fix a day for the commencing and closing day of the ballot. Subsection (2) of section 58 specifies that it be not later than 28 days unless the AEC requires longer. We understand from the discussions that have occurred on my instructions, your Honour, that the AEC requires 56 days before commencement.

THE DEPUTY PRESIDENT: Yes, I think my associate has also been liaising with the AEC in relation to timing and other issues, and I certainly noted that it was a period longer than section 58 contemplated.

MR SLEVIN: What we have to say about that, your Honour, that 56 day period was we understood to be on the assumption that the order would be made today as given what's happened this morning and it may be that the use of the 56 day descriptor may not be the most appropriate, rather to fix a date - - -

THE DEPUTY PRESIDENT: I understand, and ultimately before I fix a date, assuming I approve a ballot, that will be done I think in consultation with the AEC. I had understood that someone from the AEC would be here today. Yes, there you are. You're hiding, right in the middle, that's a good place to be.

MR SLEVIN: The other aspect of the timing is the date that the ballot would close, and the ballot period as it were was also a two month period or a 56 day period in setting the date. My client's preference would be that it be 56 days from today that it open, and 112 days from today that it close.

MR SLEVIN: Your Honour, that takes me to the section 55 considerations, and having taken you through the documents I don't plan to repeat myself. Hopefully that will lend itself to a short visit to section 55, because these matters it seems are not controversial. You will see that section 55 requires that approval must be given if certain conditions are satisfied, and subsection (1) says:

If at the conclusion of the hearing arranged under section 53 in relation to a proposed amalgamation the FWC is satisfied that, (a) the amalgamation does not involve the registration of an association as an organisation.

You can be satisfied of that, your Honour, there is no association that will be registered as a result of the proposed amalgamation. Secondly, and again we are blessed with the draftsperson's quirks I think, (b) is:

A person who is not eligible for membership of an existing organisation concerned in the amalgamation would not be eligible for membership of a proposed amalgamated organisation immediately after the amalgamation takes effect.

The effect of that, in my submission, your Honour, is that there's no change to the eligibility rule, and that's the case here.

THE DEPUTY PRESIDENT: That's the way I read that, yes.

THE DEPUTY PRESIDENT: Otherwise you would never approve an amalgamation.

THE DEPUTY PRESIDENT: Mr Wood might urge me to read it that way.

MR SLEVIN: That would be of no surprise at all, your Honour. Then (c) being:

Any proposed alteration of the name of an existing organisation concerned in the amalgamation will not result in the organisation having a name that is the same as the name of another organisation, or is so similar to the name of another organisation as to be likely to cause confusion.

We say that you can be satisfied of that, your Honour, there is no one making any claim in relation to the name as far as we know, and certainly no one has made such a claim today that the name Construction Forestry Maritime Mining and Energy Union would be likely to cause any confusion, nor is it the same - or rather I should say it is not the same as any other organisation and is not so similar to any other organisation as to cause confusion.

THE DEPUTY PRESIDENT: Confusion is not the concern that has been expressed.

Any proposed alteration to the rules of an existing organisation comply with and are not contrary to this Act, the Fair Work Act, modern awards or enterprise agreements and are not contrary to law.

I simply submit to you, and you can see by the consideration in particular of the marked up version of the rules that identifies the alterations that no alteration is being made that could be said to be contrary to the Act, the Fair Work Act, any award or enterprise agreement. We are certainly not aware of anything that would fit within that category, nor are we aware of anything that would otherwise make those changes contrary to the rule.

I think you can assume that the rules of the organisations currently have been made regularly and in accordance with the Act, the Fair Work Act, awards, enterprise agreements and otherwise are not contrary to law. I think you can make that assumption. I submit that you can make that assumption, your Honour, and as you see from the amendments in the annexures to the scheme nothing has been amended that would give rise to any concern there, and so you can be so satisfied in relation to paragraph (d). Then (e):

Any proposed deregistration of an existing organisation complies with this Act and is not otherwise contrary to law.

The deregistration proposed by this application will be a deregistration as mandated by section 73(3) paragraph (e), which requires the deregistration upon amalgamation, and so what's proposed is within the Act, within the law. So it will comply with the Act and is not otherwise contrary to law. So my submission is you can be satisfied of the last of those factors as well in paragraph (e), and being so satisfied of those five matters you must in accordance with the Act approve the submission of the amalgamation to ballot.

So finally, your Honour, in relation to the substantive applications my clients seek the order set out in paragraph 2.1 of the section 44 application, being an order that approves the submission of the amalgamation of the CFMEU, MUA and TCFUA to ballot. The CFMEU seeks the order in paragraph 2.1 of the section 46 application that the CFMEU be granted an exemption from the requirement for the ballot of its members be held in relation to the amalgamation, and the TCFUA seeks an order under section 47 that the TCFUA be granted approval for an attendance ballot to be conducted at the 27 workplaces listed in the statement of Ms O'Neil.

In terms of the substantive application, your Honour, they are the submissions of my clients, unless there's anything further."[56]

[52] Save for the issue raised by s.55(1)(c), which I earlier addressed, and a question of the approval of the Scheme by the relevant Committees of Management of the organisations concerned in the amalgamation, to which I shall shortly turn, no one was heard to contradict Mr Slevin's submissions. On the basis of the material before me I accept the Applicants' submissions concerning the submission to ballot of the amalgamation, the CFMEU's submissions in support of its application under s.46 and the submissions of the TCFUA in support of its application under s.47 of the RO Act.

[53] During the hearing on 4 August 2017, AMMA and MBA raised an issue concerning whether the Scheme had been approved by the relevant Committees of Management organisations concerned in the amalgamation. Senior Counsel for AMMA and MBA raised a jurisdictional issue related to the principal application as follows:

"MR WOOD: Thank you, Deputy President. Deputy President, given that your decision to allow us to be heard on this jurisdictional issue, it's unnecessary for me to take you to a decision in Queensland dealing with relevantly identical circumstances which the precise decision that you've just made was made by the Commissioner in an amalgamation context with relevantly identical statutory framework and was approved by the Queensland Supreme Court as an appropriate way to proceed.

I'll hand a copy to my learned friends and a copy to you, Deputy President. That's more by way of supporting your decision and I don't need to go to it at all, Deputy President.

What we wish to say about the question of whether or not there is a valid application that has been lodged relates to the scheme and I think it's well understood that the central concept in this regime is the scheme for amalgamation. Section 40 provides that there is to be a scheme for every proposed amalgamation. It must set out all the matters in the section.

Subsection (2) of section 40, section 40(2) requires "the scheme" to be approved by resolution by the committee of management of each of the existing three organisations, relevantly the TCFUA, the MUA and the CFMEU. Section 44 concerns an application for approval or submissions in amalgamation of the scheme to ballot and uses mandatory language. And the application for approval for submission to ballot must be accompanied by a copy of the scheme for the amalgamation.

Now, what has happened in terms of the material before you, and this is no criticism of Mr Pasfield who sits alongside Mr Slevin, is it appears that a statement has been prepared by each of the relevant national secretaries, Mr O'Connor, Mr Crumlin and Ms O'Neil, on the same date, 20 June 2017, in relevantly similar form, attaching what appears to be a document that purports to say what occurred at various dates previously. So to give an example, there is - if you look at Mr O'Connor's statement he says:

Annexed hereto and marked MOC1 is a copy of each resolution passed by the national executive of the CFMEU -

- he national executive being the committee of management for the purpose of the Act -

And then if you look at the document it's dated 20 June. So Mr O'Connor, using his memory some three weeks after - or whatever else he's used, some three weeks after the event has set out for the purposes of proving what needs to be proved what occurred three weeks previously. And if you look at what Mr Crumlin does, he does something very similar. He says:

Annexed hereto and marked PC1 is a copy of each resolution passed by the national council -

- again relevantly the committee of management for the purpose of the Act -

And again using his memory or whatever else he used some couple of months later he sets out what those resolutions were. And Ms O'Neil in similar form says on 20 June 2017, "This is what I say occurred at a meeting of the national council some couple of months earlier on 13 April."

Now, there's no evidence of who was present, there's no evidence of quorum, no evidence of whether the persons voting were actually members, no evidence of whether appropriate notice was given to any of the members of the relevant committees of management.

Now, you might say, Deputy President, you infer all those things. You've got the national secretary turning up, has made a statement, admittedly not contemporaneous, but it sets out what each of the national secretaries said occurred and that's good enough, and that might be the approach that you take. But you have to approach this having regard to the structure of the Act which requires that the scheme, the same scheme, has been approved by each of the relevant committees of management.

Now, there is no scheme attached to any of the statements of Ms O'Neil or Mr Crumlin or Mr O'Connor. They don't say, "This was the scheme on 12 April", for Mr Crumlin, on 13 April for Ms O'Neil and on 31 May for Mr O'Connor, "that was approved by the relevant committee of management." They're just left to be inferred from the fact that a scheme was provided with the application to you, Deputy President.

Now, again you might say, "Well, I can perhaps infer that whatever was provided to the Commission was the scheme that was actually voted upon by each of the committees of management. But you have to make that inference, Deputy President, because if you didn't infer that then the precondition for a valid application would not be there because you would not have as part of the evidence the proof that the scheme was approved by resolution by each of the committees of management.

And there is one very good reason why you shouldn't draw that inference, not just because the scheme in identical form has not been attested to by each of the national secretaries. But when you look at what Mr Crumlin says six weeks later, eight weeks later about what had happened on 12 April and then what Ms O'Neil says some six, eight weeks later about what happened the next day on 13 April, what Mr Crumlin says is in relation to "the scheme" that at the meeting on 12 April "the scheme was amended".

That's what he says at the - in the - his record of the resolutions that were passed. And if you look at the last of those resolutions you'll see on the second to last page that this record of what occurred on 12 April was that on 12 April there was an amendment to the scheme. And we've gone through the process of marrying up what is said in the resolution with the scheme as provided together with the application to you, Deputy President. And there seems to be a concordance between what was approved on 12 April and the scheme as provided to the Commission.

The very next day, according to Ms O'Neil admittedly eight weeks later, the TCFUA resolved to approve the scheme. Again none of these national secretaries tell you which scheme they're talking about. But that coincidence between the two dates, 12 April and 13 April, in the absence of any evidence provided to you of the actual scheme that was approved, must suggest that what was approved on 12 April by way of an amendment by the MUA was not the same scheme that was approved the very next day by the TCFUA (indistinct) some evidence. I mean, Ms O'Neil might be put in the witness box and she might say, "Look, I spoke to Mr Crumlin and I got the amendments the day before and I circulated them that morning and that's what occurred." That may be but there's no evidence of that.

And the rules of the TCFUA, when you look at them, strongly suggest that that's not what occurred because, relevantly, the TCFUA has a rule which governs these processes of amalgamation and says that the relevant body that is to deal with amalgamations is the national council and then sets out a rule for the way in which the national council should operate.

And that requires, and to some extent somewhat supportive of what my learned friend Mr Cross was saying about the unions he represents - - -

The national secretary shall notify each branch the date of the meeting of the national council, other than special meetings, at least three months before that date and the same time ask each branch to submit matters and questions to be dealt by the national council at such meeting.

All such matters and questions shall be submitted in writing to the national secretary at least six weeks before the date of such meeting. National secretary shall thereupon prepare an agenda which will submit the same to branches for consideration. The national council shall appoint an agenda committee which will prepare and set forth the order of business from the questions and matters submitted by the national executive branches.

Now, it could be that this was a special meeting. It could be that these processes weren't followed. It could be this was done as a matter of emergency. There's no evidence of any of that; no evidence of when national council was called, what was before them, who was there, what was resolved, what they voted on, the consideration of what had happened with the MUA the day before, just none of it.

And it could be that you are not prepared to find on the material provided to you, Deputy President, that the scheme in the same form was voted upon and considered by each branch - by each committee of management, relevantly the national council of the MUA and the TCFUA and the national executive of the CFMEU.

It is somewhat surprising to someone with some experience in these matters that this very truncated form of proof has been adopted. I'm not suggesting that in some - at some stages, at some times, that might not be sufficient proof. But one would expect in the normal course proper proof of the matters that need to be satisfied and, relevantly, that the same scheme was voted on by all three organisations and that just isn't there. Deputy President, that's all I wish to say about the jurisdictional objection."[57]

[54] AIMPE and AMOU supported the submissions advanced by AMMA and MBA set out above.

[55] At the hearing on 17 August 2017, the Applicants tendered further statements[58] of Mr O'Connor, Mr Crumlin, and Ms O'Neil, addressing the matters raised by AMMA and MBA. None of makers of these statements was required for cross examination. Having reviewed the material contained in the further statements, I am satisfied that in each case they address any shortcomings identified by AMMA and MBA and meet the jurisdictional objection raised. None of AMMA, MBA, AIMPE or AMOU sought to put a contrary view. In any event, it seems likely that the resolutions to which reference is made at [41] - [44] would also cure any earlier defect.

[56] In the circumstances, having concluded the hearing that I arranged under s.53 in relation to the proposed amalgamation, I am satisfied for the reasons earlier given:

• there is a valid application under s.44 of the RO Act;

• the Scheme as altered contains the matters it must contain as set out in s.40(2) of the RO Act;

• the alternative scheme of amalgamation contains the relevant particulars as required by s.41(2);

• the Scheme has been approved by resolution by the Committee of Management of each existing organisation concerned in the amalgamation;

• to the extent that the updating of the proposed CFMMEU rules take into account the General Manager's consent to the eligibility rule alterations to the CFMEU rules and the consequent renumbering of the particulars of the proposed alterations to the existing rules of the CFMEU amounts to an alteration of the Scheme, the alteration has been approved by resolution by the Committee of Management of each existing organisation concerned in the amalgamation as set out in s.42(1) of the RO Act; and

• as to the matters set out in s.55(1)(a) - (e) of the RO Act.

[57] It follows that I must approve the submission of the amalgamation to ballot and pursuant to s.55(1) I do so.

[58] As earlier noted, the CFMEU has lodged, pursuant to s.46 of the RO Act, an application for exemption from the requirement that the ballot be held in relation to the proposed amalgamation. As the total number of members that could be admitted to membership of the proposed CFMMEU on and because of the amalgamation does not exceed 25% of the number of members of the CFMEU on 20 June 2017 (lodgement date), it appears that I must grant the application. There are no special circumstances of which I am aware which would allow me to refuse the application for exemption. No person sought to appear to make any submission as to the existence of special circumstances and none of the parties to whom permission to make submissions was given made any submission to that effect. The submission of a "no" case by the minimum number of CFMEU members under s.60(2), for example, might have raised special circumstances, however, no such case was filed. As I have already indicated I accept the CFMEU's submission that there are no special circumstances. Pursuant to s.63(1) I therefore grant the exemption for which application has been made. The exemption has the effect set out in s.63(2) that CFMEU members are taken to have approved the proposed principal amalgamation and each proposed alterative.

[59] As I already indicated, the TCFUA has lodged an application under s.47 for approval of a proposal for submission of a proposed amalgamation for a ballot that is not conducted under s.65. In short compass, the proposal provides for a ballot to be by secret ballot of members of the TCFUA to be held at duly constituted meetings of members at 27 work places, to be conducted by the Australian Electoral Commission and for the TCFUA members to be given at least 21 days' notice of the meeting, the matters to be considered at the meetings and their entitlement to an absent vote. The proposal also contains the other matters required by s.64 of the RO Act. Having consulted the Electoral Commissioner, I am satisfied that the proposal is practical and moreover, I consider that the approval of the proposal is likely to result in participation by members of the TCFUA that is fuller than the participation that would likely to have resulted if a ballot were conducted under s.65. I also consider that the proposed ballot will give members of the TCFUA an adequate opportunity to vote on the amalgamation without intimidation.

[60] For these reasons, it follows that I must approve the proposal for which application has been made and pursuant to s.64 I do so.

[61] As to the fixing of the commencing and closing days of the ballot as required by s.58 of the RO Act, I have consulted the Electoral Commissioner and I fix Thursday, 28 September 2017 as the commencing date of the ballot and 10.00am AEDT on 23 November 2017 as the date on which the ballot will close.

[62] As a consequence I determine:

1. Pursuant to s.55 of the RO Act, to approve the submission of the proposed amalgamation to ballot.

2. Pursuant to s.63 of the RO Act, to exempt the CFMEU from the requirement that a ballot of its members be held in relation to the proposed amalgamation.

3. Pursuant to s.64 of the RO Act, to approve the proposal for submission of the proposed amalgamation to ballot not be conducted under s.65 of the RO Act insofar as there will instead be an attendance ballot to be held of members of the TCFUA employed at the twenty seven (27) workplaces listed in Annexure "MON1" to the statement of Michele O'Neil dated 20 June 2017 lodged in support of the TCFUA's application.

4. Pursuant to s.58 of the RO Act, to fix Thursday, 28 September 2017 as the commencing day of the ballot and 10.00am on Thursday, 23 November 2017 as the closing day of the ballot.

Mr A Slevin, Counsel for the CFMEU, MUA and TCFUA.

Mr S Wood, QC together with Mr B Jellis, Counsel for AMMA and MBA.

[1] Transcript (4 August 2017) PN177 - PN178, [2017] FWCG 116 and [2017] FWCG 117.

[3] AMIPE & AMOU Outline of Submission dated 16 August 2017 at [1].

[10] Statement of Mr Samuel Littlewood at [3] - [4].

[19] AMIPE & AMOU Outline of Submission dated 16 August 2017 at [6].

[20] [1992] AIRC 1114.

[22] [1992] AIRC 1114 at pg.4.

[26] AMMA & MBA's Outline of Submissions dated 17 August 2017 at [2].

[31] [2016] FWC 4328.

[32] AMMA & MBA's Outline of Submissions dated 17 August 2017 at [6].

[37] Transcript (4 August 2017) PN142 - PN144.

[43] Transcript (17 August 2017) at PN169.

[44] Transcript (17 August 2017) PN218.

[45] Transcript (17 August 2017) PN 167 - PN 168.

[46] Transcript (17 August 2017) PN 216 - PN 224

[47] Statement of Mr Michael O'Connor dated 25 August 2017 at [3].

[51] Statement of Mr Padraig Crumlin dated 25 August 2017 at [3].

[53] Statement of Ms Michele O'Neill dated 25 August 2017 at [3].

[56] Transcript (4 August 2017) PN142 - PN269

[57] Transcript (4 August 2017) PN85 - PN115.

Printed by authority of the Commonwealth Government Printer