"An unemployed ordinary member of the union shall be a member of the Union domiciled on Christmas Island who

is not gainfully employed for more than half of one financial year."

In my view, Rule 8(b)(i) merely describes a class of membership, not eligibility for membership. For a person to fall into the specified class, the terms of the rule require that the person must already be a member. The application, therefore, does not require amendment in this respect.

2. In so far as the application is not dated as is required by

Form R18, I am prepared to waive such defect pursuant to s.111(1)(q) of the Act. It is clear from the evidence and the accompanying documentation that the application was signed on or about 23 June 1995.

In so far as there is a discrepancy between the name of the applicant as it appears in the application and the name as it is described in the accompanying document setting out the proposed rules, I am prepared, pursuant to s.111(1)(p) of the Act to allow the accompanying document setting out the proposed rules to be amended so the name of the applicant is described therein as the "Union of Christmas Island Workers".

4. The application does not address the provisions of s.189(1)(h) of the Act, namely that the registration of the applicant "would further the objects of the Act". For reasons I state later in this decision, I am satisfied from the material now before me that the requirements of s.189(1)(h) have been met. I am therefore prepared, pursuant to s.111(1)(q) of the Act to waive this defect in the application.

S.189(1) of the Act obliges a designated Presidential Member to grant an application for registration if specified criteria are met. Equally, there is an obligation not to grant an application if any one of the specified criteria is not satisfied.

In this respect, from the material now before the Commission and the evidence given at the hearing, I am satisfied:

* that the applicant is a genuine association of employees of the kind

referred to in s.188(b) and is, from a consideration of its objects and the evidence as to its intentions in relation to replacing the UCIW, an association for furthering or protecting the interests of its members (S.189(1)(a),

* that it has at least 100 members who are employees (s.189(1)(c),

* that its rules are in the same form as the rules of the presently registered UCIW, that the rules of the UCIW were, as was required by s.207B of the Act, lodged in the Industrial Registry in 1993 and were the subject of scrutiny and approval by the Industrial Registrar at that time, that there are no grounds for me to conclude that the Industrial Registrar was wrong in giving such approval to those rules and that there has, since that time, been no amendments to the Act which would lead me to conclude that the applicant's rules do not make provision as required by the Act to be made by the rules of an organisation (s.189(1)(e), and

* that the requisite resolution in favour of registration has been passed in accordance with the requirements of s.189(1)(g).

In this application, the criteria which need detailed consideration are those specified in ss.189(1)(d), (f), (h) and (j) of the Act.

In relation to s.189(1)(d), the applicant does not purport to be an "industry-based association" as defined in s.189(3). The following circumstances are, in my view, special circumstances which, under s.189(1)(d)(iii) justify the applicant's registration:

The geographical situation of the island upon which the members and potential members of the applicant live and work.

Christmas Island is located in the Indian Ocean, 360 kilometres south of Java Heads at the south entrance to the Sunda Strait. It is some 2623 kilometres from Perth, with the nearest point on the Australian coast being North West Cape, about 1408 kilometres to the south east. Until recently, access by air has been through Singapore, some 1312 kilometres from the island. Nowadays there is a limited air service from Perth. The Commission is well aware of the difficulties of servicing the island from mainland Australia, particularly in respect to speedy access to the island.

The history of industrial representation on the island.

That history demonstrates that the vast majority of employees on the island have come to place their trust and loyalty in and depend upon the UCIW for their representation in industrial matters. The intention is for the applicant, if registered, to replace the UCIW and it can reasonably be expected that such trust, loyalty and dependence will be transferred to the applicant.

The evidence demonstrates that the UCIW carries out a role that is wider than a mere industrial representative role.

Its role involves representation of its members' personal and social interests, eg in respect to health, housing and environment. The registration of the applicant would allow this function to be continued by the same organisation as would be representing the employees' industrial interests, thus avoiding unnecessary duplication.

4. The organisation's particular understanding of the culture and values of the community.

The evidence demonstrates that the UCIW's success in attracting the trust and loyalty of employees on the island is due in no small part to the fact that it is perceived as being locally managed with a particular understanding and

appreciation of the culture and values of the Christmas Island community. It is appropriate that there continue to be a registered organisation which has this peculiar and particular relationship with the community.

In relation to s.189(1)(f), it has already been noted that there is in existence a registered organisation with the name of "The Union of Christmas Island Workers". The applicant's name is "Union of Christmas Island Workers" and the omission of the definite article from the name means that it is not strictly the same as that of the existing organisation. The question therefore becomes whether the name is so similar "as to be likely to cause confusion". In the special circumstances of this case, I do not accept that such confusion is likely to arise. The registration of the UCIW is scheduled to cease as of 31 December 1995. If this application is granted, the period during which there will be two registered organisations with similar names will be brief. The purpose of the registration of the applicant will be well known to the parties with whom it will have dealings

during this period. Neither relevant employers nor the employees eligible for membership of both the applicant and the UCIW nor the Commission nor other organisations should be confused by the temporary existence of two organisations with similar names.

In relation to s.189(1)(h), the registration of the application would further the objects of the Act. In particular, it would continue to encourage the organisation of the Christmas Island workers into a representative body of employees (s.3(e)) and would provide for the continuance of an organisation of employees that could negotiate and enter into industrial agreements

(s.3(a)) and/or obtain safety net awards (s.3(b)) on behalf of employees on the island. In general terms, it will allow for action to be taken, within the limitations imposed upon the federal industrial relations system by the Constitution, so as to ensure that the relevant awards have a union respondent who can seek to maintain their relevance and secure compliance with

In relation to s.189(1)(j), a Full Bench of this Commission, in Re Chamber of South Australian Employers Inc4, considered the principles applicable in relation to s.189(1)(j), albeit in so far as they relate to an application for registration by an employer association. As I stated in Re Cake and Pastry Employers' Association of Australia5, the principles that can be gleaned from that decision can be summarised as follows -

"1. the expression `the members of the association' in s.189(1)(j) comprehends both actual and potential members of the applicant association,

2. there is no barrier to the test for conveniently belong being applied by reference to classes of the membership

of the applicant association as constituted at the time the test is to be applied,

the point in time at which the test is to be applied is the point when a decision is made to either grant or not grant registration,

the convenience contemplated is primarily that of the members of the association,

a finding as to the convenience of belonging, or to the lack of it, is a matter for the `objective'

determination or opinion of the designated Presidential Member,

the test is simply whether it is convenient for the members or persons to belong, not whether it would be more convenient to do so, although the reasons for the contention that it would be are also likely to be relevant to finding whether it is convenient at all,

associations, whether of employees or employers, are each uniformly subject to the conveniently belong criterion restricting registrations in competition with an existing registered organisation,

considerations relevant to the convenience of belonging to an organisation of employees may well be different from those relevant to the convenience of belonging to an organisation of employers, and

a form of onus rests upon an objector to make out the ground of `conveniently belong'."

In determining this aspect of the matter, firstly the class or classes of persons which it is intended will be covered by the applicant if registered must be ascertained, secondly the existence of a registered organisation to which that class of persons or any of those classes of persons might belong must be ascertained and thirdly whether that class or any of those classes might conveniently belong to such an organisation must be determined.

There is no doubt that the class of persons who may be covered by the applicant if registered can belong to an existing registered organisation, ie the UCIW. So much is apparent from the fact that the eligibility rules of both are identical. I am not satisfied, however, that,

at this point in time, the relevant class of persons can conveniently belong to the UCIW. As is stated earlier, the convenience contemplated by s.189(1)(h) is primarily the convenience of the members of the applicant. The future of the UCIW as a registered organisation is limited. In the very near future, as from 1 January 1996, it will cease to be a registered organisation. It will no longer have the right to represent under the Act the industrial interests of the employees on Christmas Island. It will no longer be able to be a party to relevant awards or to service those awards. The employees concerned will not have a body which will have the right to represent their industrial interests. History has demonstrated the need for such a body and the employees on Christmas Island are entitled to have access to such a body and an appropriate tribunal for the regulation of their industrial affairs.

To delay the registration of the applicant until the UCIW's actual deregistration take effect would not only be to delay the inevitable, it would lead to there being a hiatus in the ability of the employees concerned to be able to service and enforce the awards of this Commission which regulate the conditions of their employment. To grant registration now would be to allow these employees to take appropriate action so that capacity of a registered organisation of employees to service and enforce the relevant awards remains, as far as is possible, unbroken.

There is no suggestion that the relevant class of employees can conveniently belong to any organisation other than the UCIW and I am therefore satisfied

In so far as the requirements of s.90 of the Act may apply to applications for registration, for essentially the same reasons as set out above, it is in the public interest that this application be granted.

I therefore grant the application of the "Union of Christmas Island Workers" for registration as an organisation of employees under the Act.

D.Schapper for the Union of Christmas Island Workers.

** end of text ** _______________________________ 1 Statutory Rule No. 225 of 1992. 2 Exhibit S4. 3 Statutory Rule No. 162 of 1995. 41991/12 CAR 252, (1991) 43 IR 424, Print K1044. 5 (1994) 53 IR 67, Print L2047.