Kelly v Construction, Forestry, Maritime, Mining and Energy Union

Federal Court of Australia (Full Court)|2022-08-08|Before: O'Callaghan JJ

Counsel for the Applicant: Mr H Borenstein QC with Mr Y Bakri and Ms E Brumby

Solicitor for the Applicant: Slater & Gordon

Counsel for the First Respondent: Mr C Dowling SC with Mr C Massy

Counsel for the Second Respondent: Mr M Gibian SC

Solicitor for the Second Respondent: Mr S Kemppi of the Australian Council of Trade Unions

Solicitor for the Third Respondent: The Third Respondent filed a submitting notice

BETWEEN: GRAHAME PATRICK KELLY Applicant

AND: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Respondent

AUSTRALIAN COUNCIL OF TRADE UNIONS Second Respondent

order made by: KATZMANN, RANGIAH AND O'CALLAGHAN JJ DATE OF ORDER: 8 AUGUST 2022

The application be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 The Fair Work (Registered Organisations) Act 2009 (Cth) (RO Act) regulates the amalgamation of registered organisations, including trade unions. It lays down the rules governing both the process of amalgamation and the circumstances in which a constituent part of an organisation may withdraw from the amalgamated organisation. 2 The main elements of the withdrawal procedure are the making of an application to the Fair Work Commission (Commission) for approval to hold a ballot on the question and the holding of the ballot. Section 94 of the RO Act regulates the making of the application. It allows for an application to be made to the Commission for a secret ballot to decide whether a constituent part of an amalgamated organisation should withdraw from the organisation provided that certain conditions are met. 3 The Construction, Forestry, Mining, Maritime and Energy Union (CFMMEU or Union) is a "registered organisation" within the meaning of the RO Act. It is also an "amalgamated organisation". One of its divisions is the Mining and Energy Division (M&E Division or Division). Grahame Patrick Kelly is the General Secretary of the Central Council of the Division. On 1 March 2021 the National Convention of the Division unanimously resolved to request the Central Council to immediately seek a ballot of members of the Division to decide whether to withdraw from the Union. 4 On 26 March 2021 Mr Kelly applied to the Commission for a secret ballot to decide whether to approve a proposal that the M&E Division withdraw from the Union. 5 The CFMMEU opposed the application. The hearing of the application was referred to a Full Bench of the Commission. The Australian Council of Trade Unions (ACTU) sought and was granted leave to intervene. 6 On 14 September 2021 the Full Bench (comprising the President, Ross J, Vice-President Hatcher and Deputy President Gostencnik) dismissed the application. 7 This is an application for judicial review of the Commission's decision. Mr Kelly seeks an order in the nature of certiorari to quash the Commission's decision and an order in the nature of mandamus to remit the application to the Commission for determination according to law. 8 For the reasons that follow the application must be dismissed.

The dispute 9 Whether an application for a ballot on the withdrawal of a constituent part of an amalgamated organisation can be made depends, amongst other things, on when it was made and when it was made depends on the time that, and circumstances in which, the constituent part became part of the organisation. Section 94(1) provides a window of opportunity for withdrawal. Relevantly, the application must be made within five years of the amalgamation in which the constituent part became part of the amalgamated organisation. In certain circumstances the Commission has a discretion to accept an application made under s 94 after the end of the period mentioned in para 94(1)(c) (see s 94A). But the availability of the discretion is irrelevant for present purposes. 10 The dispute before the Commission and in this Court concerns the proper construction of s 94(1). 11 After hearing from the parties, the Commission identified two preliminary or threshold questions for determination before the substantive application could be considered. Those questions were: (1) whether the M&E Division is a "constituent part" of the CFMMEU for the purposes of s 94(1); and (2) whether the M&E Division "became part of" the CFMMEU "as a result of" the amalgamation that took place in 2018 (the 2018 Amalgamation). 12 The Commission answered the first question in Mr Kelly's favour and the second against him. The Commission's answer to the second question meant that the application could not satisfy s 94(1) and had to be dismissed. 13 In the present proceeding, Mr Kelly submits that the Commission answered the first question correctly, but the second question incorrectly. He contends that, in dismissing the application on the basis that the M&E Division did not become a constituent part of the CFMMEU as a result of the 2018 Amalgamation, the Commission misconstrued s 94(1) causing it to fall into jurisdictional error. In substance, the alleged construction error relates to the approach the Commission took to the meaning of the term "amalgamated organisation". 14 The CFMMEU submits that the Commission answered the second question correctly but the first question incorrectly. Its challenge to the Commission's response to the first question is the subject of a notice of contention. The ACTU made no submissions on the first question but supports the CFMMEU's position on the second. 15 There is no dispute that, if the Commission misconstrued s 94(1) in the way Mr Kelly alleges or erred in deciding that the M&E Division is a constituent part of the Union as the CFMMEU contends, it fell into jurisdictional error. 16 Before discussing the Commission's reasons and dealing with the parties' submissions, it is necessary to traverse some matters of history.

The relevant history 17 As the Commission recognised, the history of the registered organisation now known as the CFMMEU was, and is, critical to the resolution of the dispute. The following account is drawn from the Commission's reasons. A more detailed account appears in the Commission's decision. None of the history as recounted by the Commission was controversial. 18 The CFMMEU was first registered on 11 September 1962 as the Building Workers' Industrial Union of Australia (BWIU). Since then, there have been four amalgamations, each involving a change of name of the organisation. 19 The four changes of name were: On 20 September 1991 the BWIU was renamed "The ATAIU and BWIU Amalgamated Organisation". The ATAIU is an initialism for the Australian Timber and Allied Industries Union. On 10 February 1992 the ATAIU and BWIU Amalgamated Organisation was renamed the "Construction, Forestry and Mining Employees Union" (CF&MEU). On 28 September 1992 the CF&MEU was renamed the "Construction, Forestry, Mining and Energy Union" (CFMEU). On 27 March 2018 the CFMEU was renamed the CFMMEU. 20 On 10 February 1992 the amalgamation of the ATAIU and BWIU Amalgamated Organisation and the United Mineworkers Federation of Australia (UMFA) took effect. The scheme for the amalgamation included that: UMFA was to be amalgamated and merged with the BWIU; the BWIU was to be the vehicle to achieve the amalgamation; the name of the amalgamated organisation was to be the CF&MEU; the industry and eligibility rules of the CF&MEU would incorporate the existing ATAIU and BWIU Amalgamated Organisation Rules and the UMFA Rules; a division of the CF&MEU was to be created called the "Mining Division"; and all persons who were or became members of the CF&MEU and who were covered by that part of the eligibility rule which was formerly that of the UMFA were to be assigned to the Mining Division. 21 On the day of the amalgamation the UMFA was de-registered. The same day changes to the rules of the CF&MEU commenced. The rule changes included widened eligibility, the creation of a restructured Mining Division and the introduction of rules for membership of the Mining Division. 22 On 23 September 1992 an amalgamation between the CF&MEU, the Federated Engine Drivers and Firemen's Association (FEDFA) and the Operative Plasterers and Plaster Workers Federation of Australia (OPPWF) took effect. 23 The scheme for that amalgamation included that: the FEDFA and OPPWF were to be amalgamated and merged with the CF&MEU; the CF&MEU was to be the vehicle to achieve the amalgamation; the name of the amalgamated organisation was to be the CFMEU; the industry and eligibility rules of the CFMEU would incorporate the rules of the CF&MEU, the FEDFA and the OPPWF; the CFMEU would consist of four divisions: • the BWIU/Plasterers Division (formerly known as BWIU Division); • the ATAIU Division; • the FEDFA Division; and • the UMW Division (formerly known as the Mining Division); all persons who were or became members of the CFMEU and were covered by that part of the eligibility rule which was formerly that of the Mining Division were to be assigned to the UMW Division; all persons who were or became members of the CFMEU and were covered by that part of the eligibility rule which was formerly that of the FEDFA were to be assigned to the FEDFA Division; and after amalgamation the four Divisions were to be restructured in industry divisions. 24 On the day of the amalgamation, the FEDFA and OPPWF were de-registered and changes to the rules of the CFMEU took effect. One of those changes was the inclusion of rule 42A, which provided for the incremental integration of the FEDFA Division into the CFMEU's other Divisions. Rule 42(iii) of the organisation's rules provided that after the amalgamation the Divisions were to be restructured as follows: a restructured Mining Division was to be created consisting of "all members of the union eligible to be members under Rule 2(D) and all members, including members eligible under Sub-Rules 2(A), (B), (C) and (E) employed in the Mining industry" (amendment underlined) (rule 42 (iii)(a)); and an Energy Division was to be created "which will consist of all other members of the Union" (rule 42(iii)(d)). 25 On 5 May 1995 the CFMEU's rules were altered to merge the Mining Division with the Energy Division. The Commission observed that the titles "Energy Division" and "FEDFA Division" were sometimes used interchangeably to refer to the same division and the same appeared true of the Mining and UMW Divisions (at [20]). 26 The rule alterations created a new M&E Division. After the alterations, rule 42(iii)(a) provided (with the amendment underlined): [T]here shall be created a restructured Mining Division which shall consist of all members of the union eligible to be members under Rule 2(D) and all members, including members eligible under Sub-Rules 2(A), (B), (C) and (E) employed in the Mining, Energy and Exploration industries. 27 Rule 3 of the rules of the M&E Division provided: The Division shall consist of an unlimited number of employees, otherwise eligible for membership of the Union who: (A) are engaged in or in connection with the Coal and Shale Industry; (B) are engaged in or in connection with the Mining or Exploration Industries; (C) are engaged as employees or as employees of contractors, in or in connection with the following industries: (a) power generation, co-generation, transmission and distribution; (b) oil; (c) gas; (d) nuclear; and (e) chemical production[;] (D) have been elected or appointed as paid officers of the Division or whilst financial members of the Division are elected as representatives of any working class organisation to which the Division is affiliated, or as a working class member of Parliament. 28 On 27 March 2018 the 2018 Amalgamation took effect. It involved the amalgamation of the CFMEU with the Maritime Union of Australia (MUA) and the Textile, Clothing and Footwear Union of Australia (TCFUA). The scheme for this amalgamation was that: the CFMEU was to be the proposed amalgamated organisation; the MUA and TCFUA would be merged with the CFMEU; the name of the amalgamated organisation was to be the CFMMEU; a Maritime Union of Australia Division (MUA Division) would be created; MUA members would become members of the MUA Division; the TCFUA would merge with the Forestry Division of the CFMEU, with that Division to be renamed the Manufacturing Division; TCFUA members would become members of the Manufacturing Division; the structure and rules of the M&E Division and the Construction and General Division would not be affected by the amalgamation; and the rules of the M&E Division and the Construction and General Division were not to be altered as part of the amalgamation. 29 On the day fixed for the amalgamation to take effect, the MUA and the TCFUA were de-registered as organisations. The CFMEU became known as the CFMMEU through a rules alteration, but continued as a registered organisation. While some rules were altered as a consequence of the amalgamation, the following rules were not: rule 42(iii)(a) (M&E Division coverage); and rule 2 of the M&E Division Rules. Nor were any changes related to the 2018 Amalgamation made to other M&E Division Rules. 30 In summary, four amalgamations led to changes to the name of the registered organisation. In each instance, one of the amalgamating unions remained registered and was the "host organisation" for the amalgamation, while the others were de-registered. The structure of the organisation changed with each amalgamation as new cohorts of members from new industries and occupations were brought in. They were accommodated within the organisation, with some exceptions, by the creation of new Divisions reflecting the industries and occupations of those cohorts. 31 The history shows that the M&E Division was created on 5 May 1995 with the merger of the Mining Division and the Energy Division. Neither the structure nor the rules of the M&E Division were affected by the 2018 Amalgamation.

The principal statutory provisions 32 Chapter 3 of the RO Act deals with both amalgamation and withdrawal from amalgamation, the first in Pt 2 (ss 35-91), the second in Pt 3 (ss 92-131). 33 The objects of Pt 3 are set out in s 92, which reads: 92 Object of Part The object of this Part is to provide for: (a) certain organisations that have taken part in amalgamations (either under this Act or the Workplace Relations Act 1996 as in force before the commencement of this Part) to be reconstituted and re-registered; and (b) branches, divisions or parts of organisations of that kind to be formed into organisations and registered; in a way that is fair to the members of the organisations concerned and the creditors of those organisations. 34 The words "divisions or parts" in para 92(b) were added by the Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Act 2020 (Cth) (the 2020 Amendment Act). 35 Section 94 relevantly provides: 94 Application to the FWC for ballots (1) An application may be made to the FWC for a secret ballot to be held, to decide whether a constituent part of an amalgamated organisation should withdraw from the organisation, if: (a) the constituent part became part of the organisation as a result of an amalgamation under Part 2 or a predecessor law; and (b) the amalgamation occurred no less than 2 years prior to the date of the application; and (c) the application is made before the period of 5 years after the amalgamation occurred has elapsed. 36 Section 93(4) provides that, for the purpose of Pt 3, "a reference to a constituent part becoming part of an amalgamated organisation includes a reference to a constituent part becoming part of that organisation as it existed before any subsequent amalgamation under Part 2 or a predecessor law". 37 Section 100(1) provides that the Commission must order that a vote of the constituent members be taken by secret ballot to decide whether a constituent part of the amalgamated organisation should withdraw from the organisation if, amongst other things, it is satisfied that the application for the ballot is validly made under s 94. 38 Each of the following terms or expressions used in Pt 3 is defined in s 93(1). 39 "Amalgamated organisation", in relation to an amalgamation, means: the organisation of which members of a de-registered organisation became members under paragraph 73(3)(d) of Part 2, or an equivalent provision of a predecessor law, but does not include any such organisation that was subsequently de-registered under Part 2 or a predecessor law. 40 "Constituent part", in relation to an amalgamated organisation, means: (a) a separately identifiable constituent part; or (b) a part of the membership of the amalgamated organisation that would have been eligible for membership of: (i) an organisation de-registered under Part 2 or a predecessor law in connection with the formation of the amalgamated organisation; or (ii) a State or Territory branch of such a de-registered organisation; if the de-registration had not occurred. 41 "Separately identifiable constituent part", in relation to an amalgamated organisation, means: (a) if an organisation de-registered under Part 2 or a predecessor law in connection with the formation of the amalgamated organisation remains separately identifiable under the rules of the amalgamated organisation as a branch, division or part of that organisation - that branch, division or part; or (b) if a State or Territory branch of such a de-registered organisation under its rules as in force immediately before its de-registration remains separately identifiable under the rules of the amalgamated organisation as a branch, division or part of that organisation - that branch, division or part; or (c) any branch, division or part of the amalgamated organisation not covered by paragraph (a) or (b) that is separately identifiable under the rules of the organisation. 42 In substance, "predecessor law" means the relevant parts of the legislation enacted since 1 February 1991 which provide for the amalgamation of organisations. 43 All the definitions in s 93(1) apply "unless the contrary intention appears". For present purposes that is immaterial as none of the parties argued that the contrary intention was apparent with respect to any of the relevant defined terms.

The reasons of the Commission 44 The first threshold question identified by the Commission was whether the M&E Division is a "constituent part" of the CFMMEU for the purposes of s 94(1) of the RO Act. 45 Mr Kelly argued that the M&E Division was a "constituent part" of the CFMMEU because it was "a separately identifiable constituent part". It was common ground that neither para (a) nor para (b) applied. Mr Kelly relied on para (c) ("any branch, division or part of the amalgamated organisation not covered by paragraph (a) or (b) that is separately identifiable under the rules of the organisation"). 46 The CFMMEU argued that Mr Kelly's argument should be rejected. It submitted that para (c) should be read ejusdem generis with the other two paragraphs such that, on a proper reading of para (c), the M&E Division was not a separately identifiable constituent part because para (c) only applies to a branch, division or part which was connected with a de-registered organisation. As the Commission put it, the CFMMEU submitted that para (c) extends the notion of an administrative unit in para (b) to a separately identifiable administrative unit of the de-registered organisation that was not a state branch but which was "something less" than the "organisation" in para (a). In other words, "separately identifiable constituent part" means "any administrative unit bearing the necessary relationship with the de-registered union". The CFMMEU submitted that, if para (c) were not read ejusdem generis with paras (a) and (b), paras (a) and (b) and the opening words of para (c) would be redundant. It contended that Mr Kelly's construction requires para (c) to be read in isolation from the definition of "constituent part" and the objects in s 92, both of which point to a connection between the administrative unit and the de-registered organisation. It argued that the reference to "reconstituted and re-registered" in para 92(a) is a reference to the organisations which were de-registered as part of the amalgamation scheme. 47 The Commission would have none of this. 48 The Commission observed that para (c) is not on its face confined by a particular earlier association with an organisation de-registered in connection with the formation of the amalgamated organisation (at [84]). It was of the view that, if an administrative unit of an amalgamated organisation is separately identifiable under the rules of the organisation as a branch, division or part of that organisation, then it is caught by para (c) if it is not otherwise caught by paras (a) or (b) (at [86]). 49 The Commission proceeded to reject the CFMMEU's argument for the following reasons. 50 First, the ejusdem generis rule is not applicable where, as here, there is not a long list of alternatives. Further, if the CFMMEU's construction were intended, it could readily have been accommodated by different drafting of para (c) along the lines of "any other branch, division or part of such a de-registered organisation under its rules as in force immediately before its deregistration remains separately identifiable under the rules of the amalgamated organisation as a branch, division or part of that organisation - that branch, division or part" (at [89]). 51 Second, the use in para (c) of the verb "is" before the phrase "separately identifiable under the rules of the (amalgamated) organisation" stands in contrast to "remains" before the same phrase in paras (a) and (b). That suggests that paras (a) and (b) are concerned with something that existed as part of a de-registered organisation and remains, or continues to exist, as a branch, division or part of the amalgamated organisation under its rules (at [90]). 52 Third, the premise of the CFMMEU's submission that the object in para 92(b) of the RO Act (to provide for branches, divisions or parts of organisations "of that kind" to be reconstituted and re-registered) necessarily indicates a connection with the de-registered organisation is wrong. It supposes that the reference in para 92(a) to "certain organisations that have taken part in amalgamations" is only to those de-registered in connection with an amalgamation. However, the phrase may also refer to a host organisation that was not de-registered in connection with an amalgamation (at [91]). 53 Fourth, the Commission's construction is consistent with the Explanatory Memorandum to the Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Bill 2020 (Cth) (at [92]). 54 Fifth, that Mr Kelly's construction might make paras (a) and (b) unnecessary is an insufficient reason to read down para (c) in the manner for which the CFMMEU contended, as para (c) was "definitional only" and definitions do not generally enact a substantive rule of law or create a particular right. Paragraph (c) was enacted to aid the construction of those substantive provisions of the RO Act which contain the defined term. Not all branches, divisions or parts of an amalgamated organisation which fall within the definition of "separately identifiable constituent part" can be the subject of an application under s 94(1) because of the additional limitations in that section (at [93]). 55 Thus the Commission determined that, if an administrative unit of an amalgamated organisation is separately identifiable under the rules of the organisation as a branch, division or part of that organisation, it is caught by para (c) unless it is caught by paras (a) and (b). 56 Accordingly, the Commission's answer to the first question was that the M&E Division is a "constituent part" of the CFMMEU for the purposes of s 94(1) of the RO Act. 57 The second threshold question answered by the Commission was whether the M&E Division "became part of" the CFMMEU "as a result of" the 2018 Amalgamation. 58 Mr Kelly's argument started from the premise that the CFMMEU in its current form is the "amalgamated organisation" for the purposes of s 94(1). He submitted that, for the purpose of s 94(1), the "amalgamated organisation" is the organisation in the particular form that it has following an amalgamation and a "separately recognised artefact" under the RO Act distinct from the host organisation for a proposed amalgamation. He argued that the CFMMEU in its present form did not exist before the 2018 Amalgamation and therefore the M&E Division became part of the CFMMEU as a result of the 2018 Amalgamation. 59 The Commission rejected Mr Kelly's argument. 60 The Commission decided that, for the 2018 Amalgamation, the "amalgamated organisation" was the CFMEU; the CFMEU was merely renamed the CFMMEU. The Commission considered that the purpose of the definition of "amalgamated organisation" was to distinguish the registered organisation that was the host organisation from the same organisation after the amalgamation with its expanded membership base, "comprising the additional members [who were] formerly members of the de-registered organisations involved in the amalgamation" (at [111]). 61 Mr Kelly also argued that in the 2018 Amalgamation the amalgamated organisation changed its structure by creating a new MUA Division and expanding the scope of the Manufacturing Division to incorporate the members of the TCFUA; that there were consequential changes to the structures of the organisation's governing bodies; and that the position of existing constituent parts of the CFMEU was affected by the creation of the CFMMEU. Consequently, he contended, it was no misuse of the language of s 94(1) to refer to the constituent parts of the CFMEU "becoming part" of the amalgamated organisation (at [113]). 62 The Commission rejected these arguments too. 63 The Commission observed that the reference in para 94(1)(a) to "an amalgamation" is to a particular amalgamation, namely, the amalgamation resulting in the constituent part the subject of the application becoming part of the amalgamated organisation. Similarly, the Commission observed, the references to "the amalgamation" in paras 94(1)(b) and (c) are to the particular amalgamation resulting in the relevant constituent part becoming part of the amalgamated organisation, and the periods of time in paras 94(1)(b) and (c) are to be calculated by reference to that particular amalgamation (at [116]-[117]). The Commission noted that under the construction for which Mr Kelly contended the effect of any subsequent amalgamation would be that the constituent part which was a part of the host organisation becomes part of the amalgamated organisation as a result of the latest amalgamation. The Commission considered that this construction was inconsistent with the ordinary meaning of the phrase "as a result of" the particular amalgamation, "which connotes the constituent part becoming part of the amalgamated organisation 'because or as a consequence of' the particular amalgamation, and not merely to continue to exist unaltered in an organisation of which it was already a part" (at [119]). 64 Based on the history of the amalgamations, the Commission found that the M&E Division in its current iteration has been a part of the organisation now known as the CFMMEU since 5 May 1995 (at [120]). It observed that the 2018 Amalgamation was underpinned by a scheme for amalgamation which relevantly provided that the amalgamated organisation would be the CFMEU and that the name of the amalgamated organisation would be the CFMMEU. It noted that the CFMEU became known as the CFMMEU through a rule change and continued as a registered organisation, and that other rules were altered (at [121]). But it emphasised that no changes related to the amalgamation were made to the rules of the M&E Division and no alteration was made to the structure or constitution of the M&E Division as it existed when the organisation was known as the CFMEU and before members of the MUA and the TCFUA were admitted as members of the CFMMEU (at [121]). Rather, the M&E Division is in the same form now as it was as part of the CFMEU before the 2018 Amalgamation (at [122]). 65 Consequently, the Commission's answer to the second question was that the M&E Division did not become part of the CFMMEU as a result of the 2018 Amalgamation.

The arguments on the present application 66 The parties maintained the positions they had taken before the Commission. In substance, they advanced the same arguments they put to the Commission. To the extent necessary, those arguments are identified and addressed below.

Overview of schemes for amalgamations of organisations and withdrawal from amalgamations 67 As the Full Bench explained in its decision, federal industrial legislation has contained provisions for the amalgamation of organisations since 1972, following amendments to the Conciliation and Arbitration Act 1904 (Cth). Its successor, the Industrial Relations Act 1988 (Cth), continued to make provision for amalgamations. The predecessor of the present provisions in Ch 3 Pt 3 providing for withdrawal from amalgamations was Pt IX Div 7A of the Workplace Relations Act 1996 (Cth) (WR Act) as introduced by the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) (effective 25 November 1996). 68 The WR Act continued to provide for the amalgamation of registered organisations, but also introduced provisions allowing for withdrawal from amalgamations. No specific reason for the new provisions was given in the extrinsic materials. The registration of organisations registered under the WR Act is continued by the RO Act. 69 The RO Act commenced in 2009. Part 2 of Ch 2 deals with registration of organisations. Section 18 provides that it is open to a federally registerable association of employers, a federally registrable association of employees or a federally registrable enterprise association to apply for registration as an "organisation". An "organisation" is defined in s 6 to mean "an organisation registered under this Act". A registered organisation is a body corporate (s 27). 70 Chapter 3 is entitled "Amalgamation and withdrawal from amalgamation". There is no direct reference in s 5, the objects section of the RO Act, to the provisions for amalgamation and withdrawal from amalgamation. 71 Part 2 of Ch 3 (ss 35-91) is headed "Amalgamation of organisations". Section 40(1) requires that there must be a "scheme" for every proposed amalgamation. The scheme must identify the existing organisations concerned; indicate whether the proposed amalgamated organisation is to be one of the existing organisations or another organisation that is proposed to be registered; and identify the proposed de-registering organisations (s 40(2)(a)). If it is proposed to change the name or the eligibility or other rules of an existing organisation, particulars must be provided (ss 40(2)(b), (c) and (d)). The scheme must be approved by the committee of management of each existing organisation (s 42). 72 Part 2 provides for approval by the Commission of a ballot of the members of the existing organisations and the conduct of such a ballot (ss 44, 47, 49-52, 57-69). If the members of each of the existing organisations approve the proposed amalgamation, the amalgamation is approved for the purposes of Pt 2 (s 70). 73 Section 73(1) provides that the scheme for an approved amalgamation takes effect in accordance with ss 73(2)-(4). Under s 73(2), the Commission fixes a day (the "amalgamation day") as the day on which the amalgamation takes effect. The Commission's General Manager must enter into the register the prescribed particulars of the amalgamated association (if the amalgamated organisation is not already registered) (s 73(3)(a)). Any alteration of the rules of an existing organisation takes effect on the amalgamation day (s 73(3)(b)). The Commission must de-register the proposed de-registering organisations (s 73(3)(c)). The members of the de-registered organisations become members of the amalgamated organisation (s 73(3)(d)). 74 Part 3 of Ch 3 (ss 92-131) is entitled "Withdrawal from amalgamations". As mentioned earlier, s 92 sets out the objects of Pt 3, and will be considered later in these reasons. 75 Division 2 of Pt 3 is headed "Ballots for withdrawal from amalgamated organisations" and commences with s 94. As has been discussed, s 94(1) allows an application to be made for a secret ballot to be held to decide whether a constituent part of an amalgamated organisation should withdraw from the organisation, if the conditions in paras (a)-(c) are satisfied. Section 94(3) identifies the persons who may make an application. 76 Section 94A allows the Commission to accept an application made under s 94 after the end of the five year period limited under para 94(1)(c) for making an application. The Commission must be satisfied, however, that it is appropriate to accept the application having regard to a number of matters. Those matters include "whether the amalgamated organisation has a record of not complying with workplace or safety laws and any contribution of the constituent part to that record". "Workplace or safety law" is defined in s 93(1) to mean any of the following: the RO Act, the Fair Work Act 2009 (Cth) (FW Act), the Building and Construction Industry (Improving Productivity) Act 2016 (Cth), the Work Health and Safety Act 2011 (Cth); or a State or Territory OHS law (within the meaning of the FW Act). 77 Mr Kelly did not rely upon s 94A before the Commission. He contended only that the M&E Division became a constituent part of the CFMMEU as a result of the 2018 Amalgamation, and placed no reliance upon any of the earlier amalgamations.

Did the Commission err in finding that the M&E Division is a "constituent part" of the CFMMEU? 78 It is convenient to begin by considering the CFMMEU's notice of contention, which seeks to uphold the decision of the Commission on the basis that the M&E Division is not a constituent part of the CFMMEU within the meaning of s 93 of the RO Act. In effect, this is an assertion that the Commission erred in answering the first threshold question by finding that the M&E Division is a "constituent part" of the CFMMEU within the meaning of s 94. 79 The CFMMEU submitted that a division, branch or part can only fall within para (c) of the definition of "separately identifiable constituent part" if it is a division, branch or part of, or connected with, an organisation that was de-registered as part of the amalgamation. The CFMMEU contended that para (c) should be construed as if the words "being a branch, division or part connected with the de-registered organisation" appeared at the end of the paragraph. Such a construction was said to derive principally from the application of the ejusdem generis principle in circumstances where paras (a) and (b) expressly apply only to an organisation or branch of an organisation "de-registered under Pt 2 or a predecessor law". 80 The CFMMEU's submissions must be rejected. 81 The starting point for determining the meaning of any statutory provision is always its text: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 (Hayne, Heydon, Crennan and Kiefel JJ). And the language of para (c) of the definition of "separately identifiable constituent part" is inconsistent with the CFMMEU's construction. Paragraph (c) is not expressed to be limited to a branch, division or part of, or connected with, an organisation that was de-registered in connection with an amalgamation. 82 Of course, context and purpose must also be taken into account. We will come to those matters shortly. But as the Commission observed, if para (c) was intended to be limited in that way, words giving effect to that intention could easily have been included. In contrast, paras (a) and (b) are expressly limited to an organisation, or State or Territory branch of an organisation, "de-registered … in connection with the formation of the amalgamated organisation". Similarly, para (b) of the definition of "constituent part" is expressly limited to a part of the membership of a de-registered organisation or State or Territory branch of a de-registered organisation. The express inclusion of limiting words in the related clauses suggests that the omission of these or similar words from para (c) was deliberate. 83 The Latin expression ejusdem generis (meaning of the same genus or kind) applies to a principle of statutory construction in which broad general words associated in the text with more limited words are read down so as to be restricted by implication to matters of the same limited kind: Jones O, Bennion on Statutory Interpretation, (6th ed, Lexis Nexus, 2013) s379 pp 1105. It stands to reason, then, that before the ejusdem generis principle can be applied there must be a common characteristic which can be described as a genus: Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113 at 143 [126] (Spigelman CJ). It is doubtful whether that is so here. Usually, but not invariably, words suggesting the genus "consist of a list or string of substantives or adjectives": Bennion ss380-381 pp 1108, 1111. Assuming, however, that there is such a genus, as Dixon J observed in Cody v J. H. Nelson Pty Ltd (1947) 74 CLR 629 at 647: In the modern search for a real intention covering each particular situation litigated, however much help and guidance may be obtained from the principles and rules of construction, their controlling force in determining the conclusion is likely to be confined to cases where the real meaning is undiscoverable or where the court of construction, sceptical of the foresight of the draftsman or of his appreciation of the situation presented, is better content to supply the meaning by a legal presumption than subjectively. 84 This is not such a case. 85 The CFMMEU's construction is not supported by the contextual matters either. The whole of the relevant context needs to be considered in order to determine whether the general words in para (c) should be read down: DCT v Clark at 143 [127]. See also Vella v Minister for Immigration and Border Protection (2015) 230 FCR 61 at 77 [63]. That includes the legislative context, history, and purpose or intention. 86 Beginning with the immediate legislative context, the use in para (c) of the verb "is" before the phrase "separately identifiable under the rules of the [amalgamated] organisation" contrasts with the use of the verb "remains" before the same phrase in the preceding paragraphs. Paragraphs (a) and (b) are plainly concerned with a de-registered organisation and a State or Territory branch of a de-registered organisation that "remains" (i.e. that was and continues to be) separately identifiable. On the other hand, para (c) requires only that the branch, division or part "is" presently separately identifiable under the rules of the amalgamated organisation. The different language of para (c) suggests that it does not require a connection with a de-registered organisation. 87 The legislative history and purpose also tells against the CFMMEU's narrow construction. Paragraph (c) was added to the definition of "separately identifiable constituent part" by Sch 1 of the 2020 Amendment Act. It is evident that the legislative intention was to expand the range of constituent parts capable of withdrawing from an amalgamated organisation. The extent of that expansion was identified in the Explanatory Memorandum for the Bill effecting the amendment, which relevantly stated: 14. … Item 11 (definition of separately identifiable constituent part), described below, also ensures that the provisions in Part of Chapter 3 are also available to a branch, division or part of an amalgamated organisation that is separately identifiable under the rules of the organisation. Item 11 - subsection 93(1) (at the end of the definition of separately identifiable constituent part) 15. This item adds to the definition of separately identifiable constituent part, new paragraph (c) which is, any branch, division or part of the amalgamated organisation not covered by existing paragraphs (a) and (b) that is separately identifiable under the rules of the organisation. 16. The effect of this amendment is to provide that the withdrawal provisions set out in Part 3 of Chapter 3 apply to any branch, division or part of an amalgamated organisation that is separately identifiable under the rules of the organisation. This means that the ability to withdraw from an amalgamation is not limited by the pre-requisite of de-registration in connection with the formation of the amalgamated organisation. (Emphasis added.) 88 It is true, as the CFMMEU submitted, that the Explanatory Memorandum cannot be used as a substitute for the text of the legislation. But consideration may be given to an explanatory memorandum to confirm the meaning of a provision that is conveyed by its text, considered in context and by reference to the purpose or object underlying the Act: Acts Interpretation Act 1901 (Cth), s 15AB(1). In any case, independently of s 15AB, the Court is entitled to have regard to such material in order to ascertain the mischief the provision was intended to address: Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 99 (Toohey, Gaudron and Gummow JJ). 89 The Explanatory Memorandum confirms that which seems evident from the language of para (c), namely that s 94 applies to any branch, division or part of an amalgamated organisation separately identifiable under the rules of that organisation. The Explanatory Memorandum also confirms that, correspondingly, the ability to withdraw from an amalgamation is not limited by the prerequisite of de-registration in connection with the formation of the amalgamated organisation. 90 In support of its argument that para (c) of the definition of "separately identifiable constituent part" is limited to a branch, division or part of a de-registered organisation, the CFMMEU also relied upon para 92(b). 91 It will be recalled that s 92 sets out the object of Pt 3. It is twofold: first, to provide for "certain organisations that have taken part in amalgamations … to be reconstituted and re-registered" in a way that is fair to the members of the organisations concerned and their creditors (para 92(a)) and second, to provide in the same way for "branches, divisions or parts of organisations of that kind to be formed into organisations and registered" (emphasis added) (para 92(b)). The words "divisions or parts" were inserted into para 92(b) by the 2020 Amendment Act. 92 The CFMMEU submitted that the words "of that kind" in para 92(b) refer to organisations described in para 92(a) that were de-registered as part of amalgamations and would now be, "reconstituted and re-registered". That submission must be rejected. It is based on a misreading of para 92(b). 93 Each of the two paragraphs in s 92 has both a subject and an object. The subject of para 92(a) is the organisations to which Pt 3 applies ("certain organisations that have taken part in amalgamations"). Its object is to provide for such organisations to "be reconstituted and re-registered". The subject of para 92(b) is the branches, divisions or parts of such organisations ("organisations of that kind"). Its object is to provide for those branches, divisions or parts to "be formed into organisations and registered". 94 Properly understood, the phrase "branches, divisions or parts of organisations of that kind" in para 92(b) is only intended to pick up the following words in para 92(a): "certain organisations that have taken part in amalgamations". It does not pick up the words in para 92(a) "to be reconstituted and re-registered". Put another way, whereas the first limb of s 92 is to provide for certain organisations that have taken part in amalgamations to be reconstituted and re-registered, the second limb is to provide for branches, divisions or parts of organisations that have taken part in amalgamations to be formed into organisations and registered. Section 92 does not support the CFMMEU's submission that para (c) of the definition of "separately identifiable constituent part" is limited to a branch, division or part of or connected with a de-registered organisation. 95 The CFMMEU also submitted that, unless para (c) is confined to branches, divisions or parts of de-registered organisations, it would catch every administrative unit in an amalgamated organisation, in which case paras (a) and (b) would be otiose. 96 Of course a court construing any statutory provision must strive to give meaning to every word: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, at 382 [71] (McHugh, Gummow, Kirby and Hayne JJ). It is a principle of statutory construction that "no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction [it] may be made useful and pertinent": Commonwealth v Baume (1905) 2 CLR 405 at 414 (Griffith CJ). But this submission must also be rejected. 97 Paragraph (c) is incapable of catching every administrative unit in an amalgamated organisation, as it applies only to branches, divisions or parts of the amalgamated organisations "not covered by paragraph (a) or (b)". Accordingly, paras (a) and (b) have separate work to do. 98 When the language in para (c) of the definition of "separately identifiable constituent part" and the statutory context and purpose are considered, there is no good reason to read down the paragraph such that it only applies to a branch, division or part of a de-registered organisation. 99 It was not in dispute that the M&E Division is a division of the CFMMEU separately identified under its rules. As paras (a) and (b) of the definition of "separately identifiable constituent part" are not applicable, the M&E Division comes within para (c) of that definition. 100 For all these reasons, the Commission was correct to find that the M&E Division is a "constituent part" of the CFMMEU for the purposes of s 94(1) of the RO Act.

Did the Commission err in finding that the M&E Division had not "become part of" the CFMMEU "as a result of" the 2018 Amalgamation? 101 The key to the Commission's answer to the second threshold question was its finding that, after the 2018 Amalgamation, the CFMEU was the "amalgamated organisation" for the purposes of s 94(1). In effect, the Commission construed the term "amalgamated organisation" in that subsection as referring to the registered organisation. The Commission found that the M&E Division did not become part of the CFMEU "as a result of" the 2018 Amalgamation because it was already part of the CFMEU (and therefore the organisation that became known as the CFMMEU) before the 2018 Amalgamation. 102 It was common ground that the organisation now known as the CFMMEU was first registered on 11 September 1962 and that in each of the amalgamations thereafter the amalgamating union or unions joined the original corporate entity following which the amalgamating union or unions were de-registered. Although in 2018 the name of the CFMEU was changed to the CFMMEU, that change had no substantive effect on the identity of the amalgamated organisation. 103 On this application Mr Kelly maintained that the "amalgamated organisation" under s 94(1) of the RO Act is "the organisation with its changed composition and governance structure following an amalgamation". He argued that the Commission wrongly determined that "amalgamated organisation" in s 94(1) is simply a reference to the existing legal entity that remains registered following an amalgamation, and failed to pay attention to the distinction between a "registered organisation" and an "amalgamated organisation". Mr Kelly submitted that the definition of "amalgamated organisation" in s 93(1) refers to the organisation that exists following a completed amalgamation, and the statutory scheme contemplates, indeed requires, that the amalgamated organisation has changed in composition and form. He argued that, as the CFMMEU in its present composition and form did not exist before the 2018 Amalgamation, it must follow that the M&E Division became part of the CFMMEU "as a result of" the 2018 Amalgamation. 104 The principal issue on the present application, then, is whether the expression "amalgamated organisation" in s 94(1) can be construed as a reference to an organisation registered under the RO Act or, as Mr Kelly contended, it is a more amorphous form of organisation. 105 It will be recalled that para 94(1)(a) relevantly provides that an application may be made for a secret ballot to decide whether "a constituent part of an amalgamated organisation should withdraw from the organisation, if … the constituent part became part of the organisation as a result of an amalgamation under Part 2 or a predecessor law". 106 It may be seen that the expression "an amalgamated organisation" is followed by two references to "the organisation". In context, "the organisation" is used as a contraction of, and substitute for, "the amalgamated organisation". As used in s 94(1)(a), the term is not intended to have any meaning different from "the amalgamated organisation". 107 It will also be recalled that, absent the contrary intention, s 93(1) defines "amalgamated organisation", in relation to an amalgamation, as: the organisation of which members of a de-registered organisation became members under paragraph 73(3)(d) of Part 2, or an equivalent provision of a predecessor law, but does not include any such organisation that was subsequently de-registered under Part 2 or a predecessor law. 108 Paragraph 73(3)(d) appears in Pt 2 of Ch 3, which, as we have said, deals with amalgamation of organisations. It provides that on the amalgamation day: the persons who, immediately before that day, were members of a proposed de-registering organisation become, by force of this section and without payment of entrance fee, members of the proposed amalgamated organisation. 109 Section 35 defines the expression "proposed amalgamated organisation", in relation to a proposed amalgamation, as: the organisation or proposed organisation of which members of the proposed de-registering organisations are proposed to become members under this Part. 110 Section 35 defines "proposed de-registering organisation", in relation to a proposed amalgamation, to mean "an organisation that is to be de-registered under this Part". 111 Paragraph 40(2)(a) requires that the scheme for amalgamation indicate: (i) whether one of the existing organisations (and which one) is the proposed amalgamated organisation; or (ii) whether an association to be registered will be the proposed amalgamated organisation. Paragraph 40(2)(a)(iii) requires identification of the proposed de-registering organisations. Paragraph 40(2)(c) requires particulars to be given in the scheme for any proposed alterations to the eligibility rules of an existing organisation. It is apparent that the organisation nominated under the scheme as the "proposed amalgamated organisation" will be the "proposed amalgamated organisation" as defined by s 35 and mentioned in para 73(3)(d), and the "amalgamated organisation" for the purposes of ss 93 and 94(1). 112 The RO Act treats the "proposed amalgamated organisation" as becoming "the amalgamated organisation" from the day the amalgamation takes effect: see the definitions of "amalgamated organisation" and "completed amalgamation" in s 35. By ss 73(1) and (2), the amalgamation takes effect on the amalgamation day declared by the Commission. On that day, the persons who were members of a proposed de-registering organisation become members of the proposed amalgamated organisation and, accordingly, members of the amalgamated organisation (s 73(3)(d)). 113 The definition of "amalgamated organisation" in s 93 refers to the "organisation" of which members of a de-registered organisation became members. The term "organisation" is defined in s 6 to mean "an organisation registered under this Act". There is a presumption, which is not to be displaced without good reason, that defined words in a statute have their defined meanings: Qantas Airways Ltd v Chief Commissioner of State Revenue [2008] NSWSC 1049 at [38] (Handley AJ), citing Pearce & Geddes, Statutory Interpretation in Australia, 6th ed., paras 3.31, 4.3, 6.62. 114 Where the mechanism for amalgamation is for a newly registered organisation to become the amalgamated organisation (see para 40(2)(a)(ii)), particulars are required to be entered in the register (para 73(3)(a)). Upon registration, pursuant to s 27, the amalgamated organisation will be a body corporate. 115 On the other hand, where the mechanism for amalgamation is for one of the existing organisations to become the amalgamated organisation (see para 40(2)(a)(i)), the amalgamated organisation will already be a registered organisation. As para 73(3)(a) indicates, particulars of the amalgamated organisation will not be entered into the register since it is already registered. The establishment of the amalgamated organisation will not involve the creation of any new body corporate. 116 It follows that, subject to consideration of Mr Kelly's argument, under either mechanism for amalgamation, an "amalgamated organisation" will be a registered organisation and a body corporate. 117 Mr Kelly's argument focused on an amalgamation involving one of the existing organisations becoming the amalgamated organisation. As we have already mentioned, he contended that in such a case an "amalgamated organisation" for the purposes of s 94(1) is not an "organisation" of a kind defined in s 6, but "an organisation of changed composition and form". That appears to describe some amorphous body consisting of all the divisions, branches, and other parts of the de-registered organisations and any continuing organisation separately identifiable under the altered rules of the continuing organisation. Mr Kelly submitted that all such divisions, branches and parts "become part" of such a body as the result of such an amalgamation. Mr Kelly argued that, if "amalgamated organisation" in s 94 had the same meaning as "organisation" in s 6, there would be no need for a separate definition of "amalgamated organisation" in s 93. 118 Mr Kelly submitted that withdrawal would not be available to any division, branch or part under para (c) of the definition of "separately identifiable constituent part" because it could never be said to have become part of the amalgamated organisation "as a result of" an amalgamation. 119 Mr Kelly also submitted that if, contrary to the construction he urged upon the Court, "amalgamated organisation" has a meaning referable to a registered organisation, para (c) "would have no role whatsoever to play in the statutory scheme". 120 Mr Kelly contended that his construction is supported by the Explanatory Memorandum for the Bill introducing the 2020 Amendment Act, which added para (c) of the definition of "separately identifiable constituent part". 121 Part 2 of Ch 3 certainly proceeds on the basis that the amalgamated organisation will incorporate the membership of all the amalgamating organisations, including those organisations proposed to be de-registered. Part 2 contemplates that, where the amalgamated organisation is to be an existing organisation, the rules of the existing organisation will be altered to expand the membership and facilitate representation of the whole of the membership. That may occur, for example, though the creation of new branches and divisions under the rules of the amalgamated organisation, which will reflect and represent the membership of the de-registering organisations. 122 Part 3 of Ch 3 ("Withdrawal from amalgamations") recognises that an amalgamated organisation will generally be made up of "constituent parts", including divisions and branches provided for under the rules of the amalgamated organisation. The rules of organisations are dealt with under Ch 5. Section 140(1) provides that an organisation must have rules that make provision as required under the RO Act. Section 141 contemplates that there will be branches, committees and office holders that have powers and duties. A branch of an organisation may be a "reporting unit" that has accounting and reporting obligations (ss 242(3), 252-254, 265-268), but the RO Act does not suggest that a branch or a division is an entity in itself. Even where there is no amalgamation involved, the rules of an organisation may be altered, including rules concerning the organisation's name, organisational structure and eligibility (ss 156-160). Nothing in the RO Act suggests, however, that when the rules of an organisation are altered it somehow becomes a different entity or organisation. 123 There are a number of other problems with Mr Kelly's argument. 124 First, the effect of the argument that the amalgamated organisation is "the organisation with its changed composition and governance structure following amalgamation" is to conflate the branches, divisions and parts provided for under the rules of the amalgamated organisation with the amalgamated organisation itself. It may be seen from ss 92 and 94 and the definitions of "amalgamated organisation" and "separately identifiable constituent part" that the RO Act distinguishes between an "amalgamated organisation" and the "constituent parts" of such an organisation identifiable under its rules. An "organisation" under the RO Act is a body corporate. The body corporate is not the sum of its branches, divisions and parts. Mr Kelly's argument that an "amalgamated organisation" refers to an amorphous organisation not corresponding to an "organisation" as defined in s 6 cannot be accepted. 125 Second, contrary to Mr Kelly's argument that there would be no need for a separate definition of "amalgamated organisation" if an "amalgamated organisation" is a "registered organisation", the definition of "amalgamated organisation" serves a distinct and separate purpose. It allows a distinction to be made between the registered organisation that was the vehicle for the amalgamation and the same registered organisation which, after the amalgamation, has an expanded membership base that includes the membership of the de-registered organisations. 126 Third, if Mr Kelly's construction were correct, whenever an amalgamation takes place each division, branch or part of each amalgamating organisation would "become part of the [amalgamated] organisation as a result of an amalgamation" and become eligible to withdraw after two years. That would be so no matter how long a branch, division or part had been a part of a continuously registered organisation. One consequence of that construction is that any amalgamation, however great or small, could subject to a withdrawal ballot any part of any of the amalgamating organisations separately identifiable under the rules. The period of up to five years in which to apply for a ballot would be re-set for every constituent part after each amalgamation. 127 However, if each division, branch or part of each amalgamating organisation becomes part of the "amalgamated organisation" as a result of any amalgamation, there would be no need for para 94(1)(a) at all. That result would be achieved by virtue of the "amalgamated organisation" being a body composed of every division, branch or part. A construction that allows a provision to have a function is generally to be preferred: cf. Project Blue Sky at 382 [71]. That tells against Mr Kelly's construction. 128 Fourth, Mr Kelly's construction would produce uncertainty and instability in the operation and constitution of organisations involved in amalgamations. It is true that s 94(1) is, of itself, capable of producing uncertainty and instability, since it allows an application for a ballot for withdrawal to be made after a period of two years following an amalgamation. But the purpose of limiting the time for an application to a period of five years after an amalgamation is to limit the length of any period of uncertainty and instability. It would be inconsistent with that purpose if s 94(1) were construed so as to allow the period to be re-set each time there is a new amalgamation. 129 Fifth, if s 94(1) were construed such that the period would be re-set after each amalgamation, it could operate as a disincentive for organisations to participate in amalgamations. That would be inconsistent with the purpose of the legislative scheme providing for amalgamations under Pt 2 of Ch 3. That purpose, revealed through the continuous history of broadly similar legislative schemes for union amalgamations over the last sixty years, is to encourage and facilitate amalgamations of unions: see also, Australian Mines and Metals Association Inc v Construction, Forestry, Maritime, Mining and Energy Union (2018) 268 FCR 128 at 162 [135] (Allsop CJ, Griffiths and O'Callaghan JJ). 130 Section 15AA of the Acts Interpretation Act 1901 (Cth) provides that in interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation. Where there is more than a single legislative purpose, it may be difficult to identify which, if any, of the overarching legislative purposes is apposite to an individual provision: see Carr v Western Australia (2007) 232 CLR 138 at 143 [5] (Gleeson CJ). In this case, however, the purpose of Pt 2 of Ch 3 of encouraging and facilitating amalgamations is consistent with the limitation of the period under para 94(1)(c) for bringing an application. Mr Kelly's construction is inconsistent with the purpose of those provisions. 131 Sixth, contrary to Mr Kelly's submission that the Commission's construction would leave para (c) of the definition of "separately identifiable constituent part" with "no role whatsoever to play in the statutory scheme", there would be work for para (c). 132 Take the following example. Union A amalgamates with Union B and Union C. Under the scheme for the amalgamation, Union A is the amalgamated organisation, and is renamed Union ABC, while Unions B and C are de-registered. Union ABC has two divisions under its rules, Division A and Division BC. In these circumstances, Division BC would not answer the description in para (a) or para (b) of the definition of "separately identifiable constituent part", as it is not an organisation or State or Territory branch separately identifiable under the rules of Union ABC. However, Division BC would come within para (c). There would be no difficulty in concluding that Division BC "became a part of" the amalgamated organisation, being Union ABC, as a result of the amalgamation. In this kind of situation, para (c) of the definition would have work to do in para 94(1)(a). 133 Furthermore, para (c) would also have work to do in respect of s 94A of the RO Act. 134 Like para (c), s 94A was added to the RO Act by the 2020 Amendment Act. That provision allows the Commission to accept an application for a withdrawal ballot more than five years after an amalgamation, having regard to certain considerations. A purpose of para (c) is to permit a branch, division or part of an amalgamated organisation to make an application unrestricted by the time limit in para 94(1)(c) in reliance upon s 94A. Where a series of amalgamations has occurred over time, a division, branch or part may be able to trace its joinder into the amalgamated association to a particular older amalgamation. 135 The following example illustrates the point. In 2010 Union A and Union B amalgamated to form Union AB, which, under its rules, has Division A and Division B. In 2020, Union AB amalgamates with Union C. Union AB is the amalgamated organisation. Union AB's rules now have Division A, Division B and Division C. Division A could not rely upon the 2020 amalgamation as a basis for withdrawal since it did not "become part of" Union AB "as a result of" the 2020 amalgamation. However if Division A's application for withdrawal were based upon s 94A, it could rely upon the 2010 amalgamation. Division A could properly be described as having "become part of the [amalgamated] organisation" (Union AB) "as a result of" the 2010 amalgamation. 136 Mr Kelly's submission that the Commission's construction of s 94(1) leaves para (c) with "no role whatsoever to play in the statutory scheme" cannot be accepted. Moreover, the latter example also indicates that the Explanatory Memorandum is not inconsistent with the Commission's construction. 137 In sum, the "amalgamated organisation" under s 94(1) of the RO Act can refer to a registered organisation. Where the mechanism adopted for an amalgamation is that one of the amalgamating organisations will remain registered and absorb the membership of the de-registering organisations, the organisation that remains registered will be the "amalgamated organisation". 138 The scheme for the 2018 Amalgamation stated that the registered organisations proposing to amalgamate were the CFMEU, the MUA and the TCFUA. The CFMEU was to remain registered and to be the amalgamated organisation. The MUA and the TCFUA were to be de-registered. The name of the CFMEU was to be changed to the CFMMEU. The rules were to be altered, including by creating a new MUA Division and creating a new Manufacturing Division by merging the TCFUA with the Forestry Division. The rules for the M&E Division were not altered. The 2018 Amalgamation took effect in accordance with the scheme. 139 The 2018 Amalgamation did not involve the creation of any new entity. While it may have been open to the amalgamating unions to adopt the alternative mechanism contemplated by s 40(2)(a)(ii) of registering a new organisation to be the amalgamated organisation, that course was not taken. Although the name of the amalgamated organisation was changed to the CFMMEU, that change did not create a new organisation. On the amalgamation day, the members of the de-registering organisations - the MUA and the TCFUA - became members of the CFMEU under para 73(3)(d). Accordingly, the CFMEU was the "amalgamated organisation" at and following the 2018 Amalgamation. As the M&E Division was already a part of the CFMEU and the rules applying to it remained unchanged, it did not "become part of" the CFMEU "as a result of" the 2018 Amalgamation. 140 For these reasons the Commission was correct to find that the application did not come within para 94(1)(a).

Conclusion 141 The Commission did not err as alleged. It answered both threshold questions correctly. It did not misconstrue s 94(1) of the RO Act. The M&E Division is a "constituent part" of the CFMMEU, but it did not "become part of" the CFMMEU "as a result of" the 2018 Amalgamation. 142 It follows that Mr Kelly's application for judicial review of the Commission's decision must be dismissed. 143 No application for costs was made or foreshadowed. Neither the CFMMEU nor the ACTU suggested that the proceeding was instituted "vexatiously or without reasonable cause", which is the only basis upon which an order for costs could be made (see RO Act, s 329). In these circumstances there should be no order as to costs. I certify that the preceding one hundred and forty-three (143) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Katzmann, Rangiah and O'Callaghan.

Conciliation and Arbitration Act 1904(Cth)

Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Act 2020(Cth)

Industrial Relations Act 1988(Cth)

Industrial Relations Legislation Amendment Act 1991(Cth)

Workplace Relations Act 1996(Cth)

Workplace Relations and Other Legislation Amendment Act 1996(Cth)

RO Act, the Fair Work Act 2009(Cth)

(FW Act), the Building and Construction Industry (Improving Productivity) Act 2016(Cth)

(Cth), the Work Health and Safety Act 2011(Cth)

Fair Work (Registered Organisations) Act 2009(Cth)ss 5, 6, 18, 27, 35, 40, 40(1), 40(2), 40(2)(a), 40(2)(a)(i), 40(2)(a)(ii), 40(2)(a)(iii), 40(2)(b), 40(2)(c), 40(2)(d), 42, 70, 73, 73(1), 73(2), 73(3), 73(3)(a), 73(3)(b), 73(3)(c), 73(3)(d), 92, 92(a), 92(b), 93, 93(1), 93(4), 94, 94(1), 94(1)(a), 94(1)(b), 94(1)(c), 94(3), 94A, 100, 100(1), 140, 140(1), 141

At a glance

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Before

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Judgment (22 paragraphs)

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Legislation Cited (11)

Cases Cited (11)

Cited By (1)