CONSIDERATION
98 The parties agreed about the applicable principles of construction, save for the relevance of the passage from the judgment of Barwick CJ in Cohen's case, upon which Mr Borenstein relied (see [79] above).
99 The ordinary rules which govern the construction of written documents apply also to union rules, although the courts are accommodating of infelicities in drafting and strive to achieve a practical construction of them: see R v McKenzie; Ex parte Actors and Announcers Equity Association of Australia (1982) 148 CLR 573 at 576-577 (Gibbs CJ; Mason, Aickin and Wilson JJ agreeing); ResMed Ltd v Australian Manufacturing Workers' Union (No 2) (2017) 249 FCR 408 at 413 [14] (Siopsis, Bromberg and Katzmann JJ).
100 The common understanding of the ordinary application of the words is relevant. In R v Williams; Ex parte Australian Building Construction Employees' and Builders' Labourers' Federation (1982) 153 CLR 402 at 408, Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ said:
The eligibility provisions in the rules of a registered organization of employees serve the function of defining the general area or areas of industry or industrial pursuit from which members can legitimately be drawn and with which the organization can legitimately be concerned. Since such eligibility provisions constitute a reference point for courts, commissions, employers, employees and other organizations in determining or ascertaining an organization's proper coverage and field of operation, they must be construed objectively. In so construing them, however, it is permissible to pay regard to any common understanding among people concerned with relevant industries and particularly with industrial matters of the ordinary application of the words used and to take account of evidence of that common understanding furnished by the previous use of the words in the relevant organization's rules and in statutory provisions, decisions, determinations, awards, reports and other papers concerned with the relevant industry or industries.
(Citations omitted.)
101 It may also be relevant to consider "the context in which an instrument is made, and which it is intended to address" and "the facts as they are known at the time the instrument is drafted": see Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148; (2014) 245 IR 449 at 461 [46] (Siopis, Buchanan and Flick JJ), cited in the context of construing union rules in Finance Sector Union of Australia v Unimoni Pty Ltd [2019] FCA 1128 at [15].
102 As for the passage from Barwick CJ's judgment in Cohen's case, Mr Dowling said that it is not good authority for Mr Borenstein's proposition that the task of construction should be carried out from the perspective of an imaginary prospective member because: (a) the Chief Justice was in dissent; and (b) although the passage is cited with approval in R v Williams; Ex parte Australian Building Construction Employees' and Builders' Labourers' Federation (1982) 153 CLR 402 at 408 (extracted at [100] above), it is so cited only in support of the proposition that eligibility rules are to be construed objectively.
103 I agree. Other than the passage from Barwick CJ's dissenting judgment, there is no authority to which I was taken which stands for the proposition that the task of construction should be carried out from the perspective of an imaginary prospective member. And such a notion is inconsistent with the long accepted proposition that the ordinary objective rules which govern the construction of written documents apply also to the construction of union rules: see, eg, R v McKenzie; Ex parte Actors and Announcers Equity Association of Australia (1982) 148 CLR 573 at 576 (Gibbs CJ; Mason, Aickin and Wilson JJ agreeing); R v Isaac; Ex parte Transport Workers' Union (1985) 159 CLR 323 at 340 (Wilson J; Deane and Dawson JJ agreeing).
104 It cannot be gainsaid that various relevant parts of the National Rules contain infelicities of expression, and redundancies, of one sort or another. This is largely the product of the fact that the rules have been amended many times in a piece-meal fashion to accommodate union amalgamations and, at the same time, accord to the newly joined Divisions a significant degree of autonomy. That has resulted in rules that can, and in this case do, have their challenges.
105 In my view, however, for reasons which I will explain, the approach to the construction of the rules contended for on behalf of the respondents is to be preferred.
106 The approach contended for a behalf of the applicant, it seems to me with respect, has a number of difficulties.
107 The applicant's case is that the relevant task of construing the National Rules starts with r 2, and then moves directly to r 2 of the Manufacturing Division Rules. That is, that having identified floor layers, glaziers and cabinet makers as being eligible to join the union under r 2, one goes directly to r 2 of the Manufacturing Division Rules and finds that such persons are eligible to be members of that Division and, as one also knows from the other divisional rules, no other Division.
108 The applicant says that there is no hierarchy of rules; that the Manufacturing Division Rules are to be construed accordingly; and that the process of ascertaining the true construction of the National Rules thus effectively ends with r 2 of the Manufacturing Division Rules.
109 It seems to me however that, construing the National Rules objectively, and reading them as a whole, one is bound also to have regard to r 7 and to r 42.
110 Rule 7 makes it clear that:
(1) a candidate for membership of the Union may make application to the National Secretary, to the Division covering the occupation or industry in which the person is or will be employed, or to the relevant Branch (r 7(i));
(2) a member shall be attached to the Division of the Union covering the industry or employment of the member and shall be in only one such Division (r 7(iv));
(3) any disagreement about which Division or Branch a member properly belongs to may be referred to the National Secretary and be determined by the National Executive or its delegate (r 7(viii)(b));
(4) any determination by the National Executive or its delegate "shall use the principles in and by sub-rules 42(i) and 42(iii) hereof" (r 7(viii)(d)); and
(5) nothing in r 7(viii) "shall affect or detract from the provisions of subrule(s) 42 (i), (iii) and (xii) and membership of a Division or a Divisional Branch shall be valid notwithstanding an irregularity in, breach of or failure to comply with the procedures in either one or both paragraphs (a) or (b) herein" (r 7 (viii)).
111 It follows, in my view, that it is necessary in construing the rules as a whole to have recourse to, and to construe, r 42 for the purposes of determining the appropriate Division or Branch to which a Union member belongs, just as the National Executive would be required to do if a disagreement about the appropriate allocation of a member were referred to it under r 7(viii)(b).
112 In that regard, a number of matters of context about r 42 are tolerably clear.
113 The Scheme for Amalgamation dated 3 November 1992 (referred to at [41] and [63] above) between the CFMEU the FFTS, the OPDU and VSBTU contemplated that:
(1) the new union-based Divisions (the Building Unions Division, the UMW Division, the ATAIU Division, the FEDFA Division and the FFTS Union Division) would be restructured into "Industry Divisions" (namely, Construction; Forestry, Forest and Building Manufacturing Products; Mining; and Energy Divisions) (cls 10, 14);
(2) the FFTS Union Division would have eight years in which to reach agreement on the way in which that restructuring would occur (cl 14);
(3) the FFTS Union Division would during that time "be autonomous in those matters that relate to members of that Division only" (cl 14); and that
(4) the FFTS Union Division was to be restructured after a maximum of eight years substantially into the Forestry, Forest and Building Manufacturing Products Division (cl 15).
114 Those matters are reflected in r 42 as amended at 26 March 1993. The March 1993 amendments altered r 42(i) so that it provided, among other things, that "on and from the date of amalgamation there shall be five (5) Divisions of the Union being the Building Unions Division, the ATAIU Division, the UMW Division, the FEDFA Division and the FFTS Union Division". Further, r 42(iii) was amended to provide that the restructuring referred to in r 42(iii) "shall not affect the separate existence of the FFTS Union Division for the time specified in this Transitional Rule" (ie up to eight years).
115 Those same amendments also included amendments to r 42(xiii) so that it, among other things, provided that:
(1) the FFTS Union Division could have a separate existence for a period of up to eight years commencing on the date of effect of amalgamation of the FFTS and the CFMEU;
(2) if no agreement was reached by then, the National Executive would determine the changes necessary to effect the restructuring, including all rule changes; and
(3) it was then the current intention that the FFTS Union Division would be restructured after a maximum of eight years substantially into the Forestry, Forest and Building Manufacturing Products Division.
116 It is clear that the amalgamation referred to in the Scheme for Amalgamation has occurred; that the FFTS Union has now merged into the Manufacturing Division, so that it no longer continues its separate existence; and that the Union now comprises four Divisions, not five - namely, the Construction and General Division, the Manufacturing Division, the Mining and Energy Division and the Maritime Union of Australia Division: r 27(i). It is also tolerably clear that those Divisions are established principally "on a basis of industry", as r 27(i) contemplates ("[t]here shall be Divisions of the Union … established on a basis of industry or occupation"), because each of the Divisions obviously describes an industry, not an occupation. (The Maritime Union is not mentioned in r 42. That may be because it amalgamated in 2018. In any event, "Maritime" obviously describes an industry.)
117 It must follow that "the demarcation between the FFTS Union Division and the other Divisions of the CFMEU", being "the status quo" which r 42(i) says was to prevail "[w]hile the FFTS Union Division continues its separate existence", cannot represent a statement of the current position, because the FFTS Union Division no longer continues its separate existence. Rule 42(i) thus no longer operates.
118 One next turns, as the National Executive would turn in the event of a divisional allocation dispute being referred to it, to the balance of r 42 invoked by r 7, namely r 42(iii).
119 Rule 42(iii) is headed "After Amalgamation", which indicates that it is intended to have operation after the amalgamation of the FFTS Union Division (among others).
120 Rule 42(iii) contains an anachronistic description of the current Divisions of the Union. (The four current Divisions are correctly described in r 27(i) (see above at [116]).)
121 Rule 42(iii) instead refers to three Divisions: the Mining and Energy Division; the Forestry, Forest and Building Manufacturing Products Division (called the Forestry Division); and the Construction and General Division.
122 Eligibility for membership of the Mining and Energy Division and the Forestry Division is defined in both cases by reference to rr 2(A), (B), (C) and (E). Members falling within those categories of membership eligibility who are "employed in the Mining, Exploration and Energy Industries" are allocated to the former Division, and those in the "Forest and forest products industry, [p]ulp and paper industry, [and the] [t]imber and building related manufacturing industry" are allocated to the latter Division. Workers eligible to be members under r 2(D) are allocated wholly to the Mining and Energy Division.
123 The Construction and General Division, in turn, is to consist "of all members of the union employed in or in connection with the Construction industry (including shopfitting) and all other members of the Union not referred to [elsewhere in r 42(a)(iii)]".
124 Rule 42 thus makes no mention of those members who are eligible to be members of the Union under r 2(F).
125 The applicant does not contend that r 42(iii) is to be construed on the basis that it contains a lacuna, or that a failure to include an express reference to r 2(F) in it was a mistake. Nor does he contend that r 42(i) provides relevant assistance, presumably because it is recognised that it is no longer capable of operation.
126 As the respondents submitted, the redundant provision in r 42(i) that "[t]he FFTS Union Division shall consist of all persons eligible … for membership … under Rule 2(F) including all former members of the previously registered FFTS" is a "problem" for the applicant because:
(1) that sentence "is the case that the applicant says continues in operation"; and
(2) "[he] can't tell you that [his case] prevails by operation of [r 42(i)] because it must have ceased operation by reason of the [FFTS Union Division] ceasing its separate existence, and so they get there by what they say the work of rule 42D did …"
127 The respondents do not lay any claim to floor layers, cabinet makers and glaziers who work "off-site", because they are not "employed in or in connection with the Construction industry" within the meaning of r 42(iii)(c). (Although the respondents adduced some evidence about the dichotomy between "on-site" and "off-site" workers, and their parallels "the construction industry" and the "manufacturing industry", those distinctions received little attention in closing addresses.)
128 The effect of the respondents' case is thus that r 42(iii)(c) is to be construed as meaning that all members of the Union not employed in or in connection with the construction industry who are eligible to be members of the Union under r 2(F) properly belong to the Manufacturing Division.
129 That is the approach to the construction of the National Rules which I favour. It is doubtless "generous", because it involves reading words into r 42(iii)(c) that it does not contain. But the authorities say that in cases involving rules that are not drafted by skilled draftsmen and which contain internal inconsistencies and the like, a generous approach to the task of construction is permissible. As Wilson J observed in R v Isaac; Ex parte Transport Workers' Union (1985) 159 CLR 323 at 340 (Deane and Dawson JJ agreeing):
In construing the eligibility clause in the constitution of an organization, it is necessary to bear in mind the nature of the instrument in which the words appear and the purposes that it is intended to serve. The rule now in question bears ample indication on its face that it has been prepared without the assistance of the skilled draftsman. It has been amended from time to time, probably in response to the exigencies attending the industrial affairs of the union and without regard to the effect of the amendment on the internal consistency of the clause as a whole. It follows that the words of the rule should be given a wide meaning and interpreted according to their ordinary or popular denotation rather than by reference to some narrow or formal construction. Nevertheless, notwithstanding this generosity of approach, the meaning of the words remains a legal question to be determined by the application of the ordinary rules which govern the construction of written documents.
(Citations omitted.)
130 The description of the rules of the Transport Workers' Union in the second sentence of that passage, if I may say so with respect, is an apt description of the National Rules in this case.
131 One of the reasons that the applicant submits that one does not get to r 42 is that there is "no stated hierarchy" between the National Rules and the divisional rules, and nothing in the National Rules "derogates from the allocation which is explicitly set out" in r 2 of the Manufacturing Division Rules.
132 I am unable to accept that proposition. To say that divisional rules have the same hierarchical authority as national rules cannot, with great respect, be correct. The former are necessarily subordinate to the latter. As Mr Dowling said in his oral closing submissions, the divisional rules cannot determine divisional boundaries "because you would not be able to determine when another division is intruding on your rights without a tiebreaker or without a higher rule to determine … the contest".
133 Justice Gray said something along the same lines in Callaghan v Federated Clerks Union of Australia (1987) 22 IR 346 at 367-368 (Callaghan's case), as follows:
An organisation registered under the [Conciliation and Arbitration Act 1904 (Cth)] is a body corporate … The corporation is the owner of all its funds; they cannot belong separately to its branches. It must have an interest in the collection, preservation and proper application of those funds. Similarly, an organisation must have rules. To the extent to which it has separate rules for the operation of branches, those rules must inevitably be subordinate to the rules of the organisation itself, and some machinery must exist for ensuring that the rules of a branch are not, or do not become, inconsistent with the rules of the organisation itself. All of the general powers given by the rules of the union to its national council and national executive, including the powers to amend rules and to supervise the amendment of branch rules, are no more than one would expect within an organisation.
(Citations omitted, emphasis added.)
134 In this case, the "machinery … for ensuring that the rules of a branch [or Division] are not, or do not become, inconsistent with" the National Rules is provided by r 7 of the National Rules - which, in turn, invokes the "principles" contained in r 42(iii). In those circumstances, to accept that r 2 of the Manufacturing Division Rules governs the matter, as the applicant contends, would involve turning on its head what Gray J said in the passage quoted above from Callaghan's case.
135 I am also unable to accept the applicant's submission that r 42 is to be disregarded because it was "never implemented", fully or otherwise. Quite apart from anything else, as the respondents submitted, r 7 (headed "Membership") refers to, and picks up by cross-reference, r 42(iii) (not any provision of divisional rules), and directs the National Executive to r 42(iii) to resolve disputes about divisional allocation in accordance with the "principles established" by r 42(iii). It is true that the rules contain provisions that are redundant, as I have explained. There are obvious redundancies in r 42 in particular. The provision in rule 42(iii)(b) that "up until April 3rd, 2000 [it] shall be read subject to the agreement … dated September 2nd 1988" is clearly anachronistic, because it cannot by its own terms have any current operation. And the reference in r 42(iii)(c) to "sub-rule (iii) … (d)" is wrong because that sub-rule has been deleted.
136 But the applicant's case, which amounts to saying that one must construe the cross-reference in r 7 to the principles established in r 42(iii) as referring to something that is wholly inoperative, seems to me to be a most improbable reading of the rules as a whole.
137 Likewise, acceptance of the applicant's contention that r 42(iii) was not implemented would also result in giving the entire sub-rule, which on its face says that it operates (because it is effective "[a]fter amalgamation"), no work to do. That too is an improbable construction of the rules, and I do not accept it.
138 Further, there is also considerable force in the respondents' submission that the amendments to r 42(iii) made between 1994 and 2003 confirm "the effect and effectiveness" of r 42(iii), because if it had never been implemented, there surely would have been no reason to have amended it multiple times.
139 I am also unable to accept the applicant's submission that the 2003 deletion of r 42(iii)(d) from the rules (which had read "[p]rovided that the restructuring referred to above shall not affect the separate existence of the FFTS Union Division and untranslated FEDFA Divisional Branches for the time specified in this Transitional Rule"), was a merely "technical amendment consequent upon the abolition of the FEDFA division" and was not intended to work any changes to the allocation of ex-FFTS Division members at the time. That submission is, with respect, an assertion which is unsupported by any evidence. It seems to me that if one were to hazard a guess, the more likely possibility is that the section was deleted because it was recognised that it had no more work to do.
140 It follows that to the extent that Mr O'Connor and Mr Smith gave evidence that r 42 had never been implemented, I am unable to agree. In saying so, I make no criticism of them. I have no doubt that is a view that they genuinely held.
141 I also am unable to accept the applicant's submission that r 42 was anything other than "self-executing". As the respondents submitted, and I agree, when r 42(iii) says that "there shall be a restructuring of the Divisions" it "does not speak to some unknown future, but is an imperative. It dictates that there is to be a restructure along the lines set out there, "[s]ubject to any changes made by unanimous decision of the National Executive Committee following amalgamation". The words "shall be", in other words, "are used to create presently existing rights, obligations and bodies, and on their own cannot be read as delaying the existence of such things until the occurrence of some future condition" (see [88] above).
142 Next, I deal with the applicant's submission about deleted r 42D. I have set out the submission above at [84], but it is as well to repeat the substance of it:
(1) r 42D did the job in 2002 of transferring or restructuring the FFTS Division into the Manufacturing Division;
(2) the position of ex-FFTS Division members was by October 2003 "enshrined in and protected by" rule 42D, such that the deletion of r 42(iii)(d) could not have any effect on them;
(3) by September 2005, the transitional arrangements under rr 42 and 42D applying to what had once been the FFTS came to an end "in a practical and a legal sense" and "the default position" under r 42D to give the coverage of the former FFTS Division to the Manufacturing Division "became fixed" because there had not been any contrary agreement;
(4) in the absence of any such agreement, r 42D "worked the result" that the Manufacturing Division took coverage of all of the former FFTS coverage; and
(5) it follows, so it is submitted, that from March or September 2005 the Manufacturing Division has had lawful and exclusive coverage of r 2(F) members.
143 I am unable to accept the applicant's submissions about r 42D.
144 First, the submissions involve construing the extant rules by reference to a deleted rule. Counsel did not cite any authority regarding the use that may be made of deleted provisions when construing union rules, but in my view, as in cases involving the meaning of a contract, they are likely to be "an unsafe guide to meaning": see Sir Kim Lewison and David Hughes, The Interpretation of Contracts in Australia (Thomson Reuters, 2012) at 3.04.
145 As Lloyd J said in Mineralimportexport v Eastern Mediterranean Maritime Ltd [1980] 2 Lloyd's Rep 573 at 575:
I do not belong to the school of thought which regards it as inadmissible to look at deletions in a printed clause. Thus the use of a word or phrase in the deleted part of a clause may throw light on the meaning of the same word or phrase in what remains of the clause. But it seems to me quite another thing to say that the deletion itself has contractual significance; or that by deleting a provision in a contract the parties must be deemed to have agreed to converse. The parties may have had all sorts of reasons for deleting the provision; they may have thought it unnecessary; they may have thought it inconsistent with some other provision in the contract; it may even have been deleted by mistake.
(Citations omitted.)
146 Similarly, in Mopani Copper Mines plc v Millennium Underwriting Ltd [2008] EWHC 1331 (Comm); [2008] 2 All ER (Comm) 976 at 1003 [122]-[123], Clarke J said:
Even if recourse is had to the deleted words, care must be taken as to what inferences, if any, can properly be drawn from them. The parties may have deleted the words because they thought they added nothing to, or were inconsistent with, what was already contained in the document; or because the words that were left were the only common denominator of agreement, or for unfathomable reasons or by mistake. They may have had different ideas as to what the words meant and whether or not the words that remained achieved their respective purposes.
Further, as Morgan J pointed out in Berkeley Community Villages Ltd v Pullen [2007] EWHC 1330 (Ch) at [55], [2007] All ER (D) 36 (Jun) at [55]:
Even in the cases where the fact of deletion is admissible as an aid to interpretation, there is a great difference between a case where a self-contained provision is simply deleted and another case where the draft is amended and effectively re-cast. It is one thing to say that the deletion of a term which provides for 'X' is suggestive that the parties were agreeing on 'not X'; it is altogether a different thing where the structure of the draft is changed so that one provision is replaced by another provision. Further, where the first provision contains a number of ingredients, some assisting one party and some assisting the other, and that provision is removed, it by no means follows that the parties intended to agree the converse of each of the ingredients in the earlier provision.
See also Health & Case Management Limited v The Physiotherapy Network Limited [2018] EWHC 869 (QB) at [72]ff; Ideal Business Centres Pty Ltd v Violin Holdings Pty Ltd atf The Violin Investment Trust [2018] NSWSC 1249 at [65]-[70].
147 Secondly, and in any event, there is no part of the text of deleted r 42D that invites any suggestion that the transitional arrangements became "fixed' or "enshrined" absent any determination by the National Executive. On the contrary, r 42D(5) provided that "[s]hould agreement not be reached between the Divisions the matter shall be referred to the CFMEU National Executive to determine in accordance with the Schemes of Amalgamation and Rules of the Union". Those "Rules of the Union" obviously included rr 7 and 42(iii), and it is those rules that at the relevant time (when r 42D was in force) would have provided the basis for the resolution of any internal demarcation dispute. The fact that the question was not determined by the National Executive is not, in my view, a fact that establishes, as the applicant would have it, that a "transitional" arrangement became fixed or enshrined, whatever those words may mean.
148 Thirdly, clear words would be required to make good the "fixed" or "enshrined" proposition because it would be an unlikely thing to have intended that the FFTS Division was to be treated differently to any other Division. Such an intention is even more unlikely when (on the applicant's case) one must have reference to evidence of context, including minutes of meetings of the National Executive or the National Executive Committee dating back to 2002, and the text of a deleted rule, in order to divine it.