O'Connor v Setka

O'Connor v Setka - [2020] FCAFC 195 - FCAFC 2020 case summary — Zoe

[3]

THE COURT: 1 The Rules of the Construction, Forestry, Maritime, Mining and Energy Union (the Union or the CFMMEU) now provide for there to be four Divisions of the Union, established on the basis of industry or occupation. The four Divisions are: (a) the Construction and General Division; (b) the Manufacturing Division; (c) the Mining and Energy Division; and (d) the Maritime Union of Australia Division. 2 Each Division has a degree of autonomy in relation to matters which do not directly affect the members of another Division and with respect to its funds and property. Each has its own rules (known as Division Rules) and the members in each may elect their own officers. The members of the Union are allocated to the particular Division covering the industry or employment of the member and may belong to one Division only. 3 The Manufacturing Division is divided into Districts, one of which is the Victorian District. 4 The Construction and General Division is divided into Divisional Branches, one of which is the Construction and General Division, Victoria-Tasmania Divisional Branch (the Construction Branch). 5 The matter which gives rise to the present appeal is a dispute as to whether certain members of the Union in Victoria (being persons who are within eligibility Rule 2(F)) are properly allocated to the Manufacturing Division or to the Construction and General Division. 6 The dispute arose in about August 2019 when the respondents, or at least some of them, began to encourage members of the Manufacturing Division in Victoria to "resign" from that Division and to "join" the Construction and General Division instead. The primary Judge found that over 200 members employed on construction sites and working in floor laying, glass and cabinet making occupations in Victoria have since resigned from the Manufacturing Division and have joined the Construction and General Division. 7 The appellant is a member of the Union, its National Secretary, and the Divisional Secretary of its Manufacturing Division. He brought an application under s 164 of the Fair Work (Registered Organisations) Act 2009 (Cth) (the RO Act) seeking orders for the observance and performance of the Rules of the Union, as well as orders (viewed generally) directed to restoring the membership of the 200 or so members to the Manufacturing Division, and restraining the respondents from further encouragement of its members to join the Construction and General Division. In addition, he sought a declaration pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) that persons who are eligible to be members of the Union pursuant to Rule 2(F) of the Rules in Victoria are not eligible to be members of the Construction and General Division. 8 The respondents to his application (who are also the respondents on the appeal) are the members of the Divisional Branch Management Committee (the DBMC) of the Construction Branch. Subject to review by the Divisional Branch Council, the DBMC has the care, control, superintendence, management and administration of the affairs of the Construction Branch (including dealing with applications for membership) and may exercise all of the powers of the Divisional Branch Council. 9 The appellant's application raised issues concerning the proper construction and application of the Rules of the Union. The primary Judge rejected the construction for which the appellant contended and dismissed his application: O'Connor v Setka [2020] FCA 441. 10 The appellant now appeals on multiple grounds against that judgment. 11 The principal issue on the appeal is whether members of the Union in Victoria in the occupations described in Rule 2(F) of its Rules are, in accordance with the Rules, properly allocated to the Manufacturing Division.

[5]

Some history of the CFMMEU 14 A number of Rules and aspects of the history of the CFMMEU are relevant to the determination of the appeal. The summary which follows draws on the evidence at trial and on the analysis and findings of the primary Judge. 15 The CFMMEU is an organisation registered under the RO Act. Its present day composition is the product of a series of amalgamations of unions and in many respects its Rules are reflective of those amalgamations. The accuracy of the Judge's summary of the amalgamations at [17] in the primary judgment was not in issue on the appeal and it is convenient to repeat it verbatim: (1) The amalgamation in 1990 of the Australian Timber Workers' Union and the Pulp and Paper Workers' Federation of Australia to form the Australian Timber and Allied Industries Union (ATAIU). (2) The amalgamation in September 1991 of the Building Workers' Industrial Union of Australia (BWIU) with the ATAIU to form the ATAIU and BWIU Amalgamated Union. (3) The amalgamation in February 1992 of the ATAIU and BWIU Amalgamated Union with the United Mineworkers' Federation of Australia (UMW) to form the Construction, Forestry and Mining Employees' Union. (4) The amalgamation in September 1992 of the Construction, Forestry and Mining Employees' Union, the Federated Engine Drivers' and Firemen's Association of Australasia (FEDFA) and the Operative Plasterers' and Plaster Workers' Federation of Australia (OPPWF) to form the Construction, Forestry, Mining and Energy Union (CFMEU). (5) The amalgamation in March 1993 of the CFMEU, the Operative Painters and Decorators' Union of Australia (OPDU), the Federated Furnishing Trade Society of Australasia (FFTS) and the Victorian State Building Trades Union (VSBTU) under the name of the CFMEU. (6) The amalgamation in 1994 of the CFMEU and the Builders' Labourers' Federation (BLF), under the name of the CFMEU. (7) The amalgamation in 2018 of the Maritime Union of Australia and the Textile, Clothing and Footwear Union of Australia with the CFMEU to form the CFMMEU. 16 We mention that it is convenient to refer to the amalgamation in 1994 as involving the BLF only but it did in fact also involve some State-based unions. 17 Commencing in 1991, the Union resolved to structure itself into Divisions based on the industries in which its members worked instead of Divisions based on the memberships of the amalgamating Unions. This gave rise to issues concerning the way in which the current members of the amalgamating unions as well as the new members who would otherwise have belonged to those unions would be allocated to Divisions in the new structure. 18 The circumstances giving rise to this appeal have their origins in the arrangements made for the integration of the FFTS into the Union following the amalgamation involving it in March 1993. 19 In about November 1992, the then CFMEU, the OPDU, the FFTS and the VSBTU entered into a Scheme for Amalgamation of the kind contemplated by s 235 of the former Industrial Relations Act 1988 (Cth). The Scheme for Amalgamation contemplated a merging of the "old CFMEU", the FFTS, the OPDU and the VSBTU into a body to be called "Construction, Forestry, Mining and Energy Union" (the new CFMEU) and that, on the achievement of the amalgamation, the OPDU, the FFTS and the VSBTU would be deregistered (cll 2 and 3). 20 The Scheme for Amalgamation set out the contemplated Divisional structure and provided (relevantly): Structure 10. The new CFMEU will consist of five (5) National Divisions (Building Unions Division, ATAIU Division, UMW Division, FEDFA Division and FFTS Union Division) and each Division shall consist of a number of Divisional Branches (State and District). 11. The existing BWIU/Plasterers Division shall become the Building Unions Division which shall incorporate the VSBTU and OPDU. All existing Divisions will continue to operate and there shall also be a new Division being the FFTS Union Division. … 13. … (e) All persons who are or who become members of the new CFMEU who are covered by that part of the Eligibility Rule which was formerly that of the FFTS shall be assigned to the FFTS Union Division of the new CFMEU. Industry Divisions 14. It is proposed that subsequent to amalgamation the Union Divisions (ie Building Unions Division, UMW Division, ATAIU Division, FFTS Union Division) will be restructured into Industry Divisions (namely, Construction; Forestry, Forest & Building Manufacturing Products; Mining; and Energy Divisions). The FFTS Union Division shall have eight (8) years in which to reach agreement on the way in which that restructuring will occur, during which time the FFTS Union Division will be autonomous in those matters that relate to members of that Division only. … 15. It is the current intention that the FFTS Union Division will be restructured after a maximum of eight (8) years substantially into Forestry, Forest and Building Manufacturing Products Division. (Emphasis added) 21 As is apparent, the Scheme for Amalgamation contemplated that, on the amalgamation, the Union would consist of five "union based" divisions; that one of these divisions would be a new division known as the "FFTS Union Division"; that subsequent to the amalgamation the Union would be restructured into four "industry based" divisions; that all members (current and future) of the new CFMEU who were covered by that part of the eligibility Rule which derived from the former FFTS would be assigned to the FFTS Union Division; that the FFTS Union Division would have eight years in which to reach agreement as to the way in which it would be restructured; that during that period of eight years it would have autonomy in respect of matters concerning members of the FFTS Union Division only; and that after a maximum of eight years the FFTS Union Division would be restructured substantially into the Forestry, Forest and Building Manufacturing Products Division (which is now the Manufacturing Division). 22 The amalgamations contemplated by the Scheme for Amalgamation took effect on 26 March 1993.

[7]

Rule 2 25 Rule 2, under the heading "Constitution", contains a statement of those eligible to be members of the Union. It is extensive, 40 pages in length, and provides for 20 different principal categories of membership. It is apparent that the categories reflect the membership eligibility clauses of the various amalgamating unions which were, in effect, cut and pasted into the National Rules with each successive amalgamation. Those which are relevant presently are those described in Rules 2(A)(A), 2(A)(b), 2(C) and 2(F). 26 Rules 2(A)(A) provides (relevantly) that employees in the following industrial pursuits are eligible to be members: (3) … (i) carpenters or joiners … stonemasons, marble masons, polishers, machinists, sawyers and all other persons engaged in the dressing and preparation and/or erection of stone, marble or slate … bricklayers, tuckpointers, or in a trade or calling of a slater, roof tiler, shingler, ridger or cement tiler … PROVIDED however that notwithstanding the foregoing: … (e) In the States of Victoria, South Australia, Queensland, Tasmania and the Australian Capital Territory nothing in paragraph A(i) of this rule shall render eligible for membership any employee engaged in the plate, sheet and ornamental glass industries as defined in this sub-rule who is eligible for membership of The Federated Furnishing Trades Society of Australasia. … (iii) In the State of Victoria any process, trade or business in or of the plaster industry … (Emphasis added) 27 Rule 2(A)(b) provides (relevantly) for the following persons to be eligible for membership, namely, employees engaged in: … (e) glazing, glass cutting, glass processing, cutting and fixing vitrolite or like material, the fixing of glass by any means in any place prepared for its reception, fitting and fixing glazing bars (but excepting in the State of Victoria, South Australia and Tasmania only, any person who is eligible for membership of the Federated Furnishing Trade Society of Australasia) … (Emphasis added) 28 As will be seen, the Construction and General Division Rules provide that it is the members who are eligible by reason of Rules 2(A)(A) and 2(A)(b) who are, together with those in Rules 2(E) and 2(N), attached to the Construction and General Division. 29 Rule 2(C) provided (relevantly) for the eligibility of: (i) All persons who are employed or are usually employed in any position on or in or in connection with (a) saws and wood working machines; (b) handling and treating timber and articles manufactured therefrom; (c) sawmills, timber yards … (d) the preparing of woodwork for joiners, carpenters, builders … 30 Rule 2(F), which was inserted when the amalgamation of the FFTS occurred and reflects its eligibility rule, provides (relevantly) for the membership of: … cabinet-makers … carpet and linoleum planners and all floor covering layers … [and] glaziers … 31 As will be seen, the Manufacturing Division Rules provide that it is the members who are eligible by reason of Rule 2(C) who are, together with those in Rules 2(F) and 2(R), attached to the Manufacturing Division.

[8]

Rule 7 32 Rule 7 is an important rule because it contains provisions concerning the manner in which a person may become a member of the Union, the allocation of members to a Division and for the resolution of disagreements concerning the Division to which a member should appropriately be attached. Rule 7(i) provides for applications for membership of the Union, not applications for membership of a Division: (i) A candidate for membership of the Union may make application to the National Secretary, the Division covering the occupation or industry in which the person is employed, the Branch covering the area in which the person is employed or resides, or the Divisional Branch covering the industry or occupation in which the person is employed, usually employed or desirous of being employed in the area in which the person resides or is employed, and such application shall be made and dealt with in the manner and subject to the conditions … required by the rules of the Division. Any application shall be forwarded to the office in the appropriate division which under the rules of that division deals with such applications. The decision to accept or reject that application shall be made in accordance with the Rules of that division by that office. Provided that where a person makes application to any officer of the Union that application shall be a valid application for membership of the Union and the Union shall, treat the member as a member of the Division to which the officer is attached, until transferred in accordance with the rules. (Emphasis added) 33 Rules 7(iv) provides for the allocation of members to a Division: (iv) A member shall be attached to Division of the Union covering the industry or employment of the member and shall be in only one such Division. Each member shall be notified of the Division to which such member is attached or any other classification relevant to the Rules of the Union and such Division or classification shall be entered on the record of the Union in relation to that member which record shall be conclusive proof of the Division and/or classification to which that member is assigned. (Emphasis added) 34 Rule 7(v) is intended to ensure that no question of invalidity will arise by reason of a member having been attached to an incorrect Division: (b) Without affecting or detracting from the requirements of sub-rules 42(iii) and 42(xii) and without limiting the rights of a member or a Division, Divisional Branch or authorised officer thereof, to seek or obtain a transfer of Division or Divisional Branch in accordance with the rules, no membership of the union shall be invalidated, void or otherwise treated as irregular on account of the member being attached to a Division, Branch or Divisional Branch which, in accordance with the Rules, may not be the correct Division, Branch or Divisional Branch provided that the member was eligible for membership of the Union and the member was aware of the Division, Branch or Divisional Branch to which the member was attached … 35 Rule 7(viii) provides two means by which a member may be transferred from one Division to another. The first is available when the Division to which the member is attached considers that the member should belong to another Division (Rule 7(viii)(a)). The second is available when a Division considers that a member attached to another Division should more appropriately be attached to it (Rule 7(viii)(b)). The second of these sub-rules provides: (viii) … (b) … where a Divisional Secretary or a Divisional Branch Secretary forms the view that a member of another Division or Divisional Branch ought to be a member of the Division or Divisional Branch to which the Divisional Secretary or Divisional Branch Secretary is attached, the Divisional Secretary or Divisional Branch Secretary shall contact the … Divisional Branch Secretary of the Divisional Branch to which the member is now attached and seek agreement that the member be transferred. Where agreement cannot be reached the matter may be referred to the National Secretary and be determined by the National Executive or an officer designated by the National Executive. … (d) Any determination by the National Executive or officer designated by the National Executive shall use the principles established in and by sub-rules 42(i) and 42(iii) hereof. Nothing in these paragraphs shall affect or detract from the provisions of sub- rule(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. (Emphasis added) 36 As is apparent, Rule 7(viii)(b) contemplates a process of consultation in the first instance followed, if necessary, by reference to the National Secretary for determination by the National Executive or by an officer designated by the National Executive. The "principles" established by Rules 42(i) and (iii) are to be used in the determination of the dispute. The evidence at trial did not disclose the history of Rule 7. The parties' submissions were made on the basis that it has been in force at all material times.

[9]

Rule 25 37 Rule 25 provides for the manner in which the Rules may be altered: 25 - ALTERATION OF RULES (a) The rules of the Union, or any of them, may be altered, rescinded, varied or made by the National Conference and/or National Executive. Proposals for alterations of rules may be forwarded by Divisions, Branches or any member of the National Executive or delegate to the National Conference and shall be forwarded to members and/or delegates with the notice calling the National Conference or National Executive, as the case may be, or so soon thereafter as is practicable. Provided that National Conference or National Executive may, in session, alter rules of which previous notice has not been given. (b) Alterations to rules may be made, at the discretion of the National Secretary, by postal, telephonic, facsimile, email, written and/or any other means of communication as a ballot of National Conference or National Executive. Such a rule change will have the same effect as a change made in a session of the National Conference or National Executive. (c) Notwithstanding the foregoing provisions of this rule, the rules of the union and/or any of them may be repealed, altered and added to by the National Executive Committee on its own initiative and without any reference to National Conference or National Executive for the purposes of bringing rules into compliance with the Act, the RO Act or the Regulations thereto or to facilitate, assist in or give effect to an amalgamation decided upon by National Executive or National Conference or to overcome objections taken to an application by the Union for an alteration to its rules, for amalgamation or for registration under the RO Act. (d) Provided that no rule change shall be effected without the approval of a Division, by either the National Conference, National Executive or National Executive Committee which affects the existence of that Division or interferes with its autonomy under these rules, including the internal structures of a Division.

[12]

Rule 42 - Original Amalgamation 41 Rule 42 concerns the transitional arrangements for various of the amalgamations which have occurred since 1991. The respondents' submissions accepted by the Judge were based on its terms. It is accordingly appropriate to note the course of Rule 42 since it was first made. 42 Rule 42 was first inserted into the Rules at the time of the amalgamation between the BWIU and the ATAIU, on 23 September 1991. At that time, Rule 42 provided (relevantly) 42 - TRANSITIONAL PROVISIONS (i) On and from the date of amalgamation there shall be two (2) Divisions of the Union, being the BWIU Division and the ATAIU Division. The BWIU Division shall consist of those persons eligible and continuing to be eligible for membership of the union under Rule 2(A) and (B), and the ATAIU Division shall be those members eligible for membership and continuing to be eligible for membership of the union under Rule 2(C). … (iii) Following amalgamation there shall be a restructuring of the Divisions on the following basis: (a) There shall be created a Forestry and Forest, Building Products Manufacturing Division (herein after referred to as the Forestry Division) which shall consist of all members of the union eligible to be members under Rule 2 (C) and all members, including members eligible under Sub-Rules 2 (A) and (B), employed in the following sectors of the industry: Forest and forest products industry, Pulp and paper industry, Timber and building related manufacturing industry including joinery/shopfitting, wall frame/roof trusses, furniture, glass window manufacturing and any other sectors of manufacturing activity as agreed to between the ATAIU and the BWIU Divisions of the union. (b) There will be a Construction Division which shall consist of all other members of the union. (iv) The transfer of members from the BWTU Division to the new Forestry Division shall be on terms as agreed to or by the two Divisions and shall use as a guide the immediately preceding paragraph. … (xii) The restructuring referred to herein shall be effected with four (4) years from the date of amalgamation. If no agreement has been reached by that date then notwithstanding any other rules of Union the National Executive shall determine the changes necessary to effect such restructuring including any and all rule changes therefore. (Emphasis added) 43 As is apparent, Rule 42 provided that, on the amalgamation, there would be two union-based Divisions but for those to be restructured following the amalgamation into two industry-based Divisions. The new Divisional structure was to be implemented within four years with transfers of members into the new Divisions being achieved by agreement or, in the absence of agreement, by determination of the National Executive. 44 Rule 42 was amended on 10 February 1992 and 23 September 1992 to provide for the amalgamation with the UMW and then with FEDFA and the OPPWF. New union-based Divisions were created for the members from those Unions and sub-rule (iii) was amended to provide for a Mining Division. Otherwise those amendments do not need to separately noted. 45 Rules 42 was amended again on 26 March 1993 when the amalgamations with the OPDU, FFTS and VSBTU took effect. Rule 2 was amended at the same time relevantly to incorporate Rule 2(F), which was in the terms of the eligibility rule of the former FFTS. It is apparent that the amendments made on 26 March 1993 were intended to give effect to the Scheme for Amalgamation to which reference was made earlier. 46 With effect from 26 March 1993, Rule 42 provided (relevantly): 42 - Transitional Provisions (i) 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. The Building Unions division shall be the former BWIU/Plasters Division together with members and officers of the OPDU. The Building Unions Division shall consist of those persons eligible and continuing to be eligible for membership of the union under Rule 2(A) and (B), the ATAIU Division shall consist of those persons eligible and continuing to be eligible for membership of the Union under Rule 2 (C), the UMW Division shall be those persons eligible for membership and continuing to be eligible for membership of the union under Rule 2 (D) and the FEDFA Division shall be those persons eligible for membership and continuing to be eligible for membership of the Union under Rule 2(E). The FFTS Union Division shall consist of all persons eligible and continuing to be eligible for membership of the Union under Rule 2(F) including all former members of the previously registered FFTS. While the FFTS Union Division continues its separate existence, the demarcation between the FFTS Union Division and the other Divisions of the CFMEU shall be in accordance with the above demarcation on the basis of the status quo and custom and practice of coverage as it existed between the previously registered The Federated Furnishing Trade Society of Australasia and the CFMEU including therein demarcation disputes which have been determined by either State or Federal industrial authorities. Where any disagreement occurs between the FFTS Union Division and any other Division of the Union the matter shall be referred to the National Executive which shall determine the demarcation appropriate but such determination shall be based on the principles enunciated in this paragraph. … (iii) Following amalgamation there shall be a restructuring of the Divisions on the following basis: (a) There 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 industry: (b) There shall be created a Forestry and Forest, Building Products Manufacturing Division (herein after referred to as the Forestry Division) which shall consist of all members of the union eligible to be members under Rule 2 (C) and all members, including members eligible under Sub-rules 2 (A), (B) and (E) employed in the following sectors of the industry: Forest and forest products industry, Pulp and paper industry, Timber and building related manufacturing industry including joinery/shopfitting, wall frame/roof trusses, furniture, glass window manufacturing and any other sectors of manufacturing activity as agreed to between the ATAIU and the Building Unions and FEDFA Divisions of the union. (c) There will be a Construction Division which shall consist of all members of the union employed in or in connection with the Construction industry. (d) There will be an Energy Division which will consist of all other members of the Union. Provided that the restructuring referred to above shall not affect the separate existence of the FFTS Union Division for the time specified in this Transitional Rule. (iv) The transfer of members from any Division to any other Division in accordance with the restructuring proposals in sub-rule (iii) herein, shall be on terms as agreed to by the Divisions concerned in the transfer and sub-rule (iii) shall be used as the basis of an agreement. … (xiii) The restructuring referred to herein shall be effected within four (4) years of the 23 September 1991. Except in the case of the FEDFA Victorian Branch which shall become the CFMEU, FEDFA Victorian Divisional Branch such restructuring may be effected at a time later than 23 September 1995 but shall be effected before 23 September 1999. Further provided that in relation to the FFTS Union Division it may have a separate existence for a period of up to eight years which period shall be shortened only with the agreement of the Divisional Executive of the FFTS Union Division and the eight (8) years shall commence on the date of effect of amalgamation of the FFTS and CFMEU. If no agreement has been reached by the dates set out herein then, notwithstanding any other rule of the Union, the National Executive shall determine the changes necessary to effect such restructuring, including any and all rule changes therefor. It is the current intention that the FFTS Union Division will be restructured after a maximum of eight (8) years substantially into Forestry, Forest and Building Manufacturing Products Division. (Emphasis added) 47 A number of other sub-rules were made which concerned matters of transition in the amalgamations to which it is not necessary to refer. 48 It is convenient to note at this stage some of the effects of Rule 42 as amended on 26 March 1993: although Rule 42(iii) provided in two instances for the allocation of members to be determined by reference to the eligibility clauses in Rule 2, it made no express reference to Rule 2(F). It may be inferred that this was because of the separate provision made for the FFTS Union Division in Rule 42(i) and (xiii); it provided that, on and from the date of amalgamation, there would be four union-based Divisions and, in addition, a FFTS Union Division comprised of the persons eligible for membership under Rule 2(F); the FFTS Division was to consist of all persons eligible and continuing to be eligible for membership of the Union under Rule 2(F), and not just the members of the previously registered FFTS; that demarcation between the FFTS Union Division and other Divisions would be on the basis of a continuance of the status quo and existing custom and practice, with any disagreements being resolved by the National Executive; that subsequent to the amalgamation, there would be a restructuring into four industry-based divisions with that restructuring being completed, subject to two exceptions, within four years; the separate existence of the FFTS Union Division should continue for a maximum of eight years, with the intention that it would then, by agreement or by determination of the National Executive, be "restructured". The intention in 1993 was that it would be restructured substantially into the Manufacturing Division; and Rule 42(iv) contemplated expressly that there may be a transfer of members from one Division to another as part of the restructuring, but provided that that should occur "on terms as agreed to by the divisions concerned". It also indicated that Rule 42(iii) would be used as the basis for agreement. 49 There were further changes to Rule 42 over the succeeding years but only some of those changes are pertinent presently. 50 On 4 June 1993, the chapeau to Rule 42(iii) was deleted and replaced with the words "Subject to any changes made by the National Executive Committee, following amalgamation there shall be a restructuring of the Divisions on the following basis". The National Executive Committee (a subset of the National Executive) was thereby enabled to alter the restructure for which transitional Rule 42(iii) provided. 51 On 27 May 1994, the chapeau to Rule 42(iii) was amended again so as to require that any change by the National Executive Committee to the restructuring arrangements had to be by a unanimous decision. The new chapeau provided: Subject to any changes made by unanimous decision of the National Executive Committee, following amalgamation there shall be a restructuring of the Divisions on the following basis: 52 On 5 May 1995, Rule 42(iii) was amended by providing, amongst other things, for the Mining and Energy Divisions to be merged; by deleting the content of the existing subpara (d); and by making the proviso at the foot of the sub-rule concerning the effect of the restructuring on the FFTS Union Division the new content of Rule 42(iii)(d). 53 Rule 42 was further amended on 7 July 1995. The headings "Upon amalgamation" and "After amalgamation" were inserted before sub-rules (i) and (iii) respectively. This served to make plain that Rule 42 contemplated two stages in the transitional arrangements for which it provided. In addition, the Construction and General Division was made the "catch-all" Division in the restructuring. This was achieved by the addition of the words "and all other members of the Union not referred to in sub-rules (iii)(a), (b) and (d) herein" at the end of sub-rule (iii)(c). At the same time, the existing Rule 42(xiii) was renumbered as Rule 42(xii). 54 On 14 May 1999, Rule 42(iii) was amended so as to provide that sub-rule (b) should, until 3 April 2000, be read subject to a "Translation Agreement" dated 2 September 1998 made between the Forestry Division and the Construction and General Division. This Agreement provided for the translation (transfer) of some members attached to the Construction and General Division to the Forestry Division; for the prospect of further discussions and agreements; and for consequential matters. 55 On 9 November 2000, a new Sub-rule 42(xiii) was inserted, the purpose of which was to extend the period of separate existence of the FFTS Union Division to 26 March 2005. The new Rule 42(xiii) provided: Notwithstanding the provisions of this Rule 42 or any other rule of the Union, the FFTS Union Division may have a separate existence for a period of up to 4 years beyond the expiration of the eight years referred to in the preceding sub-rule (xii). This sub-rule (xiii) shall not otherwise affect the operation of sub-rule (xii). For the avoidance of doubt, the four years referred to in this sub-rule shall expire on 26 March 2005. 56 At the National Executive meeting on 11 February 2002, it was resolved to rescind to Rule 42(xiii). It was also resolved that the FFTS Union Division would be integrated into the Forestry Division, which would be known as "the Forestry, Furniture, Building Products and Manufacturing Division" (FFPD Division); that the FFTS Victorian Branch would be known as the FFPD Victorian Furnishing Branch within the integrated Division and would continue to have a separate existence to 26 March 2005; that the FFTS Queensland Branch would retain its current structure until a fully integrated Branch was established; and that representatives of the FFPD Division and of the Construction and General Division should meet before 26 March 2005 to "finalise translation/integration provisions provided for in the Scheme of Amalgamation and the Rules of Union". The resolution continued: In the event that agreement is unable to be reached between the respective Divisions then the matter shall be referred to the CFMEU National Conference to determine in accordance with the Scheme of Amalgamation and Rules of the Union. 57 In effect, the resolution was that all of the FFTS Division be merged into the Manufacturing Division but with the autonomy for the FFTS Victorian and Queensland Branches until 26 March 2005.

[13]

Rule 42D 58 On 20 May 2002, the National Executive resolved to introduce a new Rule 42D which gave effect to its resolution of 11 February 2002. It is convenient to refer to Rule 42D now before returning to the chronology of relevant amendments to Rule 42. Rule 42D, which came into effect on 19 July 2002, provided (relevantly): 42D - DIVISIONAL RESTRUCTURING (FFTS) 1. Notwithstanding any other Rule of the Union to the contrary, the process of restructuring may be completed in steps, such steps may deal with one Division at a time and/or Divisional Branches within a restructured Division at a time. 2. In relation to the above, the FFTS Division shall on and from the 11th February 2002, be restructured in the first instance into the Forestry Division to form "The Forestry, Furnishing, Building Products and Manufacturing Division" (FFPD) which shall result in: (a) The abolition of full-time FFTS Divisional Officers at a national level and the allocation of responsibility for the FFTS Division to the restructured Division. (b) The allocation of Divisional/Branch Office Holders of the FFTS Division to the Office Holders positions of the restructured Division. (c) The continued operation of the Victorian and Queensland Divisional Branches of the FFTS Division within the restructured Division of up to four years beyond the expiration of the eight years referred to in sub-rule 42(xii). This sub-rule shall not otherwise affect the operation of sub-rule 42(xii). For the avoidance of doubt, the four years referred to in this sub-rule shall expire on 26 March 2005. 3. Further to the above provisions and notwithstanding any other rule of the Union to the contrary, the FFTS Victorian Branch shall unless otherwise agreed by the FFTS Victorian Branch Management Committee maintain its current structure and existence within the restructured Division up until 26 March 2005. 4. Prior to the 26 March 2005, The FFPD (which shall include representatives of the former FFTS Division) and the Construction & General Division (which shall include representatives from the National Office and all interested Branches) will meet under the chairpersonship of the National Secretary of the CFMEU to reach agreement to finalise translation/integration provisions intended by the respective Schemes of Amalgamation and the Rules of the Union in respect to the Forestry, FFTS and C&G Divisions. 5. Should 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. 6. Until the elections scheduled to be held in August 2004 the FFPD shall be constituted and represented as follows:- … 7. This rule shall come into force on and from 11 February 2002 in accordance with the unanimous decision of the National Executive and shall be registered with the Australian Industrial Registry. (Emphasis added) 59 The reference in sub-rule (4) to the finalisation of "translation/integration provisions" can be taken as a reference to the continuation of discussions which had led to a "Translation Agreement" between the Forestry Division and the Construction and General Division in 1998. This is the same Translation Agreement to which the amendment to Rule 42 made on 14 May 1999 (referred to earlier in these reasons) referred. 60 We note that Rule 42D had the following effect: with effect from 11 February 2002, the FFTS Union Division was restructured in the first instance into the Forestry Division to form a division known as "the Forestry, Furnishing, Building Products and Manufacturing Division" (FFPD). There then ceased to be a separate FFTS Union Division. Provision was made for existing office holders; as the FFTS Union Division consisted of all person eligible and continuing to be eligible for membership under Rule 2(F) "including all former members of the previously registered FFTS", this meant that all persons who were eligible for membership of the Union under Rule 2(F) were made part of the FFPD; despite that restructure, the Victorian and Queensland Divisional Branches of the FFTS Union Division were to continue with autonomy within the FFPD for a period of up to four years expiring on 26 March 2005; it was the FFTS Union Division and not the current membership of that Division which was to be restructured into the FFPD Division; representatives of the FFPD and of the Construction and General Division were before 26 March 2005 to meet under the chairpersonship of the National Secretary of the Union "to reach agreement to finalise translation/integration provisions intended by the respective Schemes of Amalgamation and the Rules of the Union in respect of the Forestry, FFTS and C&G Divisions; and if agreement was not reached, the matter was to be referred to the National Executive to determine the translation/integration in accordance with the Schemes of Amalgamation and Rules of the Union. 61 Put more shortly, Rule 42D provided for the FFTS Union Division to be integrated as a first step into the Forestry Division so as to create the FFPD and that its integration into the Union as a whole would be the subject of further discussion, with that discussion to be completed by 26 March 2005. It is pertinent to note that Rule 42D did not specify that the restructuring of the FFTS Union Division into the Forestry Division would be unwound if no agreement had been reached, or if the National Executive had not determined the matter, by 26 March 2005. On the contrary, the term "in the first instance" indicated the position then achieved would continue until altered by agreement between the Forestry Division and the Construction and General Division or by decision of the National Executive. 62 Despite the insertion of Rule 42D into the Rules on 19 July 2002, Rules 42(i)(iii) and (xii) were not altered at that time in a way which is presently relevant. In particular, the name "Forestry and Forest, Building Products Manufacturing Division" in Rule 42(iii)(b) was not changed. Nor were the categories of members who were to comprise the Forestry Division changed so as to include those in Rule 2(F). These appear to have been oversights. 63 It is convenient to note now that the 26 March 2005 deadline fixed in Rule 42D expired without any agreement between the FFPD and the Construction and General Division and without the matter having been referred to the National Executive. No other action was taken. The effect was that the status quo established by Rule 42D continued. The evidence did not disclose whether the Victorian and Queensland Divisional Branches of the FFTS Union Division had become fully integrated into the FFPD after 26 March 2005 but the parties' submissions seemed to assume that that had occurred.

[14]

Rule 42 - further history 64 Returning to the chronology of amendments to Rule 42, on 28 October 2003, sub-rules 42(iii)(d) and (xii) were deleted. These were the sub-rules which had provided for the continued existence of the FFTS Union Division during the transitional period of eight years. It can be inferred that the sub-rules were removed because it was thought that, in the light of the insertion of Rule 42D, they were now redundant. 65 The amalgamation of the CFMEU with The Maritime Union of Australia (the MUA) and the Textile, Clothing and Footwear Union of Australia (the TCFUA) took effect in March 2018. Rule 42 was not amended so as to give effect to, or consequential upon, those amalgamations. Instead, a new Rule 42E containing the transitional provisions concerning the amalgamation with the MUA and the TCFUA was inserted. Rule 42E(v) addressed a subject matter other than those amalgamations by providing: (v) on and from the amalgamation date, the Forestry, Furnishing, Building Products and Manufacturing Division shall be known as the Manufacturing Division. 66 At the same time, the heading to Rule 42 was amended to read: TRANSITIONAL PROVISIONS - ORIGINAL AMALGAMATION 67 We add that the making of a separate Rule containing transitional provisions for a particular amalgamation was not new. On 30 December 1993, a Rule 42A had been inserted providing for the restructuring of the FEDFA Division effectively into the Building Union Division and the UMWU Division; on 31 March 1994, a Rule 42B had been inserted providing for the amalgamation of the BLF (and for it to become part of the Building Union Division); and at the same time that Rule 42D was made, a Rule 42C was inserted concerning the amalgamation with Federated Brick Tile and Pottery Industrial Union of Australia (the FBTPU). 68 Because of its centrality to the submissions on the appeal, it is convenient to set out portions of Rule 42 in its current form: 42 - TRANSITIONAL PROVISIONS - ORIGINAL AMALGAMATION (i) Upon Amalgamation 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. The Building Unions division shall be the former BWIU/Plasterers Division together with members and officers of the OPDU. The Building Unions Division shall consist of those persons eligible and continuing to be eligible for membership of the union under Rule 2 (A) and (B), the ATAIU Division shall consist of those persons eligible and continuing to be eligible for membership of the Union under Rule 2 (C), the UMW Division shall be those persons eligible for membership and continuing to be eligible for membership of the union under Rule 2 (D) and the FEDFA Division shall be those persons eligible for membership and continuing to be eligible for membership of the Union under Rule 2 (E). The FFTS Union Division shall consist of all persons eligible and continuing to be eligible for membership of the Union under Rule 2(F) including all former members of the previously registered FFTS. While the FFTS Union Division continues its separate existence, the demarcation between the FFTS Union Division and the other Divisions of the CFMEU shall be in accordance with the above demarcation on the basis of the status quo and custom and practice of coverage as it existed between the previously registered [FFTS] and the CFMEU including therein demarcation disputes which have been determined by either State or Federal industrial authorities. Where any disagreement occurs between the FFTS Union Division and any other Division of the Union the matter shall be referred to the National Executive which shall determine the demarcation appropriate but such determination shall be based on the principles enunciated in this paragraph. (ii) Upon amalgamation no person who was previously a member of either the CFMEU or OPDU or FFTS shall be liable for any entrance fee over and above the entrance fee already paid by such financial members. (iii) After Amalgamation Subject to any changes made by unanimous decision of the National Executive Committee following amalgamation, there shall be a restructuring of the Divisions on the following basis: (a) There shall be created a restructured Mining and Energy 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, Exploration and Energy Industries and all members employed in the County of Yancowinna: (b) There shall be created a Forestry and Forest, Building Products Manufacturing Division (herein after referred to as the Forestry Division) which shall consist of all members of the union eligible to be members under Rule 2 (C) and all members, including members eligible under Sub-rules 2 (A), (B) and (E) employed in the following sectors of the industry (or occupations within them): Forest and forest products industry, Pulp and paper industry, Timber and building related manufacturing industry including joinery, wall frame/roof trusses, furniture, aluminium windows, glass window manufacturing and any other sectors of manufacturing activity as agreed to between the ATAIU and the Building Unions and FEDFA Divisions of the union. This sub-rule up until April 3rd 2000 shall be read subject to the agreement entitled CFMEU Forestry Division and CFMEU Construction & General Division Translation Agreement dated September 2nd 1998. (c) There will be a Construction and General Division which shall 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 in sub-rules (iii) (a) (b) and (d) herein. (d) deleted (iv) The transfer of members from any Division to any other Division in accordance with the restructuring proposals in sub-rule (iii) herein, shall be on terms as agreed to by the Divisions concerned in the transfer and sub-rule (iii) shall be used as the basis of an agreement. (v) In the event of further amalgamations other Divisions may be established. … (Emphasis added) 69 As is apparent, Rule 42 continues to contain provisions whose operation is now wholly or partly spent. 70 Rules 42A and 42D were deleted on 27 March 2018, that is, on the same date that Rule 42E was inserted.

[16]

Principles of construction 76 Although at first instance there had been a minor difference between the parties as to the proper approach to the construction of the Union's Rules, on the appeal it was accepted that the principles were settled. The Rules are to be construed objectively but account is to be taken of the context in which they were made and the common understandings of those responsible for making them: The Queen v Williams; Ex parte Australian Building Construction Employees' and Builders' Labourers' Federation (1982) 153 CLR 402 at 408. In The Queen v McKenzie; Ex parte the Actors & Announcers Equity Association of Australia [1982] HCA 6; (1982) 148 CLR 573, Gibbs CJ noted at 576: The [union's rules] will often have been prepared without the assistance of a skilled draftsman, and will have been amended from time to time by the addition of new classes of employees, with more regard to the practical benefits sought to be gained by the amendment than to the effect which the making of the amendment has on the syntax of the clause. In the result, rules of this kind are often long and complicated, and marked by ambiguity or obscurity. In such cases the meaning of the clause must be determined by the application of the ordinary rules which govern the construction of written documents. However, the words of an eligibility clause which is intended to operate in relation to the conditions of a particular industry may have the meaning which those words bear in industrial usage, even though that is not their ordinary meaning … 77 The primary Judge referred to a similar statement of the appropriate approach contained in the judgment of Wilson J in The Queen v Isaac; Ex parte Transport Workers' Union of Australia (1985) 159 CLR 323 at 340: 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 a skilled draftsman. It is 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 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) 78 The Judge considered that the Union's Rules suffer from many of the defects to which Gibbs CJ and Wilson J referred in the quoted passages and it was common ground on the appeal that that was so at least in respect of Rule 42. It is evident that it has been added to and modified from time to time to take account of amalgamations and the exigencies of the moment without there always having been regard to its internal coherence, to provisions which had become redundant or inconsistent with other clauses, and to consistency in drafting style. The consequence is that the Court must strive to give the Rules a practical application but in keeping with an objective construction. 79 In so far as the appeal concerns the proper construction of the Union's Rules, it is not necessary for the appellant to establish error in the reasons of the Judge. That is because the Rules can have only one proper construction and, if this Court comes to a conclusion which differs from that of the Judge, that will be sufficient of itself to establish error: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [25].

[18]

The Judge's rejection of the appellant's primary case 81 The Judge rejected that case, principally by reference to Rules 7 and Rule 42, holding that: (a) Rule 2 of the Manufacturing Division Rules does not have some form of primacy. Instead, the National Rules are to be read as a whole having regard in particular to Rule 7 and Rule 42, at [108]-[111]; (b) the Union is now structured in accordance with industry Divisions, at [116]; (c) the amalgamation of the FFTS into the Union has been effected and it has merged into the Manufacturing Division, at [116]; (d) the demarcation for which Rule 42(i) provided between the FFTS Union Division and the other Divisions cannot be applicable presently, given that the FFTS Union Division no longer exists, at [117]. Accordingly, Rule 42(i) "no longer operates", at [117]; (e) the issue between the parties as to the proper allocation of the members should be resolved in the way that the National Executive would determine an issue referred to it under Rule 7(viii), that is by reference to Rule 42(iii)(a), (b) and (d). It provides that the Construction and General Division is to consist of "all members of the Union employed in or in connection with the Construction industry (including shop fitting) and all other members of the Union not referred to [elsewhere in Rule 42(iii)]", at [122]-[123]; (f) Rule 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 Rule 2(F) properly belong to the Manufacturing Division but otherwise such members belong properly in the Construction and General Division, at [127]-[129]; (g) the Divisional Rules, and in particular the Manufacturing Division Rules on which the appellant relied, do not have the same "hierarchical authority" as the National Rules. Instead, they are subordinate to the National Rules, at [131]-[134]; (h) the submission by which the appellant sought to avoid the effect of Rule 42(iii) (namely, that it should be disregarded because it was only "aspirational" or had never been implemented) should be rejected, at [135]-[140]. Instead, Rule 42 was in effect "self-executing", operating on its own terms to establish the restructure into industry divisions, at [141]; (i) the appellant's reliance on the deleted Rule 42D was misplaced because, just as deleted provisions are of little assistance in contractual interpretation, deleted rules are unlikely to be a safe guide to interpretation, at [143]-[146]. The Judge referred in this respect to authorities indicating the difficulties in drawing an appropriate inference as to the parties' reasons for deleting a particular provision from their contract. These included MineralImportExport v Eastern Mediterranean Maritime Ltd [1980] 2 Lloyd's Rep 573 at 575; Mopani Copper Mines plc v Millennium Underwriting Ltd [2008] EWHC 1331 (Comm), (2008) 2 All ER (Comm) 976 at [122]-[123]; 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]; and (j) finally, Rule 42D did not have the effect of making the transitional arrangements which it contained "fixed" or "enshrined". Clear words would be needed before that meaning could be adopted, at [147]-[148]. 82 On the hearing of the appeal, the respondents supported the decision of the Judge, submitting (with one qualification to which we shall return) that it was correct for the reasons which his Honour had given and that the appellant's critique of those reasons has no substance.

[19]

Overview of the Rules 83 It is appropriate to commence with an overview of the structure and scheme evident in the Rules. It is plain that Union now has a Divisional structure which is industry-based. Every member is attached to one Division (and only one Division). It is also plain that the Union decided in 1991 not to adopt a Divisional structure based on the membership of the amalgamating Unions. This meant that it had to provide for the allocation of existing members of amalgamating unions to the appropriate industry-based Division. It also meant that the Union had to make provision for the allocation of new members to the appropriate industry-based Division. 84 It is Rule 27, set out earlier in these reasons, which provides for the establishment of Divisions "in accordance with the Rules of the Union". It also provides that those Divisions are to be established on the basis of industry or occupation and identifies the four current Divisions within the Union. 85 Rule 7 provides for the allocation of members to Divisions. Rule 7(iv) provides that a member shall be attached to the Division covering the industry or employment of the member and shall be in only one such Division. The Division of the Union to which a member is attached is to be entered on the record of the Union in relation to that member and that record constitutes conclusive proof of the Division to which the member is assigned (Rule 7(iv)). 86 The Rules recognise the potential for disputes concerning the allocation of members to Divisions and make provision for the resolution of those disagreements. In particular, the Rules have recognised for some time the prospect of disagreement concerning the allocation of members who would have been eligible for membership of the former FFTS and who are now within Rule 2(F). This is seen in the provision for the resolution of demarcation issues in Rule 42(i) inserted on 26 March 1993; in the provision in Rule 42D for discussions between the (now) Manufacturing Division and the Construction and General Division; and in the provision for determination by the National Executive in the event of absence of Agreement by those Divisions. 87 The members of the Union are not given a choice as to the Division to which they are attached. The Rules provide instead for members to be attached to the Division "covering the industry or employment" of the member. 88 Although the Rules contemplate that a member may seek a "transfer" from one Division to another (Rule 7(v)(b)), they do not confer any right upon a member to transfer. In particular, there is no provision in the Rules for a member, while remaining a member of the Union, to resign his or her membership of a Division and to make application to join another Division. To the contrary, Rule 7(v)(b) provides that every member of the Union who is, on the records of the Union, financial and who is on those records attached to a Division, Branch or Divisional Branch shall be treated for all purposes as a financial member thereof and "shall be entitled to all rights and required to comply with all obligations which attach thereto until transferred in accordance with Rules" (emphasis added). 89 Rule 7(viii) provides the principal means by which a member may be transferred from one Division to another. Rule 7(viii)(a) allows a Division to initiate a process for the transfer of a member attached to it to another Division. Rule 7(viii)(b), on the other hand, provides for the circumstance in which a Division seeks the transfer to it of a member attached to another Division. In that circumstance, the first Division should initially seek the agreement of the second Division to the transfer. If agreement cannot be reached, the first Division may refer the matter to the National Secretary to be determined by the National Executive or by an officer designated by the National Executive. Rule 7(viii)(c) indicates that, from the perspective of the individual member, any subsequent transfer may be involuntary. 90 It will be necessary to return shortly to sub-rule (viii)(d). 91 The National Executive also has power, independently of Rule 7(viii), to settle disputes between Divisions - see Rule 15(iv)(e). 92 As previously noted, Rule 26 has the effect that Rule 7 is binding on all Divisions and on all members. 93 Accordingly, if one pauses at this point, it should be concluded that the Rules do not provide for resignation of a member from a Division while that person remains a member of the Union. It follows that there should not be any "encouragement" of members to do so. If the respondents or the DBMC consider that there are members presently attached to the Manufacturing Division who "ought" be a member of the Construction and General Division, then they should follow the procedure for which Rule 7(viii) provides.

[20]

The effect of Rule 42 94 Does Rule 42 indicate that some different approach is appropriate? Many of the parties' submissions and the decision of the Judge turned on the role of Rule 42 in identifying the Division to which the disputed members "ought" be attached. 95 Rule 42 is to be construed having regard to its content, evident purpose, context and place in the achievement of the structural scheme within the Union. 96 Rule 42 is, as its heading indicates, a transitional provision. Moreover, it is a transitional provision directed to particular amalgamations as evidenced by the insertion into the heading in March 2018 of the words "Original Amalgamation". That heading serves, at the least, to signal that Rule 42 is not concerned with later amalgamations. Instead Rule 42 is one of a suite of provisions by which the Union provided for the integration of amalgamating unions. This suggests by itself that it would be appropriate to construe Rule 42 having regard to its role in the suite of transitional provisions, including when appropriate, provisions which have been deleted. 97 Rule 42 addressed two stages in the amalgamation process: what was to occur at the time the amalgamations actually took effect and what was to occur subsequently (albeit within specified timeframes). 98 As to the first, Rule 42(i) provided that, upon the happening of the amalgamations, the amalgamating unions would form union-based Divisions within the Union, identified who was to be within each union-based Division, and dealt with the potential for overlap between the membership of the FFTS Division and other Divisions by providing for demarcations to follow the status quo and existing custom and practice. 99 The Judge considered that Rule 42(i) has ceased to be operative. If by this the Judge was referring to the effect of Rule 42(i) considered only on its own terms, we respectfully agree. The amalgamations on which it operated occurred well in the past and its intended effect has long since been achieved. None of the union-based Divisions for which Rule 42(i) provided now exist. The basis for the demarcations to which it referred was stipulated to operate only while the FFTS Union Division continued its separate existence, and that existence ceased in July 2002. 100 However, Rule 42(i) may have been given some continuing operation by the references to it in Rule 7(viii)(d) and in the concluding clause in Rule 7(viii). In the view we take of the matter, that question does not arise for consideration presently, and the parties' submissions did not address it directly. 101 As to the second stage, Rule 42(iii), together with sub-rules (iv) and (xiii), provided for the transfer of the union-based Divisions in to industry-based Divisions. That transfer also occurred well in the past, as was contemplated by sub-rule (xiii). That sub-rule provided for the restructuring to be effected within four years from 23 September 1991, save for the amalgamation involving the FEDFA Victorian Branch and the FFTS Union Division. In the latter case, a maximum period of eight years was allowed with provision for the National Executive to determine the appropriate restructure in the absence of agreement within the period of eight years. That period was to expire on 26 March 2001 but the insertion of the new Rule 42(xiii) on 9 November 2000 allowed for an extension for up to four years. The ability of the National Executive to determine the appropriate restructure in the absence of agreement was preserved. 102 The National Executive did determine the matter, at least in part, by its resolution on 11 February 2002 and it gave effect to that resolution by inserting Rule 42D into the Rules on 19 July 2002. 103 Before leaving consideration of the effect of Rule 42(iii), it is pertinent to note one further matter, given the genesis of the dispute before the Court. That is that the only provision in Rule 42 concerning the transfer of members from one Division to another is sub-rule (iv) which, for convenience, we will repeat here: (iv) The transfer of members from any Division to any other Division in accordance with the restructuring proposals in sub-rule (iii) herein, shall be on terms as agreed to by the Divisions concerned in the transfer and sub-rule (iii) shall be used as the basis of an agreement. (Emphasis added) 104 That is to say, Rule 42 did not contemplate that the transfer of members would occur in a self-executing way. Any transfer was to be on terms agreed by the Divisions. In relation to the members of the FFTS Union Division, that agreement may be implied in the unanimous resolution of the National Executive on 11 February 2002 and in the subsequent insertion of Rule 42D. 105 It follows that, subject to some remaining miscellaneous matters to be addressed, the Rules of the Union are not being observed in relation to the disputed members. That is because the regime for transfer of members for which Rule 7 provides is not being observed. Moreover, the Rules do not allow a member to "resign" from one Division and to "join" another.

[21]

The effect of Rule 42D 106 As was previously noted, Rule 42D was expressed to operate "notwithstanding any other Rule of the Union to the contrary" (sub-rule (i)). This meant that it displaced any operation of Rule 42(iii) with respect to the FFTS Division. 107 Rule 42D provided for the FFTS Division to be restructured in the first instance into the Forestry Division, so as to form the FFPD. The term "in the first instance" indicated that the structure may not be the final position with respect to the integration of the FFTS Union Division. This was also indicated by the provision for discussions between the FFPD and the Construction and General Division under the chairpersonship of the National Secretary. Twenty-six March 2005 was fixed as the date by which the discussions should occur. In the events that happened, there was no agreement between the two Divisions by 26 March 2005. Rule 42D provided for that eventuality by stipulating that, in that event, the matter was to be referred to the National Executive for it to determine the restructure "in accordance with the Schemes of Amalgamation and Rules of the Union". However, there has been no reference to the National Executive and no determination by it. 108 This did not mean that the "first instance" position ceased to be operative. As noted earlier, Rule 42D did not provide that the restructure for which it provided should be unwound or set at nought in the event of absence of agreement before 26 March 2005 or in the absence of determination by the National Executive thereafter. Instead, it contemplated implicitly that the "first instance" position should continue and it is evident that that is what has in fact occurred. The Union has not has not taken any other action with respect to the "restructure" of the former FFTS Union Division. 109 The Judge held, at [40], that Rule 42D had "expired in 2005 (although for some unknown reason it remained in the rules until 2018)". The respondents made a submission to like effect on the appeal. We respectfully disagree. There is no indication in Rule 42D that it was to "expire" or cease to have effect as at 26 March 2005. All that it required was that there be discussions between the FFPD and the Construction and General Division with a view to reaching agreement. On its terms, it did not require either that agreement be reached by 26 March 2005 or that the National Executive have determined the matter by that date. In particular, it did not contain any indication that the arrangement it had put in place with respect to the former FFTS Union Division and the FFPD was to cease on 26 March 2005. The position in that respect of the Queensland and Victorian Branches differs. Rule 42D provided expressly that their continued autonomy as Branches would "expire" on 26 March 2005. There was no counterpart provision with respect to the other aspects of Rule 42D. 110 It is convenient to refer at this point to the appellant's submission that Rule 42D had fixed a position which was permanent or enshrined. The Judge rejected that contention. His Honour considered that clear words would be required before it could be concluded that Rule 42D established a "fixed" or "enshrined position", at [147]-[148], and saw no indication in Rule 42D that the transitional arrangements for which it provided became "fixed" or "enshrined" in the absence of a determination by the National Executive. If by this the Judge was referring to some form of permanence or immutability, we respectfully agree. No doubt it is open to the Union to alter the membership of any of its Divisions, providing of course that it does so in the manner for which the Rules provide. But to recognise that does not alter the position that Rule 42D did specify the manner of integration of the former FFTS Union Division into the Union and, further, that the National Executive has not been asked to make a determination about that subject matter. We would express it by holding that, while Rule 42D did not "enshrine" the position, it did fix a first instance position which was to continue until altered in the manner which it itself contemplated or otherwise in accordance with the Rules. 111 It is also convenient to address at this point the submissions of counsel for the respondents that Rule 42D, while in force, allowed for movement between Divisions, providing that it was along the industry lines established by Rule 42(iii). In our view, that submission cannot be accepted. It pays no regard to the words with which Rule 42D(i) commenced, namely, "notwithstanding any other rule of the union to the contrary". Further, Rule 42D contained its own mechanism for the means by which disagreements as to the proper allocation of membership of the FFTS Division should be resolved.

[22]

The effect of the deletion of Rule 42D? 112 Did the deletion of Rule 42D in 2018 alter the position? In particular, did it have the effect of reviving the operation of Rule 42(iii) in relation to the FFTS? To our mind, that is an improbable construction. 113 In the first place, such a construction would not be congruent with the effect brought about by Rule 42D. Its purpose had been to achieve the integration of the FFTS Union Division into the Union and it is not sensibly to be supposed that the achievement of that object was intended to be set aside by the repeal of the means by which it had been brought about. 114 Secondly, the creation of the industry Divisions for which Rule 42(iii) provides had also been achieved. The undoing of the integration of the FFTS Union Division was not necessary in order to achieve the objects of Rule 42(iii). 115 Thirdly, had it been the intention in the repeal of Rule 42D to unwind the integration of the FFTS Union Division into the FFPD (now the Manufacturing Division), it is to be expected that further transitional provisions would have been required, so as to provide for the possible transfer of Rule 2(F) members (or some of them) to other Divisions. No such transitional provisions were made. It seems improbable that the National Executive intended that Rule 42(iv) should be the vehicle through which transfers would be made as that would simply set in motion all over again the issue about the allocation of the FFTS Union Division members which the February 2002 resolution and the insertion of Rule 42D had been intended to conclude. 116 Fourthly, it is pertinent that Rule 42A concerning the integration of FEDFA was deleted at the same time. It seems improbable that the National Executive intended that the integration of FEDFA which Rule 42A had achieved should also be unwound. 117 In these circumstances, an alternative understanding of the intended effect of the deletion of Rule 42D is appropriate. That is that Rule 42 was seen as having done its work as a transitional rule by securing the allocation of the FFTS Union Division into the Union's Divisional structure. The long period of time which elapsed between 2005 and the deletion of Rule 42D in March 2018, is likely to have added to that understanding. 118 In our respectful opinion, principles concerning the use of deleted provisions in the interpretation of contracts are of little relevance in the present context. The rules of a union which is a registered organisation under the RO Act differ in material respects from the private contracts in respect of which the principles of contractual interpretation have been developed; s 164 of the RO Act and its predecessors have meant that attempts to frame union rules as creating contractual relationships between members have not been necessary; the Rules of a union confer enforceable proprietary and social rights and obligations on the members of the union, including those who were not parties to the drawing up of the document (see Cook v Crawford (1982) 62 FLR 34 at 121); the content of union Rules is heavily circumscribed by statute (see Ch 5 of the RO Act); and, unlike most contracts which bring a binding agreement between parties into existence for the first time, union Rules have an enduring quality, even if amended from time to time. Moreover, is well accepted that, in the construction of union Rules, regard may be had to their history, including their amendment history. That is an obvious part of the context in which the rules are to be construed. The Queen v Isaac to which the Judge referred is but one example of this kind of use. 119 The rules of a union are not statutes and the rules and principles of statutory interpretation do not apply to them. Nevertheless, they are of assistance by analogy. At common law, there was a presumption that, when an Act of Parliament or a provision in an Act of Parliament was repealed, it was to be considered as if it had never existed, subject to an exception with respect to matters concluded while the law was in force. The principle was stated by Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261 at 266-7: [A]t common law the repeal of a statute or statutory provision means that the law must be applied as if the provision had never existed. This is subject to an exception, variously expressed, as to past matters. Lord Tenterden C.J. used the expression "transactions past and closed" … Lord Campbell C.J. said "… all matters that have taken place under it before its repeal are valid and cannot be called in question …". The phrase of Blackburn J was "transactions already completed under it" … (Citations omitted) See also the Victorian Stevedoring and General Contracting Company Pty Ltd v Dignan (1931) 46 CLR 73 at 105 per Dixon J. 120 Applying that principle in the present context would mean that the deletion of Rule 42D in 2018 did not affect the "restructuring" of the FFTS Division into the FFPD which occurred in 2002, as that was a transaction which was "past and closed". Nor could it have the effect of reviving the application of Rule 42(iii) with respect to the integration of the FFTS Union Division into the Union, that integration having long since occurred. 121 The context in which the deletion of Rule 42D occurred confirms the appropriateness of that understanding of the position. That context included the following: Rule 2 of the Manufacturing Division Rules provided that members covered by Rule 2(F) in the eligibility rules should be attached to the Manufacturing Division; Rule 2 of the Construction and General Division Rules made no claim to Rule 2(F) members; and the Union had in place the procedure provided by Rule 7 for the resolution of disputes about the proper allocation of members. Further, Rule 7 contains its own cross reference to Rule 42 (in sub-rule (viii)(d) and in the concluding clause). There was accordingly no need for Rule 42 to apply independently with some immediate self-executing effect. In that context, it is understandable that the Union did not intend its deletion of Rule 42 to revive or invoke a transitional provision directed to circumstances which existed at a long antecedent time. 122 This means that the respondents' submission that it is Rule 42 which governs the resolution of internal allocation disputes and therefore which governs the construction of the Rules cannot be accepted.

[23]

Construing the Rules as a whole 123 It is convenient at this point to refer to the competing submissions of the parties concerning the effect of the Divisional Rules. 124 The appellant submitted that Rule 26 of the National Rules had the effect that all of the Rules of the Union, including the Divisional Rules, were binding on all members. This meant, he submitted, that Rule 2 of the Manufacturing Division Rules was binding on the Construction and General Division and its members. 125 The respondents contested that position, submitting that the meaning of the word "all" takes its meaning from the context in which it is used - see Griffiths v Minister for Lands, Planning and Environment [2008] HCA 20; (2008) 235 CLR 232 at [47]. They submitted that the word "all" cannot mean literally that each member in each Division must comply with the Rules of another Division, only that each member must comply with the National Rules and the Divisional Rules of the Division to which they are allocated. 126 In our opinion, the position for which the respondents contended is too narrow and that the preferable construction is that Rule 26 requires all Divisions and all members to comply with all Rules which may applicable to them from time to time. Rules concerning the allocation of members to each Division are Rules of that kind. That is self-evidently so given the importance of such Rules to the functioning of the Union as a whole and to the participation of members in the affairs of the Union. Adopting the example given by counsel for the appellant in reply, although members in the Construction and General Division are not part of the Manufacturing Division, they are bound by its voting rules with the effect that they are not entitled to vote in elections within that Division or to participate in its affairs. 127 This is not, as the respondents submissions supposed, a matter of giving the Divisional Rules the "same standing" as the National Rules or even giving them "primacy" as the Judge reasoned: it is doing no more than reading all the Rules, including the National Rules and the Divisional Rules, as a whole. 128 Earlier in these reasons, we noted that the evidence at trial did not indicate the manner in which the eligibility Rules in each of the Manufacturing Division and the Construction and General Division had been made. As each Division has power to make its own rules it is at least theoretically possible that each Division could frame its eligibility Rule without regard to the eligibility Rules of the other Divisions. However, in practice, that is unlikely to occur. Any decision by a Division is subject to the overview of the National Executive. It may settle disputes between Divisions and ensure that Divisions carry out the Rules and decisions of the Union (Rule 15(iv)(e) and (h)). In addition, the National Executive may make, alter and rescind any Rule of the Union including a Divisional Rule (Rule 15(iv)(n)). Finally, the National Conference of the Union also has oversight of the Divisions and may make, alter or rescind any Divisional Rule. As the respondents' own submissions indicated, the ability of Divisions to create their own rules and policies is limited to those which do not affect the members of other Divisions and which are consistent with the rules and policy of the Union as decided by the National Conference or the National Executive - see Rule 27(ii) and (iv). Further, Rule 25(d) has the effect that there cannot be a rule change by the National Conference, National Executive or National Executive Committee which affects the existence, autonomy or internal structures of a Division without that Division's approval. 129 We conclude therefore that Rule 2 of the Manufacturing Division Rules is a rule binding all members of the Union and supports the conclusion that the Rule 2(F) members are properly attached to the Manufacturing Division.

[24]

The effect of Rule 42(iii) 130 The Judge accepted a submission of the respondents concerning the construction of Rule 42(iii)(c) which seemed to have turned broadly on the distinction between those who work "on-site" and those who work "off-site". The Judge described the effect of the respondents' submission as being that Rule 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 Rule 2(F) properly belong to the Manufacturing Division but that those who are employed in or in connection with construction industry on-site are properly attached to the Construction and General Division. The Judge accepted that this construction of Rule 42(iii)(c) was "generous" because it involved reading words into Rule 42(iii) but nevertheless thought it appropriate to do so. 131 The appellant submitted that the Judge had been wrong to do so. 132 The respondents accept that the Judge had gone "too far" in stating that their construction of Rule 42(iii)(c) involved reading words into the Rule. They submitted instead that the distinction was implicit in Rule 42(iii)(b) and (c). The former referred to "building related manufacturing industry … and any other sectors of manufacturing activity as agreed" and the latter referred to "in or in connection with the construction industry". 133 The Judge considered that it was necessary to construe Rule 42(iii). This was because the Judge considered that he should resolve the dispute in the same manner as would be required of the National Executive if a disagreement about the appropriate allocation of a member were referred to it under Rule 7(viii)(b). 134 In our respectful opinion, this approach was mistaken. The order which the Judge could make under s 164 of the RO Act was an order giving directions for the performance or observance of the rules by a person who was under an obligation to perform or observe those rules. Section 164 did not empower the Judge to make the decision which the National Executive would be required to make if and when a dispute is referred to it under Rule 7(viii)(b). Although the Court's powers under s 164 are broad, it cannot usurp the actual decision-making function within a registered organisation. 135 It is in any event apparent that a number of issues may arise in the making of a determination by the National Executive pursuant to Rules 7(viii)(b) and (d). These will include the identification of the "principles" established "in and by sub-rules 42(i) and 42(iii)", whether the principles "established" by these sub-rules were subject to, or modified by, Rule 42D; whether, if so, that continues to be the case, and the way in which "use" is to be made of the identified principles. 136 These issues appear to be of some complexity, and although the parties' submissions adverted to some of them, the Court did not receive detailed submissions concerning them. In our opinion, the Court should defer expressing any view about them until a decision is actually required. To do otherwise would, in effect, be giving an advisory opinion.

[25]

Conclusion 137 For the reasons given above, we allow the appeal and set aside the orders made by the Judge on 6 April 2020. 138 The parties disagreed as to the further orders which should be made by the Court. The appellant submitted that this Court should make the remaining orders sought in the Notice of Appeal. The respondents on the other hand contended that the form of relief should be remitted wholly to the primary Judge. They submitted that there were some issues concerning the form of relief and, in particular, the identification of the members who would be affected the Court's orders about which the primary Judge had received evidence and submissions but which had not been reproduced or made to this Court. 139 In our view, it is desirable for this Court to make orders which will bring the matters to finality, so far as that is practicably possible. We accept, however, the respondents' submission that this Court has not been provided with all the evidence and submissions which would be necessary for that purpose. Accordingly, we will adopt an intermediate position. We will make some of the orders sought by the appellant and remit consideration of the remaining orders to the primary Judge. 140 We make a declaration that under the Rules of the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU), the persons eligible for membership pursuant to Rule 2(F) are, until alteration of the Rules or a contrary decision by the National Executive (in either case, in accordance with the Rules), attached to the Manufacturing Division and not to the Construction and General Division. 141 In addition, we make further orders that: (1) The first respondent perform and observe the Rules of the CFMMEU (the Rules) by ceasing, desisting and refraining, by himself, his servants or agents, from inducing, encouraging or advising any members in the Victorian District of the Manufacturing Division eligible for membership pursuant to Rule 2(F) of the Rules (the Members) to resign their membership in the Manufacturing Division of the CFMMEU. (2) The second respondent perform and observe the Rules by ceasing, desisting and refraining, by himself, his servants or agents, from inducing, encouraging or advising any of the Members to resign their membership in the Manufacturing Division of the CFMMEU. (3) The third to thirtieth respondents, jointly and severally, perform and observe the Rules by ceasing, desisting and refraining by themselves, their servants or agents, from inducing, encouraging or advising any of the Members to resign their membership in the Manufacturing Division of the CFMMEU. (4) Within seven days, the respondents issue and deliver a written instruction and direction to all organisers, other employees and officials of the Victoria-Tasmania Divisional Branch of the Construction and General Division of the CFMMEU (the Branch), to cease, desist and refrain, by themselves, their servants or agents, from inducing, encouraging or advising any of the Members to resign their membership in the Manufacturing Division of the CFMMEU, and by 4.30 pm on 20 November 2020, file and serve an affidavit made by the first respondent confirming compliance with this order. (5) Within seven days of the making of this order, the respondents publish a written instruction and direction to all delegates in the Branch, to cease, desist and refrain from inducing, encouraging, or advising any of the Members to resign their membership in the Manufacturing Division and from enrolling any of the Members as members of the CFMMEU in the Branch, and by 4.30 pm on 20 November 2020, file and serve an affidavit made by the first respondent confirming compliance with this order. (6) The respondents, jointly and severally, perform and observe the Rules by ceasing, desisting and refraining by themselves, their servants or agents, from enrolling persons who are eligible to be members of the CFMMEU pursuant to Rule 2(F) of the Rules as members of the CFMMEU in the Branch. (7) Consideration of the relief sought by the appellant in paras [7]-[13] inclusive of the Amended Originating Application be remitted to the primary Judge for consideration in accordance with these reasons. Subject to any contrary order by the primary Judge, that consideration is to take place on the basis of the evidence and submissions already received by the primary Judge. I certify that the preceding one hundred and forty-one (141) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Mortimer, Rangiah and White.

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