Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Qld) [1995] HCA 31

Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Qld) [1995] HCA 31 - HCA 1995 case summary — Zoe

The ATAEA was registered in 1910 as an organisation of employees under the provisions of the Conciliation and Arbitration Act 1904 Cth [56] . Pursuant to s 58 of that Act, the ATAEA was by reason of its registration a body corporate [1] . Its rules provided for six branches. There was, apparently, a Queensland branch, because in 1917 its secretary and president, or chairman, applied for and obtained registration of the branch as an industrial association pursuant to the provisions of the Queensland Act. The newly registered State body was the Queensland branch of the Australian Theatrical and Amusement Union of Employees. It will be convenient to refer to it as "the ATAUE" [2] . Under s 26(1) of the Queensland Act the registrar might, on the application of the secretary and the president or chairman of an industrial association or trade union of employees, register the association or trade union as an industrial union. Upon such registration the association continued as an industrial union until the registration was duly cancelled. Section 26(6) provided that: "No branch of a trade union shall be registered unless it is a bonâ fide branch of sufficient importance to be registered separately." Under s 31 the registrar issued a certificate of registration which was, until proof of cancellation, conclusive evidence of the registration of the industrial union and that it had complied with the prescribed conditions to entitle it to be registered. If it appeared to the Court of Industrial Arbitration that, amongst other things, an industrial union had been registered erroneously or by mistake, the industrial registrar was required to order its registration to be cancelled: s 36. Section 37(1) provided that every industrial union should, upon and during registration, become and be, for the purposes of the Act, a body corporate by its registered name, having perpetual succession and a common seal. The ATAUE became, therefore, an incorporated body which, notwithstanding its name, was different from the unincorporated Queensland branch of the ATAEA. Section 37(2) explains the change in name from ATAEA to ATAUE, for it provided that there should be inserted in the registered name of every industrial union the words "union of employees".

[27]

The view taken by the majority in the Federal Court was that the Queensland branch of the ATAEA, being an entity which was distinct from its members, was not capable of registration under the Queensland Act or did not achieve corporate personality upon registration under that Act. That view cannot, in our opinion, be sustained. Although the condition upon which registration of an industrial union could be granted under s 26(1) of the Queensland Act was that it answer the description of an "industrial association" or a "trade union of employees", neither of those terms, by itself, connotes the existence of a legal entity. The terms "association" or "union" connote a relationship among persons "associated" or "united" for a common purpose or to share a common interest. These are terms descriptive of a relationship (typically, a contractual relationship) between persons; they are not descriptive of entities invested with a legal personality. Of course, when the law governs a relationship among persons, its operation (and sometimes its expression) may be mistaken for a law which prescribes the capacities of an artificial person. Thus we may speak of the assets and liabilities of a partnership, though legal personality is an attribute only of the members of the partnership, not of the partnership. The term "partnership" connotes the relationship between the partners, not an entity different from them [8] . Pollock observes that "[i]n the case of an ordinary partnership the firm is treated by mercantile usage as an artificial person, though not recognised as such by English law; and other voluntary and unincorporated associations are constantly treated as artificial persons in the language and transactions of everyday life". Unless the references of ordinary speech and the legal conception of a corporation are distinguished, confusion arises as to the meaning of terms such as "association" or "union". When the Queensland Act provided for the registration and consequent incorporation of "any industrial association or trade union of employees", it authorised registration to be effected when there were a number of persons associated or united for an industrial purpose or to share an industrial interest [9] .

[110]

[T]he focus is not upon the amalgamated organisation, although it certainly has a duty to ensure that the amalgamation is fully effective, but upon the object of ensuring that the amalgamation and the operation of Subdiv F [ss 253Q-253ZC] in relation to the amalgamation are in fact fully effective in a practical sense. In my judgment, the language of the section readily permits this broader view and it is the view to be preferred. The end of a fully effective amalgamation is what Div 7 and the whole of Subdiv F are aimed at. The broader view advances this object, and also the specific statutory object of facilitating the amalgamation of organisations (see s 3(j)) to which attention is directly drawn by s 233, the section with which Div 7 begins. Moreover, it advances the intention of the Parliament, expressed in s 233(b) that the application of the [1988 Federal] Act in relation to amalgamations should be, amongst other things, practical. I conclude therefore that the Court does have jurisdiction to make the orders sought by the [second respondents], it being clear that at least the President of the Alliance and the Alliance itself are interested persons within the meaning of s 253X(2). Another member of the majority, Gray J [50] , said: There would be no point in a provision such as s 253X(1) if "fully effective" were to be construed as meaning only fully effective in the legal sense. What must have been intended by the provision is that an amalgamated organisation must take steps to ensure that the amalgamation is fully effective in a practical sense. Thus, if there are assets of a former organisation which has been deregistered on the amalgamation day, which assets have not been placed under the control of the amalgamated organisation, the amalgamation could not be said to have been fully effective. Nor could the operation of Subdiv F, and particularly of s 253R(1), be said to be fully effective in relation to the amalgamation in such circumstances. The amalgamated organisation therefore has a duty to pursue such assets. If it is unsuccessful, s 253X(2) permits application to be made for orders which will make the amalgamation fully effective in a practical sense.

[133]

[T]he Queensland Branch of the ATAEA was incapable of amalgamating, independently of the larger organisation, with the Australian Workers Union of Employees or any other body. It remained part of the federal organisation, and assets held in its name were assets of the federal organisation. Upon amalgamation of the federal organisation the assets became those of the Alliance by reason of s 253R of the [1988 Federal] Act. Another member of the majority, Wilcox J, said that, having regard to the evidence, it would be perverse, if the matter were considered as an issue of fact, "to hold other than that the association registered in 1917 was the Queensland Branch of the federal organisation" [67] . His Honour said [68] : Ordinarily, a newly incorporated body is a free-standing entity, separate and distinct from any other corporation. The reason is that, ordinarily, an entity presented for incorporation is not part of another entity. But what if it is? Does incorporation have the effect of hiving off the newly-incorporated part so that it is no longer part of the larger corporation? If so, how and why? And, if so, what is the implication of that result for the application of State legislation that permits the incorporation of part of an entity constituted under federal law? These are the real questions in the case. Wilcox J pointed out that, provided only that it acts within its constitutional power, the Parliament of a State can confer corporate status on any entity it wishes and he gave examples of bodies which have acquired corporate status from two legislative sources [69] . His Honour resolved the "fundamental issue in the case" by concluding that the association which presented for registration under the 1916 State Act was "the Queensland Branch of the federal organisation". Further, it was this Queensland Branch which was registered in 1917 and it both "acquired no separate existence by virtue of registration" and "remained part of the federal organisation", with the result that it was incapable of amalgamating, independently of the larger organisation, with any other body [70] . 1. McJannet v White (1994) 48 FCR 453 at 456 2. McJannet (1994) 48 FCR 453 at 486 3. McJannet (1994) 48 FCR 453 at 487 4. McJannet (1994) 48 FCR 453 at 489-490 5. McJannet (1994) 48 FCR 453 at 490

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Cases Cited (38)