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Federal Court of Australia - Full Court Decisions |
Last Updated: 27 May 2002
Re Australian Workers' Union, Ex parte Construction, Forestry, Mining and Energy Union [2002] FCAFC 150
INDUSTRIAL LAW - organisations - rules - eligibility for membership - alteration approved by designated Senior Deputy President - decision reversed on appeal by Full Bench - whether denial of natural justice - whether reasonable apprehension of bias arising from findings made by one member of Full Bench in earlier unrelated proceeding - whether Full Bench should have given further opportunity to applicant to be heard after announcing its views as to correctness of decision appealed from and before deciding matter itself - whether failure to identify correctly employees covered by alteration a jurisdictional error - whether conclusion of Full Bench that designated Senior Deputy President had failed to give adequate reasons amounted to jurisdictional error - whether conclusion of Full Bench that convenience of employers not a relevant consideration amounted to jurisdictional error - whether failure of Full Bench to take account of changes to alteration, resulting from agreements reached with objecting organisations, amounted to jurisdictional error.
Workplace Relations Act 1996 (Cth) ss 45, 204, 412
Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 cited
Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 178 ALR 1 cited
R v Aird; ex parte Australian Workers' Union (1973) 129 CLR 655 cited
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203
CLR 194 followed
Re Commonwealth of Australia; ex parte Marks [2000] HCA 67; (2000) 177 ALR 491 cited
The Queen v Bowen; ex parte Federated Clerks Union of Australia [1984] HCA 30; (1984) 154 CLR 207
followed
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1 followed
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 discussed
R v Gough; ex parte The Municipal Officers' Association [1975] HCA 30; (1975) 133 CLR 59 cited
R v Neil; ex parte Cinema International Corporation Pty Ltd [1976] HCA 11; (1976) 134 CLR 27 cited
R v Holmes; Ex parte Public Service Association (NSW) [1977] HCA 70; (1977) 140 CLR 63 cited
R v Cohen; ex parte Motor Accidents Insurance Board [1979] HCA 46; (1979) 141 CLR 577 cited
R v Williams & Ors; ex parte Australian Building Construction Employees' & Builders
Labourers' Foundation [1982] HCA 68; (1982) 153 CLR 402 cited
Re Isaac; ex parte Transport Workers' Union of Australia (1985) 62 ALR 385 cited
Linett v Australian Education Union [2002] FCA 157 cited
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 cited
Re Federal Firefighters Union (1990) 35 IR 27 cited
National Tertiary Education Industry Union v Community and Public Sector Union (1999) 93
IR 365 cited
Re Food Preservers' Union of Australia (1988) 79 ALR 138 at 155 cited
Re Moore; ex parte Federated Ironworkers' Association of Australia (1990) 95 ALR 509
cited
Re Australian Industrial Relations Commission; ex parte Construction, Forestry, Mining and
Energy Union [1999] FCA 847; (1999) 164 ALR 73 cited
Brayson Motors Pty Ltd (in liq) v Commissioner of Taxation (Cth) [1985] HCA 20; (1985) 156 CLR 651 cited
Comcare Australia v Lees (1997) 151 ALR 647 cited
Dornan v Riordan (1990) 24 FCR 564 discussed
Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 cited
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 cited
Giretti v Commissioner of Taxation (1996) 70 FCR 151 cited
Stollery v The Greyhound Racing Board [1972] HCA 53; (1973) 128 CLR 509 cited
Re Finance Sector Union of Australia; ex parte Illaton Pty Limited [1992] HCA 30; (1992) 66 ALJR 583 cited
Re Australian Railways Union; Ex parte Public Transport Corporation [1993] HCA 28; (1993) 117 ALR 17
cited
Re Building Workers' Industrial Union of Australia; Ex parte Gallagher [1988] HCA 4; (1988) 62 ALJR 81
cited
Re Association of Architects of Australia; Ex parte Municipal Officers Association of
Australia (1989) 63 ALJR 298 cited
Sullivan v Department of Transport (1978) 20 ALR 323 cited
Amadio Pty Ltd v Henderson (1998) 81 FCR 149 cited
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 cited
The Queen v Commissioners for Special Purposes of the Income Tax (1888) 21 QBD 313
cited
The Queen v Gray; Ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351 cited
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 cited
RE THE HONOURABLE VICE PRESIDENT ANTHONY MCINTYRE, THE HONOURABLE SENIOR DEPUTY PRESIDENT COLIN POLITES AND COMMISSIONER DOMINICA WHELAN, AUSTRALIAN WORKERS' UNION, SAM WOOD, AUSTRALIAN MINES AND METALS ASSOCIATION (INC), AUSTRALIAN PETROLEUM PTY LTD, AMPOL REFINERIES (QUEENSLAND) LTD, AMPOL REFINERIES (NSW) PTY LTD, AMPOL LUBRICATING OIL REFINERIES PTY LTD, MOBIL OIL AUSTRALIA LTD, MOBIL REFINING AUSTRALIA PTY LTD, BP AUSTRALIA LTD, BP REFINERY (BULWER ISLAND) LTD, BP REFINERY (KWINANA) PTY LTD, SHELL COMPANY OF AUSTRALIA LTD, SHELL REFINING (AUSTRALIA) PTY LTD, SHELL DEVELOPMENT (AUSTRALIA) PTY LTD, WAG PIPELINE PTY LTD AND BITUPAVE LTD (TRADING AS BORAL ASPHALT), LEMINGTON COAL MINES LTD, KANDOS NO 3 COLLIERY, CORNWALL COAL NO LIABILITY, PEABODY RESOURCES LTD, IVANHOE COAL PTY LTD AND COAL OPERATIONS AUSTRALIA LTD, EMPLOYERS FEDERATION OF NEW SOUTH WALES, AUSTRALIAN CHAMBER OF COMMERCE AND INDUSTRY, CHAMBER OF COMMERCE AND INDUSTRY OF WESTERN AUSTRALIA, CHAMBER OF MANUFACTURES OF NEW SOUTH WALES, CONFEDERATION OF ACT INDUSTRY, ENTERTAINMENT INDUSTRY EMPLOYERS ASSOCIATION, THE NATIONAL ELECTRICAL CONTRACTORS ASSOCIATION, QUEENSLAND CHAMBER OF COMMERCE AND INDUSTRY, SOUTH AUSTRALIAN EMPLOYERS' CHAMBER OF COMMERCE AND INDUSTRY, TASMANIAN CHAMBER OF COMMERCE AND INDUSTRY, VICTORIAN EMPLOYERS' CHAMBER OF COMMERCE AND INDUSTRY; EX PARTE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
N1496 of 2001
GRAY, MOORE & MERKEL JJ
27 MAY 2002
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
|
1. A writ of certiorari issue to the Honourable Vice President Anthony McIntyre, the Honourable Senior Deputy President Colin Polites and Commissioner Dominica Whelan constituting a Full Bench of the Australian Industrial Relations Commission removing into this Court and quashing the decision and orders of the Full Bench of the Australian Industrial Relations Commission of 13 June 2001 in matters C No 20623, 20654, 20688, 20690, 20711, 30940, 31006, 31007, 31008, 31009, 31010, 31011, 31012, 31013 and 31014 of 2000 being appeals from the decision of the Honourable Senior Deputy President Simon Williams in matter D No 2004 of 1997 consenting to alterations to the eligibility rules of the Construction, Forestry, Mining and Energy Union.
2. A writ of mandamus issue to the Honourable Vice President Anthony McIntyre, the Honourable Senior Deputy President Colin Polites and Commissioner Dominica Whelan constituting a Full Bench of the Australian Industrial Relations Commission directing them to proceed to deal in accordance with law with the appeals from the decision of the Honourable Senior Deputy President Simon Williams in matter D No 2004 of 1997 consenting to alterations to the eligibility rules of the Construction, Forestry, Mining and Energy Union.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
|
JUDGES: |
GRAY, MOORE AND MERKEL JJ |
DATE: |
27 MAY 2002 |
PLACE: |
SYDNEY |
Introduction
1 This judgment concerns an application by the Construction, Forestry, Mining and Energy Union ("CFMEU") for constitutional writs directed to members of a Full Bench of the Australian Industrial Relations Commission ("the Commission"). On 13 June 2001 the Full Bench made an order quashing a decision of Senior Deputy President Williams ("the designated Senior Deputy President") of 28 January 2000 consenting to an alteration to the eligibility rules of the CFMEU. The CFMEU had applied for the consent of a designated Presidential Member to the alteration on 25 July 1997. That application was made under s 204 of the Workplace Relations Act 1996 (Cth) ("the Act").
2 The Full Bench also made an order dismissing the application of the CFMEU which, for present purposes, can be treated as a refusal to consent to the alteration. The Full Bench made the orders in an appeal from the decision of the designated Senior Deputy President. The orders of the Full Bench flowed from reasons it published on 28 February 2001 ("the first decision") and further reasons published on 13 June 2001 ("the second decision"). The writs sought by the CFMEU are certiorari to quash the decision and orders of the Full Bench and mandamus compellingly the Full Bench to hear the CFMEU application according to law.
Background and the course of proceedings in the Commission
3 At some time prior to lodging the application for consent on 25 July 1997, the CFMEU altered its eligibility rules. It is not clear from the material before us when this occurred. However because of the terms of s 204, it was necessary for the CFMEU to obtain the consent of a designated Presidential Member for the alteration to take effect. The application for consent attracted a number of objectors. Some were other organisations of employees, some were employers, others were employer associations and two were individuals. Some of the objections were settled though others were not. As a result, both the CFMEU and the remaining objectors presented evidence and argument to the designated Senior Deputy President. The hearing took 39 days, involved sittings in Sydney, Melbourne, Perth and Adelaide and oral evidence from 142 witnesses.
4 The alteration for which consent was sought by the CFMEU was to rule 2 of the Constitution, and the most important part of the alteration was to add the following sub-rule:
"(B)(3) Without limiting the generality of the foregoing and without being limited thereby, persons eligible for membership of the union shall include any worker (other than metal, electrical or plumbing tradespersons) engaged on any work in or in connection with or incidental to the construction, repair, renovation, maintenance, ornamentation, alteration, removal or demolition of any building or structure or any other works or projects including but not limited to:-(i) civil and/or mechanical engineering projects
(ii) power transmission. light, television, radio, communication, radar, navigation, observation towers or structures
(iii) powerhouses, chemical plants, hydrocarbons and/or oil treatment plants or refineries
(iv) silos
(v) sports and/or entertainment complexes, showgrounds
(vi) carparks, pavements, paved areas
(vii) roads, motorways, freeways, causeways, underpasses, overpasses
(viii) railways, tramways
(ix) bridges, drains, dams, weirs, channels, waterworks, tunnels, pipetracks, water and sewerage works, conduits, shafts, pipelines
(x) airport runways or taxiways, aerodromes.
Provided that nothing in sub-rule (B)(3) herein shall render eligible for membership any worker performing work in the state of Queensland."
5 Some of the settlements with objectors involved agreement to include in the alteration, provisos narrowing the class of employees comprehended by the alteration.
6 In order to explain the issues raised in these proceedings, it is convenient to set out the terms of s 204:
"(1) A change in the name of an organisation, or an alteration of the eligibility rules of an organisation, does not take effect unless a designated Presidential Member consents to the change or alteration.(2) A designated Presidential Member may consent to a change or alteration in whole or part, but shall not consent unless the Presidential Member is satisfied that the change or alteration has been made under the rules of the organisation.
(3) A designated Presidential Member shall not consent to a change in the name of an organisation unless the Presidential Member is satisfied that the proposed new name of the organisation:
(a) is not the same as the name of another organisation; and
(b) is not so similar to the name of another organisation as to be likely to cause confusion.
(4) A designated Presidential Member shall not consent to an alteration of the eligibility rules of an organisation if, in relation to persons who would be eligible for membership because of the alteration, there is, in the opinion of the designated Presidential Member, another organisation:
(a) to which those persons might more conveniently belong; and
(b) that would more effectively represent those members.
(5) However, subsection (4) does not apply if the designated Presidential Member accepts an undertaking from the organisation seeking the alteration that the designated Presidential Member considers appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of that organisation and the eligibility rules of the other organisation.
(6A) A designated Presidential Member may refuse to consent to an alteration of the eligibility rules of an organisation if satisfied that the alteration would contravene an agreement or understanding to which the organisation is a party and that deals with the organisation's right to represent under this Act the industrial interests of a particular class or group of persons.
(6B) A designated Presidential Member may also refuse to consent to an alteration of the eligibility rules of an organisation if he or she:
(a) is satisfied that the alteration would change the effect of any order made by the Commission under section 118A about the right of the organisation to represent under this Act the industrial interests of a particular class or group of employees; and
(b) considers that such a change would give rise to a serious risk of a demarcation dispute which would prevent, obstruct or restrict the performance of work in an industry, or harm the business of an employer.
(6C) Subsections (6A) and (6B) do not limit the grounds on which a Presidential Member may refuse to consent to an alteration of the eligibility rules of an organisation.
(7) Where a designated Presidential Member consents under subsection (1), to a change or alteration, the change or alteration takes effect on:
(a) where a date is specified in the consent--that date; or
(b) in any other case--the day of the consent.
(8) This section does not apply to a change in the name, or an alteration of the eligibility rules, of an organisation that is:
(a) determined by a designated Presidential Member under subsection 208(6); or
(b) proposed to be made for the purposes of an amalgamation under Division 7 of this Part or Part 3 of Schedule 4."
7 It will be necessary to discuss the nature and scope of the power conferred by this section in detail later. However, it can be seen that a designated Presidential Member cannot give consent if he or she forms the opinion referred to in s 204(4). That is, consent must be refused if the designated Presidential Member is of the opinion that in relation to persons who would be eligible for membership of the applicant organisation because of the alteration, there is another organisation to which those persons might more conveniently belong and which would more effectively represent them.
8 When the designated Senior Deputy President gave his consent on 28 January 2000, he also published his reasons. They commenced with a description of their contents. It is helpful to set out the description as it gives some indication of the issues addressed in the reasons:
"DECISION CONTENTS PARAGRAPH
A. APPLICATION BEFORE THE COMMISSION [1]
B. OBJECTORS TO THE APPLICATION [4]
C. SETTLEMENTS OF OBJECTIONS [5]
D. OUTSTANDING OBJECTORS [7]
E. PROCEEDINGS BEFORE THE COMMISSION [18]
F. PRINCIPLES TO BE APPLIED [31]
G. COMPLIANCE WITH REQUIREMENTS OF
REGULATION 48 [35]
H. COMPLIANCE WITH APPLICANT'S RULE
ALTERATION RULES [36]
I. MORE CONVENIENTLY BELONG AND
MORE EFFECTIVELY REPRESENT [38]-[82]
I.1 Relevant Class of Persons [38]
I.2 More Conveniently Belong [54]
I.3 More Effectively Represent [77]
I.4 Conclusion [82]
J. AGREEMENTS AND UNDERSTANDINGS [83]
K. PROPOSED ALTERATION AND S.118A ORDERS [90]
L. DISCRETIONARY CONSIDERATIONS [94]-[118]
L.1 Potential Disputation [96]
L.2 Conduct of CFMEU [108]
L.3 Exceptions for Queensland and Western Australia [115]
L.4 Conclusion [118]
M. CONCLUSION [119]
ANNEXURE A LIST OF WITNESSES
ANNEXURE B BREAKDOWN OF WITNESSES BY PARTY
ANNEXURE C LIST OF EXHIBITS
ANNEXURE D BREAKDOWN BY PARTY OF NUMBERS
OF EXHIBITS
ANNEXURE E CFMEU - AMALGAMATIONS AND NAME
CHANGES
ANNEXURE F AWU - AMALGAMATIONS AND NAME
CHANGES
ANNEXURE G ELIGIBILITY RULES OF THE CFMEU EFFECTIVE
FROM 4 FEBRUARY 2000"
9 Paragraphs [38] to [82] of the designated Senior Deputy President's reasons addressed issues raised by s 204(4). He ultimately concluded that he had not formed the opinion that, by operation of s 204(4), he must refuse his consent. However his reasoning was contentious in the sense that the Full Bench found that the designated Senior Deputy President had not given adequate reasons for one of the conclusions he reached in the course of reaching his ultimate conclusion concerning s 204(4). The contentious conclusion arose in the context of the designated Senior Deputy President's consideration of "conveniently belong" when he said:
"[73] The strong objections advanced to this application by or on behalf of various employers suggests that they consider that it would be decidedly inconvenient for them to have the relevant employees as members of the CFMEU. Prima facie , the concerns of the employer objectors focussed upon the potential for demarcation disputes arising from the existence in the field of more than one organisation. In my view, however, the evidence led on behalf of the employers demonstrated a desire on their part to prevent an expansion of influence in relevant areas by an organisation which they perceived to be more militant, more assiduous and more successful in the pursuit of employee interests at the possible expense of an organisation with which they were used to dealing and with which they perceived they had a good working relationship."
10 This section of the designated Senior Deputy President's reasons was also contentious in the sense that the Full Bench found that the designated Senior Deputy President had failed to correctly identify the class of employees that s 204(4) raised for consideration, namely "persons who would be eligible for membership because of the alteration". Both the designated Senior Deputy President and the Full Bench used the expression "relevant employees" to describe this class. For convenience, we will use the same expression. The relevant employees were identified by the designated Senior Deputy President in the following passages from his reasons of 28 January 2000:
"[46] During the course of these proceedings, the parties and their witnesses used a variety of terms to describe the industries and/or sectors of industries relevant to this application. For the purposes of this decision, I intend to use the term " construction industry " as one that includes both the building sector and the civil/mechanical engineering sector and the term "civil/mechanical engineering sector" as one that includes both civil construction and civil/mechanical engineering.[47] There appears to be no dispute that the CFMEU, under its existing eligibility rules, has broad coverage in the building sector of the construction industry, particularly in respect to the non-trades area. There also appears to be no dispute that the CFMEU has at least some coverage in the civil/mechanical engineering sector, particularly in respect to some trades classifications and plant operators. Essentially the proposed alteration involves the insertion of a new sub-rule which would extend the CFMEU's coverage in the civil/mechanical engineering sector beyond that which it already has and so as to bring such coverage into line with that of the AWU in the same sector.
[48] Substantial difficulty is, however, encountered when an attempt is made to clearly define the existing limits of the CFMEU's existing eligibility in the civil/mechanical engineering sector. It is of some significance that neither the CFMEU or any of the objectors (other than, to some extent, the AIG) made any real attempt to do so. The AIG attempt is not, in my view, entirely satisfactory but does provide a basis for ascertaining the extent of the alteration proposed.
[49] Broadly speaking, subject to the exceptions now proposed to give effect to agreements reached with some objectors, the granting of the application would give the CFMEU the right to enrol, other than in Queensland, all non-trades employees engaged on any work in or in connection with or incidental to the construction industry, whether employed in the building sector or the civil/mechanical engineering sector of that industry."
11 In another section of his reasons the designated Senior Deputy President addressed discretionary considerations which included the potential for industrial disputation if consent was given. This section contained another conclusion that the Full Bench found was not supported by adequate reasons. The conclusion of the designated Senior Deputy President was:
"[107] In my view, if this application were to be granted, on balance, the potential for industrial disputation would be outweighed by the opportunity that would be provided for the relevant employees to choose as their representative the organisation which they perceive will provide them with the most effective representation of their interests. The potential for disputation should not in this case, therefore, be a bar to the granting of this application."
12 In the same section of his reasons dealing with discretionary considerations the designated Senior Deputy President dealt with the conduct of the CFMEU. He expressed another conclusion that the Full Bench found was not supported by adequate reasons. The conclusion was:
"[114] On the evidence before me, I am not satisfied that there is anything in the conduct of the CFMEU which would justify my exercising my discretion against the granting of the application."
13 Several of the objectors appealed against the decision of the designated Senior Deputy President giving consent to the alteration. Such an appeal can be brought, with leave, under s 45 of the Act. That section provides (so far as is relevant):
"45(1) Subject to this Act, an appeal lies to a Full Bench, with the leave of the Full Bench, against:...
(f) a decision (other than in relation to a prescribed matter) in a proceeding before a designated Presidential Member acting in that capacity; and
...
45(2) A Full Bench shall grant leave to appeal under subsection (1) if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted.
45(3) An appeal under subsection (1) may be instituted:
...
(c) in the case of an appeal under paragraph (1)(f) - by a party to the proceeding; and
...
45(4) Where an appeal has been instituted under this section, a Full Bench or Presidential Member may, on such terms and conditions as the full Bench or Presidential Member considers appropriate, order that the operation of the whole or a part of the decision or act concerned be stayed pending the determination of the appeal or until further order of the Full Bench or Presidential Member.
45(5) A Full Bench may direct that 2 or more appeals be heard together, but an organisation or person who has a right to be heard in relation to one of the appeals may be heard in relation to a matter raised in another of the appeals only with the leave of the Full Bench.
45(6) For the purposes of an appeal under this section, a Full Bench:
(a) may admit further evidence; and
(b) may direct a member of the Commission to provide a report in relation to a specified matter.
45(7) On the hearing of the appeal, the Full Bench may do one or more of the following:
(a) confirm, quash or vary the decision or act concerned;
(b) make an award, order or decision dealing with the subject-matter of the decision or act concerned;
(c) direct the member of the Commission whose decision or act is under appeal, or another member of the Commission, to take further action to deal with the subject-matter of the decision or act in accordance with the directions of the Full Bench;
(d) in the case of an appeal under paragraph (1)(d) - take any action (including making an award or order) that could have been taken if the decision under paragraph 111(1)(g) had not been made.
45(8) Where, under paragraph (6)(b), a Full Bench directs a member of the Commission to provide a report, the member shall, after making such investigation (if any) as is necessary, provide the report to the Full Bench.
45(9) Each provision of this Act relating to the hearing or determination of an industrial dispute extends to the hearing or determination of an appeal under this section."
14 As noted earlier, the Full Bench upheld the appeals and quashed the decision of the designated Senior Deputy President and also refused consent to the alteration. Before the Full Bench heard the appeal, the CFMEU put in issue whether one of the members of the Full Bench should sit on the appeal. This issue is addressed by Merkel J in his reasons which we have read in a draft form.
15 In order to understand the issues raised by the CFMEU in these proceedings, it is necessary to say something about the first and second decision of the Full Bench. In the first decision (reasons published on 28 February 2001) the Full Bench analysed the reasons for decision of the designated Senior Deputy President and concluded they revealed a number of errors. We have already referred, in summary, to some of the errors identified by the Full Bench. After dealing with several introductory matters, the Full Bench discussed in the first decision the nature and extent of the case before the designated Senior Deputy President. It referred to the extensive submissions that had been put by various objectors and concluded:
"[42] There can be no doubt, in the light of the above, that before Williams SDP there was a very substantial case. As we said at the beginning of this part of our decision, submissions were made by the appellants that, in certain respects, his Honour failed to give adequate reasons or failed to take into account or give consideration to certain matters. In considering these submissions we will bear in mind the nature and extent of the case before his Honour."
16 The Full Bench considered the way the designated Senior Deputy President had gone about identifying the relevant employees. The Full Bench's analysis involved, in substance, a comparison between the eligibility rules of the CFMEU without the alteration, the terms of the alteration and the description of the designated Senior Deputy President in pars [46] to [49] (set out at [10] above). In relation to par [46], the Full Bench said:
"[52] This paragraph introduces the concepts of "industries and/or sectors of industries". The proposed rule, however, does not refer to "industry", "industries" or "sectors of industries". It refers to "any worker ... engaged on any work in or in connection with or incidental to the construction, repair, renovation, maintenance, ornamentation, alteration, removal or demolition of any building or structure or any other works or projects including but not limited to ...". The references in paragraph [46] to "industries" and related terms, accordingly, introduce terms that are not part of the proposed rule. The introduction of the term "the construction industry" prompts the enquiry whether particular work is in or in connection with or incidental to the construction industry. The terms of the proposed rule do not prompt this enquiry. The enquiry they prompt is whether particular work is within those terms. In our opinion, this is the correct enquiry."
17 The Full Bench analysed pars [47] and [48] of the designated Senior Deputy President's decision as well as the pre-existing eligibility rules of the CFMEU. The Full Bench concluded:
"[60] In any event, his Honour did not express a view as to the limits of the CFMEU's existing eligibility rules. In our respectful view, however, his Honour was, in the light of the views he himself expresses in his paragraph [38], and with which we have respectfully agreed, required to identify the limits of the CFMEU's existing eligibility rules. This is because the relevant employees are employees who are within the CFMEU's proposed rule, excluding such of them as are eligible for membership under the existing eligibility rules. Therefore, unless the employees who are eligible for membership under the existing eligibility rules are identified, it is not possible to identify the relevant employees."
18 The Full Bench set out par [49] of the designated Senior Deputy President's decision and said:
"[62] This is a crucial paragraph. In it his Honour is expressing his view as to which employees are within the CFMEU's proposed rule. His view is that, "Broadly speaking", they are, other than in Queensland, all non-trades employees engaged on any work in or in connection with or incidental to the construction industry. Put in another way, his Honour is expressing the view that the proposed rule does not extend to non-trades employees engaged on any work in or in connection with or incidental to any industry other than the construction industry. (That this is the view that he is expressing - which, in any event, is not in dispute - is confirmed by his Honour's paragraphs [50] to [53], to which we will come shortly.)"
19 Following these observations, the Full Bench considered the scope of the proposed alteration, what it viewed as the approach that had been adopted by the designated Senior Deputy President when determining the scope of the proposed alteration and some of the evidence concerning employees, said by certain objectors to be comprehended by the alteration. The Full Bench also referred to submissions that had been made to the designated Senior Deputy President. It concluded:
"[80] For the reasons we have given, the proposed rule is not limited to non-trades employees engaged on work in or in connection with or incidental to the construction industry and, accordingly, is wider in its scope than Williams SDP determined it to be. The words "any work in or in connection with or incidental to" are of wide scope. The words "construction, repair, renovation, maintenance, ornamentation, alteration, removal or demolition" cover a wide variety of activities. The words "any building or structure or any other works or projects" cover a wide range of things. And, lastly, the words "including but not limited to" (the things specified in paragraphs (i) to (x)) do not limit what is covered by the previous words. Employees within the proposed rule would, we think, be found in many industries.
[81] We add that it appears to us that the focussing on the construction industry occurred, in part at least, because from the outset the CFMEU pursued its application by reference to the construction industry, even though the proposed rule did not refer to this industry."
And later:
"[86] It appears to us that this focussing on the construction industry has diverted attention from the terms of the proposed rule. In any event, for the reasons we have given, his Honour, in our opinion, erred in the view he expressed in his paragraph [49] that "Broadly speaking" the granting of the application would give the CFMEU the right to enrol "all non-trades employees engaged on any work in or in connection with or incidental to the construction industry".
20 The Full Bench summarised the errors it had identified concerning the scope of the alteration and the effect of the errors:
"[91] In summary then, we are of the view that Williams SDP failed to correctly identify the relevant employees (that is, the "persons who would be eligible for membership because of the alteration" (s.204(4)) because he:(1) incorrectly construed the terms of the CFMEU's proposed rule; and
(2) failed to compare the existing eligibility rules of the CFMEU with the rules as they would be if the application were granted.
[92] As we said earlier, the identification of the relevant employees is a matter of central importance in determining the CFMEU's application. His Honour's failure to correctly identify them has the following consequences:
(1) most directly, it means that his Honour applied the "more conveniently belong" and "more effectively represent" criteria in ss.204(4)(a) and (b) to incorrectly identified persons; and
(2) more generally, it means that all of his Honour's conclusions and views were formed on the incorrect basis that the relevant employees did not extend beyond "Broadly speaking ... all non-trades employees engaged on any work in or in connection with or incidental to the construction industry".
21 We have already mentioned that the Full Bench found that the designated Senior Deputy President did not give adequate reasons in expressing the conclusion found in par [73] of his decision (set out at [9] above). The Full Bench's explanation was:
"[101] One of these is the view his Honour expresses in his paragraph [73]; that is, that the concerns expressed by employer objectors about the potential for demarcation disputes were, in reality, concerns about the expansion in influence of the CFMEU at the possible expense of the AWU. The last sentence of his Honour's paragraph [73] states that "the evidence led on behalf of the employers demonstrated" the matters set out in that sentence. No reference, however, is made to "the evidence". The appellants took us to a substantial amount of evidence which indicates to us that the real concern of employer objectors focussed on the potential for demarcation disputes rather than concerns about the expansion of the influence of the CFMEU. (We make further reference to this evidence later in this decision under the heading "Potential Disputation".) His Honour's view is, in essence, that the employer objectors were dissembling when they said that they were concerned about the potential for demarcation disputes. In our opinion, his Honour had an obligation to identify the evidence which led him to reach this view. In not doing so, we think that he made an error in the decision-making process in that he failed to give adequate reasons for the view he expressed in his paragraph [73]."
22 The Full Bench identified one further error of the designated Senior Deputy President in his consideration of the issue of "conveniently belong", namely that the convenience for an employer was a relevant factor. The conclusion of the Full Bench appears to have been based on the fact that no party made a submission that consenting to the alteration would be convenient to an employer and that there was no evidence about the matter.
23 The next issue considered by the Full Bench was the operation of s 204(6A) having regard to the evidence that was before the designated Senior Deputy President. The Full Bench did not conclude that the designated Senior Deputy President had erred when dealing with this matter, however, it did indicate that the impact of the subsection (and issues it raised) might require further consideration.
24 The Full Bench considered the approach adopted by the designated Senior Deputy President to discretionary considerations. It noted that his consideration was based on a misunderstanding of who were the relevant employees and had been confined to the construction industry. It also noted that there had been a substantial amount of evidence about potential industrial disputation in industries other than the construction industry. The Full Bench concluded:
"[161] Williams SDP, however, makes no reference to any of this evidence under his heading "Potential Disputation". In his paragraph [105], he calls the reactions of the objectors "rather emotive" and says that these reactions fail to acknowledge the shared coverage of plant operators and the lack of resulting serious industrial disputation. While we agree that the factors of shared coverage of plant operators and lack of resulting serious industrial disputation are relevant, they are not the only relevant factors. Another relevant factor, in our view, is the evidence of a large number of witnesses about the potential for industrial disputation if the CFMEU's application were granted. His Honour, makes no reference to any of this evidence. Having regard to its nature and extent, his Honour, in our respectful view, was obliged to refer to it and express conclusions about it. Did he think it had any weight? If so, what weight? Why did it not, on balance, outweigh freedom of choice considerations? In the absence of such conclusions being expressed, it is our respectful view that his Honour failed to give adequate reasons for the conclusion expressed in his paragraph [107]."
25 The Full Bench addressed how the designated Senior Deputy President had dealt with the conduct of the CFMEU. It referred to the evidence and submissions the parties had made. The Full Bench concluded:
"[183] These and other submissions relating to the CFMEU's conduct and the supporting evidence are not referred to by his Honour. We are, therefore, unable to ascertain his Honour's views about them or what part, if any, they played in his conclusion in his paragraph [114] that, on the evidence, he was not satisfied that there is anything in the conduct of the CFMEU which would justify his exercising his discretion against the granting of the application. We do not know whether he accepted the evidence relied on - some of it (for example that referred to in our paragraphs [181]-[182] about the gas pipeline construction project) was contested. If his Honour accepted some or all of the evidence we do not know why he was satisfied that there was nothing in it to justify his exercising his discretion against granting the CFMEU's application. The evidence is obviously relevant to the exercise of his Honour's discretion and to the legislative requirement in s.90(a). In our respectful view, when the nature and extent of this evidence is borne in mind, it was incumbent on his Honour to make adequate reference to it and to express his views as to the weight, if any, to be given to it. It was not, we think permissible to say nothing at all about it and then to conclude as he did in his paragraph [114] that he is "not satisfied that there is anything in the conduct of the CFMEU which would justify any discretion against the granting of the application". In so doing, we think his Honour failed to give adequate reasons for this conclusion."
26 It also said that the designated Senior Deputy President had failed to deal with seven matters raised by the objectors namely:
"[170] We repeat the seven matters which the appellants submitted his Honour failed to take into account:* `refusing to recognise and respect the rights of employers and other employee organisations to enter into agreements for certification,
* refusing to abide by, or showing a complete disregard for, certified agreements and their terms,
* encouraging and supporting employees bound by agreements not to honour them and to undermine their binding effect and sanctity,
* failing to recognise and respect the lawful entitlement of employees to be or remain members of a union with eligibility, consistent with demarcation agreements or otherwise,
* engaging in a sustained and unjustified campaign to undermine the standing and reputation of the AWU,
* engaging in unlawful behaviour through its officers and or employees and condoning such behaviour,
* failing to abide by demarcation agreements even where incorporated into certified agreements or showing a complete indifference as to whether its conduct is or will result in a breach of such agreements."
27 As noted earlier, the Full Bench also concluded that the designated Senior Deputy President had failed to deal with the submission of the Employers' Federation of New South Wales and alternative submissions advanced by certain objectors. It summarised its conclusions:
"[202] In this decision, we have, for the reasons we have given, concluded that Williams SDP made the following errors in the decision-making process:(1) he failed to correctly identify "the persons who would be eligible for membership because of the alteration" (s.204(4)) ("the relevant employees");
(2) in expressing the views he expressed in his paragraphs [73] and [74];
(3) he failed to give adequate reasons for the conclusions he reached with respect to the discretionary considerations of "Potential Disputation" and "Conduct of the CFMEU";
(4) he failed to deal with the case of the EFNSW; and
(5) he failed to deal with the objectors' alternative submissions."
28 The Full Bench indicated it gave leave to appeal and, as to the future conduct of the matter, said:
"[206] A number of the appellants made submissions as to the ways in which this appeal might, depending upon the views reached by us, be disposed of, including that we might express our conclusions on matters in issue and relist the appeals for further submissions in the light of those views."
29 The Full Bench concluded the first decision with the following remarks:
"[207] In this decision we have set out the errors which, in our opinion, were made at first instance. Some of the consequences of these errors would, as we have indicated earlier, appear to be that :(1) because the relevant employees were incorrectly identified, they need to be correctly identified;
(2) because the views and conclusions in his Honour's decision were reached in the circumstance that the relevant employees had been incorrectly identified, those views and conclusions need, or may need, to be reconsidered. Conclusions that we think were clearly affected by his Honour's incorrect identification of the relevant employees are those with respect to:
(a) the "more conveniently belong" and "more effectively represent" criteria in s.204(4); and
(b) the discretionary consideration of "potential disputation" (see our paragraphs [139]-[140]);
(3) because his Honour's conclusions with respect to the "more conveniently belong" and "more effectively represent" criteria are also affected by the views he expressed in his paragraphs [73] and [74], they also need to be reconsidered for this reason;
(4) because of his Honour's failure to give adequate reasons for the conclusions he reached under the headings "Potential Disputation" and "Conduct of the CFMEU", the exercise of the discretions dealt with under these headings needs to be reconsidered;
(5) because of his Honour's failure to deal with the case of the EFNSW, that case needs to be considered; and
(6) because of his Honour's failure to deal with the alternative submissions, those submissions need to be considered.
[208] Further, a number of issues arising under s.204(6A) about which we have expressed no view may need to be considered, including:
(a) the construction of s.204(6A);
(b) whether any or all of the demarcation agreements are extant;
(c) whether the CFMEU is a party to any or all of them;
(d) whether there is a basis for satisfaction that the alteration of the CFMEU's eligibility rules would contravene any or all of them;
(e) similar issues in relation to some or all of the other agreements or understandings listed in his Honour's paragraph [84]; and
(f) the exercise of the discretion specified in the section;
[209] We have generally not, in this decision, done more than identify what, in our opinion, are errors. We have not expressed views as to the correct conclusions.
[210] Further, for reasons we have given, we have not expressed any views with respect to two particularly contentious matters; they are, his Honour's views in his paragraph [104] about the demarcation agreements and in his paragraphs [111] and [112] about enrolment by the CFMEU beyond its eligibility rules. These - and perhaps other - issues may later require the expression of our views.
[211] We have, in the circumstances, decided to relist the appeals for mention to hear any submissions as to the way in which they should now proceed. We will do this at 10.30 a.m. on Thursday, 26 April 2001 in Sydney.
A FINAL WORD
[212] This enormous case must have cost each union a fortune. And, as this decision shows, the end is not in sight. It has, in the past, been possible for the unions to reach agreement. We urge them to try and resolve their differences."
30 A directions hearing did take place on 26 April 2001. What happened then is relied on by the CFMEU in support of a ground in these proceedings that it was denied procedural fairness. What occurred on that day is discussed by Merkel J.
31 In its second decision (the reasons published on 13 June 2001), the Full Bench dealt with the application for consent itself. It is unnecessary to set out all the Full Bench said. On a fair reading of its reasons, it approached the matter the following way. It discussed, by reference to the first decision, who were the relevant employees and noted they included employees in industries beyond the construction industry. In relation to those employees (relevant employees other than those in the construction industry), the Full Bench discussed, first, whether there was another organisation to which those persons might more conveniently belong (s 204(4)(a)) that would more effectively represent them (s 204(4)(b)) and, secondly, whether, as a matter discretion, consent should not be given to the alteration. This discussion was prefaced by the Full Bench's conclusions:
"[6] This being so [that there were relevant employees in industries other than the construction industry], it is our view that consent to the CFMEU's proposed rule:(1) must be refused because, in our opinion, there are organisations of the type described in paragraphs (a) and (b) of s.204(4); and
(2) should, in the exercise of our discretion, be refused because granting consent would lead to demarcation disputes in these industries."
32 In relation to the first matter the Full Bench said:
"[7] We first deal with the view expressed in paragraph [6](1) above. At first instance, the employer objectors called evidence about a number of industries, other than the construction industry, including:(1) the hydrocarbons industry (which includes offshore production fields, onshore production fields, oil and gas treatment plants, oil pipelines and gas pipelines, hydrocarbon processing plants, oil and gas receival, loading and/or storage facilities in relation to processing plants and the construction of each of the above);
(2) the mining and minerals processing industries, other than coal (which includes underground mines, open cut mines, tailings retreatment, dredge mines, ore treatment plants, smelters, refineries and loading facilities);
(3) the oil industry (which includes oil refineries, oil and oil product storage and distribution terminals, oil and oil product storage and distribution depots, oil and oil product receival and loading facilities, lubricant manufacturing plants and oil and oil product pipelines);
(4) the entertainment and broadcasting industry;
(5) the landscaping industry;
(6) the quarrying industry;
(7) the transport industry;
(8) the concrete manufacturing industry; and
(9) the concrete products manufacturing industry.
[8] The AWU also called evidence relating to a number of industries, other than the construction industry, including the grain industry, the steel industry and the oil industry.
[9] We should add that, as we said in paragraph [78] of our earlier decision, we accept that an employer may be in more than one industry.
[10] In respect of the industries referred to in paragraphs [7] and [8] above, the evidence satisfies us that:(1) there is a substantial number of persons employed in these industries who are relevant employees;
(2) that employment in these industries is covered by an established pattern of awards and agreements, the union parties to which are substantially unions other than the CFMEU, although there is, in some cases, CFMEU involvement; and
(3) that employees in these industries who are members of unions are substantially members of unions other than the CFMEU, including:
* the AWU,
* Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union,
* Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia,
* National Union of Workers,
* Australian Liquor, Hospitality and Miscellaneous Workers Union,
* Transport Workers' Union of Australia,
* Media, Entertainment and Arts Alliance, and
* The Association of Professional Engineers, Scientists and Managers, Australia.
...
[12] In the circumstances we have outlined in paragraphs [7] to [10] above, we are of the opinion that, in respect of the relevant employees employed in industries other than the construction industry, there is another organisation, or are other organisations, within paragraphs (a) and (b) of s.204(4)."
33 In relation to the second matter the Full Bench said:
"[13] We next deal with the view we expressed in paragraph [6](2) above. Before Williams SDP, the AWU and employer objectors called evidence that, if the CFMEU's application were granted, it would lead to demarcation disputes, not only in the construction industry, but in other industries. In our earlier decision, we gave, in paragraphs [142]-[150] and [153]-[159], examples of evidence in relation to the potential for such disputes. Some of this evidence relates to the construction industry, but much of it relates to other industries, including those mentioned in paragraphs [7] and [8] above.[14] In the light of this evidence, we are of the view that, having regard to the public interest (s.90), we should, in the exercise of our discretion, refuse consent to the CFMEU's application. (It will be recollected that Williams SDP, in paragraph [107] of his decision, concluded that, on balance, the potential for industrial disputation would be outweighed by freedom of association considerations. But, as we said in paragraph [139] of our earlier decision, this conclusion was based on his Honour's view as to the identity of the relevant employees and, accordingly, failed to take into account the potential for industrial disputation in industries other than the construction industry. In our view, when the evidence about the potential for industrial disputation in industries other than the construction industry is taken into account, there can be no basis for the view that, in those industries, it is outweighed by freedom of association considerations.)"
34 The Full Bench considered whether it should consent to the alteration in part "by limiting its scope by some form of reference to the construction industry". It concluded it should not for three reasons. First, it would involve a substantial rewriting of the alteration in the absence of words of limitation being advanced by the CFMEU. Secondly, what was comprehended by "the construction industry" was not clear. The third reason was explained by the Full Bench:
"[18] Third, there are relevant employees who are, beyond doubt, "engaged on any work in or in connection with or incidental to the construction industry" and in respect of whom, on the evidence, the opinion might not be formed that there was no other organisation to which they might more conveniently belong and that would more effectively represent them. We have in mind, for example, employees engaged in road construction and pipeline construction. In respect of such employees, an issue would therefore arise for determination as to whether the evaluation required by s.204(4) should be made on an across-the-board basis or otherwise; see paragraph [89] of our earlier decision."
35 The Full Bench gave another reason why it believed it could quash the decision of the designated Senior Deputy President and dismiss the CFMEU's application. It was that the designated Senior Deputy President had failed to give adequate reasons addressing, inter alia, potential disputation and the conduct of the CFMEU. On this question the Full Bench said:
"[19] What we have said so far of itself provides, in our view, proper bases for quashing his Honour's decision and deciding to dismiss the CFMEU's application. There is, however, a further basis for doing this. Another error of his Honour which we identified in our earlier decision was that his Honour failed to give adequate reasons for his conclusion with respect to the discretionary considerations of "Potential Disputation" and "Conduct of the CFMEU". As appears from our earlier decision, these discretionary considerations were a major part of the objectors' cases at first instance. His Honour's failure to give adequate reasons is, we think, of such a nature as to also justify the quashing of his decision and the dismissing of the application; see, for example, Dornan v Riordan (1990) 95 ALR 451 in which the Full Court of the Federal Court set aside ab initio a determination of a tribunal that had failed to give reasons adequate to enable the Court to determine whether any other error had occurred in the reasoning process. (Although the relevant statute in Dornan v Riordan required the tribunal to state reasons, we regard the decision as applicable to the present case; see paragraphs [16] to [20] of our earlier decision.)"
36 The Full Bench made orders quashing the decision and dismissing the application.
Issues raised in the application for constitutional writs
37 Before discussing the issues raised in these proceedings, we should mention how they came to this Court. Applications for constitutional writs against members of the Commission can be heard and determined by the High Court in its original jurisdiction. While the Federal Court now has wide original jurisdiction to hear and determine applications for constitutional writs under s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act"), it does not extend to proceedings against members of the Commission: see s 39B(2)(a). However the Federal Court may hear an application for constitutional writs against members of the Commission if it is remitted to the Federal Court by the High Court: see s 44 of the Judiciary Act and s 412 of the Act. If the proceedings involve a Presidential Member of the Commission as a respondent, then the jurisdiction of the Federal Court must be exercised by a Full Court: see s 415(1)(d) of the Act.
38 In 1994 the High Court introduced a Practice Direction which, in practical effect, resulted in most applications for constitutional writs against members of the Commission being remitted initially to the Industrial Relations Court of Australia and, more recently, to the Federal Court: see e.g. Re Media, Entertainment and Arts Alliance; ex parte Attorney-General (Qld) (1994) 68 ALJR 478 and Re Australasian Meat Industry Employees' Union; ex parte AFC Abattoirs Ltd (1997) 73 IR 58. A matter may be remitted by a judge of the High Court without determination of whether an order nisi should issue. Order 51A r 5 of the Federal Court Rules provides:
"(1) Subject to subrule (2), and to any Act to the contrary, when the Court or a Judge hears an application remitted by the High Court for an order nisi for a prerogative writ, the Court or Judge:(a) will at the same time hear the parties on whether, if the order nisi were made, it should be made absolute; and
(b) if satisfied that an order absolute should be made, will not make the order nisi, but will proceed directly to make the order absolute.
(2) In a particular case, the Court or Judge may order that subrule (1), or any part of it, does not apply."
39 The combined effect of these various provisions has been, in this matter, that a Full Court is considering all the issues raised in the CFMEU's application for an order nisi without any prior consideration of whether any particular ground was arguable. If there had been such prior consideration, it would not be necessary to give detailed consideration to a ground that was not arguable. That is because it would not have become a ground supporting an order nisi: see e.g. Re Australian Nursing Federation; ex parte State of Victoria [1993] HCA 8; (1993) 112 ALR 177 at 183. On the other hand, if a particular ground was arguable, it would have become a ground supporting an order nisi and would have been considered in a hearing to determine whether the order nisi should be made absolute.
40 Ordinarily these matters are of no practical significance and Full Courts of this Court regularly hear applications for constitutional writs against members of the Commission without prior scrutiny of the grounds and simply determine the issues raised. However in this matter, the CFMEU's application raised over 20 grounds (though some merge or overlap with others). Some of the grounds are of substance and some, in our view, are not. The hearing of the application took three days with four parties represented by senior and junior counsel. That, of course, occurred against a background where the first instance litigation in the Commission took almost 40 days. It is difficult, in our opinion, to see how this approach to litigation where issues are not refined can be justified.
41 The grounds the CFMEU relies on are:
"1. The First Respondents in making the decisions and orders failed to afford the Applicant/Prosecutor natural justice in that Polites SDP should have disqualified himself, upon application being made by the Applicant/Prosecutor, on the basis of a reasonable apprehension of bias.2. The First Respondents in making the first decision misconceived their duty and/or identified the wrong issue and/or asked the wrong question by asking and deciding whether the rule change extended to industries other than the construction industry.
3. The First Respondents in making the first decision misconceived their duty by misconstruing the legal effect of the proposed rule.
4. The First Respondents in making the first decision misconceived their duty by applying the wrong test in determining whether Senior Deputy President Williams had failed to state reasons.
5. The First Respondents in making the first decision misconceived their duty by holding that convenience to employers was an irrelevant consideration.
6. Alternatively to ground 5 above, the First Respondents in making the first decision misconceived their duty by holding, erroneously, that it was not open to Senior Deputy President Williams to form the view that there was convenience to employers in having their employees in the one organisation when moving from one sector of the construction industry to another.
7. The First Respondents in making the first decision misconceived their duty by holding, erroneously, that Senior Deputy President Williams was bound to take into account the potential for industrial disputation in industries other than the construction industry, and had not done so.
8. By the legal errors identified in grounds 2 to 7 above, the First Respondents in making the second decision and orders misconceived the jurisdiction conferred on them to exercise the power conferred by s. 45(7) of the Workplace Relations Act 1996.
9. The First Respondents in making the second decision and orders misconceived their duty and/or identified the wrong issue and/or asked the wrong question by focusing on industries other than the construction industry.
10. The First Respondents in making the second decision and orders misconceived their duty by misconstruing the legal effect of the proposed rule.
11. The First Respondents in making the second decision and orders misunderstood the nature of the opinion to be reached by failing to identify, or wrongly identifying the relevant employees covered by the rule change.
12. The First Respondents in making the second decision and orders, misunderstood the nature of the opinion to be reached in the application of s 204(4) by applying irrelevant criteria and ignoring relevant criteria.
13. The First Respondents in making the second decision and orders, misunderstood the nature of the opinion to be reached in the application of s 204(4) by not separately applying the tests therein.
14. The First Respondents in making the second decision and orders, in finding that the Applicant/Prosecutor did not put forward words of limitation, ignored the fact that the Applicant/Prosecutor had put submissions at first instance on alternative proposals with words of limitation and/or failed to invite submissions on that matter.
15. The First Respondents in making the second decision and orders misconceived their duty by identifying that there might be an issue as to whether there should be an across the board or otherwise approach but not inviting submissions on that question and/or determining that question.
16. In making the second decision and orders, the First Respondents misconceived their function and misconstrued the power conferred by s 45(7) by holding that a failure of Senior Deputy President Williams adequately to state reasons could authorise the dismissal by the First Respondents of the application.
17. The second decision and orders were made without the Applicant/Prosecutor being given a chance to put further submissions as to the determination of the subject matter of the proceedings and without being given notice that dismissal of the application without further hearing was an issue to be addressed, and the First Respondents thereby denied the Applicant/Prosecutor natural justice.
18. The First Respondents in making the second decision and orders gave no or inadequate reasons and thereby failed to afford the Applicant/Prosecutor natural justice.
19. The decisions and orders of the First Respondents were decisions and orders that no reasonable tribunal could have reached on the material before them.
20. The First Respondents were manifestly unreasonable and/or perverse in finding in the first decision that
(i) Williams SDP wrongly identified the employees on an industry basis;
(ii) the rule change went beyond the construction industry as defined by Williams SDP to other industries;
(iii) failed to give adequate reasons; and
(iv) failed to consider alternate proposals
and then proceeding in the second decision to
(i) identify the employees on an industry basis
(ii) find that the construction industry as defined by Williams SDP was not sufficiently delineated from other industries;
(iii) fail to give adequate reasons; and/or
(iv) fail to consider alternative proposals.
21. The First Respondents in making the decisions and orders fell into jurisdictional error and/or failed to exercise their jurisdiction.
22. The First Respondents failed in their duty to exercise in accordance with law their powers under the Workplace Relations Act 1996."
42 We now turn to consider these grounds. As we noted earlier, several of these grounds appear to overlap. We have endeavoured to deal with the issues raised by reference to the various grounds though there may not be a precise correlation between any particular issue and the grounds set out in the rule to show cause.
Consideration of the issues
43 We have read the reasons of Merkel J in a draft form and we agree, for the reasons his Honour gives, that grounds 1 and 17 (and indirectly 15) are not made out. In relation to grounds 2 and 3, it was not in issue that it is necessary for a designated Presidential Member, when considering an application for consent to an alteration to eligibility rules, to identify the relevant employees in order to consider the issues raised by s 204(4). That is, it is necessary to identify the "persons who would be eligible for membership because of the alteration". In developing these grounds, counsel for the CFMEU sought to demonstrate that the designated Senior Deputy President did not err when he identified the relevant employees (in the passages from his decision (pars [46] to [49]) set out at [10] above), the Full Bench itself fell into error in concluding that the designated Senior Deputy President had erred (see the passages of the Full Bench's decision set out at [16] to [18] above) and lastly that the Full Bench had itself erred by failing to identify correctly the relevant employees. The Full Bench, it was submitted, failed to pay any or sufficient regard to the coverage of the CFMEU deriving from the coverage of what had been the Federated Engine Drivers and Fireman's Association of Australasia and also failed pay regard to exclusions limiting the alteration agreed to by CFMEU as a result of settlements with objectors. We discuss this last matter later in these reasons.
44 Determining who are the relevant employees would ordinarily involve ascertaining the scope of the pre-existing eligibility rules of the applicant organisation and the scope of the alteration. This will often entail construing both the pre-existing eligibility rules and the alteration on the assumption that it formed part of the eligibility rules. It may be that when the Commission determines the meaning of particular words or expressions in the pre-existing eligibility rules and the alteration it is determining a question of fact: see Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 and also Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 178 ALR 1. However when the Commission construes eligibility rules and determines their application in a particular factual context, the better view is that it involves a legal question to be solved by legal considerations: see R v Aird; ex parte Australian Workers' Union (1973) 129 CLR 655 at 659 per Barwick CJ, and can involve mixed questions of fact and law. However accepting that the construction of the pre-existing eligibility rules and the alteration involves a question of law in the present context, it does not follow that if the Full Bench was wrong in concluding that the designated Senior Presidential Member had erred in identifying the relevant employees or if the Full Bench itself erred in identifying the relevant employees, either error of the Full Bench would be jurisdictional error. It will be apparent from the reasons we are about to give, that it is unnecessary to determine whether either the designated Senior Deputy President or the Full Bench or both, erred in construing the eligibility rules and the alteration.
45 Insofar as the identification of error on the part of the designated Senior Deputy President by the Full Bench is concerned, it is clear that the Full Bench understood its task when hearing the appeal. That is, it appreciated that in exercising the appellate jurisdiction of the Commission, it was necessary to determine whether the designated Senior Deputy President had erred. It did so in considering whether leave to appeal should be granted (though the Full Bench concluded the matter was of such importance that in the public interest leave should be given) and also did so when considering whether it should exercise the powers under s 45(7) and, in particular, exercise the power to quash the decision of the designated Senior Deputy President and deal with the application itself. It does not matter whether or not the Full Bench was correct in concluding the designated Senior Deputy President had, in fact, erred. The position appears to us to be no different, in principle, to that considered by the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [31] and [32] and repeated by McHugh J in the following passage in Re Commonwealth of Australia; ex parte Marks [2000] HCA 67; (2000) 177 ALR 491 at [21]:
The applicant's grounds for constitutional relief seek, for the most part, to challenge what may conveniently be described as the merits of Jones C's decision and the Full Bench's decision. The recent judgment of Gleeson CJ, Gaudron and Hayne JJ in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission ("Coal and Allied") illustrates the flaw in this approach. In Coal and Allied, Boulton J of the AIRC had terminated a bargaining period under s 170MW of the Act. A Full Bench of the AIRC allowed an appeal from Boulton J's decision. Gleeson CJ, Gaudron and Hayne JJ said:"To misconceive the role of the Commission under s 170MW of the Act (assuming that that is what the Full Bench did) does not constitute jurisdictional error on the part of the Full Bench.
There would only have been jurisdictional error on the part of the Full Bench if it had misconceived its role or if, in terms used by Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council, it `misunder[stood] the nature of [its] jurisdiction ... or "misconceive[d] its duty" or "[failed] to apply itself to the question which [s 45 of the Act] prescribes" ... or "[misunderstood] the nature of the opinion which it [was] to form"'. The Full Bench did none of those things.
In his reasons for decision, Giudice J proceeded on the basis that the Full Bench could intervene only if there was error on the part of Boulton J. In this his Honour was correct. Giudice J held that there was error on the part of Boulton J. If he was wrong in that view (a matter upon which it is unnecessary to express an opinion), that was an error within jurisdiction not an error as to the nature of the jurisdiction which the Full Bench was required to exercise under s 45 of the Act. Accordingly, it was not an error in respect of which relief could be granted by way of prohibition or mandamus under s 75(v) of the Constitution."
46 Insofar as the Full Bench may itself have erred in construing the eligibility rules and the alteration, any such error would not, in the circumstances of this matter, be jurisdictional error. A similar issue arose in The Queen v Bowen; ex parte Federated Clerks Union of Australia [1984] HCA 30; (1984) 154 CLR 207. In that matter an application had been made to the High Court for writs of mandamus and certiorari against a Full Court of this Court. The Full Court of the Federal Court had been considering an application under s 143 of the Conciliation and Arbitration Act 1904 (Cth) seeking the cancellation of the registration of the Waterside Workers Federation of Australia ("the Federation"). The application was brought by the Federated Clerks Union of Australia ("the FCU") on the basis that the Federation was engaging in conduct not authorised by it rules, namely enrolling tally clerks as members. The FCU argued that the Federation's eligibility rules did not comprehend tally clerks. Accordingly it was necessary for the Full Court to ascertain the meaning of the eligibility rules and determine whether the Federation could enrol tally clerks as part of determining the application to cancel the Federation's registration.
47 The High Court said that an incorrect interpretation of the rule could only ground relief by way of mandamus if s 143 could be construed as imposing on the Federal Court an imperative duty correctly to give effect to the true interpretation of the rules of a registered organisation as they apply to the facts of a given case. The High Court concluded that plainly s 143 did no such thing. That section operated to confer jurisdiction on the footing that the Federal Court would determine, in exercise of its jurisdiction and as an incident of it, whether the conduct of the organisation was authorised by or in accordance with the rules. The section did not make the correctness of the Federal Court's determination on that issue an imperative duty so as to create a right to review of that determination by mandamus.
48 By parity of reasoning, it might be asked whether s 204(4) imposes an imperative duty on a designated Presidential Member correctly to give effect to the true interpretation of the rules of the organisation applying for consent to an alteration in the context of determining questions of "conveniently belong" and effective representation. In our view, it does not. An error in construing the pre-existing eligibility rules and the alteration when ascertaining who were the relevant employees would be an error within jurisdiction at least as long as it was apparent that the decision maker (whether the designated Presidential Member or a Full Bench) understood the task required by the subsection and addressed the pre-existing eligibility rules and the alteration in determining who were the relevant employees and applied accepted principles of construction in ascertaining the meaning of the rules. The Full Bench did so in this case.
49 The judgment of the High Court in The Queen v Bowen; ex parte Federated Clerks Union of Australia appears to provide a complete answer to these grounds. However it is probably necessary to discuss whether, if the Full Bench had erred in its construction of the eligibility rules and the alteration, such an error might be jurisdictional having regard to a passage from Craig v South Australia (199) [1995] HCA 58; 184 CLR 163 which was relied on by the CFMEU in relation to several grounds. The relevant passage from Craig v South Australia was cited with approval by McHugh, Gummow and Hayne JJ in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1 at [82] as follows:
It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal):"falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
"Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.
50 However the above passage from Craig v South Australia was preceded by the qualifying comment that the principles discussed in the passage operated "(a)t least in the absence of a contrary intent in the statute or other instrument which establishes it, an administrative tribunal...". Similarly, in Minister for Immigration & Multicultural Affairs v Yusuf McHugh, Gummow and Hayne JJ went on, after expressing the views they did in the preceding passage, to consider whether there was anything in the relevant legislation to suggest that the administrative decision maker was given authority to authoritatively determine questions of law or to make decisions otherwise than in accordance with the law.
51 By operation of s 204(4), a designated Presidential Member must form an opinion about whether the relevant employees could more conveniently belong to another organisation and be more effectively represented by that organisation. The section calls for assessments which almost necessarily involve broad value judgments of no particular precision. It is unlikely that Parliament intended that the opinion could be impugned in proceedings for constitutional writs because the designated Presidential Member had formed a view about the meaning of the pre-existing eligibility rules and the alteration which differed from the view adopted by a Court, notwithstanding that the ultimate opinion upon which s 204(4) operates has this significant discretionary element. The contrary view would expose to challenge consent given under s 204 and require, potentially, the reconsideration of all discretionary aspects of the decision to grant consent by reference to what a Court determined was the proper construction of the eligibility rules if that determination did not coincide with the construction adopted by the Commission. It is notorious that eligibility rules can be interpreted differently even in the same proceedings in a Court: see e.g. R v Gough; ex parte The Municipal Officers' Association [1975] HCA 30; (1975) 133 CLR 59; R v Neil; ex parte Cinema International Corporation Pty Ltd [1976] HCA 11; (1976) 134 CLR 27; R v Holmes; Ex parte Public Service Association (NSW) [1977] HCA 70; (1977) 140 CLR 63; R v Cohen; ex parte Motor Accidents Insurance Board [1979] HCA 46; (1979) 141 CLR 577 R v Williams & Ors; ex parte Australian Building Construction Employees' & Builders Labourers' Foundation [1982] HCA 68; (1982) 153 CLR 402 and Re Isaac; ex parte Transport Workers' Union of Australia (1985) 62 ALR 385.
52 In our opinion, it is comparatively clear that any error the Commission might make (whether at first instance or on appeal) concerning the proper construction of the eligibility rules and the alteration would not be a jurisdictional error having regard to the nature of the power conferred on the Commission by s 204 and the specific duty created by subs (4). Whether, when an administrative tribunal makes an error of law, the error is jurisdictional, can depend on whether it is apparent the legislature intended that the tribunal could decide the issue itself even if the decision was wrong: see the discussion of Kiefel J in Linett v Australian Education Union [2002] FCA 157. In our opinion, it is probable that the Commission has been given by Parliament some latitude in exercising the power conferred by s 204 including latitude to take a mistaken view about the meaning of the eligibility rules and the alteration. This is subject, of course, to the matters we mentioned earlier, namely that the Commission (whether the designated Presidential Member or a Full Bench) understood the task required by the section, addressed the pre-existing eligibility rules and the alteration in determining who were the relevant employees and applied accepted principles of construction in ascertaining the meaning of the rules.
53 For these reasons, grounds 2 and 3 have not been made out.
54 In ground 4, The CFMEU raises an issue about whether the Full Bench applied the appropriate test in concluding that the designated Senior Deputy President had not given adequate reasons. However it is unnecessary to address the difficult question of whether the Commission, in exercising its powers under Division 2 of Part IX, is required to give reasons and, on the assumption that it is (an assumption made by all parties to these proceedings at least until written submissions were filed after the hearing in this Court), what is the minimum content of those reasons.
55 As already discussed in a slightly different context in [45] above, it is clear that the Full Bench understood its task. That is, it appreciated that in exercising the appellate jurisdiction of the Commission, it was necessary to determine whether the designated Senior Deputy President had erred. It evaluated the reasons of the designated Senior Deputy President and concluded they were not adequate. Again, it does not matter whether or not the Full Bench was correct in concluding the designated Senior Deputy President had, in fact, erred. Again the position appears to us to be no different, in principle, to that considered by the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [31] and [32].
56 In written submissions filed after the hearing in this Court, counsel for the CFMEU put in issue whether it was necessary for the designated Senior Deputy President to give reasons at all. A submission was made that no reasons were necessary. The submission was based, in part, on the terms of s 143 of the Act as well as the nature of the power exercised under s 204. This is the first time that such a submission has been made. It was not made to the Full Bench. Even if the submission was correct (a matter about which we express no views) and even if the Full Bench erred in proceeding on the footing that reasons were necessary, the Full Bench identified other errors (apart from the inadequacy of the reasons) supporting its conclusion that the designated Senior Deputy President had erred and which justified, as the Full Bench perceived it, granting leave and exercising the powers under s 45(7). The identification of most of those other errors did not involve jurisdictional error. Accordingly it was open to the Full Bench to exercise the appellate jurisdiction conferred by s 45 irrespective of whether it was correct in reaching the conclusions it did about the adequacy of the reasons of the designated Senior Deputy President.
57 In any event, the grounds presently under consideration do not raise an issue that the Full Bench erred by determining that reasons were necessary at all. The grounds challenge the test applied by the Full Bench in assessing the adequacy of the reasons. It would probably be necessary for the CFMEU to obtain leave to amend: see O 51A r 2A and O 13 of the Federal Court Rules (see also O 55 r11 of the High Court Rules). If leave were necessary, then the fact that the issue was not ventilated before the Full Bench would be a compelling reason for refusing leave. It would also be a compelling reason for refusing, as a matter discretion, final relief even if this point would ultimately otherwise lead to that result. The point was not raised by the CFMEU before the Full Bench and the CFMEU's conduct is a relevant consideration in determining whether relief should be granted. Relief is discretionary: see Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 per Gleeson CJ at [5], per Gaudron and Gummow JJ at [43] - [62], Kirby J at [145] - [150], Hayne J at [172] and Callinan J at [217].
58 We turn to consider grounds 5 and 6. The designated Senior Deputy President in his decision addressed the question of whether it was convenient for an employer to have its employees in one organisation when moving from one sector of the construction industry to another. The Full Bench took the view that the evidence and submissions of the employers did not raise their convenience as an issue and it was not raised by the CFMEU. Apparently for that reason the Full Bench concluded it was not a relevant consideration and should not have been taken into account.
59 We do not consider the approach adopted by the Full Bench involved jurisdictional error. There is no statutory requirement (express or implied) that this matter either be taken into account or not taken into account. Indeed all the parties in the proceedings in this Court appeared to accept that the designated Senior Deputy President (and the Full Bench) had a wide discretion (referable to s 90 of the Act) when deciding to grant or refuse consent to the alteration. A similar approach had been adopted in the Commission. Whether, as a matter of construction of s 204 and s 90, this is correct is a question we need not address. However given that all parties accepted there was a discretion, the complaint of the CFMEU appears to be no more than a complaint about how the Full Bench decided the matter on the merits. That is, the CFMEU seeks to put in issue the correctness of the Full Bench's conclusion that the convenience of the employer had not been raised by any party to the proceedings before the designated Senior Deputy President and was not relevant as it had not been raised as an issue.
60 Ground 7 raises a not dissimilar issue and the comments just made about grounds 5 and 6 are equally applicable to this ground. The Full Bench concluded, as noted earlier, that the designated Senior Deputy President had identified the relevant employees too narrowly and treated them as employees in the construction industry. Accordingly the Full Bench concluded that the designated Senior Deputy President had failed to consider the potential for industrial disputation outside the construction industry. The complaint of the CFMEU appears to be that this latter conclusion of the Full Bench was based on its misapprehension of what had been the group identified by the designated Senior Deputy President as the relevant employees and also based on a misapprehension that the issue of industrial disputation had not been dealt with by the designated Senior Deputy President. Whether these criticisms of the Full Bench are correct or not is immaterial. Even if correct they do not indicate that the Full Bench did not understand its function in exercising the appellate powers of the Commission. This discussion of grounds 5, 6 and 7 effectively deals with ground 8 as well.
61 Grounds 9 and 10 raise an issue of substance though we have already dealt with aspects of these grounds in our consideration of grounds 2 and 3. That is, no jurisdictional error has been demonstrated in relation to the way the Full Bench identified the relevant employees. The additional point of substance raised by the CFMEU in these grounds concerns the approach adopted by the Full Bench to the questions raised by s 204(4)(a) and (b), namely "conveniently belong" and effective representation. The gravamen of the submission was that the Full Bench failed to correctly identify the relevant employees and to the extent that it did, failed to identify them with any precision and overlooked limits on the scope of the alteration as a result of settlements with objectors. The last matter requires further consideration.
62 In order to understand the issue raised, it is necessary to explain in a little more detail the alteration to which the designated Senior Deputy President ultimately gave his consent and discuss the statutory context within which it was given. It is also necessary to discuss the approach of the Full Bench evident in pars [7] to [12] in the second decision (see [32] above).
63 We set out earlier the terms of s 204 (at [6] above). Subsections (1) and (2) appear to be drafted on the assumption that the organisation seeking the consent of a designated Presidential Member, has already altered, relevantly, its eligibility rules before the application for consent is made. The effect of s 204 is to render the alteration ineffective unless it is consented to by a designated Presidential Member. Rules of organisations must contain eligibility rules: see s 195(1)(a) and the definition of "eligibility rules" in s 4, and must also contain provisions concerning the manner in which the rules may be altered: see s 195(1)(b)(xiii).
64 The Workplace Relations Regulations deal with the manner in which an application for consent is to be made and how objections are to be made and dealt with by a designated Presidential Member. Regulation 48(2)(c) requires that the officer or officers of the applicant organisation who sign the written statement accompanying the application, must state that the alteration was made in accordance with the rules of the organisation and, effectively, how that was achieved. Regulation 49 requires the application to be published (in what we apprehend is now called the Government Notices Gazette), which includes publication of the eligibility rules before and after the alteration: see reg 49(2)(b). Objections may be lodged under reg 51 and the hearing of the application for consent is regulated by reg 52. Under that latter regulation the designated Presidential Member cannot give consent without hearing from objectors.
65 The power of a designated Presidential Member, under s 204(2), is to consent to an alteration in whole or in part. There are now a number of decisions within the Commission to the effect that the expression "an alteration of the eligibility rules" is a reference to the changes in the text to the eligibility rules: see e.g. Re Federal Firefighters Union (1990) 35 IR 27 and National Tertiary Education Industry Union v Community and Public Sector Union (1999) 93 IR 365 (this point appears not to have been raised in the appeal: see (2000) 100 IR 296) which is a view supported by authority in this Court: see the judgment of Gray J in Re Food Preservers' Union of Australia (1988) 79 ALR 138 at 155. If the application for consent relates to several alterations, then consent can be given to some, reserving for later consideration whether consent should be given to the remainder: see Re Moore; ex parte Federated Ironworkers' Association of Australia (1990) 95 ALR 509.
66 It has long been accepted that the power to consent in whole or in part enables the repository of the power (formerly the Industrial Registrar) to deal with objections by modifying the alteration so as to limit its scope: see Re Federated Miscellaneous Workers Union of Australia (1974) 157 CAR 623 at 628. The modification could be achieved either by excising text (using the "blue pencil") or redrafting the alteration to the rule to reduce its scope. In Re Federated Miscellaneous Workers Union of Australia the Full Bench was considering the power of an Industrial Registrar to consent to an alteration in whole or in part conferred by s 139(2) of the Conciliation and Arbitration Act 1904 (Cth). In consenting in part, the class of employees comprehended by the alteration (that is, who would be rendered eligible by the alteration) would be reduced and would be a subclass of the class originally proposed.
67 There is no express statutory requirement that modifications to the alteration made to satisfy objections need to be adopted or ratified later by the governing body within the applicant organisation which has the power to alter its rules. Since the decision of the Full Bench in Re Federated Miscellaneous Workers Union of Australia the section conferring power to consent in whole or in part to an alteration to eligibility rules has been re-enacted (in the Industrial Relations Act 1988 (Cth)) and significantly amended (both by the Industrial Relations Reform Act 1993 (Cth) and the Workplace Relations and Other Legislation Amendment Act 1996 (Cth)). It is likely that if Parliament disapproved of the approach of the Full Bench or considered it necessary for any modification of the alteration (arising from partial consent) to be considered again by the applicant organisation and approved by its rule altering governing body, this would have been made express in s 204. In our opinion, a designated Presidential Member can consent in part to an alteration by modifying the alteration to reduce its scope. Once consent is given to the modified alteration, it is legally effective.
68 This is significant in the present case. In the proceedings before the designated Senior Deputy President, the CFMEU reached agreements with a number of objectors to settle their objections. As a result, the CFMEU agreed to modifications to the alteration for which it originally sought consent. Settlements were reached with The Association of Professional Engineers, Scientists and Managers of Australia ("APESMA"), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia ("CEPU"), the Transport Workers' Union of Australia ("TWU") and the Australian Liquor, Hospitality and Miscellaneous Workers Union ("ALHMWU"). These settlements were reflected in the terms of the alteration to which the designated Senior Deputy President ultimately gave his consent.
69 The alteration consented to included the following provisos which qualified and modified the original alteration (set out at [4] above):
Further provided nothing in sub-rule (B)(3) herein shall render eligible for membership of this union any person eligible for membership of the Australian Liquor, Hospitality and Miscellaneous Workers Union as at 24 July 1997, engaged in the provision of cleaning and/or security and/or gardening and/or property services (other than where related to the provision of building trades services) with respect to the maintenance of any completed structure or project as referred to in B(3) herein.Provided further that nothing in sub-rule (B)(3) herein shall render eligible for membership any person or persons eligible for membership of APESMA as at 16 September, 1997. Further provided that for the purposes of this exclusion only, the reference to "professional capacity" in Rule 3.11 Professional Officers of the Rules of APESMA shall be taken to mean professional engineers, scientists, managers and other professional persons of the kind referred to in Rule 3 of APESMA's rules as at 16 September, 1997.
Nothing in this rule shall be taken or construed as restricting or limiting the eligibility rule of APESMA in any way.
Provided further that nothing in sub-rule (B)(3) herein shall render eligible for membership any person or persons who are members, or are eligible for membership of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Workers Union of Australia as at 24 July 1997, other than riggers in the State of Western Australia.
Further provided that nothing in sub-rule (B)(3) herein shall render eligible for membership any worker who is a member of or eligible for membership of the Transport Workers' Union as at 24 July 1997, other than persons eligible under sub-rule (F) of the rules of the TWU who are employed by a construction company and who are engaged on major gas related construction projects including gas transmission pipelines. Provided further that persons eligible for membership of the TWU under sub-rule (F) of the rules of that union employed by a gas distribution company or a contractor engaged to perform work on the metropolitan mains distribution system within the city gate shall not be eligible for membership of the CFMEU pursuant to sub-rule (B)(3) herein. (Emphasis added)
70 There is nothing to suggest that when the Full Bench addressed the merits of the application for consent in its second decision, the agreements the CFMEU had reached with certain objectors had lapsed. Nor did any respondent in these proceedings submit that they had. It remained the position, at the time of the second decision, that the CFMEU had agreed with several objectors that the alteration could be consented to in part by including in the alteration the provisos referred to in the preceding paragraph. The Full Bench dismissed the application for consent in its second decision by considering the application in two steps or stages. It first considered the issues raised by s 204(4) in industries other than the construction industry. It concluded that there were several organisations to which the relevant employees could more conveniently belong and which could more effectively represent the relevant employees. This conclusion is found in pars [7] to [12] of the Full Bench's second decision (set out at [32] above).
71 The Full Bench identified seven organisations in par [11] of the second decision which might enliven the obligation to refuse to consent in s 204(4). They included APESMA, CEPU, TWU and ALHMWU. It is true that in par [12] of their second decision (set out at [32] above) the Full Bench expressed its conclusion or finding in the following way: "there is another organisation, or other organisations within paragraph (a) and (b) of s 204(4))". This conceivably may have meant that not all the organisations the Full Bench had earlier referred to (in par [11] of the second decision) were comprehended by the finding or conclusion expressed in par [12]. However it is difficult, in our opinion, to view the Full Bench's decision this way. Read as a whole, it is comparatively clear that the finding or conclusion was being made by reference to the facts and matters alluded to in the preceding paragraphs. Indeed the Full Bench began par [12] by saying "In the circumstances we have outlined in paragraphs [7] to [10] above". Some of the facts alluded to included that employees in the relevant industries, who were members of unions, were substantially members of, inter alia, APESMA, CEPU, TWU and ALHMWU. Fairly clearly those four organisations (and the others in the list) were being referred to as part of the reasoning process leading to the conclusion expressed in par [12]. It is to be remembered that the same conclusion or finding had been made by the Full Bench in par [6]. In par [6], the Full Bench said consent should be refused because, in its opinion, there were "organisations of the type described in paragraphs (a) and (b) of s 204(4)". The second decision was structured such that two conclusions or findings were made in par [6], then followed a discussion of the facts and reasoning justifying or supporting each of the conclusions or findings and then the two conclusions or findings were repeated.
72 In addition, the Full Bench made no mention of the actual settlements in either the first or second decision though it did mention, as we discuss shortly, the provisos agreed to with objectors who settled their objections. Indeed, the Full Bench, in a section of its first decision discussing the approach of the designated Senior Deputy President to the issues of "conveniently belong" and effective representation, said the following:
"[99] In his paragraph [57], his Honour says that "no objector has seriously advanced a contention that the relevant employees could more conveniently belong and be more effectively represented by another organisation other than the AWU". This view is, no doubt, conditioned by his Honour's view of the identity of the relevant employees. It is, however, to be noted that before his Honour, the employer objectors submitted that, in certain areas, employees could more conveniently belong to or be more effectively represented by a number of organisations other than the AWU, including:Australian Liquor, Hospitality and Miscellaneous Workers Union;
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union;
The Association of Professional Engineers, Scientists and Managers, Australia;
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia;
Media, Entertainment and Arts Alliance;
National Union of Workers; and
Transport Workers' Union of Australia"
73 This appears to be a criticism by the Full Bench of the designated Senior Deputy President for failing to recognise in his reasons that issues had been raised concerning "conveniently belong" and effective representation in relation to the seven organisations the Full Bench referred to in addition to the AWU. What the Full Bench does not note was that the settlements with APESMA, CEPU, TWU and ALHMWU removed (as we discuss shortly) either entirely or substantially from consideration the issues of "conveniently belong" or effective representation in relation to those four organisations. That is, four of the seven nominated by the Full Bench.
74 To the extent that the settlements did not remove these issues ("conveniently belong" and effective representation) entirely from consideration before the designated Senior Deputy President in relation to APESMA, CEPU, TWU and ALHMWU, there is no discussion by the Full Bench of what remained for consideration and how his comment (from par [57] of his reasons) quoted by the Full Bench at the beginning of par [99] was wrong if the settlements were taken into account. We note that the agreements settling the objections with these four organisations were tendered in the proceedings before the designated Senior Deputy President on either 21 or 22 September 1998, which was at an early stage in the 39 day hearing in which the remaining objectors (including the employer objectors) presented evidence and submissions.
75 These matters point to the inference that the Full Bench overlooked the settlements in dealing with the issues discussed in the second decision. It is true that the Full Bench referred to the provisos resulting from the settlements early in the first decision (at par [22]) and effectively defined, for the purposes of its reasons, the alteration including the provisos as "the proposed rule" and did so by reference to the decision of the designated Senior Deputy President. However it also identified the alteration without the provisos as the critical part of "the proposed rule" and thereafter made no mention of the provisos. While in form the Full Bench addressed the "proposed rule" (because of the meaning it gave that expression) in both its first and second decision, for the reasons given in the preceding paragraphs we are not satisfied that, in substance, the provisos (forming part of "the proposed rule") were addressed by the Full Bench. In considering the reasons of the Full Bench, it is necessary to avoid undue scrutiny. As Moore J said in Re Australian Industrial Relations Commission; ex parte Construction, Forestry, Mining and Energy Union [1999] FCA 847; (1999) 164 ALR 73 at [137]:
"The usual starting point in proceedings by way of judicial review when considering the reasons of an administrative tribunal is the legal principle discussed by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259. As Brennan CJ and Toohey, McHugh and Gummow JJ said at 271-272:In [Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280] a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker. The Court continued: "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error."
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: see McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616.
See also the observations of Kirby J at 291.
While the Australian Industrial Relations Commission and its predecessor have not been treated as being of entirely the same character as a bare administrative tribunal: see R v Moore: Ex parte Australian Telephone and Phonogram Officers Association [1982] HCA 5; (1982) 148 CLR 600 at 613 and Construction Forestry Mining and Energy Union v Guidice (1998) 159 ALR 1 at 28 - 29, the principle of law conditioning the consideration of an administrative decision-maker's reasons discussed by the High Court is an apt one, in my opinion, when considering the Commission's reasons. Over-zealous judicial review is to be eschewed."
76 However, even approaching the reasons of the Full Bench beneficially, it is not possible, in our opinion, to reconcile the approach the Full Bench expressly adopted in pars [6] to [12] with the conclusion that it did take into account the settlements and the provisos which were intended to give effect to them. Fairly clearly they did not.
77 In relation to APESMA, the proviso agreed to (and included in the alteration for which the designated Senior Deputy President gave his consent) made it clear that the alteration was not to comprehend employees eligible for membership of that organisation (subject to an agreement about how a particular expression in the eligibility rules of APESMA should be viewed). Accordingly, persons eligible for membership of APESMA should not have been, because of the terms of the agreement to settle the objection, viewed as within the class of employees who were relevant employees when considering the matters raised by s 204(4). The agreement with APESMA removed from consideration persons eligible for membership of that organisation because it was apparent that the CFMEU was proposing that the alteration for which consent was sought was not the alteration in the original application but an alteration modified in the way agreed.
78 A similar agreement, with similar effect, was reached with CEPU. While there was one exception to the proviso reflecting the agreement with the CEPU (riggers in Western Australia) that exception did not alter the fact that the agreement excluded for consideration virtually all employees eligible for membership of CEPU in industries to which the Full Bench directed its attention (in the second decision) in the first stage of its consideration of matters raised by s 204(4) (the industries are set out in par [7] of the second decision - see [32] above). Again, a similar agreement, with similar effect, was reached with TWU. Again there was one exception (employees of construction companies engaged in major gas related construction projects). And again the agreement excluded from consideration virtually all employees eligible for membership of TWU.
79 The agreement with ALHMWU was different. The proviso was intended to comprehend persons eligible for membership of ALHMWU who were engaged in the provision of cleaning and/or security and/or gardening and/or property services (other than where related to the provision of building trades services). That is, people engaged in those activities and eligible for membership of the ALHMWU would not become eligible for membership of the CFMEU as a result of the alteration if consent was given. However it is not apparent from the second decision of the Full Bench that it took into account the agreement when it concluded that employees in the industries identified in its par [7] could more conveniently belong to and be more effectively represented by the ALHMWU. It is possible that there would be employees engaged in cleaning, gardening and provision of security and property services in most, if not all, of those industries. However no findings were made, one way or the other, by the Full Bench about whether there were. If there had been employees engaged in those activities in those industries, it would have been appropriate for the Full Bench to exclude them from its consideration of the matters raised by s 204(4) because of the agreement.
80 As discussed earlier, it is clear, in our opinion, that the Full Bench did not take into account these settlements which were intended to result in modifications to the alteration advanced by the CFMEU. Those settlements had the effect that there would be only a very limited overlap of the industrial coverage of three and possibly four organisations (deriving from their eligibility rules) and the CFMEU if the alteration (as modified) was given consent.
81 The failure of the Full Bench to take into account the terms on which various objections had been settled had certain consequences. The Full Bench did not discuss in any detail the evidence it had recourse to in reaching the conclusion that relevant employees (other than those in the construction industry) could more conveniently belong to and be more effectively represented by, inter alia, APESMA, CEPU, TWU or ALHMWU. Nor did the Full Bench make detailed findings of fact upon which that conclusion was based. However whatever the evidence was and whatever the evidence revealed to the Full Bench, it must have been sufficient for the Full Bench to form the opinion referred to in s 204(4) about employees eligible for membership of the four organisations which settled their objections with the CFMEU. The Full Bench would not have reviewed the evidence and put to one side evidence concerning those persons eligible for membership of the four organisations who should not have been treated as relevant employees because of the settlements.
82 Apart from these four organisations, two other organisations of employees settled their objections which resulted in provisos to the CFMEU's alteration excluding particular classes of employees eligible for membership of those organisations (the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia ("AMWU") and the Australian Municipal, Administrative, Clerical and Services Union ("ASU"). Of the remaining organisations identified by the Full Bench in par [7], one settled its objection (the National Union of Workers ("NUW") though the settlement did not involve the inclusion of a proviso to the alteration) and another did not object (the Media, Entertainment and Arts Alliance ("MEAA"). Thus only one organisation of employees identified by the Full Bench either objected and did not settle its objection or did not object. That organisation was the AWU.
83 Had the Full Bench limited its consideration of the matters raised by s 204(4) to persons who would become eligible for membership of the CFMEU because of the alteration but on the basis the various settlements should be taken into account, then it would have thrown into starker relief the considerations raised by s 204(4) in relation to the AWU in industries other than the construction industry (having regard to the staged approach adopted by the Full Bench) and also the construction industry. The Full Bench erred in not paying regard to the settlements and the modifications they made to the alteration.
84 However, it is necessary to consider whether the failure of the Full Bench to pay regard to the settlements and the modifications to the alteration they brought about, might constitute jurisdictional error. While the Full Bench was exercising power conferred by s 45(7), it had to do so in conformity with s 204. That is, it was obliged to follow the statutory regime in s 204 when deciding whether to consent in whole or in part to the alteration. The Full Bench was required to consider whether the relevant employees might more conveniently belong to another organisation or organisations and whether that other organisation or those organisations might more adequately represent them. While these matters arise in determining whether a statutory prohibition on the exercise of the power to consent has been enlivened, they are nonetheless matters of central importance to the statutory scheme concerning the alteration of eligibility rules (and also the registration of organisations: see s 189(2)). Part of the scheme is that organisations can be registered with eligibility rules covering specified classes of employees and organisations can expand the classes (and, conceivably, limit them) by altering their eligibility rules, but they cannot do so if one or a number of other organisations already have coverage of those classes of employees and are representing them. The scheme enables organisations to represent classes of employees industrially that may have some common interest but not in circumstances where there is another organisation already representing the same class or classes. To implement the scheme, it is necessary for a designated Presidential Member to undertake the inquiry contemplated by s 204(4) (or s 189(2)).
85 An element in the implementation of the scheme is that other organisations can object. The right to object and the manner in which objections must be heard are dealt with by the regulations. It is permissible to have recourse to regulations to ascertain what is the legislative scheme: see Brayson Motors Pty Ltd (in liq) v Commissioner of Taxation (Cth) [1985] HCA 20; (1985) 156 CLR 651 at 652. If an objection to an alteration to an organisation's eligibility rules is settled on the basis that that the alteration is to be modified (by, for example, the inclusion of a proviso) then, in our opinion, the designated Presidential Member must consider the issues raised by s 204(4) having regard to the modifications agreed to by the applicant and objectors. The designated Presidential Member cannot ignore settlements and refuse consent as if no settlements have been reached. It is incumbent on the designated Presidential Member to consider the issues raised by s 204(4) on the footing that the alteration will be modified to give effect to the settlements if consent is ultimately given. A settlement of this character is, in substance, an agreement between an applicant and an objector to invite the designated Presidential Member to consent to the alteration in part by including in the new eligibility rules, the agreed modification to the alteration.
86 What then are the consequences of the Full Bench not having regard to the settlements referred to earlier? In our opinion, the Full Bench fell into an error of law which resulted in it ignoring relevant material and not dealing with the application for consent in accordance with s 204. It may be accepted that in the present case, having regard to the approach of the Full Bench in the second decision, its failure to have regard to the settlements would have meant that there were fewer organisations in relation to which they might have formed the opinion under s 204(4) concerning industries other than the construction industry. There may have nonetheless been one organisation (the AWU) in respect of which they would have formed the opinion which would have enlivened the prohibition on giving consent. However it is not possible to discern the effect of the error of the Full Bench given its omnibus approach to the issues raised by s 204(4) in relation to industries other than the construction industry and its partial consideration only of those issues in relation to the construction industry itself (whatever its boundaries). The approach of the Full Bench in considering the issues raised by s 204(4) in two stages and ignoring the settlements, had the practical result that, in our opinion, the Full Bench did not come to terms with and address what was an important issue, if not the central issue, raised in the application for consent, namely the capacity of the CFMEU to represent the industrial interests of the relevant employees (after allowance was made for the settlements) compared to the capacity of the AWU to do so.
87 However it is necessary to consider whether the failure of the Full Bench to pay regard to the settlements affected its ultimate decision to quash the decision of the designated Senior Deputy President and dismiss the CFMEU's application. As noted earlier, the remedy sought by the CFMEU in these proceedings is discretionary: Re Refugee Review Tribunal; Ex parte Aala (supra). In its second decision the Full Bench indicated (in pars [13] and [14] of the second decision set out at [33] above) it would refuse consent in exercise of a discretion understood to be conferred by, or referrable to, s 90. It indicated it would refuse consent because of the potential for industrial disputation in the form of demarcation disputes in industries other than the construction industry. The examples of demarcation disputes the Full Bench had earlier given in the first decision and referred to in par [13] of the second decision, mostly concerned the AWU though reference was made in the examples to other unions including the ALHMWU and MEAA. The Full Bench does not say in pars [13] and [14] that it was limiting its consideration to potential demarcation disputes involving only the AWU or, putting it another way, was not considering potential demarcation disputes involving APESMA, CEPU, TWU or ALHMWU. What the Full Bench had in mind is not clear because it did not identify the evidence it relied on (or set out the findings made by reference to that evidence) other than by referring back to what it had described only as examples given in the first decision.
88 It is not possible to say that in exercising the discretionary power to refuse consent (referable to s 90) the Full Bench was not influenced by the potential for demarcation disputes involving at least APESMA, CEPU, TWU or ALHMWU in relation to employees who, because of the settlements, would not be rendered eligible for membership of the CFMEU because of the alteration. Accordingly it is not apparent from the reasons of the Full Bench that the failure to take into account the settlements did not have a bearing on their ultimate conclusion.
89 In deciding if constitutional writs should issue having regard to the jurisdictional error discussed earlier, it is also necessary to consider whether the conclusion of the Full Bench (in par [19] of the second decision set out at [35] above) that the failure of the designated Senior Deputy President to give reasons was an independent basis for refusing consent. In Comcare Australia v Lees (1997) 151 ALR 647, Finkelstein J discussed in detail the authorities concerning the consequences of a decision maker failing to give adequate reasons. There is no authority of which we are aware which supports the approach that if an appellate body (including a court exercising a power of judicial review) concludes inadequate reasons were given, that body can not only set aside the decision under appeal or review but also finally determine the application or matter to which the decision related (merely because the reasons were inadequate). The Full Bench in par [19] of its second decision referred to Dornan v Riordan (1990) 24 FCR 564 apparently in support of an approach justifying the dismissal of the CFMEU's application because of the inadequacies of the reasons of the designated Senior Deputy President. However the decision of the Full Court in Dornan v Riordan provides no support for that approach. What was decided by the Full Court was that a decision supported by inadequate reasons could be set aside. As Finkelstein J illustrated in Comcare Australia v Lees, even the adoption of the approach that the decision might be set aside because the reasons were not adequate is not uncontroversial. There is a view that the appropriate remedy in such circumstances is to order that reasons be given. We do not view the conclusion of the Full Bench in this matter that the perceived inadequacies in the reasons of the designated Senior Deputy President justified, in isolation, an order dismissing the CFMEU's application and effectively refusing consent.
90 Accordingly, having regard to these grounds, the CFMEU has made out a case for the grant of the constitutional writs of certiorari and mandamus.
91 We turn to consider the remaining grounds. To the extent that ground 11 raises issues not already discussed (and in particular discussed in relation to grounds 9 and 10) it really involves a complaint about the material by reference to which the Full Bench addressed the questions raised by s 204(4). It does not raise a legal error let alone jurisdictional error. As to ground 12, Counsel for the CFMEU submitted that the approach of the Full Bench in its second decision reveals error because it effectively rolled up and considered together the questions raised by pars (a) and (b) of s 204(4). It is not apparent to us that the questions must be addressed separately and discretely. The observations we made in relation to ground 11 apply equally to this ground.
92 Counsel for the CFMEU submitted in relation to ground 13, that the Full Bench was wrong in concluding that the CFMEU had not, itself, advanced modifications to the alteration which may have dealt with some or all of the objections that had not been settled. However as a matter of fact, no alternative formulation of the alteration was advanced by the CFMEU concerning objections which had not been settled. In any event, we do not see how this ground raises an error that might be viewed as jurisdictional error.
93 In relation to ground 14, to the extent that it raises an issue that has not been discussed in our consideration of grounds 9 and 10, the ground does not raise an error that might be viewed as jurisdictional error. As to ground 16, we have already discussed this issue in our consideration of ground 4.
94 As to grounds 17, 18, 19, 20 and 21, they are really aspects of grounds already considered.
Conclusion
95 For the reasons given in relation to grounds 9 and 10, the constitutional writs of certiorari and mandamus should issue. We so order. No application was made for an order for costs even though submissions were invited on that question.
I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Gray & Moore. |
Associate:
Dated: 27 May 2002
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
N1496 OF 2001 |
BETWEEN: |
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION APPLICANT |
AND: |
THE HONOURABLE VICE PRESIDENT ANTHONY MCINTYRE, THE HONOURABLE SENIOR DEPUTY PRESIDENT COLIN POLITES AND COMMISSIONER DOMINICA WHELAN FIRST RESPONDENT AUSTRALIAN WORKERS UNION SECOND RESPONDENT SAM WOOD THIRD RESPONDENT AUSTRALIAN MINES AND METALS ASSOCIATION (INC), AUSTRALIAN PETROLEUM PTY LTD, AMPOL REFINERIES (QUEENSLAND) LTD, AMPOL REFINERIES (NSW) PTY LTD, AMPOL LUBRICATING OIL REFINERIES PTY LTD, MOBIL OIL AUSTRALIA LTD, MOBIL REFINING AUSTRALIA PTY LTD, BP AUSTRALIA LTD, BP REFINERY (BULWER ISLAND) LTD, BP REFINERY (KWINANA) PTY LTD, SHELL COMPANY OF AUSTRALIA LTD, SHELL REFINING (AUSTRALIA) PTY LTD, SHELL DEVELOPMENT (AUSTRALIA) PTY LTD, WAG PIPELINE PTY LTD AND BITUPAVE LTD (TRADING AS BORAL ASPHALT) FOURTH RESPONDENT LEMINGTON COAL MINES LTD, KANDOS NO 3 COLLIERY, CORNWALL COAL NO LIABILITY, PEABODY RESOURCES LTD, IVANHOE COAL PTY LTD AND COAL OPERATIONS AUSTRALIA LTD FIFTH RESPONDENT EMPLOYERS FEDERATION OF NEW SOUTH WALES SIXTH RESPONDENT AUSTRALIAN CHAMBER OF COMMERCE AND INDUSTRY, CHAMBER OF COMMERCE AND INDUSTRY OF WESTERN AUSTRALIA, CHAMBER OF MANUFACTURES OF NEW SOUTH WALES, CONFEDERATION OF ACT INDUSTRY, ENTERTAINMENT INDUSTRY EMPLOYERS ASSOCIATION, THE NATIONAL ELECTRICAL CONTRACTORS ASSOCIATION, QUEENSLAND CHAMBER OF COMMERCE AND INDUSTRY, SOUTH AUSTRALIAN EMPLOYERS' CHAMBER OF COMMERCE AND INDUSTRY, TASMANIAN CHAMBER OF COMMERCE AND INDUSTRY, VICTORIAN EMPLOYERS' CHAMBER OF COMMERCE AND INDUSTRY SEVENTH RESPONDENT |
JUDGES: |
GRAY, MOORE AND MERKEL JJ |
DATE: |
27 MAY 2002 |
PLACE: |
SYDNEY |
MERKEL J:
Introduction
96 The applicant ("the CFMEU") altered its eligibility rules. It then applied to a designated Presidential Member of the Industrial Relations Commission, Williams SDP, for consent to the alteration pursuant to s 204 of the Workplace Relations Act 1996 (Cth) ("the Act"). Relevantly, s 204 provides:
"(1) ...an alteration of the eligibility rules of an organisation, does not take effect unless a designated Presidential Member consents to the...alteration.(2) A designated Presidential Member may consent to a change or alteration in whole or part, but shall not consent unless the Presidential Member is satisfied that the change or alteration has been made under the rules of the organisation.
(3) ...
(4) A designated Presidential Member shall not consent to an alteration of the eligibility rules of an organisation if, in relation to persons who would be eligible for membership because of the alteration, there is, in the opinion of the designated Presidential Member, another organisation:
(a) to which those persons might more conveniently belong; and
(b) that would more effectively represent those members.
(5) However, subsection (4) does not apply if the designated Presidential Member accepts an undertaking from the organisation seeking the alteration that the designated Presidential Member considers appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of that organisation and the eligibility rules of the other organisation.
(6A) A designated Presidential Member may refuse to consent to an alteration of the eligibility rules of an organisation if satisfied that the alteration would contravene an agreement or understanding to which the organisation is a party and that deals with the organisation's right to represent under this Act the industrial interests of a particular class or group of persons.
(6B) A designated Presidential Member may also refuse to consent to an alteration of the eligibility rules of an organisation if he or she:
(a) is satisfied that the alteration would change the effect of any order made by the Commission under section 118A about the right of the organisation to represent under this Act the industrial interests of a particular class or group of employees; and
(b) considers that such a change would give rise to a serious risk of a demarcation dispute which would prevent, obstruct or restrict the performance of work in an industry, or harm the business of an employer.
(6C) Subsections (6A) and (6B) do not limit the grounds on which a Presidential Member may refuse to consent to an alteration of the eligibility rules of an organisation.
(7) Where a designated Presidential Member consents under subsection (1), to a change or alteration, the change or alteration takes effect on:
(a) where a date is specified in the consent--that date; or
(b) in any other case--the day of the consent.
(8) ..."
97 There were numerous objectors to the rule alteration but several of the union objectors withdrew their objections after the CFMEU agreed to narrow the scope of the alteration and amended its application to apply for consent to the rule alteration as varied by the agreements that were made with those objectors. The only remaining union objectors to the rule alteration were the Australian Workers Union ("the AWU') and its Assistant National Secretary. There were, however, numerous employer objectors ("the employer entities"). The designated Presidential Member, after an extensive hearing taking 39 days at which 142 witnesses gave oral evidence, consented to the rule alteration as varied.
98 The rule alteration consented to, which is relevant for present purposes, added the following sub-rule.
"(B)(3) Without limiting the generality of the foregoing and without being limited thereby, persons eligible for membership of the union shall include any worker (other than metal, electrical or plumbing tradespersons) engaged on any work in or in connection with or incidental to the construction, repair, renovation, maintenance, ornamentation, alteration, removal or demolition of any building or structure or any other works or projects including but not limited to:-(i) civil and/or mechanical engineering projects
(ii) power transmission. light, television, radio, communication, radar, navigation, observation towers or structures
(iii) powerhouses, chemical plants, hydrocarbons and/or oil treatment plants or refineries
(iv) silos
(v) sports and/or entertainment complexes, showgrounds
(vi) carparks, pavements, paved areas
(vii) roads, motorways, freeways, causeways, underpasses, overpasses
(viii) railways, tramways
(ix) bridges, drains, dams, weirs, channels, waterworks, tunnels, pipetracks, water and sewerage works, conduits, shafts, pipelines
(x) airport runways or taxiways, aerodromes.
Provided that nothing in sub-rule (B)(3) herein shall render eligible for membership any worker performing work in the state of Queensland.
Further provided that in the State of Western Australia nothing in sub-rule (B)(3) herein shall render eligible for membership any person eligible for membership of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia as at 28 January 2000.
Further provided nothing in sub-rule (B)(3) herein shall render eligible for membership of this union any person eligible for membership of the Australian Liquor, Hospitality and Miscellaneous Workers Union as at 24 July 1997, engaged in the provision of cleaning and/or security and/or gardening and/or property services (other than where related to the provision of building trades services) with respect to the maintenance of any completed structure or project as referred to in (B)(3) herein.
Provided further that nothing in sub-rule (B)(3) herein shall render eligible for membership any person or persons eligible for membership of APESMA as at 16 September, 1997. Further provided that for the purposes of this exclusion only, the reference to `professional capacity' in Rule 3.11 Professional Officers of the Rules of APESMA shall be taken to mean professional engineers, scientists, managers and other professional persons of the kind referred to in Rule 3 of APESMA's rules as at 16 September, 1997.
Nothing in this rule shall be taken or construed as restricting or limiting the eligibility rule of APESMA in any way.
Provided further that nothing in sub-rule (B)(3) herein shall render eligible for membership any person or persons who are members, or are eligible for membership of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia as at 24 July 1997, other than riggers in the State of Western Australia.
Further provided that nothing in sub-rule (B)(3) herein shall render eligible for membership any worker who is a member of or eligible for membership of the Transport Workers' Union as at 24 July 1997, other than persons eligible under sub-rule (F) of the rules of the TWU who are employed by a construction company and who are engaged on major gas related construction projects including gas transmission pipelines. Provided further that persons eligible for membership of the TWU under sub-rule (F) of the rules of that union employed by a gas distribution company or a contractor engaged to perform work on the metropolitan mains distribution system within the city gate shall not be eligible for membership of the CFMEU pursuant to sub-rule (B)(3) herein.
Further provided that:
1. (a) Nothing in sub-rule (B)(3) shall render eligible for membership persons eligible for membership of the ASU as at 13th November, 1998.
(b) For the purposes of sub-clause (a) above, the reference to the business equipment in Rule 5b Part V(a) of the rules of the ASU shall be taken to mean equipment of the kind referred to in the last sentence of that sub-rule.
2. Notwithstanding Clause 1 above, and subject to clause 4 below, employees of contractors referred to in Rule 5B Part 1 i of the rules of the ASU, who are otherwise within the scope of this sub-rule (B)(3), shall be eligible for membership of the CFMEU pursuant to this sub-rule (B)(3) except where:
(a) such employees were, prior to the contracting out of services, employees of the relevant Councils, Authorities, Boards, Corporations, Commissions or Trusts; or
(b) such employees are employed by contractors who work predominantly for any of the relevant Councils, Authorities, Boards, Corporations, Commissions or Trusts, and are employed on any work for any of the relevant Councils, Authorities, Boards, Corporations, Commissions of Trusts; or
(c) such employees are employed by contractors who work predominantly for any of the relevant Councils, Authorities, Boards, Corporations, Commissions or Trusts.
3. Notwithstanding Clause 1 above, and subject to clause 4 below, employees of corporations referred to in Rule 5 Part 1 i of the rules of the ASU, who are otherwise within the scope of this sub-rule (B)(3) shall be eligible for membership of the CFMEU pursuant to this sub-rule (B)(3) except where such employees are employed by corporations which are appointed to carry out or appointed to be entrusted with the carrying out of works, operations or functions which were previously or usually performed by or on behalf of a Municipal or Shire Council or other Local Government Authority prior to their appointment.
4. Nothing in clause 2 or 3 of this rule shall operate to render ineligible for membership of the CFMEU employees engaged on new construction work in connection with services which have not passed to the relevant Council, Authority, Board, Corporation, Commission or Trust which on completion of such construction work is responsible for the provision and maintenance of those services."
99 The limitations, other than the first exclusion concerning workers performing work in Queensland, were added as a result of the agreements between the CFMEU and certain union objectors.
100 The AWU (and its Assistant National Secretary) and a number of the employer entities appealed to the Full Bench of the Industrial Relations Commission against the consent given by Williams SDP. After an extensive hearing the Full Bench ordered that the application of the CFMEU be dismissed. The Full Bench concluded:
* that the designated Presidential Member had made a number of appealable errors thereby enlivening the jurisdiction of the Full Bench to itself deal with the application for consent;
* the application for consent must be refused because there are organisations of the type described in s 204(4)(a) and (b);
* in any event, as a matter of discretion, the application for consent should be refused because granting consent would lead to demarcation disputes in certain industries;
* for the reasons outlined by it, including the difficulties inherent in "rewriting" the rule, it declined to exercise its power under s 204(2) to alter the proposed rule in part by limiting its scope;
* the failure by Williams SDP to give "adequate reasons" justified the quashing of his decision and the dismissal of the CFMEU's application.
101 The CFMEU applied to the High Court for prerogative writs under s 75(v) of the Constitution. A writ of certiorari was sought to quash the decision and a writ of mandamus was sought to require the Full Bench to hear and determine the appeal before it according to law. The writs were remitted for hearing before a Full Court of the Federal Court. The CFMEU has relied upon 21 grounds of "jurisdictional error" that were said to enliven jurisdiction under s 75(v) of the Constitution. Two of the grounds (grounds 1 and 17) allege breach of the rules of natural justice. Many of the remaining grounds, although formulated as "jurisdictional" errors, involved issues of law, of mixed fact and law and of fact.
Natural justice
102 The CFMEU contended that Polites SDP, who sat as a member of the Full Bench, should have acceded to its application that he disqualify himself. It was contended that in a previous case Polites SDP expressed clear views about a question of fact which constituted a live and significant issue in the case on which he was about to sit: see Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 300. His Honour rejected the CFMEU's application on the ground that his earlier decision, and the views expressed by him in it, should not create a reasonable apprehension on the part of a fair minded observer that he might not decide the present matter on the material before him fairly and impartially.
103 The earlier decision of Polites SDP, which was relied upon the CFMEU, was in Construction, Forestry, Mining and Energy Union v South Blackwater Coal Limited (Print N1681) made on 16 May 1996 ("South Blackwater"). In South Blackwater Polites SDP exercised his power under s 111(1)(g) of the Industrial Relations Act 1988 (Cth) to refrain from hearing an application by the CFMEU for the making of orders under s 118A of that Act to give the CFMEU the right, to the exclusion of the AWU, to represent the industrial interests of all persons engaged in the construction of coal mines who are eligible for membership of the CFMEU.
104 In rejecting the CFMEU's application Polites SDP stated that the CFMEU had failed to make out a case, on history or membership, that it is necessary to exclude the AWU from coverage of above ground coal mine construction. In arriving at that finding Polites SDP relied upon certain agreements reached between the unions in 1986 as a result of the deregistration of The Australian Building Construction Employees' and Building Labourers Federation ("the 1986 demarcation agreements"). In the context of the intended exclusion of the AWU from the area of "mechanical erection" Polites SDP stated:
"In the mechanical erection area it is clear that the AWU (via the old Federated Ironworkers' Association of Australia (FIA)) has had a substantial involvement in States other than Western Australia and possibly South Australia. Moreover, in this regard one cannot ignore the evidence that as recently as 1994 the 1986 agreements reached between the unions are a result of the deregistration of The Australian Building Construction Employees' and Builders Labourers Federation (BLF), which specifically recognised the role of the AWU in relation to mechanical erection, appear to have been affirmed in a demarcation dispute in coal construction in New South Wales. In my view, no good reason has been advanced why I should move to exclude the AWU from coverage in the mechanical erection area.In this respect it should also be noted that the CFMEU does not seek to exclude the AMWU and the CEPU, both of which would be principally involved in aspects of mechanical erection. The basis for not excluding those unions but seeking to exclude the AWU has not been, in my view, explained or justified by the evidence nor does it appear to me to be in the public interest."
105 In considering the relevance of the 1986 demarcation agreements, which dealt with the rights of unions to represent any of the relevant employees, Polites SDP stated:
"I have already touched on the fact that the evidence reveals that at the time of the deregistration of the BLF detailed agreements were reached between the AWU, the FEDFA and The Building Workers' Industrial Union of Australia as to the allocation of work in New South Wales, Victoria and the Australian Capital Territory [exhibits H1, H2 and H3]. Those agreements which were reflected in subsequent rule changes in relation to the organisations make it plain that the AWU has extensive representation rights in relation to the construction of mines. The agreement appears to have been, at least in relation to one dispute in New South Wales, reaffirmed in the following correspondence:`At a meeting held August 11 1994, in regard to riggers engaged on the Saxonvale Mine site, I believed the following points were acknowledged by ourselves.
1. While some of the riggers concerned were members of the AWU-FIME, all riggers in question were members of the CFMEU prior to the commencement of work on the site.
2. Dual union membership does occur within certain areas of the industry.
3. It was further agreed that the CFMEU and AWU-FIME reaffirm their commitment to the Memorandum of Agreement entered into by the abovementioned, on May 9 1986.
4. That both section 118a applications as lodged to date by the CFMEU and AWU-FIME, in regard to the work which caused the convening of todays meeting, will be withdrawn.' [exhibit G1]
I have given consideration to this matter. I am well aware that the arrangements made as a result of the deregistration of the BLF were negotiated in great detail by the parties concerned. I do not believe this Commission should lightly endorse by a decision under s.118A which would amount to a general departure from the thrust of those agreements. In this respect I see a quantitative difference between an order made in relation to a single project and an order which purports to cover generally an industry or a substantial part of an industry. Put shortly, I believe that the existence of these agreements is a substantial factor in the public interest weighing in favour of refraining from dealing with a general application of this nature."
106 The CFMEU contended that the nature and significance of the 1986 demarcation agreements were again in issue before Williams SDP, and on appeal, in the present matter. In particular, it pointed to the reliance by the respondents on the "continued utility" of the agreements, and on the South Blackwater decision, as a basis for the refusal of consent under s 204(1) to the rule changes proposed by the CFMEU. It then argued that, by his earlier findings in South Blackwater, Polites SDP had prejudged issues of fact that had arisen in the present case.
107 The "continued utility" of the 1986 demarcation agreements was an issue before Williams SDP. In his decision his Honour explained the history of the agreements, the existence of which was not in issue, and stated at [102]-[104]:
"[102] Whatever may have been intended as the duration of the agreements, by letter dated 19 May 1997, the CFMEU advised the AWU that it was withdrawing from these agreements.[103] I am satisfied from the evidence that the negotiation of these agreements was lengthy and painstaking and that the agreements themselves were genuine attempts to develop mechanisms to avoid unnecessary disputation over the demarcation issues. I also accept that, for some time, the agreements in general were accepted and applied by the parties.
[104] It is equally clear from the evidence before me that, from about 1995, both the CFMEU and the AWU were, with increasing regularity, prepared to and did, in fact, resile from the terms of those agreements. Whoever threw the first stone does not really matter for the purposes of this decision. Both organisations adopted courses of action which were not in accord with the term of those agreements. What is relevant is that, by the time the CFMEU formally withdraw from those agreements, the two organisations were prepared to pick and choose the situations in which they might be willing to apply them."
108 The events referred to in [104] above and, in particular, the formal withdrawal of the CFMEU from those agreements, which Williams SDP regarded as being of special relevance, were not the subject of any findings by Polites SDP. Indeed, the withdrawal occurred in 1997.
109 I have set out the above matters in some detail in order to explain why the views expressed by Polites SDP as to the recent affirmation of the 1986 demarcation agreements in 1994 and their relevance to the CFMEU's application under s 118A in 1996 could not, reasonably, be seen to be views on a question of fact that was a live issue in the CFMEU's application under s 204 determined by Williams SDP.
110 The question of fact considered and determined by Polites SDP in South Blackwater related to the relevance of the 1986 demarcation agreements to the CFMEU's claim to exclusive coverage in 1996. The question of fact that was considered and determined by Williams SDP was the question of the relevance of those agreements in 1999-2000 to the CFMEU's proposed rule change. There was no live or disputed issue of fact before Williams SDP concerning the existence of the agreements, their affirmation in 1994 or their utility in 1995-1996. Rather, the issue related to their relevance in 1999-2000 consequent upon more recent events but, in particular, the CFMEU's withdrawal from the agreements in 1997.
111 Thus, the premise upon which the CFMEU's disqualification application depends, a previous finding on a question of fact that is a live issue on the appeal to the Full Bench against the decision of Williams SDP, has not been made out.
112 In any event, there is a further obstacle confronting the contentions of the CFMEU. The Full Bench disposed of the present matter without referring to or making any findings in relation to the 1986 demarcation agreements. Consequently, the matter complained of by the CFMEU as constituting a breach of the rules of natural justice played no role in, and had no effect on, the ultimate decision of the Full Bench. Thus, the alleged breach did not deprive the CFMEU of the possibility of a successful outcome: see Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 147. Contrary to the submission of the CFMEU the role played by the alleged breach on the decision making process may be considered by a backward looking test: see Giretti v Commissioner of Taxation (1996) 70 FCR 151 at 165. The decision of the High Court in Stollery v The Greyhound Racing Board [1972] HCA 53; (1973) 128 CLR 509 ("Stollery"), which was relied upon by the CFMEU, is not inconsistent with that view. Stollery was concerned with the quite different question of the consequence of the presence of a person in the position of an accuser, who was thereby disqualified from acting as a member of the relevant tribunal, being present during its deliberations.
113 In reality the complaint of the CFMEU is that views expressed by Polites SDP in respect of the CFMEU's s 118A application could lead to an apprehension that he might decide its s 204 application adversely to it. In Re Finance Sector Union of Australia; ex parte Illaton Pty Limited [1992] HCA 30; (1992) 66 ALJR 583 at 584 the High Court made it clear that that is not a ground for disqualification:
"The basis for disqualification is not merely that the member's past decisions, on questions of fact or law, might lead to a reasonable expectation that she or he will decide the case adversely to one of the parties. Nor is it that she or he has had some previous contact or experience, as a member of the Commission, with the facts involved in the particular matter, with the context in which the particular matter arises, or with one or more of the parties involved in the particular matter."
114 Accordingly, the CFMEU has not established that there was a breach of the rules of natural justice as a consequence of the refusal of Polites SDP to disqualify himself from sitting as a member of the Full Bench.
115 The CFMEU also contended that the Full Bench breached the rules of natural justice by proceeding to dismiss its application under s 204 without affording it a reasonable opportunity to put its case against dismissal: see Re Australian Railways Union; Ex parte Public Transport Corporation [1993] HCA 28; (1993) 117 ALR 17 ("Public Transport Corporation") at 23-24. In order to explain how this issue arises it is necessary to outline the course of the proceedings before the Full Bench. The AWU and the employer entities applied for leave to appeal under s 45(1) of the Act and gave notices of appeal against the decision of Williams SDP to consent to the proposed changes to the CFMEU eligibility rules. A stay of the operation of the decision pending the determination of the appeal was also sought.
116 At a directions hearing on 24 May 2000 McIntyre VP stated that the question of leave would be dealt with as part of the hearing of the appeal "in all its aspects". His Honour then gave directions for the filing of the submissions of the parties in respect of the issues raised by the appeal. Although the claims for ultimate relief may not have been clearly set out in the appeal notices it ought to have been plain to the parties from the outset of the appeals that the AWU and the employer entities were seeking orders from the Full Bench under s 45(7) to quash the decision of Williams SDP and for the dismissal or termination of the CFMEU's s 204 application. Indeed, it was always a central part of the case of several of the objectors that consent to the rule change application must be refused under s 204(4) , the corollary of which was that the CFMEU's s 204 application had to be dismissed or terminated. In para [195] of its first decision the Full Bench stated that the principal submission of a number of the objectors before Williams SDP was that "the CFMEU's application should be dismissed".
117 It is not in dispute that the Full Bench afforded all of the parties an opportunity to put their case on all of the issues raised by the appeals. The submissions made by the employer entities included submissions that the evidence justified "the dismissal of the application as a whole" and that, if the Full Bench acceded to the employer entities' submissions, it could uphold the appeal and thereby terminate the matter.
118 On 28 February 2001, rather than hand down its final decision on the appeals, the Full Bench handed down an interim decision explaining the appealable errors that it considered had been committed by Williams SDP. At the conclusion of the interim decision the Full Bench stated:
"A number of the appellants made submissions as to the ways in which this appeal might, depending upon the views reached by us, be disposed of, including that we might express our conclusions on matters in issue and relist the appeals for further submissions in the light of those views."
119 The Full Bench then summarised the errors it had found had been made by Williams SDP and stated it had "decided to relist the appeals for mention to hear any submissions as to the way in which [the Full Bench] should now proceed".
120 On 26 April 2001 the appeals were relisted for mention. The employer entities put detailed submissions as to why it was appropriate for the Full Bench to proceed to finally determine the appeals, rather than remit them to Williams SDP. It is unnecessary to set out the detail of the submissions made by each of the employer entities other than to say that, in substance, it was contended that the Full Bench could finally dispose of the appeals on the basis of the evidence already before the Full Bench and the submissions that had been made to it. None of the employer entities requested a further hearing nor did any of them request an opportunity to make any further submissions unless the Full Bench "needs further assistance on the particular issues". The employer entities made it quite clear that they were seeking orders quashing the decision of Williams SDP and to have the matter brought to an end by the Full Bench rather than having it remitted to Williams SDP. In that context it is implicit, if not explicit, that the orders that were being sought from the Full Bench included an order dismissing or bringing to an end the s 204 application.
121 The CFMEU filed written submissions and also made oral submissions in response to the submissions of the employer entities. The submissions sought a remittal of the matter to Williams SDP. The CFMEU did not request an opportunity to put further submissions to the Full Bench in the event that it did not accede to its application to remit the matter. Further, nothing was stated by the Full Bench prior to or in the course of the hearing that indicated it proposed to hold a further hearing or give directions for further submissions. At the conclusion of the hearing, which lasted almost 2½ hours, McIntyre VP stated that the Full Bench would consider what had been put to it and reserved its decision.
122 In support of its claim that it expected a further hearing the CFMEU placed some reliance on the following observations at the conclusion of the Full Bench's interim decision:
"This enormous case must have cost each union a fortune. And, as this decision shows, the end is not in sight. It has, in the past, been possible for the unions to reach agreement. We urge them to try and resolve their differences."
123 It submitted that the statement that "the end is not in sight" suggested that there were to be further hearings and submissions before the rule change application could be determined. I consider that, in context, the observation could equally relate to the prospect of further rule change contests irrespective of the outcome of the present application. Whatever be the correct interpretation the opportunity to put submissions as to how the CFMEU's s 204 application was to "end" was provided at the further hearing held on 26 April 2000.
124 In its final decision the Full Bench explained why the conclusions at which it arrived provided "proper bases for quashing...[Williams SDP's] decision and deciding to dismiss the CFMEU's application", which it then proceeded to do.
125 The CFMEU claims:
* it had not been put on notice and had not appreciated that the Full Bench was contemplating making an order for dismissal of its application;
* consequently, the CFMEU was not afforded an opportunity to put its case against dismissal.
126 If that claim were correct there would be substance in the CFMEU's contention that it had not been given a reasonable opportunity to put whatever case it wished in opposition to the course eventually taken by the Commission: see Public Transport Corporation at 23-25.
127 I am satisfied, however, that the CFMEU "should reasonably have apprehended that the issue [of dismissal] was.....a live issue" before the Full Bench: see Re Building Workers' Industrial Union of Australia; Ex parte Gallagher [1988] HCA 4; (1988) 62 ALJR 81 at 84, Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 ("Association of Architects") at 305. As outlined above the issue of the dismissal or termination of the CFMEU's s 204 application was a live issue at the first and second hearings conducted by the Full Bench. The Full Bench afforded the CFMEU's counsel a full opportunity prior to and at the first hearing, as well as prior to and at the second hearing, to put its case against the dismissal or termination of its application.
128 While it may have been preferable at the second hearing for the Full Bench to have asked if any of the parties wished to put further submissions in the event it decided to finally determine the matter, it was not obliged to do so in the absence of a request by the parties. As was pointed out by Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 343, procedural fairness requires "a reasonable opportunity to present [a party's] case" and not that the tribunal ensure "that a party takes the best opportunity to which [that party] is entitled". See also Association of Architects at 305.
129 In the present case the CFMEU was given a reasonable opportunity to put its case against the dismissal of its s 204 application. Accordingly, the CFMEU has failed to establish that there was any breach of the rules of natural justice in relation to the procedures adopted by the Full Bench in disposing of the CFMEU's s 204 application.
Jurisdictional error
130 The background facts, the reasons of Williams SDP and of the Full Bench and the grounds on which the writs under s 75(v) are sought, are set out in the reasons for judgment of Moore J. As has been explained in those reasons a number of the grounds are without substance. Other grounds were argued as if the matter were a rehearing on the merits, rather than one in which jurisdictional error must be demonstrated. In the circumstances, I have limited my reasons for judgment to the matters upon which the outcome of the CFMEU's application might depend: cf Amadio Pty Ltd v Henderson (1998) 81 FCR 149 at 175.
131 In substance, those matters are whether jurisdictional error has been demonstrated in relation to the Full Bench's conclusions that:
* Williams SDP made an appealable error;
* consent must be refused under s 204(4)(a) and (b);
* consent should also be refused as a matter of discretion;
* the Full Bench should not exercise its power under s 204(2) to alter the rule in part;
* the inadequate reasons given by Williams SDP justified not only the quashing of his decision but also the dismissal of the CFMEU's application.
(a) Appealable error
132 Sub-sections (6A) and (6B) of s 204 provide that a designated Presidential Member may refuse to consent to a rule alteration upon the grounds specified in the sub-sections. Section 204(6C), however, provides that ss 204(6A) and (6B) do not limit the grounds on which consent may be refused. Whatever may have been the position prior to the enactment of ss 204(6A), (6B) and (6C), since the enactment of those sub-sections it is clear that the legislature intended to confer a broad power on the designated Presidential Member to refuse consent to the altered rule in whole or in part. Save as expressly provided, the grounds on which consent may be refused are to be determined by implication from the subject matter, the scope and purpose of the Act or the relevant parts thereof: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-40.
133 Thus, a decision to consent or refuse consent under s 204 is one that allows some latitude as to the choice of the decision to be made and, in general terms, may be referred to as, or as akin to, a "discretionary decision": see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 ("Coal and Allied") at 204-205. The jurisdiction of the Full Bench under s 45 of the Act, including its power to substitute its own decision, is enlivened on an appeal, with leave, against a discretionary decision only if there is error in the decision making process, including acting upon a wrong principle, mistaking the facts or the law or failing to take into account material considerations: see Coal and Allied at 205.
134 In the present case the Full Bench identified numerous errors that it found had been made by Williams SDP. One of those errors was the failure of Williams SDP to correctly identify the persons who would be eligible for membership because of the rule alteration, as required by s 204(4), which resulted in his Honour failing to apply the "more conveniently belong" and "more effectively represent" criteria in s 204(4)(a) and (b) to the persons who would be eligible for membership because of the rule alteration. A further consequence of the s 204(4) error found by the Full Bench to have been made was that Williams SDP's conclusions as to the outcome of the application were formed on an incorrect basis. The critical steps in the reasoning of the Full Bench on this issue were:
* Williams SDP proceeded on the basis that the eligibility rule alteration did not extend eligibility to non-trades employees engaged in work outside of the building sector, civil construction and civil/mechanical engineering;
* the altered rule does not refer to industries or sectors of industries; rather, it refers to "any worker...engaged on any work in or in connection with or incidental to the construction, repair, renovation, maintenance, ornamentation, alteration, removal or demolition of any building or structure or any other works or projects involving but not limited to...";
* the altered rule is not, as was suggested by Williams SDP, limited to non-trades employees engaged on work in or in connection with or incidental to the construction industry; rather, it is wider in scope than Williams SDP determined it to be;
* Williams SDP, by incorrectly construing the altered rule failed to compare the existing eligibility rules with the rules as they would be if the application were granted;
* accordingly, Williams SDP erred in law and in fact in the exercise of his power generally under s 204, but particularly under ss 204(4)(a) and (b).
135 The CFMEU made numerous criticisms of the Full Bench's conclusions as to the "errors" it found had been made by Williams SDP. However, in The Queen v Bowen; Ex parte Federated Clerks Union of Australia [1984] HCA 30; (1984) 154 CLR 207 ("Federated Clerks Union") at 209-210 Mason, Murphy, Wilson, Brennan and Dawson JJ observed:
"Counsel for the Union submitted that mandamus will issue whenever it appears that the court or tribunal below has made a fundamental error of law, and he uses the expression `fundamental error', in the sense of `serious or important error'. The authorities do not support this proposition; instead, they insist that the claimant for relief must show that the ostensible determination by the court or tribunal whose decision is challenged is not a real exercise of the jurisdiction conferred, or a real performance of the duty imposed on it: see, e.g. R. v. War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 C.L.R. 228, at p. 242. And, as Rich, Dixon and McTiernan JJ at p. 243 pointed out, the claimant`...who undertakes to establish that a tribunal has so acted ought not to be permitted under colour of doing so to enter upon an examination of the correctness of the tribunal's decision, or of the sufficiency of the evidence supporting it, or of the weight of the evidence against it, or of the regularity or irregularity of the manner in which the tribunal has proceeded. The correctness or incorrectness of the conclusion reached by the tribunal is entirely beside the question whether a writ of mandamus lies.'"
136 As was pointed out in Coal and Allied, in a challenge to a decision of the Full Bench under s 75(v) of the Constitution, it is necessary to demonstrate jurisdictional error. Gleeson CJ, Gaudron and Hayne JJ stated (at 208-209):
"There would only have been jurisdictional error on the part of the Full Bench if it had misconceived its role or if, in terms used by Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council, it `misunder[stood] the nature of [its] jurisdiction ... or `misconceive[d] its duty' or `[failed] to apply itself to the question which [s 45 of the Act] prescribes' ... or `[misunderstood] the nature of the opinion which it [was] to form''. The Full Bench did none of those things.
In his reasons for decision, Guidice J proceeded on the basis that the Full Bench could intervene only if there was error on the part of Boulton J. In this his Honour was correct. Guidice J held that there was error on the part of Boulton J. If he was wrong in that view (a matter upon which it is unnecessary to express an opinion), that was an error within jurisdiction not an error as to the nature of the jurisdiction which the Full Bench was required to exercise under s 45 of the Act. Accordingly, it was not an error in respect of which relief could be granted by way of prohibition or mandamus under s 75(v) of the Constitution."
137 In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1 at 21 [82] McHugh, Gummow and Hayne JJ observed:
"It is necessary, however, to understand what is meant by `jurisdictional error' under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal):`falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.'
`Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it."
138 I have set out the above passages in some detail as, in my view, the CFMEU's submissions failed to distinguish between errors within jurisdiction and jurisdictional errors. The CFMEU submitted that the Full Bench fell into "jurisdictional" error by misinterpreting the existing rule and the altered rule, and by misunderstanding the reasons of Williams SDP and the evidence before him as to the scope of coverage under those rules. The Full Bench's conclusions on those matters involved questions of law, questions of fact and questions of mixed law and fact: see generally Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 394-398. There is nothing in s 45 of the Act, or the other provisions of the Act relevant to this matter, that indicate that the determination of those questions, whether correctly or not, was not a matter that was within the jurisdiction of the Full Bench; the Full Bench was not under an imperative duty "correctly to give effect to the true interpretation of the rules of a registered organisation as they apply to the facts of a given case": see Federated Clerks Union at 210 and The Queen v Commissioners for Special Purposes of the Income Tax (1888) 21 QBD 313 at 319-320. See also The Queen v Gray; Ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351.
139 While the Full Bench may have jurisdiction, correctly or incorrectly, to give effect to its interpretation of the rules, its decision may nonetheless be reviewed under s 75(v) of the Constitution if it has fallen into jurisdictional error. Thus, although an error as to interpretation of a rule by the Full Bench, and as to how it applies to the facts in a particular case, might be an error within jurisdiction (see Federated Clerks Union at 210) such errors can result in the Full Bench falling into jurisdictional error by, inter alia, asking the wrong question, identifying the wrong issue or ignoring relevant material or relying on irrelevant material. However, I am not satisfied that, in arriving at its conclusion that Williams SDP erroneously interpreted the altered rule and therefore erred in applying it to the facts found by him, the Full Bench committed any jurisdictional error. Relevantly, it did not ask the wrong question, identify a wrong issue, ignore relevant material or rely on irrelevant material. If there was error it was error within jurisdiction not as to the nature of the jurisdiction being exercised.
140 I would add that, in any event, I am not satisfied that the Full Bench erred in law in concluding that Williams SDP made the s 204(4) errors it found he had made in relation to his interpretation of the altered eligibility rule and how it applied to the facts. Thus, the Full Bench's jurisdiction to, inter alia, substitute its own decision for that of Williams SDP, was enlivened by its finding of the s 204(4) errors it found were made by Williams SDP. It is plain that those errors, which were fundamental to the outcome of the application, undermined the approach of Williams SDP to the matters he was required to consider under s 204. Accordingly, it is unnecessary to decide whether the Full Bench fell into jurisdictional or other error in relation to its other findings concerning the decision of Williams SDP.
(b) Refusal of consent under s 204(4)
141 The issue of whether the Full Bench correctly applied the s 204(4) test was central to the CFMEU's submissions. It argued that the correct application of the s 204(4) test requires the identification of the persons covered by the existing eligibility rule and those who would become eligible because of the alteration. The CFMEU then contended that although the Full Bench found error on the part of Williams SDP for failing to identify those persons, it then proceeded to commit the same error.
142 There is some force in the CFMEU's submission. Plainly, in determining that consent is not to be withheld by reason of s 204(4) a designated Presidential Member is to form an opinion in respect of persons the Member must identify as persons "who would be eligible for membership because of the alteration". It is difficult to envisage how such an opinion can be formed without identifying the persons who will be covered after the alteration that were not covered before it.
143 However, it does not follow that the same identification must be made if an opinion is formed that the consent is required to be withheld under s 204(4). In that case the consent must be withheld if the Member forms the opinion that because of the alteration there are persons who would be eligible for membership who "might more conveniently belong" to another organisation that "would more effectively represent those persons". The requisite opinion need not be formed in respect of all persons who would be eligible because of the alteration. Putting to one side de minimis issues, if the opinion is formed that there are persons who fall within the categories described in s 204(4)(a) and (b) then the consent to the alteration must be withheld, notwithstanding that there may also be persons who would be eligible because of the alteration but who do not fall within the categories described in s 204(4)(a) and (b). In such a case, although the consent is required to be withheld in respect of the proposed alteration, the Member may, nonetheless, be required to consider the discrete issue arising under s 204(2) of whether the consent should be given to the alteration in part that is, to the rule alteration in so far as it applies to persons who do not fall within the categories described in s 204(4)(a) and (b). Of course, the resolution of that issue will require the formulation of the re-altered rule and the determination of whether consent to the re-altered rule is to be given or refused under s 204.
144 Accordingly, while it will usually be helpful to a decision under s 204(4) to identify the persons currently within the scope of unaltered rule and those who would fall within it because of the alteration, it is not always necessary to do so. Relevantly, for present purposes, in a case of refusal of consent under the sub-section the Member does not necessarily fall into jurisdictional error by failing to identify the persons who were eligible under the unaltered rule and the persons who would be eligible because of the alteration.
145 In considering the criticisms made by the CFMEU of the Full Bench's decision under s 204(4) it is helpful to place the s 204(4) issue in its correct context. In its final submissions to Williams SDP the CFMEU reformulated its rule change to incorporate the alterations made as a result of the settlements it had reached with union objectors. Those submissions were premised on the basis that the rule change did not extend eligibility beyond the construction industry and therefore the s 204(4) issues essentially involved a comparison of the effectiveness of the AWU and the CFMEU in that industry.
146 In substance, Williams SDP accepted the CFMEU's submissions. As a result of his conclusion that the rule alteration was limited to employees in the construction industry Williams SDP regarded the s 204(4) issue as relating only to whether persons, who would be eligible because of the rule alteration, might more conveniently belong to the AWU and whether the AWU would more effectively represent those persons.
147 Thus, Williams SDP stated at [57]:
"In this application, the comparison is to be made between the relative capacities of the CFMEU and the AWU. No other organisation has laid claim to the relevant employees. Whilst it may be conceded that there are other organisations to which employees in the relevant class may belong and which may represent them, no objector has seriously advanced a contention that the relevant employees could more conveniently belong to and be more effectively represented by another organisation other than the AWU."
148 On the appeal to the Full Bench the CFMEU sought to defend William SDP's construction of the rule alteration. Thus, in response to submissions of the AWU and the employer entities that, as a result of the approved rule change the rules would permit the CFMEU to enrol persons other than those in the construction industry, the CFMEU submitted to the Full Bench:
"The submissions of the appellants on this point are misconceived. It is clear from the wording of the proposed alteration that the focus of the application is the construction industry. The words `construction, repair, renovation, maintenance, ornamentation, alteration, removal or demolition' are prefatory to the words `any other works or projects' as much as they are to the words `any building or structure'. It is therefore appropriate to characterise workers caught by such a rule as being `engaged on any work in or in connection with or incidental to the construction industry'.
149 At para [99] of its first decision the Full Bench stated:
"In his paragraph [57], [Williams SDP] says that `no objector has seriously advanced a contention that the relevant employees could more conveniently belong and be more effectively represented by another organisation other than the AWU'. This view, is, no doubt, conditioned by his Honour's view of the identity of the relevant employees. It is, however, to be noted that before his Honour, the employer objectors submitted that, in certain areas, employees could more conveniently belong to or be more effectively represented by a number of organisations other than the AWU, including:* Australian Liquor, Hospitality and Miscellaneous Workers Union;
* Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union;
* The Association of Professional Engineers, Scientists and Managers, Australia;
* Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia;
* Media, Entertainment and Arts Alliance;
* National Union of Workers; and
* Transport Workers' Union of Australia."
150 In the concluding comments to its first decision the Full Bench stated that, while it had identified the errors it found Williams SDP had made, it had "not expressed views as to the correct conclusions". In its second decision the Full Bench stated that the first decision was to be "read" with the second decision. The Full Bench's reasoning in support of its conclusion that it must refuse consent because, in its opinion, "there are organisations of the type described" in s 204(4)(a) and (b), may be summarised as follows:
* the objectors called evidence that in a number of industries, other than the construction industry, there are persons who would be eligible for membership of the CFMEU because of the rule alteration;
* employment in those industries is covered by an established pattern of awards and agreements the union parties to which are substantially unions other than the CFMEU;
* the employees in the other industries, who are members of unions, are substantially members of unions other than the CFMEU, including the AWU; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ("AMWU"); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia ("CEPU"); National Union of Workers ("NUW"); Australian Liquor, Hospitality and Miscellaneous Workers Union ("ALHMWU"); Transport Workers' Union of Australia ("TWU"); Media, Entertainment and Arts Alliance ("MEAA"); and The Association of Professional Engineers, Scientists and Managers, Australia ("APESMA");
* the CFMEU had pursued its application by reference to the construction industry, even though the proposed rule did not refer to that industry;
* in the above circumstances, "in respect of the relevant employees employed in industries other than the construction industry, there is another organisation, or are other organisations, within paragraphs (a) and (b) of s.204(4)".
151 The brevity of the Full Bench's reasons and the global approach adopted by it has resulted in some uncertainty as to the basis for its decision. For example, the Full Bench included in the list of unions to whom the s 204(4)(a) and (b) criteria might apply four unions (CEPU, ALHMWU, TWU and APESMA) which had reached settlements with the CFMEU which resulted in it amending its application to include limitations in the rule alteration to which Williams SDP gave his consent. As a result of those limitations substantially all employees eligible to be members of APESMA and significant numbers of, if not all, employees who were eligible to be members of CEPU and TWU were excluded from eligibility under the altered rule and a significant body of persons who were eligible to be members of the ALHMWU was also excluded. Thus, there was only a limited potential for overlap in membership eligibility in respect of three of the unions and the scope for overlap in the fourth had been reduced. Further, as a result of a settlement with the AMWU a proviso was inserted into the rule alteration excluding particular classes of employees eligible for membership of AMWU.
152 The failure of the Full Bench to acknowledge and deal with the limitations arising from the settlements affords some support for the view that it was addressing the rule initially proposed by the CFMEU, rather than the rule consented to by Williams SDP, or was ignoring relevant material before it.
153 However, I do not accept that the Full Bench did not address the altered rule consented to by Williams SDP or that it ignored the changes to the originally proposed rule that resulted from the settlements. At para [21] of its first decision the Full Bench specifically referred to the new sub-rule (B)(3) in rule 2 which it stated was set out in para [3] of the decision of Williams SDP. In para [3] of his decision Williams SDP set out the altered rule which incorporated the rule changes made as a result of the settlements. The Full Bench stated that it would refer to "this sub-rule" as the proposed rule or the CFMEU's proposed rule. The subsequent reasons of the Full Bench in the first and second decisions referred to the proposed rule or the CFMEU's proposed rule. In para [22] the Full Bench made specific reference to the provisos set out in the proposed rule but stated there was no need to detail them.
154 Although the Full Bench did not specifically refer to the settlements with the unions or to the alterations made as a result of the settlements it does not follow that it wrongly ignored or overlooked those matters, which were explained in paras [4] to [6] of the decision of Williams SDP. It is more likely that, as a result of the settlements, the primary focus of the submissions related to the comparison between the CFMEU and the AWU and that any potential overlap in membership of the CFMEU and other unions did not loom as a significant issue in the overall context of the s 204 application.
155 It does not follow, however, that the settlements between the unions other than the AWU and the CFMEU meant that the employer entities could no longer rely upon some overlapping memberships and the potential for some demarcation disputes between the union objectors which had withdrawn and the CFMEU. In that regard, while the potential for overlapping memberships and demarcation disputes may have been reduced, it was not put that the evidence established that the potential for such overlaps or disputes had been eliminated in respect of the unions which withdrew as objectors. Also, and most importantly, the settlements had no consequences for the determination of the primary area of contest, which was between the AWU and the CFMEU. That area of contest was the primary focus of the CFMEU's submissions and case before Williams SDP and the Full Bench.
156 As the CFMEU's case was that its rule alteration was confined to the construction industry it does not appear to have seriously put in issue the submissions and evidence of the consequences of its rule alteration in relation to other industries. That appeared to remain the situation both before and after the first decision of the Full Bench.
157 The Full Bench also did not expressly state why it had concluded that in industries other than the construction industry there is another "organisation" or there are "other organisations" that fall within s 204(4)(a) and (b). Notwithstanding the severe criticisms made by the Full Bench of the inadequacies in the reasoning of Williams SDP its second decision suffered from the same deficiency. While it may be plain that relevant employees outside of the construction industry already belong to unions other than the CFMEU it does not necessarily follow from the facts and circumstances relied upon by the Full Bench that the "more conveniently belong" and "more effectively represent" criteria had been satisfied. Thus, on one view of the reasoning of the Full Bench there is support for the contention that it had not addressed the questions required to be addressed by s 204(4).
158 Ultimately the reasons of the Full Bench, being those of an administrative decision maker, "are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed": see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272. Reading the first decision of the Full Bench (which included a reference in [99] to the s 204(4) submissions of the employer entities in respect of the unions) and the second decision of the Full Bench (which specifically addressed s 204(4)(a) and (b)) fairly and as a whole, and having regard to the above caveat, in my view it appears to have treated the CFMEU as pursuing its application by reference to the construction industry, and thereby failing to deal with or meet the case put against it that employees in the other industries, who would be eligible to be members of the CFMEU because of the rule change, were more effectively represented by, and more conveniently belonged to, other unions. In that context, it appears that the Full Bench formed the opinion that there were one or more organisations, other than the CFMEU, that fell within the criteria set out in s 204(4)(a) and (b). It has not been demonstrated that that opinion was not open on the evidence. Upon forming that opinion under s 204(4)(a) and (b) the Full Bench, on its construction of the rule, was obliged to refuse consent to the rule alteration as it extended to employees in industries other than the construction industry. As the Full Bench adopted a global approach to this issue it was not necessary, although it would have been preferable, for it to have specifically identified the unions that fell within the criteria in s 204(4)(a) and (b).
159 Although it is regrettable that the Full Bench did not articulate its s 204(4) reasoning as well as it could have done it is likely that it accepted the case of the employer entities, and the AWU, that in industries outside of the construction industry the AWU and other unions fell within the criteria in s 204(4)(a) and (b). In all the circumstances it was not a jurisdictional error of the Full Bench to fail to identify, with any greater precision than it did, the persons who would be eligible to be members because of the rule alteration, and the organisations that fell within the criteria in s 204(4)(a) and (b). For present purposes it was sufficient that the Full Bench formed the requisite opinion, by addressing the questions it was required to address and doing so on the basis of evidence or material upon which it was entitled to rely.
160 For the above reasons I am not satisfied that the Full Bench fell into jurisdictional error in arriving at its conclusions under s 204(4).
(c) Discretionary refusal of consent
161 The Full Bench concluded, in the exercise of its discretion, that consent should also be refused because granting consent would lead to demarcation disputes in industries beyond the construction industry. In explaining why it reached that conclusion the Full Bench referred to evidence of the AWU and the employer entities to the effect that, if the CFMEU's application were granted, "it would lead to demarcation disputes, not only in the construction industry, but in other industries". The Full Bench stated at para [14]:
"In the light of this evidence, we are of the view that, having regard to the public interest (s.90), we should, in the exercise of our discretion, refuse consent to the CFMEU's application. (It will be recollected that Williams SDP, in paragraph [107] of his decision, concluded that, on balance, the potential for industrial disputation would be outweighed by freedom of association considerations. But, as we said in paragraph [139] of our earlier decision, this conclusion was based on his Honour's view as to the identity of the relevant employees and, accordingly, failed to take into account the potential for industrial disputation in industries other than the construction industry. In our view, when the evidence about the potential for industrial disputation in industries other than the construction industry is taken into account, there can be no basis for the view that, in those industries, it is outweighed by freedom of association considerations.)"
162 It was not in dispute that under the current statutory regime potential for demarcation disputes can be a discretionary ground for refusal of consent to a rule alteration. As with s 204(4) the Full Bench adopted a global approach to the demarcation dispute issue, which primarily, but not solely, concerned potential demarcation disputes with the AWU. For essentially the same reasons I have given in respect of the Full Bench's decision under s 204(4), I am not satisfied that the Full Bench committed any jurisdictional error in relation to this aspect of its decision. While the global approach of the Full Bench might have resulted in it failing to give appropriate weight to the reduced potential for demarcation disputes as a result of the CFMEU's settlements with other unions, it was not put that the evidence established that as a result of those settlements the potential for any such disputes had been wholly or substantially eliminated. Thus, any factual error that may have been made was within the jurisdiction and not as to the nature of the jurisdiction to be exercised by the Full Bench.
(d) Consent to the rule alteration in part
163 The global approach adopted by the Full Bench to the rule consented to by Williams SDP directly raised the issue of whether, under s 204(2), it should consent to the rule alteration in part by limiting its application to the construction industry, which was plainly the area in which the case presented by the CFMEU was at its strongest. The Full Bench, however, specifically addressed that question, but decided not to consent to the rule alteration in part for three reasons:
* limiting the rule to the construction industry involved a substantial and "problematic" rewriting of the proposed rule and, although some objectors suggested words of limitation, the CFMEU did not;
* there were substantial difficulties involved in, and differing views about, a definition that would sufficiently delineate the construction industry from other industries;
* there were employees who were in the construction industry who, on the evidence, were eligible to be members of organisations that might fall within s 204(4)(a) and (b).
164 The reasons were concerned with matters that were relevant, and therefore not extraneous to, the exercise of the discretion to consent to a rule alteration in part. Further, the reasons the Full Bench gave were reasons that were open to it on the material and the Full Bench did not fall into jurisdictional or any other error in declining to consent to the rule change in part. It is surprising that after the first decision the CFMEU did not put forward a formulation of a partial rule change as its fall back position. Nonetheless, in the absence of a proposed formulation of a partial rule change by the CFMEU, the Full Bench was not obliged to undertake the task of formulating the change itself.
(e) Inadequacy of reasons
165 As the CFMEU's challenge to the decision of the Full Bench to refuse consent on the basis of jurisdictional error must fail for the reasons set out above, it is unnecessary to consider the consequences of any failure of Williams SDP and of the Full Bench to adequately explain how and why they reached their respective decisions.
166 In respect of the alleged inadequacy in the reasons of the Full Bench it is sufficient for present purposes to state that it has not been demonstrated that that inadequacy could warrant the relief sought by the CFMEU under s 75(v), which does not include a writ of mandamus requiring further or adequate reasons.
167 I do, however, have some concern about the additional conclusion of the Full Bench that the application of the CFMEU for consent under s 204 should also be dismissed as a consequence of the inadequate reasons of Williams SDP. In my view that conclusion, which operates independently of the other conclusions reached by the Full Bench, is unsustainable. Inadequacy of reasons might result in an order for further reasons or, in appropriate circumstances, might result in the quashing of a decision. But there is no legal principle of which I am aware that would justify the dismissal of an application of an applicant on the basis of inadequacy of reasons by a decision maker. As the Full Bench's decision can stand as a valid and lawful decision independently of this ground it is unnecessary to consider it further.
Conclusion
168 For the above reasons the application of the CFMEU is to be dismissed.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel. |
Associate:
Dated: 23 May 2002
Counsel for the Applicant: |
S Crawshaw SC and NJ Williams SC |
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Solicitor for the Applicant: |
CFMEU (Mr T Roberts) |
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Counsel for the second and third Respondents: |
R C Kenzie QC with AA Hatcher |
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Solicitor for the second and third Respondents |
McClellands Solicitors |
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Counsel for the fourth to seventh Respondents: |
H Dixon SC with N Beaumont |
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Solicitor for the fourth, fifth and seventh respondent: |
Blake Dawson Waldron |
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Counsel for the sixth Respondent: |
JN Gallagher SC with RS Warren |
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Solicitor for the sixth Respondent: |
Employers First (Mr T McDonald) |
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Date of Hearing |
25, 26 and 27 February 2002 |
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Date of Judgment |
27 May 2002 |
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URL: http://www.austlii.edu.au/au/cases/cth/FCAFC/2002/150.html