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Construction, Forestry, Mining & Energy Union v Honourable Senior Deputy President Harrison [2009] FCAFC 110 (31 August 2009)

Last Updated: 31 August 2009

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining & Energy Union v Honourable Senior Deputy President Harrison [2009] FCAFC 110

INDUSTRIAL LAW – orders made by the Industrial Relations Commission granting exclusive representation rights to associations or organisations under reg 2.4 of the Workplace Relations Regulations 2006 (Cth) – whether the Commission had the power to make such orders – held the Commission was correct to find that it had jurisdiction pursuant to reg 2.4(1) – Commission was correct to follow the decision of the Full Bench in the Construction, Forestry, Mining and Energy Union v Australian Workers’ Union of Employees, Queensland (2006) 159 IR 25 – each of the State Representation Orders was an order "of a similar kind" to those made by the Commission in each application – each order made by the Commission was an order "to the same effect as the State Representation Order" – applications for Orders to Show Cause dismissed

Industrial Relations Act 1990 (Qld) – s 45
Workplace Relations Act 1996 (Cth) – subclause 1(1), cl 4 of Sch 10
Workplace Relations Amendment (Work Choices) Act 2005 (Cth)
Workplace Relations Regulations (Cth) – regs 2.4, 2.5, 2.6 of Ch 6

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 – relied on
Construction, Forestry, Mining and Energy Union v Australian Workers’ Union of Employees, Queensland (2006) 159 IR 25 – applied
Fox v Commissioner for Superannuation [1999] FCA 372; (1999) 167 ALR 197 – relied on

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v THE HONOURABLE SENIOR DEPUTY PRESIDENT HARRISON, A MEMBER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION, MOUNT ISA MINES LIMITED, THE AUSTRALIAN WORKERS' UNION OF EMPLOYEES, QUEENSLAND, THE AUSTRALIAN WORKERS' UNION, THE AUTOMOTIVE, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES INDUSTRIAL UNION OF EMPLOYEES, QUEENSLAND, THE AUTOMOTIVE, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION and THE FEDERATED ENGINE DRIVERS' AND FIREMEN'S ASSOCIATION OF QUEENSLAND, UNION OF EMPLOYEES

QUD 88 of 2008

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v THE HONOURABLE SENIOR DEPUTY PRESIDENT LACY, A MEMBER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION, DALRYMPLE BAY COAL TERMINAL PTY LTD, THE AUSTRALIAN WORKERS’ UNION OF EMPLOYEES, QUEENSLAND, THE AUSTRALIAN WORKERS’ UNION, THE AUTOMOTIVE, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES INDUSTRIAL UNION OF EMPLOYEES, QUEENSLAND, THE AUTOMOTIVE, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES INDUSTRIAL UNION, THE FEDERATED ENGINE DRIVERS’ AND FIREMEN’S ASSOCIATION OF QUEENSLAND, UNION OF EMPLOYEES, THE TRANSPORT WORKERS’ UNION OF AUSTRALIA, THE ELECTRICAL TRADE UNION OF EMPLOYEES, QUEENSLAND, THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF EMPLOYEES, QUEENSLAND and THE COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA

QUD 89 of 2008

SPENDER, DOWSETT AND GREENWOOD JJ
31 AUGUST 2009
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY FAIR WORK DIVISION	QUD 88 of 2008

BETWEEN:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Plaintiff

AND:

THE HONOURABLE SENIOR DEPUTY PRESIDENT HARRISON, A MEMBER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First Defendant

MOUNT ISA MINES LIMITED
Second Defendant

THE AUSTRALIAN WORKERS' UNION OF EMPLOYEES, QUEENSLAND
Third Defendant

THE AUSTRALIAN WORKERS' UNION
Fourth Defendant

THE AUTOMOTIVE, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES INDUSTRIAL UNION OF EMPLOYEES, QUEENSLAND
Fifth Defendant

THE AUTOMOTIVE, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
Sixth Defendant

THE FEDERATED ENGINE DRIVERS' AND FIREMEN'S ASSOCIATION OF QUEENSLAND, UNION OF EMPLOYEES
Seventh Defendant

JUDGES:	SPENDER, DOWSETT AND GREENWOOD JJ
DATE OF ORDER:	31 AUGUST 2009
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The Amended Application for an Order to Show Cause seeking writs of prohibition, mandamus and certiorari, filed in the High Court of Australia on 25 January 2008, is dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY FAIR WORK DIVISION	QUD 89 of 2008

BETWEEN:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Plaintiff

AND:

THE HONOURABLE SENIOR DEPUTY PRESIDENT LACY, A MEMBER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First Defendant

DALRYMPLE BAY COAL TERMINAL PTY LIMITED
Second Defendant

THE AUSTRALIAN WORKERS' UNION OF EMPLOYEES, QUEENSLAND
Third Defendant

THE AUSTRALIAN WORKERS' UNION
Fourth Defendant

THE AUTOMOTIVE, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES INDUSTRIAL UNION OF EMPLOYEES, QUEENSLAND
Fifth Defendant

THE AUTOMOTIVE, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
Sixth Defendant

THE FEDERATED ENGINE DRIVERS' AND FIREMEN'S ASSOCIATION OF QUEENSLAND, UNION OF EMPLOYEES
Seventh Defendant

THE TRANSPORT WORKERS’ UNION OF AUSTRALIA
Eighth Defendant

THE ELECTRICAL TRADE UNION OF EMPLOYEES, QUEENSLAND
Ninth Defendant

THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF EMPLOYEES, QUEENSLAND
Tenth Defendant

THE COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
Eleventh Defendant

JUDGES:	SPENDER, DOWSETT AND GREENWOOD JJ
DATE OF ORDER:	31 AUGUST 2009
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The Application for an Order to Show Cause seeking writs of prohibition, mandamus, and certiorari, filed in the High Court of Australia on 8 February 2008, is dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY FAIR WORK DIVISION	QUD 88 of 2008

BETWEEN:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNIONPlaintiff
AND:	THE HONOURABLE SENIOR DEPUTY PRESIDENT HARRISON, A MEMBER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSIONFirst DefendantMOUNT ISA MINES LIMITEDSecond DefendantTHE AUSTRALIAN WORKERS' UNION OF EMPLOYEES, QUEENSLANDThird DefendantTHE AUSTRALIAN WORKERS' UNIONFourth DefendantTHE AUTOMOTIVE, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES INDUSTRIAL UNION OF EMPLOYEES, QUEENSLANDFifth DefendantTHE AUTOMOTIVE, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNIONSixth DefendantTHE FEDERATED ENGINE DRIVERS' AND FIREMEN'S ASSOCIATION OF QUEENSLAND, UNION OF EMPLOYEESSeventh Defendant
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY FAIR WORK DIVISION		QUD 89 of 2008

BETWEEN:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Plaintiff

AND:

JUDGES:	SPENDER, DOWSETT AND GREENWOOD JJ
DATE:	31 AUGUST 2009
PLACE:	BRISBANE

REASONS FOR JUDGMENT

THE COURT

1 These are two applications for constitutional writs by the Construction, Forestry, Mining and Energy Union (CFMEU), which is an organisation of employees registered under the Workplace Relations Act 1996 (Cth) (the WRA).
2 In proceedings QUD 88 of 2008, the application is directed at Senior Deputy President Harrison (SDP Harrison), a member of the Australian Industrial Relations Commission (the Commission), and others, in respect of orders made by her Honour on 22 November 2007, on an application by Mount Isa Mines Limited (MIM) for an order in relation to the representation rights of organisations of employees/transitionally registered associations.
3 In proceedings QUD 89 of 2008, the application is directed at Senior Deputy President Lacy (SDP Lacy), a member of the Commission, and others, in respect of orders made by his Honour on 3 January 2008, on an application by Dalrymple Bay Coal Terminal Pty Limited (Dalrymple) for an order in relation to representation rights of organisations of employees/transitionally registered associations.
4 The two applications were heard together because they involve the same question, namely:

Is the effect of reg 2.4 of Ch 6 of the Workplace Relations Regulations 2006 (Cth) (the WR Regulations) such that, when a State-registered association within the meaning given by subclause 1(1) of Sch 10 to the WRA (which association had, by virtue of a State Representation Order, representation rights in the State industrial system to represent the industrial interests of a particular class or group of employees to the exclusion of other State-registered associations) becomes a transitionally registered association of employees under the WRA, that transitionally registered association has the right to the exclusion of other associations or organisations to represent, under the WRA, the industrial interests of that particular class or group of employees who are eligible for membership of that association?

5 In proceedings which became QUD 88 of 2008, the CFMEU filed an application for an order to Show Cause in the High Court of Australia on 13 December 2007. An amended application for an order to Show Cause was filed in the High Court on 25 January 2008.
6 In proceedings which became QUD 89 of 2008, the CFMEU filed an application for an order to Show Cause in the High Court on 8 February 2008.
7 Each application was heard by Kiefel J on 2 April 2008, and her Honour remitted the matters to the Federal Court of Australia, Queensland District Registry.
8 In the High Court proceeding which became proceeding QUD 88 of 2008, the plaintiff, the second, third and fourth defendants appeared, and there were submitting appearances for the first, fifth, sixth, and seventh defendants. In the High Court proceedings which became QUD 89 of 2008, the Order indicates that the plaintiff, and the second, third and fourth defendants appeared, and there were submitting appearances for the first, fifth, sixth and seventh defendants. The papers show that there were also submitting appearances by the eighth, ninth and eleventh defendants.
9 In making the orders the subject of the QUD 88 of 2008 proceedings, SDP President Harrison followed the decision of the Full Bench of the Commission in Construction Forestry, Mining and Energy Union v Australian Workers’ Union of Employees, Queensland (2006) 159 IR 25 (the Amcor Full Bench decision or the Amcor case). The Amcor Full Bench decision was pronounced on 22 December 2006.
10 In making the orders the subject of proceeding QUD 89 of 2008, SDP Lacy also followed the Amcor Full Bench decision.
11 For the reasons which follow, we are of the opinion that both SDP Harrison and SDP Lacy were right so to do, and each application to Show Cause should be dismissed, substantially for the reasons given by the Full Bench in the Amcor Full Bench decision.

THE HISTORY OF PROCEEDING QUD 88 OF 2008

12 The third defendant is the Australian Workers’ Union of Employees, Queensland (AWUEQ), an organisation registered under the Industrial Relations Act 1990 (Qld) (the IRA), and is a transitionally registered association under Sch 10 of the WRA.
13 The fifth defendant is the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (AMWUQ), an organisation registered under the IRA, and a transitionally registered association under Sch 10 of the WRA.
14 On 12 September 1995, the Queensland Industrial Relations Commission (the State Commission) made a State Representation Order pursuant to s 45 of the IRA in respect of MIM, granting representation rights to AWUEQ and AMWUQ, affecting the representation rights of industrial organisations, within the meaning of that term, for the purposes of the IRA.
15 On 27 March 2006, the Workplace Relations Regulations 2006 (Cth) (the WR Regulations), and amendments to the WRA relevant to these proceedings made pursuant to the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (the WC Act), commenced operation.
16 On 31 March 2006, AWUEQ became registered as a transitionally registered association under the WRA.
17 On 11 May 2006, AMWUQ became registered as a transitionally registered association under the WRA.
18 On 9 June 2006, the Federated Engine Drivers’ and Firemans’ Association of Queensland, Union of Employees (FEDFAQ) became registered as a transitionally registered association under the WRA.
19 On 5 September 2006, the Open Pit Mining Mount Isa Mines Limited Union Collective Agreement 2006, agreement number 073293160 was lodged with a nominal expiry of 31 December 2010. The parties bound by that agreement are MIM and AWUEQ.
20 On 25 September 2006, the Mining Area Mount Isa Mines Limited Union Collective Agreement 2006, agreement number 06772941 was lodged with a nominal expiry of 31 December 2010. The parties bound by the agreement were MIM and AWUEQ.
21 On the same day, 25 September 2006, the Services Area Mount Isa Mines Limited Union Collective Agreement 2006, agreement number 06772954 was lodged with a nominal expiry of 31 December 2010. The parties bound by that agreement are MIM, AWUEQ and AMWU.
22 Also on the same day, 25 September 2006, the Metallurgical Plant Area Mount Isa Mines Limited Union Collective Agreement 2006, agreement number 06772967 was lodged with a nominal expiry of 31 December 2010. The parties by the agreement are MIM and AWUEQ.
23 On 24 August 2007, MIM applied, in an application dated 23 August 2007, to the Commission for an order in relation to representation rights of organisations of employees/transitionally registered associations, pursuant to cl 4 of Sch 10 of the WRA and reg 2.4, Pt 2 of Ch 6 of the WR Regulations.
24 The order sought was to be known as the "Mount Isa Mines Limited Lease Representation Order", and would operate to give exclusive representation rights, to the exclusion of all other organisations and transitionally registered associations, to AWUEQ and AMWUQ, to represent employees in (separate) designated activities or departments within the operations of MIM.
25 On 22 November 2007, SDP Harrison decided for MIM, and made orders, which, after correction on 10 January 2008, were as follows:

1. This Order shall be known as the Mount Isa Mines Limited Lease Representation Order 2007.

2. This Order shall apply only to employees of Mount Isa Mines Limited (ISA) within the scope of clause 1.4 of the Mount Isa Mines Limited Award 2004 (Qld) and shall not apply to employees of contractors.

3. The Australian Workers' Union of Employees, Queensland has the right, to the exclusion of all other organisations and all transitionally registered associations, to represent under the Act, the industrial interests of all employees of ISA who are engaged in:

a. all activities in the Copper and Zinc/Lead Streams (except those carried out by employees from the Surface Workshop Department of the Copper Stream and the Fans and Refrigeration Department of the Copper Stream);

b. all activities in the Kennedy Siltstone Open Cut (KSOC); and

c. the Control Systems Maintenance Department of the Engineering Division.

4. The Australian Workers' Union of Employees, Queensland has the right, to the exclusion of all other organisations and all transitionally registered associations, to represent under the Act, the industrial interests of all employees of ISA who are engaged in the following Divisions or Departments:

a. Administrative Division;

b. Research and Development Division;

c. Personnel Division;

d. Supply Department; and

e. Safety and Security Department.

5. The Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland has the right to the exclusion of all organisations and all transitionally registered associations, to represent under the Act, the industrial interests of all employees of ISA who are engaged in the following Divisions or Departments:

a. Engineering Division (except for employees engaged in Control Systems Maintenance Department);

b. Surface Workshop Department of the Copper Stream and the Fans and Refrigeration Department of the Copper Stream.

5. The Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland does not have the right to represent under the Act the industrial interests of employees of ISA who are engaged in:

a. activities in the Copper and Zinc/Lead Streams (except those carried out by employees from the Surface Workshop Department of the Copper Stream and the Fans and Refrigeration Department of the Copper Stream);

b. all activities in the KSOC; and

c. the Control Systems Maintenance Department of the Engineering Division.

7. The Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland does not have the right to represent under the Act the industrial interests of all employees of ISA who are engaged in the following Divisions or Departments:

a. Administrative Division;

b. Research and Development Division;

c. Personnel Division;

d. Supply Department; and

e. Safety and Security Department.

8. The Australian Workers' Union of Employees, Queensland does not have the right to represent under the Act, the industrial interests of all employees of ISA who are engaged in the following Divisions or Departments:-

a. Engineering Division (except for employees engaged in Control Systems Maintenance Department).

b. Surface Workshop Department of the Copper Stream and the Fans and Refrigeration Department of the Copper Stream.

9. This order will operate from 22 November 2007.

26 The basis for the claim for constitutional writs by the CFMEU appears from the "grounds on which the relief is claimed" in the Amended Application for an Order to Show Cause filed in the High Court of Australia on 25 January 2008:

5. The Plaintiff [CFMEU] is an organisation within the meaning of that term for the purposes of the Workplace Relations Act 1996 (Cth) ("the Act") and the Workplace Relations Regulation 2006 (Cth) ("the Regulations").

6. The First Defendant [SDP Harrison] is a member of the Australian Industrial Relations Commission ("the Commission").

7. The Second Defendant [MIM] is a constitutional corporation and an employer within the meaning of each of those terms for the purposes of the Act and the Regulations.

8. The Third Defendant [(AWUEQ)] is a transitionally-registered association of employees within the meaning of that term for the purposes of the Act and the Regulations.

9. The Fourth Defendant [The Australian Workers’ Union (AWU)] is an organisation within the meaning of that term for the purposes of the Act and the Regulations.

10. The Fifth Defendant [the AMWUQ] is a transitionally-registered association of employees within the meaning of that term for the purposes of the Act and the Regulations.

11. The Sixth Defendant [The Automotive, Metals, Engineering, Printing and Kindred Industries Union] is an organisation within the meaning of that term for the purposes of the Act and the Regulations.

12. The Seventh Defendant [(FEDFAQ)] is a transitionally-registered association of employees within the meaning of that term for the purposes of the Act and the Regulations.

13. On 23 August 2007, the Second Defendant made application to the Commission for orders as to the representational rights of certain transitionally-registered associations under Regulation 2.4 of Chapter 6 of the Regulations and clause 4 of Schedule 10 to the Act.

...

15. Regulation 2.4 of Chapter 6 of the Regulations required the Commission, on the making of an application by a competent applicant, to make an order as to the representation rights of a transitionally-registered association of employees if certain jurisdictional pre-requisites were met, relevantly:

a. the application was for an order that a transitionally-registered association of employees is to have the right, to the exclusion of 1 or more other associations or organisations, to represent, under the Act, the industrial interests of a particular class or group of employees who are eligible for membership of the association;

b. immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005 the relevant transitionally-registered association of employees was a State-registered association (within the meaning given by subclause 1(1) of Schedule 10 to the Act);

c. there was an order of a similar kind in force in relation to the State-registered association.
...

27 MIM, on the Application for an order to Show Cause, and the second, third, and fourth defendants, filed Notices of Appearances, and there were submitting appearances by SDP Harrison and the fifth, sixth, and seventh defendants.
28 As indicated above at [7], on 2 April 2008, Kiefel J remitted this matter, which became QUD 88 of 2008, to the Federal Court of Australia, Queensland District Registry.
29 The core of the complaint by the CFMEU is that the Commission did not have the jurisdiction to make the order giving exclusive representation rights to the third and fifth defendants, because the jurisdictional pre-requisites were not met: specifically, there was not an "order of a similar kind to that sought and granted in the proceedings", nor was it the case that "the order sought and granted in the proceedings was to the same effect as the State Representation Order".

THE HISTORY OF PROCEEDING QUD 89 OF 2008

30 On 31 May 1996, the Queensland Industrial Relations Commission made a State Representation Order pursuant to s 45 of the IRA in respect of Dalrymple (the second defendant in QUD 89 of 2008) which granted representation rights to AWUEQ, and affecting the representation rights of industrial organisations within the meaning of that term for the purposes of the IRA.
31 On 7 February 1997, Deputy President Duncan of the Commission made an order in relation to representation rights pursuant to s 118A of the WRA on the application of Dalrymple. DP Duncan, as part of that order, ordered:

(b) Pursuant to s.118A of the Workplace Relations Act 1996 (the Act) the Australian Workers Union has the right, to the exclusion of all other industrial organisations, to represent under the Act the industrial interests of all employees of Dalrymple Bay Coal Terminal Pty Limited except:

(i) Tradespersons employed on the maintenance of plant and equipment at the Terminal;

(ii) Electrical trades assistants similarly employed;
(iii) Clerical and administrative employees.

(c) Pursuant to s.118A of the Act the Construction, Forestry, Mining and Energy Union does not have the right to represent under the Act the industrial interests of employees of Dalrymple Bay Coal Terminal Pty Limited.

... B. These orders shall come into force on and from 7 February 1997 and shall remain in force for a period of twelve months.

32 This order was referred to by SDP Lacy in the proceeding before him as the Federal Representation Order.
33 On 8 May 2006, the Dalrymple Bay Coal Terminal Pty Ltd Bulk Handling Union Collective Agreement 2006, agreement number 0680977 was lodged with a nominal expiry of 20 March 2009. The parties bound by the agreement were Dalrymple, (AWU), (AMWU), and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU).
34 In proceeding QUD 89 of 2008, AWU is the fourth defendant, AMWU is the sixth defendant, and CEPU is the eleventh defendant.
35 On 21 September 2007, AWUEQ sought an order in respect of the operations of Dalrymple, pursuant to reg 2.4 of Ch 6 of the WR Regulations.
36 On 3 January 2008, SDP Lacy of the Commission made an order in the terms sought by AWUEQ concerning the operations at Dalrymple in its application of 21 September 2007, which was as follows:

Representation of Dalrymple Bay Coal Terminal employees. ORDER Further to the decision in relation to this matter [PR980304], the COMMISSION ORDERS AND DIRECTS THAT: 1. This order shall be known as the Dalrymple Bay Coal Terminal Pty Ltd Production Employees Representation Order 2007. 2. The Australian Workers’ Union of Employees, Queensland has the right, to the exclusion of all other organisations and transitionally registered associations, to represent under the Act, the industrial interests of all employees of Dalrymple Bay Coal Terminal Pty Ltd except: • Tradesperson employed on the maintenance of plant and equipment at the terminal; • Electrical Trades Assistants similarly employed; and • Clerical and Administrative employees. B. This order shall operate from 3 January 2008.

37 In making those orders, which are the subject of proceeding QUD 89 of 2008, SDP Lacy also followed the Amcor Full Bench decision.
38 The core of the complaint by the CFMEU as the basis for the application for constitutional writs directed to SDP Lacy and others, is the same as made in QUD 88 of 2008, set out in [28] above.
39 On 8 February 2008, the CFMEU made an application to the High Court for an order to Show Cause in the proceedings, which subsequently became QUD 89 of 2008.
40 On 26 February 2008, the AWUEQ and AWU filed Notice of Appearances in those proceedings, and on 27 February 2008, Dalrymple filed a Notice of Appearance. The Order of Kiefel J on 2 April 2008, indicates that there were submitting appearances "by the first, fifth, sixth and seventh defendants", although the papers indicate there were also submitting appearances by the eighth, ninth and eleventh defendants.
41 On 27 March 2008, the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 (Cth) was proclaimed. The amendments to the WRA effected by that Act took effect on that day.
42 As indicated above at [7], on 2 April 2008, Kiefel J remitted this matter, which became QUD 89 of 2008, to the Federal Court of Australia, Queensland District Registry.

LEGISLATIVE FRAMEWORK OF THE DECISIONS

43 The decisions were made pursuant to cl 4 of Sch 10 to the WRA, and regs 2.4 and 2.5 of Div 2 Pt 2 Ch 6 of the WR Regulations.
44 This legislative scheme allows for state unions to achieve registration in the federal system and came into force with the WC Act.
45 Clause 4 of Sch 10 to the WRA provides:

4 Representation rights of transitionally registered associations of employees

(1) Regulations made for the purposes of this subclause may make provision for the Commission to make orders in relation to the right of a transitionally registered association to represent the interests under this Act, on or after the reform commencement, of a particular class or group of employees.

(2) Without limiting subclause (1), the regulations may specify the weight that the Commission is to give, in making such an order, to a State demarcation order.

46 Regulations 2.4, 2.5 and 2.6 of Div 2, Pt 2 of Ch 6 provide:

2.4 Order (1) For subclause 4 (1) of Schedule 10 to the Act, this clause applies if:

(a) an organisation, transitionally registered association, an employer or the Minister applies to the Commission to make any of the following orders:

(i) an order that a transitionally registered association of employees is to have the right, to the exclusion of 1 or more other associations or organisations, to represent, under the Act, the industrial interests of a particular class or group of employees who are eligible for membership of the association; (ii) an order that a transitionally registered association of employees that does not have the right to represent, under the Act, the industrial interests of a particular class or group of employees is to have that right; (iii) an order that a transitionally registered association of employees is not to have the right to represent, under the Act, the industrial interests of a particular class or group of employees who are eligible for membership of the association; and

(b) immediately before the reform commencement:

(i) the transitionally registered association mentioned in subparagraph (a) (i), (ii) or (iii) was a State-registered association (within the meaning given by subclause 1 (1) of Schedule 10 to the Act); and (ii) there was an order of a similar kind in force in relation to the State-registered association. Note If no order of a similar kind was in force immediately before the reform commencement, see Division 1.

(2) The Commission must make an order to the same effect as the order mentioned in subparagraph (1) (b) (ii).

(3) The Commission may, on application by an organisation, a transitionally registered association of employees, an employer or the Minister, vary an order made under subregulation (2).

2.5 Order may be subject to limits or alterations (1) The order may be subject to conditions or limitations. (2) The order:

(a) may be made with changes from the text of the order mentioned in subparagraph 2.4(1)(b)(ii) that the Commission considers necessary to reflect the language and content of the Act and the Registration and Accountability of Organisations Schedule; but
(b) must be the same in substance as the order mentioned in subparagraph 2.4(1)(b)(ii).

2.6 Organisations and transitionally registered association must comply with order

(1) An organisation and a transitionally registered association to which the order applies must comply with the order.

(2) The Federal Court may, on application by the Minister or a person, organisation or transitionally registered association affected by an order, make such orders as it thinks fit to ensure compliance with that order.

47 The provisions set out above allow the Commission to make an order regarding representation where an organisation is transitioning from the State framework to the Federal framework. It provides that, where an order "of a similar kind" existed within the State framework with respect to the State-registered organisation, the Commission must make an order to the same effect for the Federal framework.

THE DECISION OF SDP HARRISON

48 It was common ground before SDP Harrison that the State Commission had made an order described as the "MIM Lease Representation Order". This order can be summarised as granting exclusive representation rights in specified parts of MIM’s operations to the AWUQ and to AMWUQ, to the exclusion of all other unions which had previously held representation rights. This order was accepted as being similar in terms to the order sought from the Commission in these proceedings.
49 The principal submission on the part of the CFMEU to SDP Harrison, which was repeated to this Court, was that any order made under reg 2.4 could only affect parties bound or affected by the previous State demarcation order. It was submitted that on the proper construction of s 4 to Sch 10 and reg 2.4, those provisions were directed at the retention of pre-existing rights, not the expansion of rights which would exclude other parties (such as the CFMEU). In this instance, the CFMEU was not bound or affected by the earlier State order; indeed, it would have had no standing to be a party to those proceedings. In these circumstances, it was argued, the CFMEU should not be bound by such an order. Further, to accept that construction and to make such an order would involve the denial to the CFMEU of procedural fairness.
50 The order made by SDP Harrison was supported by the AWU and AWUQ. It was opposed by FEDFAQ and CFMEU. The AMWU and AMWUQ indicated to SDP Harrison that they neither supported or opposed the order being made.
51 The same issue had already been heard and decided by a Full Bench of the Commission in the Amcor Full Bench decision. It was accepted by counsel for the CFMEU before SDP Harrison that the rulings of the Full Bench in the Amcor Full Bench decision were about the same issues and were "on all fours" with the issues and matters in this case.
52 However, counsel submitted that SDP Harrison was not bound by that decision (relying on the Federal Court decision in Australian Industrial Relations Commission; ex parte Metal Trades Industry Association of Australia and Another (1995) 130 ALR 63), and should depart from it.
53 SDP Harrison accepted that she may not be bound, but held that there existed no reason for her not to follow the decision of the Full Bench in the Amcor Full Bench decision. She held that there was no basis established for her to decide the matter in any other way.
54 In the Amcor Full Bench decision, the Full Bench concluded that a State demarcation order was an order "of a similar kind" within the meaning in subregulation 2.4(1)(b)(ii), notwithstanding that the new order would bind parties not previously bound by the State demarcation order.
55 Her Honour found that the order sought from the Commission by MIM was an order which was "the same in substance" as the State demarcation order, as required by subregulation 2.5(2)(b). Her Honour concluded that she was required to make a representational order to the same effect.

THE DECISION OF SDP LACY

56 On 31 May 1996, a Full Bench of the State Commission made an Exclusive Representation Order pursuant to s 45 of the IRA. The order gave the AWUEQ the right to represent the industrial interests of employees, other than clerical and administrative employees and tradespersons employed on the maintenance of plant and equipment at the terminal of Dalrymple, to the exclusion of all other unions of employees under the IRA. The order also provided that the FEDFAQ should not have the right to represent the industrial interests of those employees. At the time both the AWUEQ and FEDFAQ were registered unions of employees under the IRA.
57 SDP Lacy, referring to the legislative context of the proceedings before him, said at [8]:

Since 27 March 2006 the WR Act has provided for State unions to achieve registration in the federal system. The process was effected by the Workplace Relations Amendment (Work Choices) Act 2005 (Work Choices Act). The process involves two stages. A State union may gain transitional registration and, in due course, registration as an organisation. The AWUEQ and FEDFAQ have both gained transitional registration. Clause 4 of Schedule 10 to the Work Choices Act provides that regulations may be made empowering the Commission to make orders in relation to the representation rights of transitionally registered associations.

58 The parties before SDP Lacy accepted that the 1996 Exclusive Representation Order, being the order made by the State Commission on 31 May 1996, was a State demarcation order.
59 AWUEQ submitted to SDP Lacy that the jurisdictional facts requiring the making of an order had been established: the 1996 Exclusive Representation Order was an order of similar kind to the Exclusive Representation Order it was now seeking. The AWUEQ submission was that to be "of the same effect", the rights of the AWUEQ in relation to the specified class of Dalrymple employees under the order sought must correspond with 1996 Exclusive Representation Order.
60 Accordingly, it was necessary to replicate the rights conferred on AWUEQ by the 1996 Exclusive Representation Order and thus ensure its exclusivity is maintained under Federal law. The term "organisation", it was submitted, is to be given its usual meaning under the WRA, and is not to be given any limited or narrow meaning. Dalrymple supported the AWUEQ submissions.
61 The CFMEU submitted that it was not affected by the 1996 Exclusive Representation Order, since it was an organisation of employees registered under the WRA, and that it was not, and had never been, a State-registered organisation. It argued that the expression "organisation" in subregulation 2.4(1) does not have, and was not intended to have, the reach to apply to an organisation registered under the WRA that was not formerly registered under the IRA.
62 It was submitted that the 1996 Exclusive Representation Order was directed to the coverage of associations registered under the IRA. The proposed order in the case before SDP Lacy was directed to coverage of organisations registered under the WRA, as was the Federal Representation Order.
63 The proposed order, it was submitted, was not "to the same effect". It sought to bind entities not previously bound by the IRA, or the 1996 Exclusive Representation Order.
64 In his reasons for judgment, under the heading "Conclusions", SDP Lacy said, at [19]:

The arguments for the most part revolve around the interpretation of the word organisation in reg.2.4(1)(a) and the meaning of orders of a similar kind in reg.2.4(1)(b) and to the same effect in reg.2.4(2). I am not persuaded by the arguments as they were advanced in this case that Amcor was wrongly decided. Nor am I persuaded that the proposed order in this case is not an order of a similar kind or an order to the same effect as the 1996 exclusive representation order. As was suggested by the Full Bench decision in Amcor the approach proposed by the objections in this case would defeat the policy and purpose of reg.2.4.

65 SDP Lacy drew attention in the reasons for judgment to one distinguishing feature between the case before him and the circumstances in the Amcor case, namely, that in the Dalrymple application, there was a parallel Federal Representation Order in force during the first year of the 1996 Exclusive Representation Order, which affected the representation rights of the AWU and the CFMEU in respect of employees (with certain exceptions) of Dalrymple.
66 SDP Lacy later said, at [21]:

As I understand the submissions of the CFMEU and FEDFAQ, the fact of the tandem representation orders informs the intended meaning of organisation in reg.2.4(2), demonstrates the orders are of a different kind and are not of the same effect. In my view the submission is without substance. It seems to ignore the reasoning of the Full Bench in Amcor to the effect that of themselves the scheme of the legislation and the status of a transitionally registered association under it materially affect the existing representation rights of federally registered organisations. The legislation also changes the environment in which the orders operate and reg.2.4 is intended to facilitate the transition to the new environment.

67 SDP Lacy concluded, at [23]:

I am satisfied that the order sought is to the same effect as the 1996 exclusive representation order and must be made accordingly. I am satisfied that the order is also the same in substance as the 1996 exclusive representation order. I grant the application and will make an order in terms of the draft order as amended ...

THE APPLICATIONS FOR CONSTITUTIONAL WRITS REMITTED BY THE HIGH COURT

68 The plaintiff in each matter submitted that the issues in both proceedings are:

a) Whether the Commission had the jurisdiction to make the orders;

b) Whether there was a [S]tate [R]epresentation [O]rder of a similar kind to that sought and granted in the proceedings as required by Regulation 2.4(1)(b)(ii); and

c) Whether the order granted was to the same effect as the [S]tate [R]epresentation [O]rder as required by Regulation 2.4(2).

69 These are the same issues which the CFMEU unsuccessfully advanced to the Full Bench in the Amcor case.
70 The CFMEU submitted that the State Representation Orders in each matter were not orders "of a similar kind" to the order sought in the applications made under reg 2.4, because:

(a) The State Representation Orders only gave the third defendant representation rights to the exclusion of organisations registered under the IRA; and

(b) The State Representation Orders did not, and could not, give the third defendant representation rights to the exclusion of organisations registered under the WRA.

71 In support of those contentions, counsel for the CFMEU pointed out that the State Representation Order that was relevant in proceedings QUD 88 of 2008 affected the representation rights of the second, fifth, and seventh defendant in those proceedings, which were all State-registered organisations to represent certain employees under the IRA.
72 The State Representation Order did not, and could not, it was said, affect the rights of the CFMEU, the fourth defendant, or the sixth defendant, which were all federally-registered organisations to represent under the WRA the industrial interests of any of the employees.
73 It was further submitted that the order sought by MIM gave to the third defendant the right to represent under the WRA the industrial interest of some employees employed by MIM to the exclusion of all organisations and transitionally registered associations registered under the WRA.
74 These considerations should compel the conclusion, it was said, that the order sought was not an order "of a similar kind in force in relation to a State-registered association", and the Commission could not make an order "to the same effect" as the State Representation Order.
75 The State Representation Order in QUD 89 of 2008 gave the third defendant the right to represent the industrial interests under the IRA of all employees of Dalrymple, except certain nominated employees, to the exclusion of all other State-registered organisations. The CFMEU said that the State Representation Order took away the right of the seventh defendant to represent the industrial interests, under the IRA, of all or any employees employed by Dalrymple.
76 That State Representation Order did not and could not, it was said, affect the rights of the CFMEU, the fourth, sixth, eighth and eleventh defendants, all federally-registered organisations, to represent the industrial interests of any employees under the WRA.
77 The order sought by Dalrymple on 21 September 2007 gave the third defendant the right to represent under the WRA industrial interests of all employees employed by Dalrymple, except the same nominated employees, to the exclusion of all organisations registered under the WRA, as well as transitionally registered associations.
78 The submission by the CFMEU was that the orders sought and granted in each matter were not of a similar kind to the State Representation Orders as required by reg 2.4(1)(b)(ii).

THE AMCOR DECISION

79 The CFMEU acknowledged that, in both matters, the Commission had followed the reasoning of the Full Bench in the Amcor case. The CFMEU submitted that the reasoning in that case was wrong.
80 The Amcor case was an appeal against an order made by Vice President Watson, pursuant to the same provisions of the WRA and the WR Regulations here relied upon by MIM and Dalrymple in the respective applications.
81 The appellant in the Amcor case was the CFMEU, and the respondents were AWUQ and Amcor Limited. The Full Bench, noting that the questions raised were important and likely to have a significant effect on the demarcation rights of transitionally registered associations and organisations registered under WRA, gave the opportunity to other bodies to make submissions.
82 The Minister for Employment and Workplace Relations, on behalf of the Commonwealth of Australia, and the Australian Council of Trade Unions (ACTU) were granted leave to appear. MIM also sought and was granted leave to make submissions to the Full Bench.
83 The recognition by the Full Bench of the importance of the questions raised and the significance of the effects of its decision, the fullest representation before the Full Bench of relevant interested parties, including the Commonwealth and the ACTU, the detailed and comprehensive exposition of the issues by the Full Bench, the direct addressing by it of the competing assertions, and the provision of clearly articulated and principled reasons for its conclusions, are all circumstances that have to be recognised and acknowledged by this Court in its consideration of the Amcor Full Bench decision.
84 Vice President Watson had made an order, the effect of which, relevantly, was to grant certain representation rights to the AWUQ "to the exclusion of any other organisation and any other transitionally registered association". Part of the order also provided that the FEDFAQ did not have representation rights in respect of Amcor Limited employees.
85 In the Amcor case, the CFMEU submitted that the regulations did not empower the exclusion of representation rights of organisations registered under the WRA. They argued that the 1992 Exclusive Representation Order was not binding on the CFMEU, as it had not been heard in the State Commission proceedings that led to the order being made. It could not be said to be an order "of a similar kind" or " to the same effect", as those terms contained in subregulations 2.4(1) and (2) should be construed.
86 The Full Bench described the CFMEU’s "principal consideration" as being that the purpose of reg 2.4 was to preserve State demarcation arrangements, but not to permit a widening of those arrangements to parties which were not bound by them. It challenged, amongst other matters, the finding of Vice President Watson’s holding that the term "organisations" in the regulation referred to federally registered organisations. It also submitted that Vice President Watson had focused on the AWUQ as the beneficiary of the order, and not on the CFMEU, to whose detriment the order would operate.
87 The essence of the decision of the Full Bench in the Amcor case is contained in paragraphs 36 to 41 of the reasons of the Full Bench:

36 The Vice President went on to conclude that any order which did not give the AWUEQ exclusive coverage of Amcor's employees would not be an order "to the same effect" as the 1992 order. His Honour's reasoning gives primacy to the clear statutory purpose of carrying over representation rights under State laws into the federal system when a State union becomes transitionally registered. We think that is the correct approach.

37 In our view the power in reg 2.4 must be seen as a provision to facilitate a shift from one jurisdiction to another. On the CFMEU's approach such orders could only bind entities which had been bound by a relevant State demarcation order and had subsequently become transitionally registered associations or organisations. (It was not suggested that an organisation could be bound by a State demarcation order in its own right.) This would be a significant limitation on the transitional arrangements. If orders made under reg 2.4(2) were not capable of binding registered organisations generally the shift would be less effective. A State union which enjoyed exclusive coverage would be deprived of that status on becoming part of the federal system. The relevant paragraph of the Explanatory Memorandum refers to allowing State unions to retain their representational rights on moving into the federal system. [5] This consideration alone might not be a sufficient basis to conclude that the legislature intended that organisations which were not bound by a State demarcation order could nevertheless be bound by an order under reg 2.4(2). We would be reluctant to give the provisions a construction which limited the right of an organisation to be heard in a matter affecting its representation rights. But there are two additional considerations which put the issue beyond doubt.

38 The first consideration is that Sch 10 gives a State union a right to transitional registration on application and on compliance with the prescribed conditions. Transitional registration occurs once an application is lodged in the required form. Importantly, as the Commonwealth pointed out, transitional registration of itself confers rights of industrial representation. Given the existing modes of representation in the federal system, the mere fact of transitional registration affects the representation rights of existing organisations. Existing organisations are given no right to object to transitional registration provided the State union meets the prescribed conditions. That is a strong indication that orders made to give effect to State demarcation orders might also affect the representative rights of existing organisations without giving those organisations a right to be heard. It is also relevant to point out that a transitionally registered association may become a fully fledged organisation without modification to its area of representation on account of the rights of representation of organisations which are already registered.

39 The second consideration is the existence of the power of variation in reg 2.4(3). If a State demarcation order, given effect by an order under reg 2.4(2), is clearly no longer appropriate because of circumstances which have arisen since it was made, the Commission can vary the order. In that way reg 2.4(3) is a protective mechanism which existing organisations might seek to take advantage of where circumstances warrant and is a strong countervailing consideration in relation to the argument based on the opportunity to be heard. It appears that the legislature has proceeded on the quite proper assumption that State demarcation orders have been effective while still providing for cases in which some modification is appropriate. If it were shown, for example, that the AWUEQ had not effectively represented the industrial interests of the employees at the Petrie Mill, but that another organisation could, there might be grounds for a variation of the order.

40 The CFMEU sought to distinguish the effect of transitional registration from the effect of the order under appeal. It pointed out that while transitional registration might give an association rights of industrial representation in relation to occupations or industries within the eligibility rules of other organisations, those other organisations would still retain the legal right of representation. The order under appeal, on the other hand, deprives the CFMEU of rights of industrial representation. While we accept this distinction we do not find it a persuasive one. In a practical sense transitional registration does alter the representation rights of existing organisations whenever it leads to new, overlapping rights of industrial representation. In this context the existence of the power in reg 2.4(3) to vary orders in relation to the representation rights of transitionally registered associations is very significant.

41 While the text of the relevant provisions is always important it will be clear from these reasons that this is not a case in which close textual analysis is capable of providing an unambiguous indication of the legislative intent. Seen in its full context, however, we have no doubt that the term "organisation" in reg 2.4(1)(a) should not be interpreted as applying only to an organisation which, either in its current or some antecedent form, was party to a State demarcation order. Similarly an order binding an organisation which was not bound by a relevant State demarcation order may be an order "of a similar kind" within the meaning of reg 2.4(1)(b)(ii), "to the same effect" for the purposes of reg 2.4(2) and "the same in substance" for the purposes of reg 2.5(2)(b), as the State demarcation order.

(Footnotes omitted)

88 As the last sentence in [37] of the reasons of the Full Bench in the Amcor case indicates, the Full Bench was conscious that the construction of the Regulations which it determined limited the right of an organisation to be heard in a matter which affected its representation rights.
89 The Full Bench acknowledged in the first sentence in [41] of its reasons set out above that the legislative text was not unambiguous. The Full Bench, in reaching its construction of regs 2.4 and 2.5, had regard to the "full context", and the identified legislative purpose "to facilitate a shift from one jurisdiction to another".
90 Context and statutory purpose in these proceedings are crucial. The modern approach to statutory interpretation was described by Brennan CJ, Dawson, Toohey and Gummow JJ in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408:

[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy.

91 Black CJ in Fox v Commissioner for Superannuation [1999] FCA 372; (1999) 167 ALR 197, after referring to this observation, said, at [13]:

It follows that context must be considered at the beginning of any inquiry into the meaning of a statute, regardless of the apparent clarity of the literal terms of the relevant provision itself. ...

92 We respectfully agree with the construction of regs 2.4 and 2.5 given by the Full Bench in the Amcor case, for the reasons it gave. We also respectfully agree that the term "organisation" in reg 2.4(1)(a) should not be confined so as to apply only to an organisation which, either in its current or some antecedent form, was a party to a State demarcation order.
93 We are satisfied that each of the State Representation Orders was an order "of a similar kind" to those sought in the respective applications; the orders made by the Commission in the proceedings which became QUD 88 of 2008 and QUD 89 of 2008, were orders within the jurisdiction of the Commission pursuant to reg 2.4 of Ch 6 of the WR Regulations; and the orders made by the Commission in each proceeding was an order "to the same effect as the State Representation Order".
94 In each proceeding, the Commission correctly concluded that the jurisdictional requirement established by sub-regulation 2.4(1) was met, and, in each case, the Commission was correct in concluding that reg 2.4 obliged it to make the orders which it did.
95 For the above reasons, the CFMEU in each proceeding has not made good any ground for the issue of constitutional writs.
96 The applications for the issue of constitutional writs in proceeding QUD 88 of 2008 and in proceeding QUD 89 of 2008 should each be dismissed.

I certify that the preceding ninety-six (96) paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Dowsett and Greenwood .

Associate:

Dated: 31 August 2009

Counsel for the Plaintiff:	Mr R Kenzie QC with Mr A Slevin

Solicitor for the Plaintiff:	Hall Payne Lawyers

Counsel for the Second Defendant:	Mr J Murdoch SC

Solicitor for the Second Defendant:	Minter Ellison

Counsel for the Third Defendant:	Mr A Herbert

Solicitor for the Third Defendant:	Sciaccas Lawyers

Date of Hearing:	18 August 2008

Date of Judgment:	31 August 2009

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URL: http://www.austlii.edu.au/au/cases/cth/FCAFC/2009/110.html

1	These are two applications for constitutional writs by the Construction, Forestry, Mining and Energy Union (CFMEU), which is an organisation of employees registered under the Workplace Relations Act 1996 (Cth) (the WRA).
2	In proceedings QUD 88 of 2008, the application is directed at Senior Deputy President Harrison (SDP Harrison), a member of the Australian Industrial Relations Commission (the Commission), and others, in respect of orders made by her Honour on 22 November 2007, on an application by Mount Isa Mines Limited (MIM) for an order in relation to the representation rights of organisations of employees/transitionally registered associations.
3	In proceedings QUD 89 of 2008, the application is directed at Senior Deputy President Lacy (SDP Lacy), a member of the Commission, and others, in respect of orders made by his Honour on 3 January 2008, on an application by Dalrymple Bay Coal Terminal Pty Limited (Dalrymple) for an order in relation to representation rights of organisations of employees/transitionally registered associations.
4	The two applications were heard together because they involve the same question, namely:

5	In proceedings which became QUD 88 of 2008, the CFMEU filed an application for an order to Show Cause in the High Court of Australia on 13 December 2007. An amended application for an order to Show Cause was filed in the High Court on 25 January 2008.
6	In proceedings which became QUD 89 of 2008, the CFMEU filed an application for an order to Show Cause in the High Court on 8 February 2008.
7	Each application was heard by Kiefel J on 2 April 2008, and her Honour remitted the matters to the Federal Court of Australia, Queensland District Registry.
8	In the High Court proceeding which became proceeding QUD 88 of 2008, the plaintiff, the second, third and fourth defendants appeared, and there were submitting appearances for the first, fifth, sixth, and seventh defendants. In the High Court proceedings which became QUD 89 of 2008, the Order indicates that the plaintiff, and the second, third and fourth defendants appeared, and there were submitting appearances for the first, fifth, sixth and seventh defendants. The papers show that there were also submitting appearances by the eighth, ninth and eleventh defendants.
9	In making the orders the subject of the QUD 88 of 2008 proceedings, SDP President Harrison followed the decision of the Full Bench of the Commission in Construction Forestry, Mining and Energy Union v Australian Workers’ Union of Employees, Queensland (2006) 159 IR 25 (the Amcor Full Bench decision or the Amcor case). The Amcor Full Bench decision was pronounced on 22 December 2006.
10	In making the orders the subject of proceeding QUD 89 of 2008, SDP Lacy also followed the Amcor Full Bench decision.
11	For the reasons which follow, we are of the opinion that both SDP Harrison and SDP Lacy were right so to do, and each application to Show Cause should be dismissed, substantially for the reasons given by the Full Bench in the Amcor Full Bench decision.

12	The third defendant is the Australian Workers’ Union of Employees, Queensland (AWUEQ), an organisation registered under the Industrial Relations Act 1990 (Qld) (the IRA), and is a transitionally registered association under Sch 10 of the WRA.
13	The fifth defendant is the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (AMWUQ), an organisation registered under the IRA, and a transitionally registered association under Sch 10 of the WRA.
14	On 12 September 1995, the Queensland Industrial Relations Commission (the State Commission) made a State Representation Order pursuant to s 45 of the IRA in respect of MIM, granting representation rights to AWUEQ and AMWUQ, affecting the representation rights of industrial organisations, within the meaning of that term, for the purposes of the IRA.
15	On 27 March 2006, the Workplace Relations Regulations 2006 (Cth) (the WR Regulations), and amendments to the WRA relevant to these proceedings made pursuant to the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (the WC Act), commenced operation.
16	On 31 March 2006, AWUEQ became registered as a transitionally registered association under the WRA.
17	On 11 May 2006, AMWUQ became registered as a transitionally registered association under the WRA.
18	On 9 June 2006, the Federated Engine Drivers’ and Firemans’ Association of Queensland, Union of Employees (FEDFAQ) became registered as a transitionally registered association under the WRA.
19	On 5 September 2006, the Open Pit Mining Mount Isa Mines Limited Union Collective Agreement 2006, agreement number 073293160 was lodged with a nominal expiry of 31 December 2010. The parties bound by that agreement are MIM and AWUEQ.
20	On 25 September 2006, the Mining Area Mount Isa Mines Limited Union Collective Agreement 2006, agreement number 06772941 was lodged with a nominal expiry of 31 December 2010. The parties bound by the agreement were MIM and AWUEQ.
21	On the same day, 25 September 2006, the Services Area Mount Isa Mines Limited Union Collective Agreement 2006, agreement number 06772954 was lodged with a nominal expiry of 31 December 2010. The parties bound by that agreement are MIM, AWUEQ and AMWU.
22	Also on the same day, 25 September 2006, the Metallurgical Plant Area Mount Isa Mines Limited Union Collective Agreement 2006, agreement number 06772967 was lodged with a nominal expiry of 31 December 2010. The parties by the agreement are MIM and AWUEQ.
23	On 24 August 2007, MIM applied, in an application dated 23 August 2007, to the Commission for an order in relation to representation rights of organisations of employees/transitionally registered associations, pursuant to cl 4 of Sch 10 of the WRA and reg 2.4, Pt 2 of Ch 6 of the WR Regulations.
24	The order sought was to be known as the "Mount Isa Mines Limited Lease Representation Order", and would operate to give exclusive representation rights, to the exclusion of all other organisations and transitionally registered associations, to AWUEQ and AMWUQ, to represent employees in (separate) designated activities or departments within the operations of MIM.
25	On 22 November 2007, SDP Harrison decided for MIM, and made orders, which, after correction on 10 January 2008, were as follows:

27	MIM, on the Application for an order to Show Cause, and the second, third, and fourth defendants, filed Notices of Appearances, and there were submitting appearances by SDP Harrison and the fifth, sixth, and seventh defendants.
28	As indicated above at [7], on 2 April 2008, Kiefel J remitted this matter, which became QUD 88 of 2008, to the Federal Court of Australia, Queensland District Registry.
29	The core of the complaint by the CFMEU is that the Commission did not have the jurisdiction to make the order giving exclusive representation rights to the third and fifth defendants, because the jurisdictional pre-requisites were not met: specifically, there was not an "order of a similar kind to that sought and granted in the proceedings", nor was it the case that "the order sought and granted in the proceedings was to the same effect as the State Representation Order".

30	On 31 May 1996, the Queensland Industrial Relations Commission made a State Representation Order pursuant to s 45 of the IRA in respect of Dalrymple (the second defendant in QUD 89 of 2008) which granted representation rights to AWUEQ, and affecting the representation rights of industrial organisations within the meaning of that term for the purposes of the IRA.
31	On 7 February 1997, Deputy President Duncan of the Commission made an order in relation to representation rights pursuant to s 118A of the WRA on the application of Dalrymple. DP Duncan, as part of that order, ordered:

32	This order was referred to by SDP Lacy in the proceeding before him as the Federal Representation Order.
33	On 8 May 2006, the Dalrymple Bay Coal Terminal Pty Ltd Bulk Handling Union Collective Agreement 2006, agreement number 0680977 was lodged with a nominal expiry of 20 March 2009. The parties bound by the agreement were Dalrymple, (AWU), (AMWU), and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU).
34	In proceeding QUD 89 of 2008, AWU is the fourth defendant, AMWU is the sixth defendant, and CEPU is the eleventh defendant.
35	On 21 September 2007, AWUEQ sought an order in respect of the operations of Dalrymple, pursuant to reg 2.4 of Ch 6 of the WR Regulations.
36	On 3 January 2008, SDP Lacy of the Commission made an order in the terms sought by AWUEQ concerning the operations at Dalrymple in its application of 21 September 2007, which was as follows:

37	In making those orders, which are the subject of proceeding QUD 89 of 2008, SDP Lacy also followed the Amcor Full Bench decision.
38	The core of the complaint by the CFMEU as the basis for the application for constitutional writs directed to SDP Lacy and others, is the same as made in QUD 88 of 2008, set out in [28] above.
39	On 8 February 2008, the CFMEU made an application to the High Court for an order to Show Cause in the proceedings, which subsequently became QUD 89 of 2008.
40	On 26 February 2008, the AWUEQ and AWU filed Notice of Appearances in those proceedings, and on 27 February 2008, Dalrymple filed a Notice of Appearance. The Order of Kiefel J on 2 April 2008, indicates that there were submitting appearances "by the first, fifth, sixth and seventh defendants", although the papers indicate there were also submitting appearances by the eighth, ninth and eleventh defendants.
41	On 27 March 2008, the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 (Cth) was proclaimed. The amendments to the WRA effected by that Act took effect on that day.
42	As indicated above at [7], on 2 April 2008, Kiefel J remitted this matter, which became QUD 89 of 2008, to the Federal Court of Australia, Queensland District Registry.

43	The decisions were made pursuant to cl 4 of Sch 10 to the WRA, and regs 2.4 and 2.5 of Div 2 Pt 2 Ch 6 of the WR Regulations.
44	This legislative scheme allows for state unions to achieve registration in the federal system and came into force with the WC Act.
45	Clause 4 of Sch 10 to the WRA provides:

48	It was common ground before SDP Harrison that the State Commission had made an order described as the "MIM Lease Representation Order". This order can be summarised as granting exclusive representation rights in specified parts of MIM’s operations to the AWUQ and to AMWUQ, to the exclusion of all other unions which had previously held representation rights. This order was accepted as being similar in terms to the order sought from the Commission in these proceedings.
49	The principal submission on the part of the CFMEU to SDP Harrison, which was repeated to this Court, was that any order made under reg 2.4 could only affect parties bound or affected by the previous State demarcation order. It was submitted that on the proper construction of s 4 to Sch 10 and reg 2.4, those provisions were directed at the retention of pre-existing rights, not the expansion of rights which would exclude other parties (such as the CFMEU). In this instance, the CFMEU was not bound or affected by the earlier State order; indeed, it would have had no standing to be a party to those proceedings. In these circumstances, it was argued, the CFMEU should not be bound by such an order. Further, to accept that construction and to make such an order would involve the denial to the CFMEU of procedural fairness.
50	The order made by SDP Harrison was supported by the AWU and AWUQ. It was opposed by FEDFAQ and CFMEU. The AMWU and AMWUQ indicated to SDP Harrison that they neither supported or opposed the order being made.
51	The same issue had already been heard and decided by a Full Bench of the Commission in the Amcor Full Bench decision. It was accepted by counsel for the CFMEU before SDP Harrison that the rulings of the Full Bench in the Amcor Full Bench decision were about the same issues and were "on all fours" with the issues and matters in this case.
52	However, counsel submitted that SDP Harrison was not bound by that decision (relying on the Federal Court decision in Australian Industrial Relations Commission; ex parte Metal Trades Industry Association of Australia and Another (1995) 130 ALR 63), and should depart from it.
53	SDP Harrison accepted that she may not be bound, but held that there existed no reason for her not to follow the decision of the Full Bench in the Amcor Full Bench decision. She held that there was no basis established for her to decide the matter in any other way.
54	In the Amcor Full Bench decision, the Full Bench concluded that a State demarcation order was an order "of a similar kind" within the meaning in subregulation 2.4(1)(b)(ii), notwithstanding that the new order would bind parties not previously bound by the State demarcation order.
55	Her Honour found that the order sought from the Commission by MIM was an order which was "the same in substance" as the State demarcation order, as required by subregulation 2.5(2)(b). Her Honour concluded that she was required to make a representational order to the same effect.

58	The parties before SDP Lacy accepted that the 1996 Exclusive Representation Order, being the order made by the State Commission on 31 May 1996, was a State demarcation order.
59	AWUEQ submitted to SDP Lacy that the jurisdictional facts requiring the making of an order had been established: the 1996 Exclusive Representation Order was an order of similar kind to the Exclusive Representation Order it was now seeking. The AWUEQ submission was that to be "of the same effect", the rights of the AWUEQ in relation to the specified class of Dalrymple employees under the order sought must correspond with 1996 Exclusive Representation Order.
60	Accordingly, it was necessary to replicate the rights conferred on AWUEQ by the 1996 Exclusive Representation Order and thus ensure its exclusivity is maintained under Federal law. The term "organisation", it was submitted, is to be given its usual meaning under the WRA, and is not to be given any limited or narrow meaning. Dalrymple supported the AWUEQ submissions.
61	The CFMEU submitted that it was not affected by the 1996 Exclusive Representation Order, since it was an organisation of employees registered under the WRA, and that it was not, and had never been, a State-registered organisation. It argued that the expression "organisation" in subregulation 2.4(1) does not have, and was not intended to have, the reach to apply to an organisation registered under the WRA that was not formerly registered under the IRA.
62	It was submitted that the 1996 Exclusive Representation Order was directed to the coverage of associations registered under the IRA. The proposed order in the case before SDP Lacy was directed to coverage of organisations registered under the WRA, as was the Federal Representation Order.
63	The proposed order, it was submitted, was not "to the same effect". It sought to bind entities not previously bound by the IRA, or the 1996 Exclusive Representation Order.
64	In his reasons for judgment, under the heading "Conclusions", SDP Lacy said, at [19]:

69	These are the same issues which the CFMEU unsuccessfully advanced to the Full Bench in the Amcor case.
70	The CFMEU submitted that the State Representation Orders in each matter were not orders "of a similar kind" to the order sought in the applications made under reg 2.4, because:

71	In support of those contentions, counsel for the CFMEU pointed out that the State Representation Order that was relevant in proceedings QUD 88 of 2008 affected the representation rights of the second, fifth, and seventh defendant in those proceedings, which were all State-registered organisations to represent certain employees under the IRA.
72	The State Representation Order did not, and could not, it was said, affect the rights of the CFMEU, the fourth defendant, or the sixth defendant, which were all federally-registered organisations to represent under the WRA the industrial interests of any of the employees.
73	It was further submitted that the order sought by MIM gave to the third defendant the right to represent under the WRA the industrial interest of some employees employed by MIM to the exclusion of all organisations and transitionally registered associations registered under the WRA.
74	These considerations should compel the conclusion, it was said, that the order sought was not an order "of a similar kind in force in relation to a State-registered association", and the Commission could not make an order "to the same effect" as the State Representation Order.
75	The State Representation Order in QUD 89 of 2008 gave the third defendant the right to represent the industrial interests under the IRA of all employees of Dalrymple, except certain nominated employees, to the exclusion of all other State-registered organisations. The CFMEU said that the State Representation Order took away the right of the seventh defendant to represent the industrial interests, under the IRA, of all or any employees employed by Dalrymple.
76	That State Representation Order did not and could not, it was said, affect the rights of the CFMEU, the fourth, sixth, eighth and eleventh defendants, all federally-registered organisations, to represent the industrial interests of any employees under the WRA.
77	The order sought by Dalrymple on 21 September 2007 gave the third defendant the right to represent under the WRA industrial interests of all employees employed by Dalrymple, except the same nominated employees, to the exclusion of all organisations registered under the WRA, as well as transitionally registered associations.
78	The submission by the CFMEU was that the orders sought and granted in each matter were not of a similar kind to the State Representation Orders as required by reg 2.4(1)(b)(ii).

79	The CFMEU acknowledged that, in both matters, the Commission had followed the reasoning of the Full Bench in the Amcor case. The CFMEU submitted that the reasoning in that case was wrong.
80	The Amcor case was an appeal against an order made by Vice President Watson, pursuant to the same provisions of the WRA and the WR Regulations here relied upon by MIM and Dalrymple in the respective applications.
81	The appellant in the Amcor case was the CFMEU, and the respondents were AWUQ and Amcor Limited. The Full Bench, noting that the questions raised were important and likely to have a significant effect on the demarcation rights of transitionally registered associations and organisations registered under WRA, gave the opportunity to other bodies to make submissions.
82	The Minister for Employment and Workplace Relations, on behalf of the Commonwealth of Australia, and the Australian Council of Trade Unions (ACTU) were granted leave to appear. MIM also sought and was granted leave to make submissions to the Full Bench.
83	The recognition by the Full Bench of the importance of the questions raised and the significance of the effects of its decision, the fullest representation before the Full Bench of relevant interested parties, including the Commonwealth and the ACTU, the detailed and comprehensive exposition of the issues by the Full Bench, the direct addressing by it of the competing assertions, and the provision of clearly articulated and principled reasons for its conclusions, are all circumstances that have to be recognised and acknowledged by this Court in its consideration of the Amcor Full Bench decision.
84	Vice President Watson had made an order, the effect of which, relevantly, was to grant certain representation rights to the AWUQ "to the exclusion of any other organisation and any other transitionally registered association". Part of the order also provided that the FEDFAQ did not have representation rights in respect of Amcor Limited employees.
85	In the Amcor case, the CFMEU submitted that the regulations did not empower the exclusion of representation rights of organisations registered under the WRA. They argued that the 1992 Exclusive Representation Order was not binding on the CFMEU, as it had not been heard in the State Commission proceedings that led to the order being made. It could not be said to be an order "of a similar kind" or " to the same effect", as those terms contained in subregulations 2.4(1) and (2) should be construed.
86	The Full Bench described the CFMEU’s "principal consideration" as being that the purpose of reg 2.4 was to preserve State demarcation arrangements, but not to permit a widening of those arrangements to parties which were not bound by them. It challenged, amongst other matters, the finding of Vice President Watson’s holding that the term "organisations" in the regulation referred to federally registered organisations. It also submitted that Vice President Watson had focused on the AWUQ as the beneficiary of the order, and not on the CFMEU, to whose detriment the order would operate.
87	The essence of the decision of the Full Bench in the Amcor case is contained in paragraphs 36 to 41 of the reasons of the Full Bench:

88	As the last sentence in [37] of the reasons of the Full Bench in the Amcor case indicates, the Full Bench was conscious that the construction of the Regulations which it determined limited the right of an organisation to be heard in a matter which affected its representation rights.
89	The Full Bench acknowledged in the first sentence in [41] of its reasons set out above that the legislative text was not unambiguous. The Full Bench, in reaching its construction of regs 2.4 and 2.5, had regard to the "full context", and the identified legislative purpose "to facilitate a shift from one jurisdiction to another".
90	Context and statutory purpose in these proceedings are crucial. The modern approach to statutory interpretation was described by Brennan CJ, Dawson, Toohey and Gummow JJ in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408:

92	We respectfully agree with the construction of regs 2.4 and 2.5 given by the Full Bench in the Amcor case, for the reasons it gave. We also respectfully agree that the term "organisation" in reg 2.4(1)(a) should not be confined so as to apply only to an organisation which, either in its current or some antecedent form, was a party to a State demarcation order.
93	We are satisfied that each of the State Representation Orders was an order "of a similar kind" to those sought in the respective applications; the orders made by the Commission in the proceedings which became QUD 88 of 2008 and QUD 89 of 2008, were orders within the jurisdiction of the Commission pursuant to reg 2.4 of Ch 6 of the WR Regulations; and the orders made by the Commission in each proceeding was an order "to the same effect as the State Representation Order".
94	In each proceeding, the Commission correctly concluded that the jurisdictional requirement established by sub-regulation 2.4(1) was met, and, in each case, the Commission was correct in concluding that reg 2.4 obliged it to make the orders which it did.
95	For the above reasons, the CFMEU in each proceeding has not made good any ground for the issue of constitutional writs.
96	The applications for the issue of constitutional writs in proceeding QUD 88 of 2008 and in proceeding QUD 89 of 2008 should each be dismissed.