Health Services Union [2010] NSWIRComm 107 (30 July 2010)

Last Updated: 2 August 2010

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Health Services Union [2010] NSWIRComm 107



FILE NUMBER(S):
IRC 447

HEARING DATE(S):
14 July 2010

DATE OF JUDGMENT:
30 July 2010

PARTIES:
Health Services Union (Appellant)
Unions NSW (Intervenor)

CORAM:
Boland J President


CATCHWORDS: REGISTERED ORGANISATIONS - APPEAL from decisions of the Acting Deputy Industrial Registrar refusing to certify rule changes - Applications by State organisation to amend rules to enable persons elected in a Branch of a Federal Union to be taken as being validly elected to the corresponding office in the State organisation - Application to allow members of a Branch of a Federal Union to also become members of the State organisation and that officers of that Branch would also become officers of the State organisation - Whether State organisations of employees may lawfully enrol and represent employees living and working outside the State of New South Wales and whether rules designed to give effect to this situation may be validly certified under the Industrial Relations Act 1996 - STATUTORY INTERPRETATION - In and of New South Wales - Real and substantial connection with New South Wales - Comity - Harmonisation of State and federal laws regulating industrial organisations - Decisions of Acting Deputy Industrial Registrar quashed

LEGAL REPRESENTATIVES
Mr R Kenzie QC with Mr D Langmead of counsel (Appellant)
Slater & Gordon
Mr P Doughty on behalf of Unions NSW (Intervenor)

CASES CITED:
AJ Mills & Sons Pty Ltd v Transport Workers' Union of New South Wales [2009] NSWIRComm 135; (2009) 187 IR 56
Australian Rail, Tram and Bus Industry Union v Australian Federated Union of Locomotive Employees, Qld Union of Employees [2008] AIRCFB 362; (2008) 172 IR 47
Chrysler Jeep Automotive Distributors Australia Pty Ltd v Canberra Star Motors Pty Ltd (1998) 79 IR 452
Ex parte Richardson; Re Hildred [1972] 2 NSWLR 423
Law Society of New South Wales v Glenorcy Pty Ltd [2006] NSWCA 250; (2006) 67 NSWLR 169
McQuillan v Bodkin [1960] 59 AR (NSW) 373
Moore v Doyle (1969) 15 FLR 59
Moore v Newcastle City Council; Re Civic Theatre Newcastle (1997) 43 NSWLR 614; (1997) 77 IR 210
O'Connor v Healey (1967) 69 SR (NSW) 111
R v Kearney; Ex parte Jurlama [1984] HCA 14; (1984) 158 CLR 426
Tryam Pty Ltd v Grainco Australia Ltd (2003) 142 IR 243
Unions NSW v Carter Holt Harvey Wood Products Australia Pty Ltd [2006] NSWIRComm 2; (2006) 149 IR 361

LEGISLATION CITED:
Fair Work (Registered Organisations) Act 2009 (Cth)
Industrial Relations Act 1991
Industrial Relations Act 1996
Industrial Relations Act 1999 (Qld)
Interpretation Act 1897
Interpretation Act 1987
Legal Profession Act 1987
Trade Union Act 1881
Workplace Relations Act 1996 (Cth)


TEXTS CITED:




JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: BOLAND J, President

Friday, 30 July 2010

Matter No IRC 447 of 2010

Re HEALTH SERVICES UNION

Application by Health Services Union to appeal from decisions of Acting Deputy Industrial Registrar Hourigan given on 3 June 2010 and 16 June 2010 in Matter No R10/0159 and on 3 June 2010 in Matter No R10/0117

DECISION

[2010] NSWIRComm 107

1 The Health Services Union ('HSU') has made application under s 194 of the Industrial Relations Act 1996 ('the IR Act') to appeal from decisions of Acting Deputy Industrial Registrar Hourigan given on 3 June 2010 in relation to Matter Nos R10/0159 and R10/0117 as supplemented by Reasons for Decision of 16 June 2010.

2 Leave was granted pursuant to s 194(4) of the IR Act to allow further evidence, which consisted of the affidavit of Phillip John Pasfield, solicitor for the HSU in the proceedings.

3 It is to be noted that there was no contradictor in the appeal. Mr R Kenzie QC with Mr D Langmead of counsel for the appellant acknowledged this and quite properly, in their submissions, identified matters not favouring the appellant's case. The Court is grateful for that assistance.

4 Mr P Doughty sought and was granted leave to intervene on behalf of Unions NSW. Unions NSW is the State peak council for employees: s 215 of the IR Act. Mr Doughty indicated his organisation supported the appeal and stated that there were no 'objections' from any affiliated unions regarding the appeal.

BACKGROUND

5 The HSU is an organisation of employees registered pursuant to the provisions of the IR Act. It is an organisation of longstanding. It was first registered under New South Wales legislation under the name of the Hospital and Asylum Employees' Union of New South Wales on 12 October 1911. On 29 July 1924, the Union changed its name to the Hospital Employees' Association of New South Wales. On 16 October 1935, the Union amalgamated with the Crown Employees' Hospitals and Homes Association of New South Wales to form the Amalgamated Hospitals, Homes and Laboratories Employees' Association of New South Wales.

6 On 20 March 1947, the Union changed its name to the Hospital Employees' Association of New South Wales and thereafter changed its name as follows:

· 27 April 1965 – Health and Research Employees' Association of Australia

· 15 July 1977 - Health and Research Employees' Association of Australia – NSW Branch

· 27 October 1988 - Health and Research Employees’ Association of New South Wales

7 On 19 August 1994, the Union was granted formal registration under the provisions of the then Industrial Relations Act 1991 ('the 1991 IR Act') following the rescission of registration requirements under the Trade Union Act 1881 and a complete set of rules was registered. On 3 April 1995, the Union amalgamated with the Hospital Officers' Association.

8 The State HSU’s registration under the 1991 Act meant that it was taken to be an industrial organisation of employees registered under Ch 5 of the IR Act. No subsequent action was required by the HSU having regard to ss 223(3) and (4) of the IR Act.

9 Current Rules 18A and 18B were inserted into the Rules of the HSU on 2 April 2002 (Matter No RO2/0418). Rules 18A and 18B are rules made in contemplation of s 239 of the IR Act. That section provides that the rules of a State organisation registered under Ch 5 may provide that persons elected to offices in a State branch of a Federal organisation are taken to be validly elected to the corresponding offices in the State organisation registered under Ch 5 if the Industrial Registrar is satisfied of a number of specified matters. Consequently, since the insertion of Rules 18A and 18B, there has been no need for the conduct of separate elections that would otherwise have fallen due in the HSU.

10 On 1 October 2003 the Union changed its name to the 'Health Services Union'.

11 The HSU is a counterpart union to the New South Wales Branch of the federal Health Services Union, an organisation registered under the provisions of the Fair Work (Registered Organisations) Act 2009 (Cth) ('the Federal Union').

12 The Federal Union also has a long history stretching back to the early years of last century. Mr Pasfield deposed:

The Federal HSU also traces its registration back to 1911.

In 1911 an organisation of employees was registered pursuant to the provisions of the Conciliation and Arbitration Act 1904 (Cth) (“C&A Act”) being the Hospital and Asylum Attendants and Employees’ Union of Australia. Its membership at that stage was limited to employees in Victoria.

In 1914 the Victorian based organisation changed its name to the Hospital Dispensary Asylum Employees’ Union of Australia. From 1924 onwards branches in states other than Victoria were formed.

On 26 May 1922 another Victorian based federal organisation was also federally registered being the Hospital Employees’ Association. Its members worked in Victorian and New South Wales mental hospitals.

In 1930 the Hospital Dispensary and Asylum Employees’ Union of Australia amalgamated with the Hospital Employees Association to form the Hospital, Dispensary and Asylum Employees’ and Allied Government Officers’ Federation of Australia.

That organisation subsequently became known in 1959 as the Hospital Employees’ Federation of Australia.

In 1965 an Application was made by an Association known as the Health and Research Employees’ Association of Australia for registration as an organisation of employees under the C&A Act. Registration was granted to this body in February 1970.

In 1991 the Hospital Employees Federation of Australia amalgamated with the Health and Research Employees’ Association of Australia to form the Health Services Union of Australia. The union later changed its name to the Federal HSU.

Immediately prior to 24 May 2010 the Federal HSU consisted of the following branches:

· Victoria No. 1
· Victoria No. 2
· Victoria No. 3
· Victoria No. 4
· Tasmania No. 1
· Tasmania No. 2
· New South Wales
· South Australia
· Queensland
· Western Australia

13 Mr Pasfield explained that on 24 May 2010, Fair Work Australia certified rule changes to the Rules of the Federal Union to give effect to the merger of the Victoria No. 1 Branch and the Victoria No. 3 Branch with the New South Wales Branch. The name of the merged branch is the New South Wales Branch as described in the rules of the Federal Union and known as the 'HSU East Branch'. The New South Wales Branch currently has 412 members who are listed as residing in the Australian Capital Territory. Prior to the rule alterations being certified on 24 May 2010, the New South Wales Branch had approximately 40,000 members (including the 412 members who are listed as residing in the Australian Capital Territory), the Victoria No. 1 Branch had approximately 13,000 members and the Victoria No. 3 Branch had approximately 4,000 members.

14 Part of the merger proposal resulted in a further proposal that members of the Victoria No. 1 and No. 3 Branches would also become members of the HSU and that officers of those Branches would also become officers of the HSU. Rule alterations to give effect to these proposals were adopted by the HSU in accordance with its rules on 1 June 2010.

APPLICATIONS TO AMEND RULES

15 On 1 June 2010, the HSU applied pursuant to s 245 of the IR Act for the consent of the Industrial Registrar to the alterations referred to in the preceding paragraph. The application (which was numbered as Matter No R10/0159) sought certification of amendments to a number of rules. The main rules affected were as follows:

Rule 1 Change in name to HSU-East;

Rule 15 Change of composition of the Union Council to reflect the changes to the composition of the Union Council of the HSU East Branch of the Federal Union in Rule 51A of the Federal Union. The proposed new rule is in the following terms:

(1) Subject to sub-rule (7) of this rule, the affairs of the Union shall be vested in the Union Council which shall consist of a total of 76 members (plus the President and the 3 Vice-Presidents who are elected by and from the Council except for the General Secretary, the Deputy General Secretaries, the Divisional Secretaries, the Assistant Divisional Secretaries, and any other employees of the branch who hold an office) as follows:

(a) General Secretary (1) (elected by and from the members of the Branch)

(b) Executive President (1) (elected by and from the members of the Branch)

(c) Deputy General Secretaries (2) - (elected by and from the members of the Branch)

(d) Divisional Secretaries (2) - (elected by and from the members of the Branch)

(e) Assistant Divisional Secretaries (2) - (elected by and from the members of the Branch)

(f) twenty-one Councillors from Hospitals or Health Services one of whom shall come from Health Managers Sub-Branches and with at least two but not more than three Councillors being drawn from each of the eight Area Health Services) (refer note 1) (elected by the membership of the Branch from members of the Branch in New South Wales)

(g) Twenty General Representatives from New South Wales (elected by the membership of the Branch from members in New South Wales)

(h) Twenty-three Councillors from Victoria (elected by the membership of the Branch from members of the Branch in Victoria)

(i) One Councillor from a private hospital (elected by and from the members of the Branch)

(j) One Councillor from an aged care facility (elected by and from the members of the Branch)

(k) One Councillor from an Ambulance Service (elected by and from the members of the Branch)

(l) one Councillor from the Australian Capital Territory (elected by the members of the Branch from members in the ACT)

(2) All of the above shall be holders of offices of the Union within the meaning of the Industrial Relations Act 1996 provided however that with the exception of the Union President and Vice-Presidents, there shall not be more than one member of any sub-branch.

(3) All of the members of the Council shall have a vote on the Council except for the Divisional Secretaries, the Assistant Divisional Secretaries and any other employees of the Branch who hold office.

(4) Where a member of the Union Council becomes the President or a Vice-President, he/she shall cease to be and act as a member of the Union Council and the office previously held shall be a casual vacancy and filled in accordance with rule 18.

(5) The Union Council shall meet quarterly or more frequently in person or by any other means, and thirteen members shall provide a quorum. In the event of an emergency the Union President shall convene a meeting of the Union Council; where possible, giving seven (7) days' notice. If the circumstances warrant, a meeting may be called at less notice but decisions made at such a meeting shall be subject to endorsement by the next ordinary meeting of Union Council or by the next meeting of which seven days' notice has been given.

(6) The Union Council shall be the committee of management of the Union.

(7) Notwithstanding anything elsewhere in these rules,

(I) Subject to paragraph (ii) herein, the Union Council and Officers who held office immediately prior to the certification of this rule shall continue to hold those offices and comprise the Union Council until elections for the Union Council are held and persons take office in the offices referred to in sub-rule (1) of this rule;

(II) The President and Vice Presidents rule shall continue to hold those offices until elections for the offices of President and Vice Presidents are held in accordance with rule 17(f) and (g) of these rules and persons take office in those offices.

Note 1 - The eight Area Health Services (‘AHS’) as constituted by section 17, and specified in Schedule 1, of the Health Services Act 1997, as at 1 October 2005, with these being Sydney South West AHS, Sydney West AHS (incorporating the Children’s Hospital at Westmead), South Eastern Sydney and Illawarra AHS, Northern Sydney and Central Coast AHS, Greater Western AHS, Greater Southern AHS, North Coast AHS and Hunter and New England AHS.”

Rule 15A New rule that creates an Executive Committee to reflect Rule 54 of the Rules of the Federal Union. The proposed rule is in the following terms:

(a) The Executive Committee shall consist of the General Secretary, the Executive President, the Deputy General Secretaries, the two Divisional Secretaries and the two Assistant Divisional Secretaries.

(b) The Executive Committee shall, subject to these Rules and to the decisions of the Union Council and to the control of members as hereinafter mentioned, have power (in addition to powers conferred on it elsewhere in these Rules) to conduct and manage the affairs of the Union and between meetings of the Union Council may exercise all the powers of Union Council except the power to fix remuneration of and terms and conditions of employment of full time paid officers of the Branch and the power to make, add to, amend, rescind and/or otherwise alter the Branch Rules. It shall be responsible for the preparation of the Union Council agenda and for the carrying out of the decisions of the Union Council between its meetings.

(c) Five members shall constitute a quorum.

(d) The Executive Committee shall meet at such times as determined by the General Secretary or Executive President who may, by notice in writing either by post, email or other communication method call a meeting of the Executive Committee. The General Secretary or the Executive President may decide that a meeting of the Executive Committee be conducted by such telephonic or electronic means as may be from time to time be available. The members of the Executive Committee shall participate in such a meeting and the decision of the majority shall be binding as if such decision were obtained at a regularly constituted meeting of the Executive Committee.

(e) The Union Council may review any act or decision of the Executive Committee.

Rule 18A Reference to New South Wales Branch of the Federal Union changed to HSU East;

Rule 20 Reference to New South Wales Branch of the Federal Union changed to HSU East. Proposed rule 20(g) is as follows:

Subject to rule 6(6), in the case of an office of a full time paid officer if the person elected to the corresponding office in the HSU East Branch ("the Branch") of the Health Services Union, an organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth), has not been a financial member of the Union for a period of not less than twelve months prior to his/her nomination for election to the corresponding office in the Branch or was not a financial member of the Union as at the date of his/her nomination for election to the corresponding office in the Branch.

Rule 39 Change in name and composition of the Audit and Compliance Committee and in particular to include members from Victoria. The proposed rule is as follows:

An Audit and Compliance Committee consisting of the President, four members of Union Council from New South Wales appointed by the Union Council and four members of the Union Council from Victoria appointed by the Union Council shall meet regularly to receive a report and recommendations from the General Secretary in relation to the current state of the Union's finances. Such a report will include details of Union income and expenditure and set and monitor budget targets if necessary. The Committee may refer a matter to the Union's Council.

Consequential changes were sought to other rules.

16 Earlier, on 15 April 2010, the HSU had also applied under s 239 of the IR Act for persons elected in a Branch of a Federal Union to be taken as being validly elected to the corresponding office in the HSU.

17 On 3 June 2010, the Acting Deputy Industrial Registrar refused consent in Matter No R10/0159. In a letter dated 3 June 2010 to the General Secretary of the HSU it was stated:

It would seem incongruous to allow the incorporation of rule provisions that would be inconsistent with the jurisdiction of the Act.

The letter did not otherwise elaborate on the reason for refusing consent.

18 On 3 June 2010, the Acting Deputy Industrial Registrar also refused the application in Matter No R10/0117. In a letter to the General Secretary of the HSU, the Acting Deputy Industrial Registrar stated:

The said section 239, allows for persons elected to offices in a State branch of a Federal organisation to be taken as being validly elected to the corresponding office in a 'State' registered organisation, if the Registrar is satisfied that the membership of both organisations are identical or substantially similar.

In this regard, the HSU East Branch which has resulted from the amalgamation of the Victoria No. 1 Branch, Victoria No. 3 Branch and the New South Wales Branch cannot be regarded as a 'State' Branch of a Federal organisation for the purposes of the said section 239.

Consequently, the membership of the HSU East Branch and the 'State' registered HSU also cannot be regarded as being identical or substantially similar.

Accordingly, I am unable to grant approval for the persons elected to offices in the forthcoming Federal election (E2010/2562) to be regarded as being validly elected to office in the 'State' registered HSU under the Union's rule 18A. (emphasis in original)

19 At a directions hearing on 22 June 2010 the legal representatives of the HSU were made aware of a subsequent letter dated 16 June 2010 from the Acting Deputy Industrial Registrar that elaborated on the decision to refuse consent in Matter No R10/0159. That correspondence noted that it was apparent that the proposed rules were intended to reflect similar rule alterations that were certified on 24 May 2010 by Fair Work Australia to give effect to the creation of a federal branch known as 'HSU East Branch' that was formed by the amalgamation of the Victoria No 1 Branch, Victoria No 3 Branch and the New South Wales Branch.

20 The correspondence stated in relation to proposed Rule 18A:

I formed the view that the HSU East Branch could not be regarded as a 'State' branch of a Federal organisation for the purposes of the said s 239 due to the amalgamation of the Victorian Branches and the New South Wales Branch. ...

21 The correspondence continued:

The HSU is registered and incorporated as a 'State' industrial organisation of employees in accordance with section 217(1) of the Act as distinct from a registered Federal organisation or branch of such an organisation.

In view of section 245 of the Act, it would appear that approval to grant registration of the abovementioned rules would be contrary to the Industrial Relations Act 1996, an Act that only applies within the jurisdiction of New South Wales.

Whilst it is acknowledged that consent could be given for the registration of certain other rules as submitted and/or amended to incorporate references to NSW only, I wish to advise that my refusal to grant the application in this matter was based on my view that intention (sic) of the proposed amendments as a whole were to embody in the HSU's rules, the government and administration provisions of HSU East Branch of the Federal organisation.

THE APPEAL

22 The HSU's amended appeal identified the following grounds:

In R10/0159

1. The Acting Deputy Industrial Registrar erred in law in deciding that the rules alterations would be inconsistent with the jurisdiction of the IR Act.

2. The Acting Deputy Industrial Registrar erred in law in the implied determination that the jurisdiction of the IR Act was limited to an extent which prevented consent to the rules alterations.

3. The Acting Deputy Industrial Registrar erred in law in deciding that giving consent to the rules alterations would be incongruous.

In R10/0117

4. The Acting Deputy Industrial Registrar was in error in determining that:

(a) the 239 application should be refused; and

(b) proposed rules 20(g) and 39 should be rejected

on the grounds that the HSU East Branch of the federally registered Health Services Union was not a State branch of a federally registered organisation within the meaning of Section 239 of the IR Act.

RELEVANT STATUTORY PROVISIONS

23 Chapter 5 of the IR Act deals with industrial organisations. Part 3 deals with registration of organisations. Section 217(1) identifies three types of organisations that may be registered:

(a) an organisation of employees or employers that is formed for the purpose of its incorporation under this Act, other than a federally registered organisation (or a branch of such an organisation) or another organisation which is already incorporated under the Corporations Act 2001 of the Commonwealth, the Associations Incorporations Act 2009 or any other Act (a State organisation),

(b) subject to subsection (2), an organisation of employees or employers that is a federally registered organisation (without branches) or a branch of such an organisation (a federal organisation),

(c) an organisation of employers that is incorporated under the Corporations Act 2001 of the Commonwealth, the Associations Incorporations Act 2009 or any other Act, other than a federally registered organisation (a separate organisation).

24 Section 217(2) provides that a federal organisation of employees is not able to apply for registration unless the application is made with the consent of each registered State organisation of employees whose constitutional coverage extends to all or any of the class of members proposed to be covered by the federal organisation.

25 Section 218(1)(k) and (l) provide criteria for registration in the case of federal organisations. Section 221(1)(c) requires that when the Industrial Registrar grants an application for registration, there must immediately be recorded in the register, details of whether the organisation is a State, federal or separate organisation. Section 222 provides for the incorporation of State (but not federal) organisations on registration.

26 Section 223 provides for the continuation of registration of industrial organisations (i.e., State organisations) that were registered immediately before the introduction of the 1996 Act and provides that such organisations were required to ensure that their rules complied with the requirements of the 1996 Act within two years of its commencement (with the power given to the Industrial Registrar to alter the rules of such an organisation upon failure to comply).

27 Section 224 provides that an industrial organisation (which would include a State or federal organisation) must have an office in New South Wales registered with the Industrial Registrar.

28 Section 226, setting out the grounds on which registration may be cancelled, provides a particular basis on which a federal organisation may be deprived of registration under the State Act.

29 Part 4 of Ch 5 deals with the regulation of State organisations. Sections 233 to 248 provides for the regulation of State organisations (i.e. bodies caught by s 217(1)(a) or formerly registered State unions embraced by s 223). These provisions include s 235, which sets out the general requirements for rules of State organisations and s 237, which requires rules to provide for procedural and administrative matters including, '(q) the registered office of the organisation (which must be within New South Wales)'.

30 Part 4 of Ch 5 also includes s 239(1), which provides that the rules of a State organisation may provide that persons elected to offices in a State branch of a Federal organisation are taken to be validly elected to the corresponding offices in the State organisation, may be registered under the Chapter if the Industrial Registrar is satisfied that (a) the membership of the State branch of the Federal organisation and the State organisation registered under this Chapter is identical or substantially similar, and (b) the rules of the State branch of the Federal organisation relating to the election of the holders of offices comply substantially with the requirements relating to election of the holders of offices under this Act. Section 239 is in the following terms:

239 Rules may provide for elections for offices in State branch of Federal organisation to be elections for purposes of State organisation

(1) The rules of a State organisation registered under this Chapter may provide that persons elected to offices in a State branch of a Federal organisation are taken to be validly elected to the corresponding offices in the State organisation registered under this Chapter if the Industrial Registrar is satisfied that:

(a) the membership of the State branch of the Federal organisation and the State organisation registered under this Chapter is identical or substantially similar, and

(b) the rules of the State branch of the Federal organisation relating to the election of the holders of offices comply substantially with the requirements relating to election of the holders of offices under this Act.

(2) The regulations may specify circumstances in which:

(a) the membership of organisations is or is not substantially similar for the purposes of subsection (1) (a), or

(b) the rules of an organisation comply or do not comply substantially with the relevant provisions for the purposes of subsection (1) (b).

(3) In this section, State branch of a Federal organisation means a State branch of an organisation registered under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth.

31 Clause 26 of the Industrial Relations (General) Regulation 2001 provides as follows:

26 Rules for elections—State and Federal organisations

(1) For the purposes of section 239 (1) (a) of the Act, the membership of a State branch of a Federal organisation and the membership of a State organisation registered under Chapter 5 of the Act is substantially similar if the Industrial Registrar is satisfied that the membership would be substantially similar but for the fact that persons employed in the Australian Capital Territory are members of the State branch of the Federal organisation.

(2) For the purposes of section 239 (1) (b) of the Act, the rules of a State branch of a Federal organisation comply substantially with the requirements relating to election of the holders of offices under the Act if the Industrial Registrar is satisfied that the rules would comply substantially with those rules but for the fact that the rules cover persons employed in the Australian Capital Territory.

32 I do not think it follows from cl 26 that where a State branch of a federal organisation has members in more than one State, or rules that have coverage in more than one State, that the only circumstance where the Registrar may be satisfied that a State branch of a federal organisation and a State organisation are substantially similar, is where the membership or the rules coverage extends only to the Australian Capital Territory. In other words, I do not consider the inference to be drawn from cl 26 is that unless there is a relevant regulation, a State branch of a federal organisation cannot be substantially similar to a State organisation if the State branch has membership or rule coverage extending beyond the limits of one State other than as provided in cl 26.

33 What cl 26 does indicate, is recognition by the legislature that a State branch of a federal organisation may have membership or rule coverage extending beyond one State. Section 239(2) states only that the regulations may specify circumstances in which substantial similarity is to be taken to exist. It is not mandatory that it is only by regulation that a State branch of a federal organisation that has membership or rule coverage extending beyond one State may be taken to be substantially similar to a State organisation. Section 239(2) is merely facultative and not determinative of whether the two bodies are substantially.

34 Section 245 provides:

245 Alteration of rules of State organisation

(1) An alteration of the rules of a State organisation does not take effect unless the Industrial Registrar consents to the alteration.

(2) The Industrial Registrar may consent to an alteration of the rules in whole or part, but must not consent to an alteration unless satisfied that the alteration:

(a) complies with, and is not contrary to, this Act and relevant awards or orders of the Commission made under this Act, and

(b) is not otherwise contrary to law, and

(c) has been made under the rules of the organisation.

(3) The Industrial Registrar must not consent to an alteration of the rules of an industrial organisation of employees relating to eligibility for membership of the organisation if, in relation to persons who would be eligible for membership because of the alteration, there is, in the opinion of the Industrial Registrar, another industrial organisation of employees to which those persons might conveniently belong.

(4) If particulars of an alteration of the rules of a State organisation have been lodged with or recorded by the Industrial Registrar, the Industrial Registrar may, with the consent of the organisation, amend the alteration for the purpose of correcting a typographical, clerical or formal error.

(5) If the Industrial Registrar consents under this section to an alteration, the alteration takes effect on the recording of the change by the Industrial Registrar.

(6) This section does not apply in relation to an alteration of the rules of a State organisation that is:

(a) determined by the Industrial Registrar under section 244 or 247, or

(b) proposed to be made for the purpose of an amalgamation under this Part.

35 Division 4 of Pt 4 deals with membership. Section 260(1) provides:

(1) An employee who is eligible to become a member of a State organisation of employees under the rules of the organisation that relate to the relevant industry in which members are to be employed is entitled:

(a) to be admitted as a member of the organisation, and

(b) to remain a member so long as the employee complies with the rules of the organisation and remains eligible to be a member under those rules.

36 Division 5 of Pt 4 (ss 267 to 271) deals with duties and liabilities of officers. Division 6 (ss 272 to 277) deals with disqualification from office. Division 7 deals with records. Division 8 deals with accounts and audit. Division 9 deals with amalgamation. Division 10 deals with validating provisions.

37 Part 5 deals with the regulation of industrial organisations other than State organisations. Section 291 provides that the Regulations may apply provisions of Pt 4 (regulation of State industrial organisations) to industrial organisations, other than State organisations, or make provision with respect to those organisations, being provisions that relate to the matters dealt with in that Part. Section 292 requires a Federal organisation to lodge the organisation’s rules at the time of registration and immediately after any change to those rules. Section 293 provides for the cancellation of registration of a Federal organisation.

38 As the appellant submitted, the legislative regime maintains a clear and consistent distinction between the regulation of a State organisation and a Federal organisation. Whether that signals an intention to limit eligibility for membership of a State organisation to employees living and working in New South Wales is a question to be considered having regard to the purpose of the legislation and how the relevant provisions are to be interpreted having regard to that purpose.

CONSIDERATION

Rationale underpinning decision to refuse proposed amendments

39 The HSU is a State organisation within the meaning of s 217(1)(a) of the IR Act. What it seeks to have approved are amendments to its Rules the effect of which would be to have an organisation in New South Wales registered as a State organisation with a significant number of members in Victoria who would also be eligible to hold office in the State organisation.

40 The refusal by the Acting Deputy Industrial Registrar to certify the proposed amendments to the HSU’s Rules in matter No R10/0159 is not entirely surprising. The applications before the Registrar were unusual, indeed, entirely novel in the experience of the Commission, and on their face suggested they were not without difficulty.

41 I think the appellant was correct in its conjecture that the basis for the Acting Deputy Industrial Registrar's refusal was s 12 of the Interpretation Act 1987. Section 12(1) provides:

(1) In any Act or instrument:

(a) a reference to an officer, office or statutory body is a reference to such an officer, office or statutory body in and for New South Wales, and

(b) a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of New South Wales.

...

42 Thus, it appears that the reason for the refusal was that the reference to State organisations of employees in the IR Act was to be regarded as organisations of employees 'in and of New South Wales' with the result that the relevant provisions of the IR Act do not countenance the registration of a State organisation of employees that operates beyond the boundaries of New South Wales by the enrolling as members those employees who are not living and working in New South Wales and having officers who do not reside in New South Wales.

43 In other words, as the appellant submitted, the decision of the Acting Deputy Industrial Registrar appears to be to the effect that State organisations of employees cannot lawfully enrol and represent employees living and working outside the State of New South Wales and that rules designed to give effect to this situation cannot be validly certified under the State Act.

44 Section 12 of the Interpretation Act is, of course, not a hard and fast rule. Section 5(2) of that Act provides '[t]his Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned.'

45 Thus, it becomes a question of statutory construction as to what the legislature meant in framing the terms of Ch 5 of the IR Act, in particular s 217. Did the Acting Deputy Industrial Registrar err in refusing to certify the proposed rule changes for the reason that the changes would enable the HSU to enrol and represent employees living and working outside New South Wales?

Principles of statutory interpretation

46 Section 33 of the Interpretation Act provides:

In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

47 As it was stated in AJ Mills & Sons Pty Ltd v Transport Workers' Union of New South Wales [2009] NSWIRComm 135; (2009) 187 IR 56 at [55]- [57] in relation to the rules governing statutory interpretation:

[55] In interpreting a statute the courts must determine what parliament meant by the words it used, not what parliament intended to say: Re Bolton & Others; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410 at 459; Harrison v Melhem [2008] NSWCA 67 per Spigelman CJ at [14] and [16].

[56] The 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 ... one may discern the statute was intended to remedy': CIC Insurance Ltd v Bankstown Football Club Limited [1997] HCA 2; (1997) 187 CLR 384 at 408. See also Project Blue Sky Inc & Others v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]; Zoological Parks Board of New South Wales and Australian Workers' Union, New South Wales [2004] NSWIRComm 85; (2004) 135 IR 56 at [44].

[57] Extrinsic materials may be considered for certain specified purposes in ascertaining the meaning of legislation: see s 34 of the Interpretation Act. However, the content of any extrinsic material cannot be used to simply rewrite the terms of the statutory provision: Newcastle City Council v GIO General Limited [1997] HCA 53; (1997) 191 CLR 85 at 113 per McHugh J. Further, the history of the legislation, whilst not decisive in itself, may shed light on the intention of the legislature: Donald Gifford, Statutory Interpretation, (1990) Law Book Co at 91 and the cases referred to therein.

48 Section 34 of the Interpretation Act relevantly provides:

34 Use of extrinsic material in the interpretation of Acts and statutory rules

(1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:

(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or

(b) to determine the meaning of the provision:

(i) if the provision is ambiguous or obscure, or

(ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.

(2) Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act, or a statutory rule made under the Act, includes:

...

(f) the speech made to a House of Parliament by a Minister or other member of Parliament on the occasion of the moving by that Minister or member of a motion that the Bill for the Act be read a second time in that House,

...

Organisations of employees

49 The objects of the IR Act are set out in s 3:

(a) to provide a framework for the conduct of industrial relations that is fair and just,

(b) to promote efficiency and productivity in the economy of the State,

(c) to promote participation in industrial relations by employees and employers at an enterprise or workplace level,

(d) to encourage participation in industrial relations by representative bodies of employees and employers and to encourage the responsible management and democratic control of those bodies,

(e) to facilitate appropriate regulation of employment through awards, enterprise agreements and other industrial instruments,

(f) to prevent and eliminate discrimination in the workplace and in particular to ensure equal remuneration for men and women doing work of equal or comparable value,

(g) to provide for the resolution of industrial disputes by conciliation and, if necessary, by arbitration in a prompt and fair manner and with a minimum of legal technicality,

(h) to encourage and facilitate co-operative workplace reform and equitable, innovative and productive workplace relations.

50 Section 3(d) makes it clear that a purpose of the IR Act is to 'encourage participation in industrial relations by representative bodies of employees and employers and to encourage the responsible management and democratic control of those bodies'.

51 Section 5 of the IR Act relevantly defines an 'employee' as follows:

(1) General definition

In this Act, employee means:

(a) a person employed in any industry, whether on salary or wages or piece-work rates, or

(b) any person taken to be an employee by subsection (3).

...

52 The term 'industry' is defined in s 7 of the IR Act as follows:

7 Definition of industry

In this Act, industry includes:

(a) any trade, manufacture, business, project or occupation in which persons work, or

(b) a part of an industry or a number of industries.

53 The term 'employer' is defined in the Dictionary to the Act:

employer means a person who employs an employee within the meaning of this Act:

(a) whether the person is an individual, a corporation, an unincorporated body or the State, and

(b) whether the person does so on the person’s own behalf or on behalf of some other person.

54 There is nothing in the definition of 'employee', 'employer' or 'industry' to suggest that eligibility for membership of the representative bodies are to be confined to those employees living and working in New South Wales.

55 In Unions NSW v Carter Holt Harvey Wood Products Australia Pty Ltd [2006] NSWIRComm 2; (2006) 149 IR 361 the Full Bench had occasion to consider whether the IR Act evinced an intention to cover employees in New South Wales whose employment was covered by a federal award. In overturning the decision in Moore v Newcastle City Council; Re Civic Theatre Newcastle (1997) 43 NSWLR 614; (1997) 77 IR 210, the Full Bench stated:

[55] The presumption that the Full Bench in Moore appears to have proceeded upon was that in the context of the use of the word "employee", unless there was an express or implied reference in the Act to its application to Federal awards then it had to be concluded the NSW Act did not evince an intention to cover federal award employees. We do not consider that was the correct approach. We consider the presumption should have been that the legislature intended the Act to apply to all employees in New South Wales, unless the contrary intention was shown. ...

56 I do not consider that the decision in Unions NSW is authority for the proposition that only employees who live and work exclusively in New South Wales are eligible for membership of a State organisation. Unions NSW was not concerned with an 'extraterritoriality' issue; it was not concerned with whether the IR Act applied to employees who lived and worked outside New South Wales, but rather whether it applied to all employees within New South Wales.

57 That brings me to s 217. That provision refers to 'employees' in the context of State organisations (s 217(1)(a)) and federally registered organisations (s 217(1)(b)). I do not think it is arguable that the legislature intended that 'employees', as that term is used in s 217, was to have two separate meanings. That is to say, that the reference to 'employees' in s 217(1)(a) is limited to employees living and working in New South Wales, whereas the reference to 'employees' in s 217(1)(b) is not so limited. An employee who is a member of a federally registered organisation capable of being registered under the IR Act (s 217(1)(b)) may obviously include an employee in a State other than New South Wales or in a Territory. It seems to me that the single meaning to be given to the word 'employees' in s 217 is that prescribed by s 5 of the IR Act. No distinction is made in s 217 or anywhere else in the IR Act between the employees who constitute the membership of a State organisation and employees who constitute the membership of the federal organisation.

58 As I have sought to explain later in this judgment, the passage of the IR Act in 1996 introduced a new scheme for the registration and regulation of industrial organisations. That scheme allows a federal organisation without branches, and having officers resident outside New South Wales and elected by persons outside New South Wales, to be registered under the IR Act. The scheme does provide that the system of regulation of federal organisations registered under the IR Act and State organisations be kept relevantly separate. That is, the legislation contains specific and detailed provisions relating to the incorporation and regulation of State organisations whilst facilitating the registration (and separate regulation) of federal organisations. But once a federal organisation, or a branch thereof, is registered as an organisation under the IR Act, it has the rights of an industrial organisation and can act on behalf of its members in exercising those rights.

Nexus with New South Wales

59 It may be contended that by necessary implication, 'State organisations' are organisations that are State based and, therefore, the only employees eligible to be members of such organisations are those that live and work in New South Wales. Further, that the special provisions to allow federal organisations to be registered under New South Wales law do not carry with them the implication that because a federal organisation has interstate employees as members, so may State organisations.

60 I do not consider that is the correct approach. The pertinent consideration, in my opinion, is whether the State organisation of employees is an organisation that has a 'real and substantial connection' with New South Wales: Chrysler Jeep Automotive Distributors Australia Pty Ltd v Canberra Star Motors Pty Ltd (1998) 79 IR 452 at 461. See also Ex parte Richardson; Re Hildred [1972] 2 NSWLR 423; Tryam Pty Ltd v Grainco Australia Ltd (2003) 142 IR 243.

61 In this respect, Law Society of New South Wales v Glenorcy Pty Ltd [2006] NSWCA 250; (2006) 67 NSWLR 169 is relevant. In that case the Law Society of New South Wales had contended that claims against the Fidelity Fund of New South Wales for the period in which a solicitor (admitted to practise in both New South Wales and Queensland) held a Queensland practising certificate and practised from an office in Coolangatta were not claims within the Legal Profession Act 1987 (NSW). The submission was that the Fund was not liable because the failure to account (ie defalcation) occurred outside New South Wales. Emphasis was placed on the contention that the solicitor's practice was said to be located in Queensland at the relevant time.

62 Section 80 of the Legal Profession Act relevantly provided:

(1) The Fidelity Fund is held, and is to be applied, by the Law Society for the purpose of compensating persons who suffer pecuniary loss because of a failure to account ...

...

(4) If a solicitor has failed to account or made a dishonest default, the Law Society Council may wholly or partly disallow a claim:

(a) if satisfied that the claim does not have sufficient connection with practice as a New South Wales solicitor in Australia (for example, because the claim arises from the receipt or entrustment of money or valuable property that was received by or entrusted to a solicitor outside Australia and the act or omission giving rise to the claim occurred outside Australia) ...

63 The Court of Appeal held that s 80(4) did not require that the legal practice be conducted predominantly in or from New South Wales. Further, that s 80(4) did not require that the defalcation itself occurred in New South Wales; nor was interpretation legislation providing for implied references to a State so to be construed. In this last respect, Mason P (with whom McColl and Basten JJA agreed) referred (at [37]) with approval to O'Connor v Healey (1967) 69 SR (NSW) 111 where Jacobs JA said (at 114):

The submission, therefore, is that the site of the injury must be New South Wales, that the journey must be a New South Wales journey, and that the place of abode on the one hand and the camp or place on the other must all be related to New South Wales. In my view this is too strict an application of s17 of the Interpretation Act, [of 1897]. When there are a number of circumstances which have a local content, such as, in the present case, injury, journey, place of abode and place of work, I do not think that ordinarily it is possible to apply the terms of the Interpretation Act to each and every one of them as a matter of course. It seems to me that the intention of s17 is to provide the natural limit of legislation, so that it applies in its subject matter to those situations which have a nexus with New South Wales. However, it is not every aspect of every sentence or clause of legislation which can be given the local New South Wales connotation.

The equivalent provision of s 17 of the 1897 Interpretation Act is s 12 of the Interpretation Act 1987.

64 In considering the question of whether there is a necessary connection with New South Wales, it is to be borne in mind that the changes made by the 1996 IR Act to the provisions in the 1991 IR Act (the predecessor to the 1996 IR Act) regarding registered organisations meant that it was no longer possible to describe the 1996 IR Act as one concerned only with the registration and administration of traditional State organisations of employers and employees.

65 The Attorney General and Minister for Industrial Relations, the Hon J W Shaw QC, referred to the proposed new laws regarding regulation and registration of industrial organisations in the course of his second reading speech to the Industrial Relations Bill 1995 (Hansard, Legislative Council, 23 November 1995 at 3853-3854):

I now wish to turn to the issue of registration and administration of industrial organisations. The system for registration and regulation of industrial organisations - both unions and employer organisations - has been revamped and improved under this legislation. The laws as they stand presently are considered throughout the industrial relations community in New South Wales to be one of the more unworkable aspects of the 1991 legislation. The concerns expressed about the 1991 legislation have been of a technical and administrative nature - they are raised by practitioners and not ideologues.

This bill addresses these problems and delivers a registration process which is far more accessible, written with greater clarity and, wherever possible, shortened in content. This bill will allow, for the first time, three types of registration of industrial organisations. Organisations of employers or employees formed for the purpose of incorporation under the bill will be called State organisations. Federally registered bodies will be entitled to seek non-corporate registration in the New South Wales industrial relations system. In the case of federally registered organisations of employees, this will be subject to the consent of all counterpart or parallel State organisations. Industrial organisations of employers which are incorporated under other legislation, such as the corporations law, will also be entitled to seek non-corporate registration, subject to meeting the requirements of the legislation.

...

The provisions also enable the regulation of elections and amalgamations in a manner which may be consistent with the provisions of the Federal legislation, thereby ensuring greater comity between the two systems. This comity will be further assisted by allowing the Industrial Registrar to allow the rules of a State organisation to provide that persons elected to offices in a State branch of a Federal organisation are taken to be validly elected to the corresponding offices in the State organisation where the membership of the two organisations is identical or substantially similar. This provision should be interpreted broadly, so as to ensure that organisations are not put to the cost of unnecessary elections just because of minor disparities in coverage.

66 By providing that federal organisations, or branches of federal organisations, may be registered organisations under the IR Act without attracting corporate status, the relevant provisions of the IR Act address the problem of dual registration under both the federal and State systems that arose in Moore v Doyle (1969) 15 FLR 59. Federal organisations or branches of such organisations may gain the benefit of having access to the New South Wales system of industrial relations, but in doing so are not incorporated under the State IR Act and, therefore, the problem of a dual corporate personality is avoided.

67 Importantly, s 239 of the IR Act, as the Minister stated in the second reading speech, also provides for greater comity between the federal and State systems by allowing the Industrial Registrar to allow the rules of a State organisation to provide that persons elected to offices in a State Branch of a Federal organisation are taken to be validly elected to the corresponding offices in the State organisation where, inter alia, the membership of the two organisations is identical or substantially similar. This provision is to be interpreted broadly.

68 It is apparent that the legislature has sought to overcome some of the old rigidities affecting the registration and regulation of industrial organisations in a federation of States by allowing federal organisations and their branches to gain registration in New South Wales and to provide for greater comity between the federal and State systems by recognising that a State organisation and a State branch of a Federal organisation may be substantially similar, indeed, identical. It is clear from the Minister's second reading speech that the intention was to avoid duplication and unnecessary cost. In those circumstances, there seems to be no discernible purpose in these proceedings in construing the IR Act in a narrow fashion by excluding from eligibility for membership of, or office in, a State organisation those employees who may live and work in another State or Territory, where what is sought to be achieved is harmonisation between a branch of the federal organisation and the State organisation, consistent with the provisions of s 239.

69 Of course, there must be a point when a State organisation that has interstate employees as members loses its character as a State organisation. That is to be tested by asking whether the organisation has the necessary nexus with New South Wales. The HSU, with Victorian and ACT members, will have a sufficient connection or nexus with New South Wales. More than two-thirds of its members will be employed in New South Wales, working under awards of the Industrial Relations Commission of New South Wales.

70 Further, the HSU is a State organisation registered under the IR Act; it is subject, at all times, to the provisions of that Act. The provisions of the IR Act in Ch 5 conferring benefits on members (Pt 4, Div 4), and controlling officers (Pt 4, Divs 5 and 6) would apply to interstate members and officers of the HSU on the basis that the sufficient connection is that the HSU is registered under the IR Act. Unlike the position considered in cases such as Moore v Doyle and McQuillan v Bodkin [1960] 59 AR (NSW) 373 the interstate members and officers of the HSU are not sought to be covered as members and officers of a different body outside the jurisdiction.

71 A union with members living and working outside New South Wales cannot obtain an award covering only those members because there would be insufficient connection with New South Wales. Similarly, those members would not have access to unfair dismissal provisions in the IR Act (even without considerations of primacy of federal legislation): Unions NSW. However, in my opinion, this does not mean that the registration provisions of the IR Act cannot extend to the registration of rules relating to persons or officers outside New South Wales where the objective is comity between the State organisation and its federal counterpart.

72 It may be accepted that circumstances could exist where amendments to the rules of a State organisation that extended its coverage to other States would fundamentally change the conditions of eligibility for membership. In Australian Rail, Tram and Bus Industry Union v Australian Federated Union of Locomotive Employees, Qld Union of Employees [2008] AIRCFB 362; (2008) 172 IR 47 ('ARTBIU v AFULE'), the Australian Federated Union of Locomotive Employees, Queensland Union of Employees (the State AFULE) applied for registration under the Workplace Relations Act 1996 (Cth) as a transitionally registered association. As such, pursuant to reg 4.2 of Pt 4 of Ch 6 of the Workplace Relations Regulations 2006 (Cth) it did not have to satisfy one of the criteria for registration set by s 19 of Sch 1 of the Act, namely, that there was no prospect of overlapping coverage with another registered organisation. Because the union met the other criteria for registration set by s 19, its application was successful. The Australian Rail, Tram and Bus Industry Union, which had parallel coverage with the newly registered union, brought an appeal against that grant of registration.

73 In upholding the appeal the Full Bench reasoned that because s 19 of Sch 1 to the Workplace Relations Act required the Australian Industrial Relations Commission to register 'the association', by necessary implication the conditions of eligibility of the applicant association must be the same before and after registration or else the Commission would not be registering the applicant association but some entity other than the association. Accordingly, where through registration under the Workplace Relations Act an association with industrial coverage restricted to one State by operation of that State's legislation would change its conditions of membership, so as to be able to enrol and represent employees outside that State, the registered organisation would become a fundamentally different body from the association which applied for registration.

74 The Full Bench stated at [7]:

It is a central fact in this case that this eligibility rule does not have any geographic limitation. The State AFULE’s right to enrol employees, however, was also governed by the operation of the relevant provisions of the State Act. Under that Act, the State AFULE’s registration was, of course, limited to Queensland and it follows that the operation of its eligibility rule was limited to employees in the State of Queensland. Because this territorial limitation arises from the operation of the State Act, and not from the terms of the eligibility rule, upon the State AFULE’s registration under the WR Act, the conditions of eligibility of the newly created organisation would extend to employees of the relevant kind throughout the Commonwealth.

And at [26]:

... There is nothing more fundamental to the nature of an association than its conditions of eligibility for membership. In this case the applicant association, the State AFULE, was unable (by operation of the State Act) to enrol and represent employees outside Queensland. The eligibility rule of the organisation which the Vice President registered was not so limited. The conditions of eligibility for membership of the registered organisation were fundamentally different to the conditions of eligibility for membership of the applicant association. For this reason the registered organisation was a fundamentally different body to the association which applied for registration.

75 Other than stating it was because of the operation of the Industrial Relations Act 1999 (Qld), it was not explained in the decision why the Full Bench came to the view that the State AFULE’s registration was limited to Queensland and that, therefore, the operation of its eligibility rule was limited to employees in the State of Queensland. There was no discussion about the terms of the State Act. However, senior counsel for the appellant in the present proceedings, who appeared for the appellant in ARTBIU v AFULE, assured me that it was conceded for the respondent that its eligibility rule was limited to employees in the State of Queensland. This explains why there was no further consideration of that central fact.

76 In any event, an examination of the provisions of Ch 12 of the Queensland Act dealing with industrial organisations reveals a different approach to registration and regulation than what exists under the IR Act. There is no counterpart to s 217, for example.

77 In the present proceedings what is sought to be achieved is that the HSU, as a State organisation, becomes substantially similar to the State branch of the federal organisation, namely, the HSU East Branch. There is no attempt by the HSU to extend its coverage in the sense considered in ARTBIU v AFULE. That case may be distinguished.

Other provisions

78 The provisions facilitating the registration of organisations representing employees beyond New South Wales are not the only provisions in the IR Act designed to accommodate a dual system of regulating industrial relations. Parts 9 and 9A of Ch 4 of the IR Act deal with cooperation between State and federal tribunals and cooperation between State industrial tribunals. These provisions, which include provisions designed to allow the New South Wales Commission to exercise functions conferred under the industrial law of another State, suggest that the IR Act should not, in all circumstances, be construed so narrowly as to confine it to industrial affairs within New South Wales. They reinforce the conclusion that the IR Act, as a piece of beneficial legislation, should be interpreted 'so as to effectuate the beneficial purpose which it is intended to serve': see R v Kearney; Ex parte Jurlama [1984] HCA 14; (1984) 158 CLR 426 at 433 per Gibbs CJ. In this case, the beneficial purpose is to achieve harmonisation between the HSU and its federal counterpart, consistent with the provisions of s 239.

Finding in relation to Matter No R10/0159

79 The reason for the Acting Deputy Industrial Registrar's decision in refusing to amend the HSU's rules in accordance with Schedules A to ZB of the application of 1 June 2010 was that to do so would have been contrary to s 245 of the IR Act, in particular, s 245(2)(a) because the IR Act 'only applies within the jurisdiction of New South Wales'.

80 For the reasons given in this decision I find the Acting Deputy Industrial Registrar erred. I propose to quash the decision of the Acting Deputy Industrial Registrar.

State Branch – the decision in Matter No R10/0117

81 In the decision of 3 June 2010, the Acting Deputy Industrial Registrar determined that the HSU East Branch resulting from the amalgamation of the three federal Branches could not be regarded as a 'State Branch of a Federal Organisation' for the purposes of s 239.

82 The letter of 16 June 2010 stated that rule 18A (which provided for the election of persons to offices in the HSU East Branch to be taken to be elected to the corresponding office in the State Union) and the related rule 18B should be removed from the rules because the HSU East Branch could not be regarded as a State Branch. By inference, the certification of proposed rules 18A and 18B was refused for that reason.

83 As the appellant submitted, the letter of 16 June 2010 appears to base the refusal on a determination that the New South Wales Branch no longer exists because of the amalgamation with the Victorian Branches and, therefore, there was no corresponding State branch of a Federal organisation.

84 A State branch of a Federal organisation is defined by s 239(3) as a 'State branch of an organisation registered under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth.'

85 The Federal Union is registered under the Fair Work (Registered Organisations) Act. Rule 48 of the Federal Union's Rules provides that the Union may establish such Branches as the National Council may from time to time decide. Rule 48B(b) provides:

(i) On the merger date the Victoria No. 1 and the Victoria No. 3 Branches of the Union shall amalgamate and merge with the New South Wales Branch. The name of the merged Branch shall be the New South Wales Branch described in these rules and known as the HSU East Branch. On and from the merger date the area embraced by the HSU East Branch shall include the area embraced by the Victoria No. 1 and the Victoria No. 3 Branch.

(ii) On the merger date any person who is then a member, life member, or Associate Member of the Victoria No. 1 Branch and the Victoria No. 3 Branch shall become a member, life member, or Associate Member of the HSU East Branch.

(iii) On the merger date, any period of membership and/or financial membership of the Union in the Victoria No. 1 Branch and the Victoria No. 3 Branch in accordance with the Union’s Rules prior to the merger date shall be deemed to be for all purposes membership and/or financial membership of the Union in the HSU East Branch Any period of unfinancial membership in the Victoria No. 1 Branch and the Victoria No. 3 Branch in accordance with the Union’s Rules prior to the merger date shall be deemed to be for all purposes a period of unfinancial membership in the HSU East Branch. (emphasis added)

86 Rule 38 - National Industrial Proceedings, uses the term 'state branch':

...

(b) In the event that such matters impact upon a state branch, the National Executive or its authorised officers shall be authorised to consult with and seek agreement with the affected branch or branches before such matters are lodged or filed (emphasis added);

...

87 The New South Wales Branch of the Federal Union (as constituted before the recently certified federal rule change) did not lose its status as a State Branch of a Federal Union because it had other branches of the Federal Union merged into it. As the appellant submitted, pursuant to the Rules, it was the New South Wales Branch that was the host, in terms of the merger.

88 The purpose of s 239 is to promote harmony and to avoid duplication and unnecessary expense by allowing the rules of a State organisation to provide that persons elected to offices in a State branch of a Federal organisation are taken to be validly elected to the corresponding offices in the State organisation, subject to the relevant criteria being satisfied. It would be to thwart that purpose if a narrow meaning was applied to the words 'State branch of a Federal organisation'. It would mean, for example, that if a State organisation sought to amend its rules to provide that persons elected to offices in a branch of a Federal organisation were to be taken to be validly elected to the corresponding offices in the State organisation, that application presumably would be refused if the branch of the Federal organisation was regionally based or industry or occupationally based because it would not meet the description of 'State branch'. There are a number of prominent examples of Federal organisations with such branches. See for example: the Australian Workers Union; Australian Municipal, Administrative, Clerical and Services Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; and the Construction, Forestry, Mining and Energy Union.

89 I propose to quash the decision of the Acting Deputy Industrial Registrar in Matter No R10/0117. In normal circumstances that would clear the way for the application to be approved. However, I note Mr Pasfield's evidence that:

Following the certification of the alterations to the Rules of the Federal HSU on 24 May 2010, I am instructed by Mr Michael Williamson, the General Secretary of the HSU East Branch of the Federal HSU that he made application for membership of the State HSU on behalf of all financial members of that Branch not members of the State HSU in accordance with Rule 68(c) of the Rules of the Federal HSU. I am further instructed that the process under Rule 68(c) has yet to be finalised.

90 I note also that on about 17 June 2010 the HSU filed a Name Change Application. That application is not the subject of this appeal, however, given my decision in this appeal there would be no basis for refusing certification of this rule alteration. HSU-East is not the same name as that of an organisation registered under the IR Act and does not have a name that is so similar to such a name as to be likely to cause confusion (see s 218(h)).

ORDERS

91 The Commission makes the following orders:

(1) The appeal is upheld.

(2) The decisions of the Acting Deputy Industrial Registrar of 3 June 2010 in Matter Nos R10/0117 and R10/0159 and the supplementary decision of 16 June 2010 in Matter No R10/0159 are quashed.

(3) The Acting Deputy Industrial Registrar is directed to consent to the rules alterations.

__________________________________________

LAST UPDATED:
30 July 2010