D2006/79, Transcript of Proceedings [2007] AIRCTrans 670 (11 December 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17885-1

VICE PRESIDENT WATSON

D2006/79

s.18(b) RAO Schedule - Application for registration by an ass’n of employees
Application/Notification by Australian Federated Union of Locomotive Employees, Queensland Union of Employees
(D2006/79)

BRISBANE

10.01AM, MONDAY, 26 NOVEMBER 2007

Continued from 9/5/2007

Reserved for Decision

PN146

THE VICE PRESIDENT: Changes in appearances?

PN147

MR R KENZIE: If it please the Commission, in this matter I now appear with my learned friend, MR J NOLAN for the Australian Rail Tram and Bus Industry Union.

PN148

THE VICE PRESIDENT: Ms Keating?

PN149

MS S KEATING: Thank you, your Honour. In terms of appearances we will have a change for the afternoon as discussed with your associate. Mr Herbert of counsel will be joining us later in the day.

PN150

THE VICE PRESIDENT: Yes.

PN151

MS KEATING: In terms of proceedings and how we might progress today, the parties have reached, I think, a consensus position that this morning we - if it's suitable to your Honour, that is - we'll deal with the section 25 application to amend the rules of the union and thereafter break until the afternoon and then proceed with the substantive matter.

PN152

THE VICE PRESIDENT: After the luncheon adjournment?

PN153

MS KEATING: That's correct, your Honour.

PN154

THE VICE PRESIDENT: Any objection to that?

PN155

MR KENZIE: No, your Honour. There have been discussions between the parties. Mr Herbert was practically not available this morning and in the circumstances it's been agreed that that is the appropriate course. We are not of course concerned in the rules aspect of the matter that would be addressed this morning and we accordingly would seek leave to withdraw until the prosecution of the objector's actual case, if that's convenient. I don't think there's a basis for believing it's going to commence before the afternoon session.

PN156

THE VICE PRESIDENT: When is Mr Herbert available?

PN157

MS KEATING: Mr Herbert's matter this morning will be done one way or another by 12 o'clock, so allowing him some time to collect his material and arrive, he can be available any time after that, your Honour.

PN158

THE VICE PRESIDENT: So what about a 1 pm commencement then for the substantive matter?

PN159

MS KEATING: Would 1.30 be acceptable just to give us some time to talk to Mr Herbert when he arrives?

PN160

THE VICE PRESIDENT: Yes, certainly.

PN161

MR KENZIE: That's acceptable, of course, your Honour. Might we have then leave to withdraw until 1.30?

PN162

THE VICE PRESIDENT: Yes, indeed, Mr Kenzie, thank you. Ms Keating?

PN163

MS KEATING: Thank you, your Honour. There's one other matter of housekeeping which I did advise Mr Kenzie that I intended to address this morning and he seems comfortable with that, and that's the status of he four objections other than the RTBU that were received. I understand that you have received some correspondence from the AMWU and the CFMEU indicating their withdrawal from the matter. I have this morning filed a signed deed between the AFULE and the Australian Workers' Union and shortly thereafter I am expecting some correspondence to arrive from the AWU formally withdrawing.

PN164

THE VICE PRESIDENT: Yes.

PN165

MS KEATING: We have also executed a deed with the CEPU. They are in the process of sending the original back so that I can file it and I would expect that some time during the course of the day. We would also receive some correspondence from them formally withdrawing their objection to the application.

PN166

THE VICE PRESIDENT: Yes. I think it might be advisable then to mark that various correspondence as exhibits in the proceedings. I'm just not sure whether we had - I'm sure we did have exhibits from the earlier part of the proceedings, the earlier part before the last decision. In the earlier part of the proceedings I'm sure we had exhibits that were marked.

PN167

MS KEATING: We did certainly hand up some documentation during the first section 25 application.

PN168

THE VICE PRESIDENT: Yes. We'll get around that this way. We will mark the letter from - I have on file a letter from the AFULE to the Registrar dated 26 November regarding deed of settlement between the AFULE and the AMWU. I'll mark that exhibit K5 in the proceedings.

EXHIBIT #K5 LETTER AFULE TO REGISTRAR RE DEED OF SETTLEMENT AFULE AND AMWU DATED 26/11/2007

PN169

THE VICE PRESIDENT: I'll mark the letter from the CFMEU addressed to the Commission from Mr Roberts, the National Legal Officer, his letter dated 22 November 2007, mark that exhibit K6.

EXHIBIT #K6 LETTER CFMEU TO COMMISSION DATED 22/11/2007

PN170

THE VICE PRESIDENT: Are they the only two unions?

PN171

MS KEATING: Your Honour, there was also a letter filed this morning regarding our settlement with the AWU.

PN172

THE VICE PRESIDENT: Yes.

PN173

MS KEATING: It will look very, very similar to the AMWU letter.

PN174

THE VICE PRESIDENT: Yes. I thought that I'd seen one with the AWU and this one is the AMWU. It doesn't seem to have found its way into court at least, unless they're both attached. I do have that. Yes, the letter from the AFULE dated 26 November regarding the settlement with AWU attaching deed of agreement between those two unions will be exhibit K7.

EXHIBIT #K7 LETTER FROM AFULE RE DEED OF AGREEMENT AFULE AND AWU DATED 26/11/2007

PN175

MS KEATING: Thank you, your Honour. I might just give an explanation of how we happened to arrive at the section 25 application, if I may. After we were granted leave in the initial application we completed the internal rule change processes as we are required to do by the Act and then filed those changes in the Registry. They then alerted us to a problem which I admit had escaped our attention at that point and by way of explanation, if I could just take your Honour to schedule 10 of the Workplace Relations Act.

PN176

THE VICE PRESIDENT: Yes.

PN177

MS KEATING: Schedule 10 defines a transitionally registered association as a State registered association that is registered under this schedule. It then defines a State registered association as relevantly here, an organisation for the purposes of chapter 12 to the Industrial Relations Act. If I can then take you to section 3 of the schedule, it provides that the provisions of this Act apply on and after the reform commencement in relation to a transitionally registered association. The catch is the definition of this Act, which is contained in section 3, I believe,
yes - section 5, I'm sorry, to the Act itself and it provides that this Act includes the regulations but does not include schedule 1 or regulations made under that schedule.

PN178

So in terms of a transitionally registered association, unless and until it's granted registration under schedule 1, the provisions don't apply. Which means that a transitionally registered association has no capacity to change its own rules in its capacity as a TRA. The consequence is that any changes for which you grant us leave must first be changed in our governing state, in the State of Queensland. Having been alerted to that issue we approached the Queensland Industrial Registry to seek approval to register those changes and here's the catch. There was no link made between the Federal and the State legislation. So while they were conscious of your decision and aware of it, it doesn't actually give them any power to act under the State Act.

PN179

That's okay. We can make an application there, but what we can't do is make changes that bring us into conflict with the State legislation and unfortunately a number of the changes for which you granted us leave were incompatible with the State Act. So thereafter we embarked upon a process of dealing with the State Registry and the Federal Registry to try and bring the necessary changes into a form that served both masters, if you will.

PN180

Thereafter the Federal Registry also advised us that they could see a number of other areas that they thought our rules were deficient. Rather than have a debate about it we decided that to be sure we would make the second application to make all of the changes that they thought needed to be changed. Obviously you retain the final decision about whether or not in fact we need to make those changes, but I have put into the second application absolutely everything that was of concern to the Registry so that we had covered all bases in that respect.

PN181

What we then is take those back to the Queensland Commission and negotiate back and forth until we had a form of words that were acceptable to both and, as I said, I appreciate that it's still at your discretion about what changes are granted and the form in which those changes are granted. I would ask you to bear in mind the path that has led us to the particular wording, some of which seems a little - I guess a little clumsy in part, but it's a process of that issue between the two pieces of legislation.

PN182

THE VICE PRESIDENT: So you've received indications from both Registrars that the form of words in the applications are acceptable to each of them?

PN183

MS KEATING: That's correct, your Honour. In fact, I have some correspondence which Mr Smith can probably find for us from the State Registry confirming that the changes are acceptable to them. We had brought that along as some evidentiary material with some concerns that Mr Kenzie has raised in relation to the whole rule change section, but we can pull that out and we might exhibit it now if that's suitable to your Honour and that indicates that the State Registry would approve the changes were a formal application to be made.

PN184

THE VICE PRESIDENT: Yes, yes. I can see how that - I can understand the process you've needed to go through.

PN185

MS KEATING: Thank you.

PN186

THE VICE PRESIDENT: The difficulties that were thereby created and it's not necessary now perhaps if it's not convenient, but I think it would assist me. I think simply the indication that you've given, I'm certainly prepared to take on the face value and consider that in the context of the discretion that I have.

PN187

MS KEATING: Thank you, your Honour. I appreciate that. Mr Smith is going to track down that correspondence but we might continue while he does that if that's acceptable.

PN188

THE VICE PRESIDENT: Yes, thank you.

PN189

MS KEATING: Your Honour, as we did last time we've put a fair amount of detail into our submissions and we're at risk of lulling you into a stupor, I think. So what I'll do is I'll try and go through them as quickly as possible. If there is a particular change that you would like some more detailed submissions on, we can certainly do that.

PN190

THE VICE PRESIDENT: Yes. I can indicate that I've read the application and the submissions filed in relation to this application and that given the comprehensive nature of them I don't need you to make full oral submissions in the light of that, but if you wish to speak perhaps more briefly to the written submissions and leave me to consider them further in writing given their comprehensive nature, I'm more than happy with that course.

PN191

MS KEATING: Excellent. We're also more than happy with that choice, your Honour. That being the case, you will see in our submissions that we have replicated the submissions as to jurisdiction that were raised in our initial application.

PN192

THE VICE PRESIDENT: Yes.

PN193

MS KEATING: I've taken the liberty of not providing further copies of the case authorities that we provided in the initial application in the interests of Tasmania's old growth forests, so I hope that that's acceptable to your Honour, that we haven't replicated those.

PN194

THE VICE PRESIDENT: Yes, indeed. I will mark those submissions, Ms Keating, exhibit K8.

EXHIBIT #K8 SUBMISSIONS

PN195

MS KEATING: Thank you. Your Honour, rule change 1 is fairly self explanatory. You will recall we actually made an amendment to our resignation of members' section. The Registry subsequently advised us that the whole of section 174 needs to be included rather than just the active sections. So rule change 1 is about putting in the entirety of section 174 as it applies to the resignation of members into the rules.

PN196

Rule change 2 and 3 is a common theme that you will see recur throughout the submissions. Section 143(1)(a) talks about the rules having to provide for the election of officers by, in our case, it's a direct voting system. What our rules don't do is in fact say that particular officers are elected by and from the members of the union, which probably seems quite self explanatory or self evident, but in fact the rules don't provide for it. So rule change 2 and 3 are about ensuring that it's clear that it is a direct voting system and who has the power to vote for the officers of the union.

PN197

Rule change 4 is one that you will have seen in our initial application and this is about the question of formal errors and how they've arisen in the process of transitioning into the Federal system. The reference to Industrial Relations Act 1999 is a formal error and your Honour made that indication in the initial decision. We had initially tried to put in there the words "Industrial Relations Act 1999 or Workplace Relations Act 1996". That caused our colleagues in the State Industrial Registry some concern which we have attempted to resolve by simply inserting the words "applicable industrial legislation". Be it the Industrial Relations Act, the Workplace Relations Act or whatever, now we might come to in the next few months, the words "applicable industrial legislation" should cover it.

PN198

THE VICE PRESIDENT: Yes.

PN199

MS KEATING: Rule change 5 is a curious one. Section 141(1)(b)(i) talks about the powers and duties of the committees of the organisations and the rules needing to make provision for those. Our rules create this body we call our divisional council, but it makes no provision for when the division or council can exercise its powers and we're of the view that that is an error in the rules in that it doesn't comply with section 141(1)(b). So what we seek to do is to add a new rule, (11)(vi) that will provide for a quorum for the divisional council so that it's clear when the divisional council is able to exercise the powers that are conferred by the rules on to that body.

PN200

THE VICE PRESIDENT: Yes.

PN201

MS KEATING: 6 and 7 are again this common theme about a direct voting system. The offices of President and Vice President again, they don't say who is entitled to elect those officers. So we seek to amend both rule 13 and 14 to insert a sub-rule that provides that both of those officers are elected by and from the members of the organisation. Rule change 8 is another common theme that you will see come up in a number of places. Rule 15(3) talks about, "Where a trustee ceases to be eligible to hold office, a fresh trustee shall be elected to fill the vacancy." The word "shall" is mandatory and so it requires that there be an election.

PN202

However it's inconsistent with rule 25 which deals with the filling of casual vacancies. Rule 25 confers on our divisional council the power to appoint when a certain part of the office has expired. So those two rules are simply incompatible with each other, one mandating that there'll be an election and one attempting to confer power to provide that an election is not necessary in all circumstances. So the way we have tried to resolve that matter is by deleting the words "a fresh trustee shall be elected to fill the vacancy" and simply providing that the vacancy will be filled in accordance with the rules, which would mean if the trustee ceased to be eligible in the early part of their office, then an election would be held, and if they had tipped over into that time period where it could be either election or appointment at the discretion of divisional council, it would proceed down that path and we believe that that will correct the formal error that's arisen from the inconsistency.

PN203

Rule change 9 returns to our first common theme which is the direct voting system question. In this case it's the office of State Secretary that doesn't provide for how that office is elected. So what we're looking to do here is, in rule 16(5) it talks about electing the State Secretary by a ballot of the members. We're seeking to delete those words and replace them with "and from", so that the State Secretary is elected by and from the members of the organisation.

PN204

There's a second concern about the rule providing for our State Secretary which is that it provides that the State Secretary holds office for four years or until his or her successor is elected in accordance with these rules. Now, that qualification could well take the term of the State Secretary beyond four years, which the Act states must not happen under any circumstances. So we simply look to delete the words "or until his or her successor is elected in accordance with these rules". In our first application your Honour granted us leave to make some further changes requiring that an election be completed before the end of the term of office and that officials take up on 1 January in each relevant year. So that while we've removed the ambiguity that it extend across four years, we've also put into place clear processes that will ensure that there is in fact another officer elected so that the union doesn't find itself without an elected official.

PN205

Rule change 10 is a grammatical error and I commend the staff at the Registry on their attention to detail. Rule 16(5) refers to the State Secretaries in the plural. Clearly our rules only provide for one State Secretary at any time. So that is a grammatical error that section 25(1)(c) allows us to seek your leave to correct. So we're looking to simply replace it with the words of the State Secretary to avoid any doubt there.

PN206

THE VICE PRESIDENT: Grammar is included within section 25.

PN207

MS KEATING: It certainly is, it certainly is. 16(5) also contains this ambiguity about filling casual vacancies. It talks about a casual vacancy arising in the office of State Secretary and the divisional council making a temporary appointment pending the election of a State Secretary to fill the vacancy. Again rule 25 attempts to confer on divisional council the capacity to appoint in the latter half of the term. So again they seem inconsistent giving rise to a formal error. What we're looking to do therefore is again just delete those words pending the election of a State Secretary to fill the vacancy and replacing them with the words "until the vacancy is filled in accordance with these rules" which will then pick up the provisions of rule 25.

PN208

Rule change 11 is one that you saw last time, your Honour. This was the formal error that exists in rule 17(10) when it talks about the State Secretary being the person responsible for notifying the QIRC of disputes. That's a formal error in that once the union became transitionally registered, the body was clearly no longer the QIRC for Federal matters. It was the AIRC. Last time we were before you we sought to amend it by inserting the words "or Australian Industrial Relations Commission". Again that caused some concern to our colleagues here in Queensland.

PN209

So we're looking for further leave to amend that rule, to simply delete the words "Queensland Industrial Relations" which would then provide that "the State Secretary shall be the person responsible for notifying the Commission of a dispute" and by the ordinary standards of interpretation, being in the Federal or the State jurisdiction, those words be read so as to be a reference to the relevant body.

PN210

THE VICE PRESIDENT: Whatever it may be termed.

PN211

MS KEATING: Sorry?

PN212

THE VICE PRESIDENT: Whatever it may be termed.

PN213

MS KEATING: That's right. Hopefully "Commission" covers it all or we'll be back for another set of amendments quite shortly.

PN214

THE VICE PRESIDENT: Yes.

PN215

MS KEATING: We'll be very happy to put in a good word for you, your Honour, if you're looking for a gig with Fair Work Australia. Proposal to change 12 is a curious one again. The rules established a quorum for what we call our branch committees. However, the rules don't appear to establish the bodies that are our branch committees. Again, it probably seems self evident that if they have all these powers and do all these things, they exist. But technically speaking the rules don't actually provide for their creation which we believe is a formal error.

PN216

We're looking to do that by substantially rewording the provisions of rule 18, not 81, so that it's clear that we will first formally establish those committees and then define the composition of the committees. At the moment that rule simply defines the composition of the committees without first creating them. So we think that by bifurcating that rule and making the two things distinct and clear that will clear up the formal error that exists there.

PN217

THE VICE PRESIDENT: Yes.

PN218

MS KEATING: Rule changes 13 and 14 are fairly straightforward. Section 141(1)(b)(ii) provides that:

PN219

The rules of organisations must provide for how meetings of members and committees are summonsed.

PN220

Our rules don't do that explicitly so we're simply looking to amend rules 13 and 14 to set out how specifically the meetings of the members of the union and the branch committees of the union are called and that's necessary to bring us in to line with 141(1)(b)(ii).

PN221

Proposed rule 15 is again a small formal error - rule 22, I'm sorry. It refers to holding a ballot for a position for which a potential returning officer is a candidate. We hold elections for those positions which are conducted by way of ballot rather than holding ballots which are conducted by way of elections. So we simply look to delete the word "ballot" and replace it with the word "election" which should correct that error.

PN222

Proposed rule change 16 looks at rule 22 which is about returning officers. We provide for a person called a returning officer who can be used for any purpose other than the election of office bearers. Our ballots rule, which is rule 24, then goes on to talk in a lot of detail about how ballots are held and what a person called "the Manager of the election" does. However there's nothing in the rules that talks about the manager of an election is appointed. So we're looking to amend rule 22. I just would like to check this, sorry. I'm sorry, we are looking to insert a new sub-rule 22(5). That's a typographical error there. That deals with the appointment of a returning officer which we call the manager of the election to deal with the election of office bearers and we say that that will correct the formal error that exists by there being no power to in fact appoint what is quite an important person in terms of the conduct of elections.

PN223

Your Honour, rule change 17 is again a common theme. It talks about the provisions of the Industrial Relations Act 1999. Last time we were before you we had sought to insert the words "or Workplace Relations Act 1996". Again, that caused some concern with our Queensland colleagues, so we've settled on deleting "Industrial Relations Act 1999" and replacing it with "applicable industrial legislation". That should cover it.

PN224

THE VICE PRESIDENT: Yes.

PN225

MS KEATING: Rule change 18 is again a grammatical error. Rule 23(2) talks about "selecting" officers of the union. In fact those officers are "elected" rather than "selected". So we're looking to delete the word "selection" wherever it appears in rule 23(2) and replacing it with the word "election" to make it clear that it is in fact an election process that determines who those officers are.

PN226

THE VICE PRESIDENT: Yes. I don't requite you to address me on the grammatical changes or matters of the same nature appear in the rules - - -

PN227

MS KEATING: Been over it already, okay.

PN228

THE VICE PRESIDENT: So any others that are not in that category, perhaps you could touch on briefly.

PN229

MS KEATING: Your Honour, changes 19, 20 and 24 are all dealing with grammatical errors.

PN230

THE VICE PRESIDENT: Yes.

PN231

MS KEATING: 25 is a substantive change. 143(3) requires that the role of voters be closed 30 days before the day on which nominations open. Our rules simply don't provide that, so we're simply looking to insert a new rule in the terms as they appear in the Act to ensure that that provision is there. Rule changes 26, 27, 28 and onwards all deal with this question of a declaration ballot and a declaration envelope. Regulation 5 of the Workplace Relations registration and accountability of organisations regulations specifies in some detail what is required of the particular envelopes in which ballot papers are returned.

PN232

Our rules currently provide for a very different type of envelope. So all of these changes that you see there are about moving our rules from the type of envelope that we used to use to the specific type of envelope that's mandated under the regulations. So all of those that you see there are simply consequential amendments that are required to give effect to that. Small change, but in fact it has a fairly substantial effect on the rules themselves.

PN233

THE VICE PRESIDENT: Especially if it's stretching the envelope.

PN234

MS KEATING: That's right. I'll progress then to proposed change 46. This deals with the mechanism by which our rules are amended. It was the view of the Registry that the requirement that the rules be laid before the branches was vague and ambiguous and therefore could potentially have offended section 142(1)(c) which requires that rules not be oppressive or unreasonable. To try and resolve that and remove the ambiguity we're seeking leave to insert a clear and more detailed process for a meaning of the rules which provides that members of the council as well as members of the union have access to the changes at least one month before, which should clear up any ambiguity in the rule.

PN235

Section 47 deals with our mortality benefit which harks back to the days when our members were confined to employment by Queensland Rail. It actually provides that only persons who are employees of the Chief Executive of the Queensland Rail are entitled to the benefit of the Mortality Fund. Those of our members who are not employed by the Chief Executive of Queensland Rail would probably take issue with that were they to discover that particular rule. Certainly it's oppressive and unreasonable in our view, your Honour. So we're looking to amend that rule to make it clear that the eligibility for the mortality benefit is for all financial members of the union.

PN236

Again 48 deals with the mortality benefits. At the moment our rules allow the divisional council to determine how it is to be paid. Again there's a concern that that could be oppressive or unjust were the divisional councils to misuse that particular power. So we're looking to amend that, to remove the power of the divisional council to determine how the members' mortality benefit is paid and to provide the member with the power to direct the benefit at their discretion.

PN237

49 again is the mortality benefit. It's this issue about employees of Queensland Rail who are compulsorily retired at 65. We have members who are not compulsorily retired at 65. Because the mortality benefit cannot be paid once you're over the age of 65, it does discriminate against those members who are with other rail companies and can continue to work past that date. It also discriminates against officers of the union who are no longer employed by Queensland Rail who may continue to work beyond 65, although Mr Smith assures me that he will not be in that category.

PN238

Rule change 50, there was a concern that the rule which deals with disciplining members of the union failed to specify reasons for which a member can be disciplined and that it might be therefore oppressive and fall foul of section 142(1)(c). We've just sought to amend it to make it clear that the matter for which we will discipline a member is for acting in opposition to the objects of the union and removing the remainder of that section as it deals with the principles and interests of unionism, making it fairly clear that it's simply the objects of the union which members must comply with, and again, there's a small grammatical error there that I won't go into.

PN239

I'll skip to rule change 52, your Honour, which is the next substantive one. There was a concern that the provision dealing with control of the union by members of the union could have been oppressive or unjust because it requires a motion for 20 branches of 33 before there can be a referenda on a question, simply to be sure and to clear that up, we have attempted to reduce that number to 10, which is less than one-third of the branches of the union, who can, should they all pass a motion, call for a referendum on a particular question and hopefully that will remove any doubt as to whether or not it falls foul of that section.

PN240

Rule change 53 again is simply a grammatical question, and rule change 54 is simply a matter of ambiguity. Rule change 55 is again the common theme we've dealt with already. I'll go then to rule change 56 which deals with the disillusion of the union. It talks about a two-thirds majority being required before the union can be dissolved, but what's not clear is what is it a two-thirds of? Is it a two-thirds majority of the entire membership of the union, or merely two-thirds of those who turn out in a ballot? We've sought to clear that u p by specifying that it is a two-thirds majority of all financial members of the union and therefore removing that ambiguity.

PN241

Your Honour, that's the full list of amendments. Unless there's anything that you particularly require me to go into more detail on, that's probably all we need to say.

PN242

THE VICE PRESIDENT: Yes, thank you, Ms Keating, thank you for those submissions.

PN243

MS KEATING: We have located the letter from the Industrial Registry of the Queensland Industrial Relations Commission confirming that, "Should an application be lodged in the Registry to amend our organisations rules in accordance with the attached schedule," which is the document we've just been looking at, "then pursuant to the Industrial Relations Act the Registrar will approve the proposed amendments." So I might tender that, if I could, your Honour.

PN244

THE VICE PRESIDENT: Yes, certainly. I'll mark that letter from the Queensland Industrial Registry exhibit K9.

EXHIBIT #K9 LETTER FROM QUEENSLAND INDUSTRIAL REGISTRY

PN245

THE VICE PRESIDENT: Thank you for those submissions, Ms Keating.

PN246

MS KEATING: Thank you, your Honour.

PN247

THE VICE PRESIDENT: I can indicate that I will grant leave to amend the rules in the terms of the application. I'm satisfied that the rule changes are for reasons described in section 25 of schedule 1 and I consider that it is desirable to allow the Association to amend its rules for those purposes. I therefore grant leave in the terms of the application.

PN248

MS KEATING: Thank you, your Honour.

PN249

THE VICE PRESIDENT: Unless there's anything further we can deal with this morning, we will now adjourn until 1.30.

PN250

MS KEATING: Thank you.

<SHORT ADJOURNMENT [10.41AM]
<RESUMED [1.30PM]

PN251

THE VICE PRESIDENT: Mr Herbert?

PN252

MR HERBERT: Yes, thank you, your Honour. I seek leave to appear as counsel on behalf of the applicant in this matter, the Australian Federated Union of Locomotive Employees, Queensland.

PN253

THE VICE PRESIDENT: Leave is granted, Mr Herbert.

PN254

MR HERBERT: Thank you, your Honour.

PN255

THE VICE PRESIDENT: The other appearances I think we already have?

PN256

MR KENZIE: Thank you, your Honour, yes. Your Honour, I think the ball is probably in our court at this stage of the proceedings, at least that's the basis upon which we've been working. There were no arguments about it at the bar table in any event, your Honour. Your Honour, just as a matter of housekeeping, the parties have obviously had the opportunity to reduce the essence of their respective cases in writing in terms of the outlines and affidavits have been filed on both sides. There have been discussions as between the parties and it is the position of the parties that it will not be necessary for either party to cross-examine on the affidavits.

PN257

THE VICE PRESIDENT: That will shorten the proceedings.

PN258

MR KENZIE: And, your Honour, further, with a view to further shortening the proceedings, the submissions that we would be advancing today will obviously need to take account of Mr Herbert's response to the objector's submissions and we have in fact reduced our response to that and the matters that I want to go to today to an additional brief reply and could I make a copy of that available to the Commission together with a legislative bundle, our list of authorities and a bundle of relevant pieces of legislation to which I would be referring.

PN259

THE VICE PRESIDENT: Thank you, Mr Kenzie.

EXHIBIT #N2 RTBU OUTLINE OF SUBMISSIONS DATED 2/11/2007

PN260

THE VICE PRESIDENT: I assume you tender the affidavit of Mr Thomas?

PN261

MR KENZIE: The affidavit of Mr Thomas and the affidavit of Mr Wright.

EXHIBIT #N3 AFFIDAVIT OF MR THOMAS
EXHIBIT #N4 AFFIDAVIT OF MR WRIGHT
EXHIBIT #N5 RTBU REPLY TO APPLICANT SUBMISSIONS
EXHIBIT #N6 VARIOUS EXTRACTS AND MATERIAL BUNDLE OF DOCUMENTS

PN262

MR KENZIE: Thank you, your Honour. And I would primarily be using as a point of reference exhibits, both sets of submissions, the outline of submissions and the submissions in reply, exhibits N2 and N5. Your Honour, the objector's submissions relating to the registration matter, we have nothing to say about the rule amendments which have been separately dealt with, include the three general propositions deals with in paragraph 1 of exhibit N2 and I can tell your Honour that in terms of focus the principle focus of our submission today is going to being relation to (a), we will have something to say about (b), but we have proffered written submissions in relation to the structure of regulation 4.3 in our written submissions and, as I've said, in terms of what I propose to say about the focus is going to be in relation to (a), (c) is the - your Honour, subject to anything the Commission itself has, as we understand it, the Commission would not be troubled with, for this reason.

PN263

That although paragraph (c) has underpinnings that take one back to fundamental questions of legal existence and the like, at the end of the day our submission lead to the contention that as part of the process that's before your Honour it will be necessary, because of the unusual nature of the TRA, for Mr Herbert's client to go back to the State Registry as well and for reasons that are addressed in that part of the submission. It is apparent to us that there is no difference between the parties in relation to that because Mr Herbert's submissions proceed on the same basis and it's only a matter of time. So, your Honour, as far as we can see it, you won't be troubled by dispute as between the parties in relation to the matters in (c).

PN264

THE VICE PRESIDENT: So long as the timing is in accordance with what the parties accept is a requirement.

PN265

THE VICE PRESIDENT: Yes, that's so, and essentially that would involve, because of the requirements of paragraphs 26 through 28 of schedule 1, the notion that what has to come up is an organisation whose rules are being changed and there can't be a disconformity. Issues of timing might be relevant there, but the essence of our submission is that the Federal Commission could not proceed to deal with something in a manner that was inconsistent with the State, not for section 109 reasons, but because the Federal legislation itself contemplates that the body will be - that presents itself to you, will be a body that is an ongoing body within the State system because such a body may never get TRA status or may never get Federal registered status, and if nothing else happens in the three year period, it will simply go on being a State association. That seems to be accepted and one can understand why.

PN266

So there are only issues of timing and we haven't put any submissions on about timing as such, your Honour. So could I then go to the focus of our submissions with that background. The relevant - your Honour will obviously be familiar with the essential statutory provisions. Essentially from the Workplace Relations Act, one is dealing with the provisions within schedule 10 which are dealt with in our original written outline, N2, paragraphs 2 to 5, and schedule 1, which is dealt with generally in our written outline, paragraphs 17 to 18.

PN267

Could I just say some things briefly about those legislative provisions. Firstly in relation to schedule 10 and our written outline, N2, paragraphs 2 to 5, as we point out in our submission, and we apprehend that in terms of the issues of legal construct there is not dispute about very many of these matters. One has, in schedule 10, the provisions in relation to the achievement of a transitional registration. Sections 2 and following, in section 2 the notion that a State registered association may apply and 2 subsection (3), "That upon the Registrar being satisfied of subclause (1) matters" - which are basic - "the Registrar must, by written instrument, grant the application and record the fact that he or she is so satisfied, and then achievement as a transitional registration follows."

PN268

The point that we make in our submissions, and I don't think, and indeed, from submissions that Mr Herbert and I have made in other proceedings familiar to your Honour, I don't think there's a difference between us, the point that is made in relation to those matters is that which is registered as a TRA is in fact the State registered association. So that in McJannet's case, the High Court dealt with a range of Federal Court and earlier authority on the Moore v Doyle controversy by saying that there had been much misunderstanding about the consequence of multiple registration and the notion that if a branch of an organisation was registered in the State, the much older learning to the effect that a section 109 inconsistency arose, cases like Bailey v Krantz and many other cases.

PN269

And in McJannet, which is referred to in our submission, the High Court said that those cases, many of them, with the exception, I think, of Sharp v Goodhew, a decision of Pinkus J, were based on a misunderstanding that there were in fact two separate things, that in fact occasions when a so called branch was registered at the State level was no more than a representation of the fact that people representing a branch registered at that level, so that you didn't in fact have two separate personalities. There were simply two organisations created in different legislative regimes. One, the Federal organisation and one, an organisation created by people separate from the organisation.

PN270

We've given you the reference to the pages in McJannet where the High Court made that point and I wasn't going to open that if your Honour wasn't troubled. The only point going to that is to make good the proposition and to start with the proposition that what we are talking about here, as a transitional association, is in fact contra the situation that the High Court was talking about in McJannet, a situation in which the effect of the Workplace Relations amendment was actually to the contrary to pick up the very going organisations and absorb them into, in a relevant way, the Federal arena.

PN271

So it is in fact the bodies. State registered association is defined in schedule 10 and there's no doubt that the definition of State registered association is in fact the body registered under the State Act, including the Queensland Act. It's not people who then say, "We'd like to register a TRA." This statutory notion is the Federal Act picking up the bodies for incorporation themselves. What flows from that is that there needs to be provisions that indicate what the effect of the registration will be and the effect of cancellation of that registration.

PN272

The effect of clause 3(a) and 3(b) provide, that upon registration the consequences of registration of a TRA and state that it will be treated as a person, it doesn't constitute it and give it perpetual succession and common seal and treat it in a way that is done to an organisation finally registered under section 27 of schedule 1. And finally, insofar as this aspect of the submission is concerned, one has section 5, cancellation of transitional registration and the provisions for cancellation during the three year period include section 55, a ground of cancellation by the Commission includes the ground that the transitionally registered association, 5(b)(ii), is no longer a State registered association.

PN273

So that it is a requirement for existence as a TRA that you are and remain a State registered association. The whole notion is that at the end of the three year period, if you're not absorbed, then it's not intended to discontinue your capacity to operate as a State registered association. State registered associations may, in fact, and often do continue to represent employees of non constitutional corporation employers, Crown employees and the like.

PN274

So those are the relevant aspects of schedule 10. Relevant aspects of schedule 1, we've provided the relevant pages in our extract in 6, include, apart from the objects in 5(2) which identifies Parliament's intention in enacting schedule 1 as a , whole, including ensuring the maintenance of standards set out in the schedule, including the facilitation of the registration of a diverse range of employer and employee organisations. Section 18B relevantly provides - identifies those associations that can obtain registration under - that is, final registration - as including an association of employees being a constitutional corporation or having Federal system employees, 18B.

PN275

Now, we see from some of Mr Herbert's written submissions that there are some general assertions by reference to section 4(1) that schedule 1 doesn't apply to transitionally registered associations. We're not quite sure why that submission is made or what my friend seeks to do with it, but we do note that there doesn't seem to be any doubt that the present application that is made by the applicant is in fact made under - it's made and headed, I think, regulation 21 of the regulations, which refer to section 18 and we don't think there's any doubt that our friend, notwithstanding making submissions about the inapplicability of schedule 1, is in fact proceeding and, we think, properly on the basis that this application is an application by the AFULEQ as a transitional association and as an association of employees answering the description of 18B.

PN276

If that is wrong, then we could be corrected, but that seems to be the basis upon which it's been brought forward. 18B takes one to 19 including the provisions which are affected by section 138A to which I'll come, and the regulations, 19 in its raw form, that is, in its complete form, obviously includes those provisions in subsection (1)(j), the latter day form of the conveniently belong provisions and again, subject to correction, your Honour, our understanding of section 19 is that it follows relevantly the form that was reflected in old section 204 of the Act, the conveniently belong provisions, except that in (j)(1) the word "could" finds its way in to the legislation instead of "might". So it's been strengthened, but otherwise the thinking is still there.

PN277

So it's still in the Act although affected, in the case of a TRA, at the stage of obtaining initial registration. Then at 25, 26 and 27, 25 contains the reference
to - 25(1) contains the reference to its rules which is significant when you come to the third argument as to what has to actually happen before final registration which we've said your Honour won't be concerned with here, the arguments you won't be concerned with here. 26(1) provides that when the Commission grants an application for registration as an organisation the Registrar must immediately enter in the Register such particulars and 27 obviously is the familiar provision that underpins separate and complete registration and the reasoning that's flowed at least from the time of Williams v Hersey.

PN278

133, although the section 118A provisions have been affected in a very real respect by requirements that must be met before any demarcation order can be made, the provisions in relation to demarcation are still in the schedule. Section 133 provides for demarcation proceedings. 138A is the provision enabling regulations being made to modify the way in which the chapter applies in relation to an organisation that before becoming registered was a State registered association and that section has been availed of in the Workplace Relations Registration and Accountability of Organisations Regulations. Those are regulations 114A to C and the like which I know your Honour is familiar with from other proceedings.

PN279

Section 141 provides that the rules of an organisation must specify the purposes for which the organisation is formed and the conditions of eligibility for membership and then section 158 provides, in subsection (1), that:

PN280

A change in the name of an organisation or an alteration of the eligibility rules of an organisation does not take effect unless the Commission consents to the change or alteration.

PN281

And then subsection (3) deals with name change, and then subsection (4) provides that:

PN282

The Commission must not consent to an alteration of the eligibility rules of an organisation if in relation to persons who would be eligible for membership because of the alteration, there is, in the opinion of the Commission, another organisation (a) to which those persons could more conveniently belong -

PN283

this is the 204 language -

PN284

and (b) that would more effectively represent those members.

PN285

And your Honour I know will be familiar with the authorities that in a post 1996 context dealt with section 204 and the way in which those provisions are to be utilised, including the fact that the language inexorably directs the attention of the Commission to the need to identify that class who would be eligible for membership because of the alteration.

PN286

Those authorities include the NTEU case which, in exhibit N6, your Honour, it's not on our list of authorities, but the case that I'm talking about, if one turns in N6 to section 158, at the page that is numbered 23, 4, 5, 8 at the bottom of the - I'm sorry, 23, 4, 5, 6, at the bottom of the page, the NTEU case is referred to at point 5 on that page. There were about two or three significant decisions of the Commission's lengthy proceedings involving section 204 and a variety of decisions in that case plus the case between the AWU and the CFMEU in which the Commission identified the need to identify the class that you were talking about because that is the class that is going to be affected, to which you have to apply the rules and the principles in section 158 and I'll come back to that in a while because, in our submission, these provisions bear directly on the debate to come in relation to the first part of the proceeding, and provide a necessary part of the fabric of the legislation which has to be addressed in determining what are intended and unintended consequences and I will return to that quite shortly.

PN287

The relevant regulatory provisions, your Honour, again I don't think that you need to open them for present purposes, but we have itemised regulation 21(1) which is the - that's regulation 21(1) of the Workplace Relations Registration and Accountability of Organisations Regulations 2003. That is the regulation that provides for an application by an association under section 18 of the RAO schedule and is the regulation which underpins the present application. Regulation 29, prescribing for the purposes of subsection 26(1) of the RAO schedule that the eligibility rules of the Association are a particular for the purposes of section 26(1) and regulations 114(a) to (c) which I've mentioned already.

PN288

Those are regulations which deal with a variety of different circumstances covering circumstances in which an association was a TRA or wasn't a TRA before achieving registration and they are provisions which contain the requirement that an order that is to be made in respect of an organisation that was a former State organisation must be the same in substance as any earlier demarcation order and you will find that in the case of 114A, B and C in subsections 3(b) in each - or sub-regulation 3(b) in each case.

PN289

The only other aspect of the legislation that we've given you, your Honour, I think is a reference to the relevant Acts Interpretation Act provisions which underpin the submissions. In paragraphs 17 and following of exhibit N2, your Honour, we have referred to the nature of the applicant and its constitutional coverage that its conditions of eligibility granted pursuant to the State Act, so that for reasons that we've already gone to we are talking about the State registered association here basely, and the applicant, as such a State association, has constitutional coverage that we submit could not be doubted as being coverage that is confined to the State of Queensland for reasons that we have advanced.

PN290

Now, we do not see any sign in our friend's submissions that that proposition is gainsaid. It is not said, for example by Mr Herbert, that that fundamental proposition is incorrect and that the State registered association had wider coverage. Neither do we discern that it is said by Mr Herbert that that position is changed by virtue of the fact that the applicant has already obtained registration as a transitionally registered association, that registration was achieved on 7 April 2006, but it is not put against us, as we apprehend it, that something happened at the time of the obtaining of registration as a TRA which impacted on the constitutional capacity of the applicant to enrol people outside Queensland because it was a body known to Federal law as well as State law at that time.

PN291

Paragraphs 17 and following of our original submissions, N2, deal with the consequences of Federal registration, including the consequence that as opposed to the position in relation to a TRA registration is designed to create a new body with the attributes described in section 27 of schedule 1, so that precisely what that would do in relation to the activities or role of a former TRA under the State legislation is not stated and is an issue which, subject to correction, we don't think requires to be addressed here, but whatever is true about the consequence of achievement of final Federal registration, whether that impacts on your capacity to continue to operate the State or whether it doesn't, the one thing that is now clear is that the registration creates a new body and is affected by section 27 of schedule 1 of the RAO schedule and the constitutional coverage, that is the conditions of eligibility of the State union of the AFULEQ, which are not in dispute and are set out in the submissions, are of course the conditions of eligibility that are proffered for registration or the conditions of eligibility of the body that is sought to be registered under the Federal Act.

PN292

The next thing that we submit, and again we haven't discerned any suggestion to the contrary, in paragraphs 19 to 22 of our submission, is that the new body, the body which, if registered, would be a Federal organisation, will be a body that is entitled to represent the interests of the defined employees in circumstances where the conditions of eligibility are not geographically confined, would be an organisation capable of enrolling persons described by the conditions of eligibility throughout Australia.

PN293

Now, your Honour, there is no - and the reason we put that is because what is being sought here is the creation of a new body with entitlements under schedule 1 and in accordance with section 27 and any aid to construction of the legislation sustaining that body would be informed by the Acts Interpretation Act, the Federal Acts Interpretation Act, and would certainly not be governed by the Queensland Acts Interpretation Act, and it is difficult to conceive of an argument that would suggest that where the conditions of eligibility were expressed in general terms and granted pursuant to Federal legislation and where those entitlements were given in conditions of eligibility, that some implication would be read into those conditions of eligibility by reference to history, it is possible to conceive of an argument.

PN294

But the better view would be that there are difficulties in implications in union rules and in the event, and there doesn't appear to be any, in truth, reason to doubt that if this organisation is registered Federally it will have and will seek to exercise the right to represent persons described by its un-geographically confined eligibility rule anywhere in Australia.

PN295

My friend's submissions, again at this level, are not submissions to the effect that this is wrong, that there is in fact an implication that would exist as a matter of history. The submissions that are mounted against us, your Honour, are submissions about unintended consequences. In other words, what is put against us is not, "Look, you're quite wrong, those aren't the consequences because in truth what is registered would be the same, and the same in ambit." What is put against us is, "No, that's not the case, but you can't proceed on the basis that the consequences are unintended." That's what's mounted against us. And so our friends seek to defend a position, as we understand it, in which they say we were registered under the State Act and are registered under the State Act now.

PN296

If our application is successful here we will be registered under the Federal Act. Our rules will not be capable of being read by reference to an implication of a geographical basis, so tomorrow, the day after registration, we will be able to enrol locomotive drivers throughout Australia. The position would be different, the position would be different if it happened to be the case, your Honour, that the conditions of eligibility of the State union, the applicant, themselves were confined to Queensland. If the rules of the State union provided that all Queensland locomotive drivers were eligible, or all locomotive drivers throughout the State of Queensland were eligible for membership we wouldn't be having this debate, and the reason we wouldn't be having this debate is because there wouldn't be any suggestion that there would be - that registration as a Federal union of this body would have the unintended consequence of turning it into something that it wasn't at the point of presenting itself for registration, and at the point of subjecting itself to analysis for the purposes of section 19, we wouldn't be having this debate, and the reason we wouldn't be having this debate is because the State union in those circumstances, and indeed, any State union that was a TRA, would go through the registration process and if successful, would achieve Federal registration in a way that mirrored its actual conditions of eligibility.

PN297

And, your Honour, if it wanted then to change its conditions of eligibility from the stage they were in when it was a State union, what would it have to do? It would have to make application under section 158 of schedule 1. It would then meet in that context the conveniently belong objection relevant under section 158. At that point the process of moving from your State historical coverage to a wider coverage would be addressed and the Act tells you in terms why that is so and how that is so. At that point of time you would be in the arena of not simply going, transferring to the Federal system, but seeking to go into the Federal system, but to extend beyond your historical coverage.

PN298

Now, the difference between us, as our friend says, well, as we understand it, no. Notwithstanding the fact that there is agreement, that registration will have in itself the result that is asserted, namely a result which will dramatically increase the coverage of the organisation in one fell swoop. It is asserted that that can be achieve notwithstanding the fact that if it was accepted that the conditions of eligibility at the time of registration were confined to Queensland, the applicant would have to go through that process, but our friend says, with one bound, Jack is free, and without an examination of the difference between its conditions of eligibility at the time of State registration and Nirvana, which is achieved on registration, there is no capacity at that stage for intervention or examination and that is the point of difference between us and that is the basis of our submissions as to unintended consequence.

PN299

Now, in our respectful submission the consequence advanced by the applicant, namely that you go in the door as a State registered union and because you don't have Queensland in your conditions of eligibility you come out the other side as a fully fledged Federal organisation with general coverage, is a consequence that must be taken to have been unintended if it's there. The notion that every small State union upon registration has that transformation upon certification of its registration, unless it has some words of confinement in its conditions of eligibility, requires defending in circumstances where there's not a breath of a suggestion anywhere in the Act that any of these consequences are intended.

PN300

There's not any suggestion anywhere that anything other than the transformation of State organisations into the Federal system was to be facilitated in circumstances where their rights were to be maintained. The explanatory memorandum, which is referred to and, indeed, helpfully set out in paragraph 24 of our friend's submissions in reply, make that clear. This was not an exercise designed to enhance coverage in itself. It was an exercise, and the statutory provisions are designed to facilitate the transformation into the Federal system.

PN301

So our submission, which is dealt with in more expansive forms in exhibit N2 is that the legislation cannot be construed on a basis that permits and, indeed, requires registration of a body which will give rise to these consequences despite the mandatory looking language of section 19 of the Act. And it is in those circumstances that we've provided the references to the authorities in our submissions in N2.

PN302

The applicant has responded to our submissions in its submissions by basically asserting two things. It firstly asserts that it cannot be assumed that such a result was unintended. It draws issue with us and says that you just can't - that ours is only a set of submissions based on the result we'd like to have and not supported by anything that allows you to have the confidence that such a result was unintended. And secondly, it is said that our submissions are not related to the text of the legislation. Now, we do submit that it is far from the case, firstly, in relation to those submissions, that our submissions are not supported by the text or the frame of the legislation or the explanatory memorandum that underpins the changes.

PN303

Firstly we submit that until the introduction of the complication that flowed from the need to absorb State unions into the Federal system. Section 19 which is relevantly in the same language now as it was before the latest amendments and which has been relevantly in the same form for many - or similar form for some years now - would never have been construed as a provision which entitled an organisation to achieve registration which gave it coverage broader than the applicant. In other words there is nothing about section 19 as a matter of history which allows you to approach it on the basis that it is an instrument of eligibility change.

PN304

It's never been the case that the application under section 19 by an association, if granted per se, was anything other than the granting of registration to the body which made application for registration. That is the history. There is no basis for proceeding on the basis that section 19 as a whole and section 19 top to bottom is the provision in question has changed its nature because of the legislative amendments which are designed to facilitate the entries of TRAs into the Federal system. It's not to be construed as saying, yes, well, only in the case of TRAs can something go in the front door and something different come out the back.

PN305

The second thing we say is that as we have put, section 158 finds its place still in the legislation. The regime relating to eligibility provisions, demarcation disputes and the entitlements of parties with eligibility provisions remain in the Act, so that there is absolutely nothing in our submission which suggests that the implications that we say need to be drawn find their expression simply because we don't think it's a good idea. We say that these submissions are fundamentally supported by the frame of the legislation and the history of the legislation and the explanatory memorandum that we've already referred to.

PN306

Our friend's second submission is to the effect that we haven't actually - we haven't indicated the nature of the implication that would be relevant, and we concede that it is true that other than making the submission in exhibit N2, that we, other than indicating the nature of the implication that we suggested was to be drawn, we had not focused on precisely how that implication would be factored into the legislative language and that much of our friend's submission is accepted.

PN307

Those are matters which we've addressed in the reply in exhibit N5 in the submissions in response to our friend. Firstly, our friend, in his submissions, suggested that you didn't start with the notion that legislative purpose was all embracing without regard to consequence and secondly submitted that we hadn't actually provided for what the consequence was. Your Honour, in paragraphs 8 and following of our submissions in reply, we've done our best to enshrine what we do submit are the relevant constructional issues and the recent expressions of the courts in relation to them.

PN308

We've referred in paragraph 8 to the impact of section 15A(a) and to the - it's almost trite - but the reflection of the acceptance by courts in more recent times as to the preference for a pervasive approach, having regard to the context of the legislation to Project Blue Sky and other authorities and I don't read the cases or the extracts in Pierson v Geddes that are dealt with in paragraph 9. Comparatively recently in the AIG case the principles have been drawn together by the Full Court of the Federal Court. French and Von Doussa JJs summation of the principles to be applied is a current expression of the principles which we have accepted for relevant purposes and which we do submit would be accepted by the Commission as non controversial.

PN309

They must be construed from the outset in the context in which they appear including the statute as a whole. In other words you don't start from the basis that some point of ambiguity has to come lurching out of the page at you before you start focusing on the purposive approach to construction. That is made clear from the authorities. A construction that would promote the purpose or object underlying the Act is to be preferred to one that was not, reference to the Act:

PN310

It is not necessary to identify constructional choice before considering purposive interpretation. Consideration of purpose may throw up the existence of more than one construction of the words. However where only one construction is open 15A(a) does not provide a warrant for redrafting legislation closer to an assumed desire of the legislature.

PN311

So those are the principles that we have called in aid and which we accept for the purposes of our submission, and what we have gone on to do in the reply is to look at the legislation proceeding in a way to capture the notion that there can't be a chameleon at work here. In other words, that there is a duty of the Commission to register associations that present themselves and the language of section 19 in relation to an application made by an organisation answering the description of an organisation under section 18B must be read in such a way as to provide the Commission with a duty to register but in circumstances where that which is presenting for registration will, if registered, be a reflection of the applicant for registration and not something that is going to be fundamentally different.

PN312

We do, without suggesting that there is magic in every last word, there are more than one way to reflect this, that we do respectfully submit that 19, as a matter of history, 19(1) would be read as providing an obligation to grant an application for registration of an association as that association exists at the point of registration, in other words with conditions of eligibility that reflect the conditions of eligibility of the applicant.

PN313

Your Honour, alternatively, and the same result ensues, that the word "association" in section 19(1), it would be appropriate to read section 19(1) as providing an obligation, must grant an application for registration of the Association - made by an Association as being read subject to the words "being an Association" having the same membership coverage as the proposed Federal organisation. It achieves the same result and it achieves a result which no one picking up section 19 at any point of time in the past would have had a moment's trouble accepting, because the whole frame of section 19 was evaluating that body which presented itself for registration.

PN314

Now, it is in those circumstances that we do submit that our friend's response neither respects the history of the legislation, and I'm talking there about the language of section 19, the existing relevance and language of the legislation and here I am talking about, amongst other things, the continued relevance of section 158 as well as demarcation provisions, but in particular section 158 to organisations which are registered under the Act and indeed, our friend's submission proceeds on the basis that there is a literal approach to section 19 and if that literal approach leads to a situation in which his organisation walks in the front door, makes application for Federal registration, walks out the back door with that registration and a capacity to register a whole different group of people, that that's mandated by the legislation because that's the literal approach to the legislation and because it can't be assumed to be an unintended consequence, well, then everyone can simply go home and allow the State union to, in its new iteration, to represent whoever it wants throughout Australia.

PN315

Your Honour, we do respectfully submit that our friend's response, which I've attempted to summarise, doesn't do justice to either of the arms of our submission. If these extraordinary results were part and parcel of the legislation you would expect to find some reflection of the fact that the legislation which was designed to provide a benefit to organisations at the stage of achieving final registration as a TRA over and above the rights of other applicants for registration, there is no such suggestion that is found in the legislation.

PN316

The closest our friend comes to dealing with the inconvenient aspects of the test and its background is when it is suggested by our friend that the explanatory memorandum relating to the retaining of representative rights doesn't count because it only applies at the stage and in relation to the achievement of registration as a TRA. We would respectfully invite your Honour to reject that contention for a number of reasons. The notion that the explanatory memorandum gives flavour to the exercise at the stage of achievement of registration as a TRA, but then falls into disuse and irrelevance at the next stage where you achieve final and complete representative rights is, in our respectful submission, not to be countenanced. There is not a word in the legislation to support that approach.

PN317

The second thing we say is that the notion that the explanatory memorandum can be divorced from the process of registration under section 19 is erroneous in any respect because as your Honour well knows, schedule 10 does two things. It addresses the question of registration as a TRA. It provides for a fast tracking into TRA and then subsequently it looks forward to and addresses the question of modification of rights at the time of achievement of final registration. So the notion of final registration is a notion that finds expression in schedule 10.

PN318

The notion that you can junk the explanatory memorandum as irrelevant for schedule 10 in a context where it is contemplating both stages is not a notion that could be picked up without some express words to that effect in our respectful submission. It's not an attractive proposition that you can forget the inconvenient words of the explanatory memorandum on the basis of erecting a distinction between transitional and final registration. One would have thought that having regard to the fact that final registration gives rise to a status that is permanent, it gives you rights against other organisations into the future and not for a limited period of time, the notion that the safeguards that are found in the explanatory memorandum in relation to retaining your rights as opposed to expanding them beyond belief would not be forgotten, but would be heightened.

PN319

So, your Honour, the frame of the Act, the history of the Act, the explanatory memorandum provide no support whatsoever for the windfall notion that this organisation will be radically changed and can be changed without the capacity of anyone to effectively intervene unless they're caught by regulation 4.3, for example. Your Honour, I think we've had the opportunity to crystallise this, we've seen our friend's submissions and repetition will gain little. The essence of what we have to say we think is caught by that response, where someone's either very right or very wrong here, and we don't think that much will be achieved by repetition.

PN320

Your Honour, if that is the case, if we are right, then it doesn't mean the transitional associations cannot get registered under the Act. It simply means that at the stage of achieving registration some step is required to ensure that that registration will not have the windfall effect, so that if the Commission is asked to register my friend's client under the Federal system so that it can happily go on into the future doing what it did in the past, in the State under the Federal system in a way that confines its rules to the reality, then this argument becomes irrelevant.

PN321

What our friend's argument must come down to is saying this. Look, if you've got two State organisations and one State organisation has some rules that says all locomotive drivers in Queensland, and the other State organisation has all bus drivers, full stop. But there is a fundamental - that difference in point of law made no difference at all at the stage that those organisations were registered under the State.

PN322

For obvious reasons the respective geographical coverage was the same because even though there were no words of limitation in the latter case, the conditions of eligibility of the State union and transitional association would have been confined relevantly to the State of Queensland. There wouldn't have been a difference between those two organisations at all. Our friend's submission says, but once one of them goes and get Federal registration there are two totally different consequences when you achieve Federal registration. The first of them gets Federal registration and if it wants to go and enrol locomotive drivers in New South Wales, it's got to make an application under section 158. The second one is okay, even though its rules were the same as the first, the second one is okay and it can go and enrol, get registration, insist on it, and go and enrol locomotive drivers or bus drivers or whoever else we're talking about, wherever.

PN323

Now, that consequence must, at the very least, be regarded as requiring explanation unintended, one would venture, and inherently unlikely when its acceptance must involve getting section 19 to do some work that it's never done before in its life. Your Honour, they are the submissions that we would make in relation to part 1 of the submission. I've indicated I was proposing to be briefer in relation to the second aspect of the submission which concerns regulation 4.3 of the Workplace Relations Act regulations.

PN324

Your Honour, there is no essential issue between the parties as to what might be described as the separate legal existence of the AFULEQ. It is not, if I can provide Mr Herbert with some reassurance on this, your Honour will have discerned that it's not part of our submission that the AFULEQ does not have its own - have existence as a State registered organisation. It is not put by us in our submission that it is in truth to be regarded as legally absorbed or the same organisation. It couldn't be and that's never been our submission. What our submission is is this, and I know your Honour will have seen this in 2, that the regulation must be approached on the basis that it is seeking to address something less than legal identicality.

PN325

Indeed, in paragraphs 35 and following of our submission we attempt to make that good, that regulation 4.3 goes to the question of substantial identicality. It does not go to identicality. It is to be conceived as part of a process which is designed to allow the absorption without trial or test on a conveniently belong basis of other organisations into the Federal system. The regulator has not made identicality the test for this purpose. It would have been very easy to do. Indeed, you know that that hasn't happened and what we do submit, we submit two things as a matter of an approach to the regulation, and this we've attempted to capture in paragraph 40.

PN326

It's designed to accommodate the introduction of State registered unions on the basis that it's the actual body that's coming in so it's not - it's squarely addressed to the notion that it's a non-McJannet type case but it's squarely to be seen, but Parliament did not - or that the regulator did not want to have organisations registered under the RAO schedule where historical complications as to existence were or calculated to come into play. But it was and must have been desired that the regulation apply in circumstances where there was something other than identicality that was involved.

PN327

What happened then was that various aspects of existence, or at least features of the operation of unions were selected as exemplifying those matters that would be able to be looked at for the purpose of recognising substantial similarity and that was done in the note which provide that the matters that would be assessed to determine whether a body mentioned in subparagraph (a)(i), (ii) or (iii) is substantially similar to a transitionally registered association will be based on the individual circumstances of each case. So what again the regulator is looking at is a determination of whether one body is substantially similar, and matters that have been identified or advanced, not in some cumulative way but simply features that might be regarded as demonstrating the relevant degree of similarity.

PN328

The overlapping - the identical coverage, coverage over the same kinds of employees or employers was listed as one of the matters that might be looked at and we've set that out in 44(d). But the words used are coverage over the same kinds of employees or employers. So, your Honour, for this purpose you would be entitled in assessing similarity, for example, to look at the reach of coverage, regardless of whether the eligibility rules had any degree of resemblance for example. It's coverage of the same type of employees, though the rules didn't look any similar, the actual result of application of them might give rise to similarity, even though the history of the organisations might have been different, even though there may be other features, that would be a feature that might be able to be taken into account.

PN329

The similarity or coverage or identicality of coverage is a matter that's also picked up in relation to the tests applied in regulation 4.3(2). What we submit in this case is that you have - it is true, as Mr Herbert will be quick to remind you, that there are many points of separate identicality that could be advanced, different premises, different officers and personnel, equipment and stationery and the like. Granted. We are not here to present some case of practical absorption for all purposes. But there are features in relation to these two organisations, their history and relationship, which allows the conclusion that there is - to use the words of the notes - substantial similarity in the regulatory sense.

PN330

Your Honour, that history is rehearsed in Mr Thomas' affidavit and I'm not going to go to the detail of it now. But that history involves firstly one that includes the steps in relation to the amalgamation in the early part of the 1990 which was a process that stopped only in its final stages because of the ballot that was insisted on by the State Commission in circumstances where the Federal organisation requested that the ballot that had already been held be the ballot for the purposes of amalgamation.

PN331

The issues in relation to coverage are not simply issues that arise by virtue of the fact that by different means you end up with coverage of some or a large number of the same personnel, but when you pick up the conditions of eligibility of the State registered union here and you look at the conditions of eligibility of the Federal branch, the Locomotive Division Queensland Branch, they're not identical but they have been essentially crafted by the same hand. There is not simply similar coverage. We are talking about organisations who have actually emerged to the point that they are out of conditions of eligibility that are relevantly identical.

PN332

They're not completely identical, but there is a relationship between them.

PN333

THE VICE PRESIDENT: What is the significance of the differences, Mr Kenzie?

PN334

MR KENZIE: I think the evidence doesn't I think allow any form of qualitative analysis subject to correction - if your Honour would pardon me a moment.

PN335

THE VICE PRESIDENT: There are two versions in paragraphs 9 and 51 of your submissions.

PN336

MR KENZIE: Yes. I think the reference to diesel electric locomotives appears to be the only - - -

PN337

THE VICE PRESIDENT: There's "the" railway and "any" railway, but I take it that's not of significance.

PN338

MR KENZIE: Yes, I noticed that. Yes, I think that some suggestion of the State union perhaps being more closely aligned to the workings of Queensland Rail perhaps and there might be some reference, some suggestion that the railway provides a basis there. But I think, subject to correction, when I answered your Honour before, by that I meant I wasn't - I don't think the evidence puts one in a position to say what the practical differential, if any, would be in relation to that and I mean the words "diesel electric locomotives" would presumably be a variant of the various categories that would be caught by the opening words "an unlimited number of persons employed in the railway train running industry including locomotive drivers, electric train drivers" et cetera, they are words of inclusion, and not exclusion.

PN339

No, I think - - -

PN340

THE VICE PRESIDENT: Are those words confined to any other workers? The last category being "any other worker"?

PN341

MR KENZIE: Does your Honour mean the - - -

PN342

THE VICE PRESIDENT: The words "diesel electric locomotives"? Do we read those categories of train - - -

PN343

MR KENZIE: It looks like it, it rather looks like it. It rather looks like they are a particular design to get at the balance, but not affect or limit the opening words of the provision. In other words there are words of generality and then there are the words that follow - then there are the "any other worker" and the "such differentials as exist in the rules" which appear to be those that have been identified are a differential only in relation to the catch all, as it were, but not a point of relevance in terms of the overarching coverage of the conditions of eligibility in our respectful submission.

PN344

THE VICE PRESIDENT: The overarching coverage is preliminary words before you start talking about the classifications that are included.

PN345

MR KENZIE: Correct, correct. So, your Honour, there is no perfection here, but one is not in the area of attempting to identify perfection. One is seeking to identify whether the organisation in question is one that should be recognised for regulatory purposes as being entitled to come through the net and avoid scrutiny by virtue of regulation 4.3 and that is in circumstances where the notion that is advanced by our friends suggested to be virtual indistinguishability is a standard that appears to be higher than that cast by the regulation.

PN346

Now, your Honour, contrary to the submissions that have been mounted against us in the submissions in reply, we haven't ever asserted that this is a case where you can simply point to the two organisations and say, look, they've got conditions of eligibility that look not very similar in terms of their drafting or history or anything else, but you can actually identify two groups of people, they actually end up covering two quite similar or overwhelmingly similar groups of people. That is not this case.

PN347

This case is one where the facts demonstrate that there is a much closer historical involvement than any of that and that but for developments that took place in the last stages of the amalgamation process in 1993, they would all be no doubt as one. Now, it is true, as Mr Herbert will say, well, that didn't happen. They went on and they've continued to have separate offices and now they seek to come through the gate in the way that they do, but at some point of time in terms of those matters that, if you're seeking to actually address the regulatory standard, those matters are not irrelevant and it is incorrect, even accepting what is put in the submissions against us about premises and personnel and stationery and all of the rest of it and differences in terms of the language of the objects of the unions and the like, that there is a similarity here that is of the nature of the similarity that the regulator has sought to capture.

PN348

It falls short of legal identicality, but that is okay and in order to escape the scrutiny and to escape what would otherwise be the entitlement of our organisation to have a say in relation to this, they need to come through a window that's been identified by the regulator. It's not as big a window as Mr Herbert's clients would suggest and it doesn't do justice to our case to suggest that we've simply picked up similarity of coverage and said, well, that's enough.

PN349

Now, your Honour, but the essential facts and the history, the Commission will take - there isn't a dispute between the parties as to what's actually happened. That includes no issue between the parties as to what I've described as separate legal existence.

PN350

Your Honour, the third of the issues that are identified in paragraph 1(c) is - I should identify now from paragraphs 59 through to 63 about submission, that basically for reasons that flow from part 1 of our submissions it is contended that amendments need to be made to the State level otherwise there will be a disconformity and what the Commission would be asked to certify would be something other than the rules of the organisation as required in section 26 and, as I say, I don't want to waste the Commission's time, there doesn't appear to be a disagreement between the parties as to that. Our friend says that they will need to go back to get the rules changed and that is a proper position for our friend to adopt.

PN351

Your Honour, unless the commission has some questions about any of the matters that we've tried to draw together now as efficiently as possible, they are our submissions.

PN352

THE VICE PRESIDENT: Mr Kenzie, are you aware of a correspondence forwarded to the Commission from the ACTU?

PN353

MR KENZIE: A copy has been sent to us, your Honour.

PN354

THE VICE PRESIDENT: And what do you say the Commission should do about the correspondence?

PN355

MR KENZIE: Yes. Your Honour, I would submit that the Commission would treat that as a submission really as advanced in circumstances, although I don't think sought by the parties, or indeed, the Commission, the ACTU was one of the participants in the proceedings that took place in relation to the representative order case which of course isn't on all fours, but the ACTU was amongst persons whose assistance was sought in relation to that. We've seen that letter. It would be appropriate for the Commission to have received that as a submission in our respectful submission. It's not accompanied by reasons in the sense of close interpretative reasons, but - - -

PN356

THE VICE PRESIDENT: Accompanied by an application to intervene by appearance either.

PN357

MR KENZIE: I understand that. No, it's unusual, but all that I could say is that this case does raise points that, subject to correction, no one has really addressed before. If we are right and really depending on whoever's right, it's going to have some consequences for a range of organisations and although it's come forward in unusual circumstances, although we haven't a vested interested in one sense in relation to whether your Honour receives it or not, we've seen it, and the better view would be that it should be treated as submission, your Honour.

PN358

THE VICE PRESIDENT: Yes, thank you, Mr Kenzie. Yes, Mr Herbert?

PN359

MR HERBERT: Your Honour, my client hasn't seen that correspondence from the ACTU.

PN360

THE VICE PRESIDENT: We can provide you with a copy.

PN361

MR HERBERT: Without even having seen it, your Honour, there doesn't appear to be any basis for it to be accepted by the Commission as having any - or carrying any weight in these proceedings. As was pointed out, it doesn't appear that the ACTU is attempting to intervene in the proceedings and simply, as it were, lobbing a very small grenade over the fence from a long distance away in relation to such matters ought not to be accepted by the Commission as being an appropriate way. If they wanted to have something to say, they should do it in a formal way and then notify the parties of what they intended to do and give us an opportunity to respond and do it in the proceedings, not by remote control.

PN362

So whatever it says, your Honour, I can't imagine it would be of too much assistance to a registered transitional association, but it ought not be received in the way suggested by my learned friend. Your Honour, dealing with the
matters - I should, from a housekeeping point of view, your Honour should have a primary submission from my client which was lodged on 26 September 2007 as part of the application documents, and an affidavit of Gregory William Smith also filed in the Commission on 26 September. There is a submission in reply which my learned friend has been addressing and it was filed in the Commission on 19 November 2007 and there should be a further affidavit of Mr Smith which was filed also on 19 November. Those two affidavits and two submissions comprised of material on which we rely.

PN363

THE VICE PRESIDENT: Thank you, Mr Herbert.

EXHIBIT #K10 PRIMARY SUBMISSIONS DATED 26/09/2006 AND FILED 26/09/2007
EXHIBIT #K11 AFFIDAVIT OF MR SMITH SWORN 21/09/2007
EXHIBIT #K12 FURTHER SUBMISSIONS BEING RESPONSE TO RTBU OUTLINE OF SUBMISSIONS DATED 16/11/2007
EXHIBIT #K13 FURTHER AFFIDAVIT OF MR SMITH SWORN 16/11/2007

PN364

MR HERBERT: Thank you, your Honour. Your Honour, it appears that the first two of my learned friend's submissions are those which are pressed and the third submission again was not vigorously pressed by my friend as I understand in the sense that it's accepted that the matters need to be dealt with by way of alteration of rules within the State jurisdiction because that is in fact the only jurisdiction pending registration which has any jurisdiction in relation to the rules of the applicant organisation.

PN365

Once it becomes a fully registered organisation in this jurisdiction that situation may be different, but that's another day, but it's accepted that any necessary alterations to the rules as part of the process of registration will need to be effected in accordance with the Queensland State Act. In relation to the other matters - and that that is a matter of timing, and that's a matter that can be attended to in due course.

PN366

The other two matters which are pressed most vigorously in the proceedings where in the course of the written submissions that we've forwarded to the Commission, we understand that we've addressed those matters in some little detail but in response to what my learned friend has said today, it appears that there are two issues to be addressed. The first is that the primary submission is that a transitional association could not conceivably be taken to be entitled to be registered with an eligibility rule intact which in its form, once registered in this jurisdiction would entitle it to exercise rights of representation which are by virtue of the fact that that organisation will then be, as it were, swimming in a bigger pond, would entitle it to represent persons who fall within the literal terms of the eligibility role, that is, persons who are engaged in, as my friend reported, it is our contention that the rule which that organisation has had since time immemorial is not confined geographically to any part of Australia, has never been and will not be once the organisation is registered and that that would raise the possibility that that organisation would have the capacity, at least, to enrol and represent persons of the relevant classifications of work throughout Australia.

PN367

Now the contention seems to be put that is just a staggering outcome and it is so staggering and so wide of anything that could possibly have been contemplated by the legislature that your Honour sitting here should do something about it and you should do something about it, as I comprehend the submissions in reply that we've been handed today, what you should do about it is to in effect write some words into the relevant regulations and schedules so as to make sure that that outcome doesn't occur and my learned friend has helpfully put down on paper at this point the words which he says that your Honour should put into the criteria for registration in section 19 of schedule 1 and that your Honour should, it turns, second guess the Parliament and assume that the Parliament didn't know what it was doing when it put together the scheme that it did.

PN368

The level at which it is said to be inconceivable or the reason why it is said to be inconceivable that such an outcome as will occur once my client attains full Federal registration is that in effect you have a transitionally registered State organisation which whilst it was conducting itself in accordance with State law and deriving its authorities and responsibilities and accountabilities under the State Act, any expression its rules which purported to allow it to enrol persons outside the State of Queensland would not be given effect to by virtue of the Queensland law not running in force in effect beyond the bounds of that State, that once registered in this jurisdiction, that would in effect be - that would create a situation where a State union would go in the front door and a completely different sized and functioning entity would come out the back door.

PN369

Well, with respect that submission really fails to recognise the context of what's going on under this legislative scheme. What happened under this legislative scheme is that the rules in relation to the conduct and abilities of organisations were dramatically changed. It is simply not possible to say that the AFULE in its pre-existing form goes through this registration process, receives a rubber stamp to say it's now a Federal organisation and it comes out the other end basically the same thing, but with a Federal stamp rather than a State stamp.

PN370

My learned friend sought to characterise the matter as being that's what's supposed to occur. Well, there are a number of considerations which would establish that that's just simply not true. The fact for a start that the AFULE will on full Federal registration become susceptible to, and under the jurisdiction of, the registration and accountability of organisations provisions of the Federal Act, whereas it previously did not, the fact that it is accountable and must conduct elections and a range of accounting functions under the Federal Act, whereas previously it did not, it was entirely immune from all of the provisions of the Federal Act because it was a free standing State union, it is now - not only is it no longer immune from Federal regulation, it is now 100 per cent bound by Federal regulation, it is bound by a different set of rules and accountabilities as to how it conducts itself.

PN371

It is susceptible to different types of ballots and different types of elections in a different place and again, under a different set of rules. It is in every sense now or will be upon registration, required to comply with a legal regime from which it was previously 100 per cent exempt. It also, by reason of these arrangements, is effectively denied the capacity to represent the persons within the State jurisdiction that it formerly represented. If one is talking about the same organisation travelling forward, as my learned friend sought to characterise it and in legal terms that's probably a correct characterisation, that is, it remains the same organisation, the same entity which achieves - which is unusually incorporated under State law and then is intended, as it appears, to receive a second layer of incorporation, if you like, under Federal law by operation of the Act, of the Federal Act upon registration, that same entity is, by this set of laws, deprived of the ability to represent its members where it always did represent them. That is, employees of constitutional corporations who were previously regulated by State awards and State jurisdictions.

PN372

So to say that the entity then - - -

PN373

THE VICE PRESIDENT: Why is that, Mr Herbert?

PN374

MR HERBERT: Because the section 16 of the Act deprives the Queensland Commission of any jurisdiction to do anything at all in relation to the industrial affairs of the constitutional corporations who are the employers of the substantial majority, if not the whole of my client's membership.

PN375

THE VICE PRESIDENT: So that has the effect of the legislation rather than registration?

PN376

MR HERBERT: It's effect of the legislation - - -

PN377

THE VICE PRESIDENT: Yes.

PN378

MR HERBERT: That's the context. I'm seeking to pain the context in which these regulations come into being. My client's entire world, as it were, has been turned on its head and turned inside out/upside down. It has been deprived of the capacity to travel in the jurisdiction effectively where it has always travelled since its inception because all of its members are now employed by constitutional corporations and the same Act that gives it registration rights says, "You can't represent your members in relation to their employment arrangements under the legislation that governed you before. But the quid pro quo is, as you're not an organisation which is recognised in the jurisdiction which has, in effect, scooped up the industrial coverage of all of your members, that you will be granted easy and safe passage forward into the new jurisdiction that's, as it were, scooped up your membership and so that you will be able to travel forward into that jurisdiction with the minimum of impediment."

PN379

And it doesn't say anywhere there that when you get to the other end of that process you will be confined to precisely where you were and my learned friend's submissions on a number of - on many occasions he repeated the word "history". This doesn't have regard to the history. This doesn't have regard to where these things have all come from. With all due respect, where my client came from is now scorched earth. There is no history that is relevant to what is going on here because, as I submitted earlier, their entire world has been turned on its head and they are now required to make do and to seek admission to the new jurisdiction in which all of their members are required by law, by Federal law to be industrially regulated.

PN380

And one doesn't - one can't really say, "Gee, the old rules should still apply to all of this." We should be very sensitive about matters relating to demarcation issues and we should be sensitive to issues of overlapping coverage and things of that nature. How can you be when the entire jurisdiction which was previously in the State sphere has been transplanted into the Federal sphere, as it were, into the laps of Federally registered organisations that previously had very little part to play in relation to those matters, and I'm speaking more generally now in relation to the way in which State systems are being transplanted into the Federal systems.

PN381

Much of this submission was put in relation to the translation of demarcation orders of this jurisdiction. If you are talking about a wholesale trans-location of an entire jurisdiction, there are going to be factors that need to be taken into account to ensure that one doesn't just leave all the unions behind or one doesn't leave industrial representation behind, et cetera, and the means to cure that particular potential disaster, was to grant to the previous State registered unions a mechanism of passage into the Federal system which effectively meant they could travel without any of the usual impediments because one immediately expected that those Federal unions who saw themselves as being the beneficiaries of windfall coverage that was suddenly dropped in their lap, whereas previously they couldn't exercise coverage because it was in the State system, those organisations couldn't take advantage of the windfall coverage that fell into their laps.

PN382

The State organisations could follow up into the Federal jurisdiction and participate on an even footing with the previously registered Federal organisations and at least be able to establish themselves in something like the type of area and coverage that they once enjoyed when they were in the State jurisdiction in splendid isolation.

PN383

Now, when one looks at the mass of dislocation and translocation associated with this legislation in this way, one can't adopt a nice sense of notions of the way demarcation had been handled in a previous era because it is very clear, clear beyond argument, that the Parliament adopted a mechanism to protect State unions from effectively being wiped out by this mechanism of allowing them to transfer their registration into the Federal system lock, stock and barrel. There is only one limitation on the transfer and that is the substantially identical limitation. Otherwise State registered unions, so long as they are free standing unions, and they're not just merely a branch of another union, but a free standing union such as my client is entitled to travel into this system without any express legislative limitations on their rules or on their eligibility rules in particular, which is the focus of all of this, and they are conferred, as it were, an easy inside passage in relation to the type of registration they're able to obtain.

PN384

And the legislation itself is crystal clear. One couldn't really expect legislation to be any clearer than it was and my learned friend is taking you to the legislation, but the matter commences - just very briefly if you would pardon me, your Honour - the matter commences with the terms of schedule 10 and schedule 10 itself makes provision for the first stage of what is contemplated could be a two stage process. It doesn't have to be, but there will be a number of organisations who are, in fact, alter egos of Federal organisations who may take the first step here but would never take the second step.

PN385

But taking the first step enables them to protect their position whilst they make arrangements to divest themselves - the BLF, for example, still exists - still existed in the State jurisdiction in Queensland, it could step forward and become a transitionally registered organisation, arrange to divest its industrial coverage to its counterpart Federal organisations and then simply cease to exist.

PN386

THE VICE PRESIDENT: And that first step, as you term it, modifies the scorched earth scenario that you mentioned about the drastic changes. It seems to be quite a straightforward step that can be achieved on application.

PN387

MR HERBERT: Yes, a very simple one.

PN388

THE VICE PRESIDENT: And thereby enable the State organisation to participate in the Federal system and continue to represent its members, albeit under a different legislative regime.

PN389

MR HERBERT: Yes, and it was a very simple step to enable it to maintain status quo in relation to those matters, yes. But the jurisdiction, and that's been necessitated by the fact that the jurisdiction in which it once travelled effectively doesn't exist in the case of my client. That's the scorched earth situation. If that step were not available it would cease to function as an industrial union effectively for the benefit of its members.

PN390

So this is a step to allow it to follow into - to step into the Federal jurisdiction on what is expressed to be a transitional basis. It is only a transitional stage and that's all it is intended to do. But one of the features of its transitional registration is that it is given by the enactment of the regulations, it is given special dispensations in relation to taking the second step. The first step is, as your Honour points out, more or less a formality.

PN391

The application, subject a meeting, that there be a criteria that an application by way of a letter was merely all that was required by the Registry in many cases and the matter went forward effectively as a formality. But there are two important other issues that arise from that. The first is in clause 3 of schedule 10 and that is that the provisions of the Act apply in the same way as they apply in relation to an organisation, and as if a transitionally registered association were a person.

PN392

Now, Act is defined, the Act is defined elsewhere as excluding schedule 1. Now, that is the basis of the submission that we've made that schedule 1 actually doesn't apply to transitionally registered associations as such. Your Honour, could I hand up copies of the explanatory memorandum in relation to both the Act and the regulations? I've given copies to my friend, and we've extracted the parts that are relevant to the submissions we make. Can I take your Honour to the explanatory memorandum in relation to the Act and in that memorandum it's called schedule 17, it subsequently became schedule 10, transitionally registered, and there's a passage there that we've reproduced in the submissions that my friend went to and this goes to the question of representing its members, and that's paragraph 3735, it's the first paragraph in schedule 17:

PN393

The schedule that allows State registered employer/employee organisations, who have rights under State industrial laws to represent members, who are moving into the Federal system to gain transitional registration status under the WR Act and thereby retain their right to represent those members.

PN394

Now, that is the position vis-à-vis the transitional registration. That was what was said to be the purpose of transitional registration. It's a holding issue. It then goes on to deal with on page 548 the question of the application to act as transitionally registered associations. And 3747 to 3749 deals with that and it says in 3749:

PN395

The non application of schedule 1B to transitionally registered associations occurs through the use of the term "this Act" in the proposed section. This Act would be defined in proposed clause 4 so as to exclude schedule 1B or regulations made under 1B, transitionally registered associations would not be required to comply with the provisions of schedule 1B insofar as they apply to organisations within the meaning of schedule 1B. This is to avoid them being required to comply with two substantive sets of governance provisions as they will remain subject to whatever regulatory requirements imposed on them by virtue of their registrational status under State industrial law.

PN396

The object of the exercise was to leave them where they were. This really is a rubber stamp transitional registration where they are given permission to represent their members within the Federal system and the Act would apply to them so they can do all those things except those parts of the Act that regulate their conduct, their internal affairs and administration arrangements as a union. So that - - -

PN397

THE VICE PRESIDENT: Internal and reporting and - - -

PN398

MR HERBERT: And reporting, elections, accountabilities, all of that sort of material because they remain regulated under the State jurisdiction because they are still registered organisations under the relevant State Acts around Australia and in my client's case in Queensland. So they remain subject to regulation under the State Act by virtue of their State registration. They have been transitionally registered Federally but then been told, "The administration parts of this Act that control your internal conduct and accountabilities, et cetera, will not apply to you whilst you remain transitionally registered associations."

PN399

But then the - and there are - - -

PN400

THE VICE PRESIDENT: That's something short of being transferred lock, stock and barrel into the Federal jurisdiction - - -

PN401

MR HERBERT: Yes, a long way short of. It is very much a transitional timorous first step, as it were, to be - and obviously constructed in such a way that it was readily accessible, quickly able to be done and had the immediate effect of protecting at one level the representation activities of organisations, where, for example, on the reform day, on 27 March in 2006 a State organisation might have been partway through enterprise bargaining negotiations or collective bargaining negotiations, there might have been dissents that are put, the whole process would have been vacated by the proclaiming of the new legislation had they not had the capacity to simply step the divide, as a transitionally registered association, keep going with the negotiations and have the resulting agreement registered in the Federal jurisdiction rather than the State, intended to allow all those things to go on, obviously, with a minimum of fuss.

PN402

But not to transfer them, as I put it, lock, stock and barrel, into the Federal system at all. It's effectively an explanatory memorandum and says, under the scheme of schedule 10 appears to contemplate, they remain for all other purposes and for all legal purposes State registered organisations subject to the rule making and altering powers of the State Commission and the election requirements and the reporting requirements of the Queensland State Act.

PN403

THE VICE PRESIDENT: Well, probably three different categories of activities. One might be described as industrial activities under the relevant legislation.

PN404

MR HERBERT: Yes.

PN405

THE VICE PRESIDENT: That was precluded from continuing to operate in that way on 27 March 2006 but by virtue of the transitional legislation permitted to do so under the Federal legislation. There's the internal governance and representation, reporting and regulatory matters relating to their corporate personality and responsibilities and matters which remain covered by the State legislation, and there are other things that the organisation could have done under the general law, the common law, industrial or otherwise, could have continued were unchanged.

PN406

MR HERBERT: By reason of their corporate status, yes.

PN407

THE VICE PRESIDENT: Yes, that's right.

PN408

MR HERBERT: And so long as they weren't precluded by the Federal Act, but, yes.

PN409

THE VICE PRESIDENT: Yes, consistent with the Federal Act and anything that's not inconsistent with that they could have continued to do, it wasn't governed by the State Act necessarily, the general law, then you've got that situation. Then you've got the effect of this application which you describe as a mechanism to transfer everything lock, stock and barrel. Mr Kenzie says that what you're seeking is not lock, stock and barrel but lock, stock and barrel and some.

PN410

MR HERBERT: Well, again one comes back to the environment in which these things are occurring. Given that previously it was of little consequence whether my organisation, whose rules allow it to represent anyone in their relevant classifications to work anywhere in Australia, when you read their rules, it was of little consequence whilst they were working under the State Act, whether they did or did not attempt to represent people in other parts of Australia. But on a trans-location of that organisation into a jurisdiction where that - and the State boundaries effectively no longer exist, then my client always had the latent capacity to engage in such representation but it was an academic question. It raised no issues for anybody when they were choosing to live in the State jurisdiction alone.

PN411

So that to say that they're seeking more than they have is no more than to say they have been forced by these legislative changes to move into an area where boundaries have previously hemmed them in, no longer hem them in and they're able to take up, in effect, what the rules may have already said in hypothetical terms, but there's a deeper issue than that. Now, that - I mean, to an extent my learned friend's submissions ask that we justify why should we be allowed, why should my client be allowed to have coverage in that way.

PN412

The legislation specifically contemplates that a certain process be gone through if a transitionally registered association which was intended to be permitted this easy path through the Federal registration, it gave certain powers to the Commission to deal with that application but very heavily circumscribed what the Commission and objectors could and could not do in relation to an application of that kind and the very important thing to be understood about this is, the transitional registration was done by the State union in accordance with its existence in the form that it was in and remaining subject to State law.

PN413

When it transfers across, seeks to transfer into full registration under the Federal Act, the system contemplates that it's entitled to registration as it exists, in the form in which it was by reference to its rules, not what is said by my learned friend, Mr Kenzie, to be the form it as in terms of who it physically represented from time to time, but rather the form as circumscribed by the way that its rules are written.

PN414

It is what it is. The Federal system takes it as it finds it by reference to its rules, and the rules confer upon it eligibility as a body corporate to do certain things. They are its powers. They are its constitution. They are their empowering document that says what that organisation - what is intra vires and what is ultra vires, that organisation, and the Federal system says, "We will take you as we find you. We will take you as you apply. If you have rules that are the product of the State legislation initially, historically that's where you got them from by having them approved under State legislation, and you bring those rules forward, which are the only rules you can bring forward because they're the only rules that you've got, we will take you in the form in which we find you." And the legislation expressly contemplates that.

PN415

THE VICE PRESIDENT: You're not putting that as if it's inherent in Federal registration that there be national coverage, that it's based on the wording of the eligibility rule that applied in the Queensland jurisdiction?

PN416

MR HERBERT: Yes, yes.

PN417

THE VICE PRESIDENT: That's how you put it.

PN418

MR HERBERT: There are no inherent rules any more. This organisation now is operating, once registered, will be operating under a completely different jurisdiction from where it previously operated. To cling on to the old distinctions, which are being suggested, that it having lost the boundaries which were its protection of the Queensland State jurisdiction, it must nonetheless remain confined by boundaries that no longer exist. That's what's being said. It was previously protected and hemmed in by the geographical and political boundaries of the State of Queensland, and it's been said, well, having once been that way, having had all of that stripped away by section 16 of the Act in March of last year, "you must remain hemmed in by the same boundaries when you come into the Federal system which has no such boundaries at all."

PN419

THE VICE PRESIDENT: If you wish to avail yourself of the fast track process of registration.

PN420

MR HERBERT: Which is the only - and I'll come to that point - it's the only one they can take, if they're a transitionally registered association. Once they've taken the first step, there is only one second step they can take, because the Act prescribes and the regulations prescribe how regulation 19 is to be applied. So they don't have any choice about this. They must go through the path which has been described, which in one sense is faster, but it's been suggested by my learned friend's second submissions when we come to part B of the submissions, that in fact they have vastly less rights than any other organisation according to that submission, but I'll come to that.

PN421

But if - - -

PN422

THE VICE PRESIDENT: If you look at any number of different parallels and there are plenty of historical parallels of geographically limited Federally registered organisations, that you could have a body called the Victorian Operative Bricklayers' Society, or something of that nature, and if it was transferring to the State jurisdiction pursuant to these provisions and into the Federal jurisdiction, you would say you simply look at the eligibility rules of that organisation and suddenly it's capable of enrolling employees throughout the Commonwealth.

PN423

MR HERBERT: Yes, because that's the rule that it has and that is the rule, the Federal legislation says it brings forward. It comes as what it is and it is defined by its rules. It's not defined by previous geographical constraints on recruitment as such at all and that's the primary error in my learned friend's submission. He says, "Well, look at what members have had and members in the State of Queensland and therefore it must remain constrained by that, even though its rules permit something else", and the defining document of the eligibility of membership is not its past conduct or its past history but its present rule.

PN424

THE VICE PRESIDENT: Well, it might depend on what is meant by the notion of the association coming to the Federal system and being treated as it is, which was actually a position that you both put in, just that there's a disagreement as to what the organisation is.

PN425

MR HERBERT: It's defining characteristic - the important thing is that its rules, it must have rules that must contain eligibility criteria and things of that kind, section 19 requires that. Once it's got those things, those rules must be registered as being the defining characteristics of that organisation. The thing that isn't registered is, where do your members come from, give us a list of the names and addresses of your members. That isn't a defining characteristic of the organisation that relates to registration, and once the rule which is its defining characteristic, which is required to be in existence and is required to be registered by the Commission in these circumstances, once that rule is registered, it means what it means.

PN426

Now if someone wants to argue in some later proceedings that the rule carries an implication that it will only be applied so far - it only means persons in the State of Queensland and there is a demarcation dispute or something else occurs and the interpretation of the rule comes up for question, then those observations made by my learned friend may generate some litigation. But they can't have any bearing on the proceedings today and the reason why they can't have any bearing on the proceedings today is that the rules exist, they are the registered rules within the State jurisdiction of that organisation, they have been put forward for registration in that form, and once they are, the Commission has no jurisdiction to refuse if those rules meet the relevant criteria under section 19, and more to the point, that because of challenges of the kind that are now being made were and are likely to be, one would imagine, an inevitable part of a process like that, the Parliament has seen fit to insulate such organisations who will inevitably come in collision with a Federal organisation which has got some interest in the area that those State organisations do cover.

PN427

There has been an express exemption so the rules of an applicant for registration, that is a transitionally registered association, are immune from scrutiny on the grounds of conveniently belong, et cetera, in section 19. Now, you can't get a more clear indication that the transitionally registered organisations rules come forward in the form that they are. What they mean once they've been registered may be a fight for another day, but they certainly cannot be - it's not a question that can be gone into in these proceedings.

PN428

THE VICE PRESIDENT: But doesn't it mean that the rules might be one meaning when the organisation is registered under State legislation, and the same meaning when it's a transitionally registered organisation, but then a different meaning upon registration? They might be the same words - - -

PN429

MR HERBERT: Well, the same words, but they can't have a different meaning, your Honour. They might have a different practical impact, but they can't have a different meaning. The same words only have a particular meaning.

PN430

THE VICE PRESIDENT: Well, they have a different practical impact by virtue of the context. You're saying there will now be a new context and there's a then different practical impact, but I think it's probably more than that in the sense of there's a limitation on their meaning and the scope and authority of the organisation under State legislation.

PN431

MR HERBERT: With respect, not, it can't be. The words what they mean, and if the legislation had - if it had been contemplated that they were to be cut down geographically in that way, given the other limitations that have been placed on these matters and the liberties that have been granted, one would have thought that it would have been a very simple thing for the legislature to say so, and they didn't, and they didn't in the clearest terms. They simply said, "Whatever the transitionally registered organisation is, it is entitled to bring those eligibility rules forward." The only means by which that can be gainsaid is if there was a provision in section 19 that said that there is a ground for refusal, or one of the regulations that bears on section 19, that is a ground for refusal that the subsequent travel of the eligibility rule of an organisation, once registered in the system, would be significantly substantially different from the travel which it had under the State jurisdiction and there's not a word of it, not a suggestion, not a sniff of it anywhere.

PN432

THE VICE PRESIDENT: There's no grounds for any alternative approach or alternative submission or amendment to confine eligibility to the State of Queensland. You say it's not contemplated, not possible and therefore whatever the words there, must be the words that follow through to the eligibility clause of the Federally registered organisation with the full force and effect, even if it has never in the past enabled the organisation to enrol employees outside of Queensland.

PN433

MR HERBERT: It's never been subject of Federal law before. So it's a whole new ball park in relation to the legal regime applying to it. So that to say - it's as much as to say that they come forward as a transitionally registered association, but they've got to bring the State Act with them, and the confines of the State Act with them. The whole purpose of the exercise is to free those unions from those State legislative regimes, which is the only thing which is confining the travel of the rules, and if the rules are what they are, and then - and I've made the point before - the organisation must put forward its existing State registered rules. It can't put forward anything else. There is no jurisdiction in this Commission, once that happens, to alter those rules, the eligibility rule, on the consideration that, "Gee, you're going to get a little bit more than you used to have." Well, my clients might say that they've actually got a lot less than they used to have. They used to have a State jurisdiction in which they travelled, you know, quite comfortably, but coming forward - - -

PN434

THE VICE PRESIDENT: In terms of eligibility or otherwise?

PN435

MR HERBERT: No. In terms of general entitlements as a union - - -

PN436

THE VICE PRESIDENT: Eligibility, with a limitation for the State of Queensland is implied into the previous rules written by virtue of its context, then those words would clearly continue to provide eligibility to the full extent and what you describe as a little bit more might be a lot more.

PN437

MR HERBERT: Well, your Honour, can I put it this way. There is no power on the part of this Commission or anyone else to alter my client's rules to put a boundary around the application of its rules once registered. The only basis upon which that is ordinarily done is an objection based on the conveniently belong test and a truncation of the rules based on the outcome of proceedings of that kind and in the case of my client, they have been exempted specifically from the application of the conveniently belong test and we put that in the written submissions. I think everyone's been over that ground. There is a clear parallel here in relation to the demarcation orders.

PN438

The demarcation order translation in relation to - your Honour will recall your Honour's decision in Amcor which was upheld on appeal. Those provisions in the regulations contemplated the possibility that there may have been some adjustments needed to be done in order to ensure that the orders continued forward and achieved the same outcome and it says orders to the same effect, or a similar effect, things of that - words of that kind were used. No such words are used here. No such words are said so that when the transitionally registered association comes through it's to be immune from the conveniently belong provisions, but it's eligibility rule must be to the same effect as it was in the State jurisdiction. There's no verbiage of that kind at all. No hint or no suggestion.

PN439

It's just a case of - and it would appear to be quite logical because of the nature of an organisation being governed as it is by its eligibility rules, that the regulations haven't even attempted to tinker with the eligibility rules because whatever you do when you tinker with the eligibility rules, you may be affecting the organisation one way or the other. You may be saying, well, we're only trying to hold them to what they've already got and that would open a range of arguments where you're actually not doing that, "You're holding us back or you're shrinking, you know, our existing coverage", and debates of that kind.

PN440

There is no room for any such debate because there is no power granted to the Commission to refuse registration on the basis that the eligibility rule will not be to the same effect as the eligibility rule it previously had, ie. because they previously owned and recruited employees in the State of Queensland, although the rules on their face would permit something else to happen, the Commission is not empowered to refuse registration, nor is it empowered to insert rules into my client's rules in order to achieve an outcome different from the rules that they've been granted by the State Registry in Queensland and which necessarily must be the rules that they include within their application. There's just no power to do it and no warrant to interpret that that should occur.

PN441

THE VICE PRESIDENT: No, that's a different argument to what we've been debating previously as to the submission to the effect that it's entirely appropriate that the words were given full force and effect, as if it were something that the Commission has discretion to allow. You're saying that there is no discretion to those questions.

PN442

MR HERBERT: I'm sorry. I may not have - - -

PN443

THE VICE PRESIDENT: More as a matter of construction, I guess.

PN444

MR HERBERT: Yes. As a matter of construction I was putting the appropriateness of it in terms of the overall picture to be painted in order to attempt to demonstrate to your Honour that there's nothing incongruous about this, there's nothing so inconceivable and that's really the basis upon which it's been put against us. It's just inconceivable this could have happened. These people have been let out of their box and they should be kept within the confines they were in previously when they had the jurisdiction to themselves. Now that they're off playing in another pond, they should be kept to the same size as they were, but importantly the mechanism for doing that was unable to be pointed to.

PN445

As I made a note of my learned friend's submission, what he said is in effect, quite apart from the fact that it is submitted that your Honour should read some words into the regulations which aren't there, that is in section 19 and he's written some words helpfully for your Honour to adopt, but then he said, when we get to the point of how do we do this thing, how do we actually effect the results for which he contends, then, as it were, my ship grinds on the rocks because he was forced back on the submission to say there should be an intermediate step where your Honour in effect refuses the application and makes my client go away and change their rules, to put the words "in the State of Queensland" in there, when it's not there now, and never has been, or the Registrar requires them to or write it in for them on some sort of reverse blue pencil rule that things get written in or things get written out or the application is to be refused until they do that thing.

PN446

Well, the fact of the matter is there is no mechanism under the processes by which that can or should occur. There is no basis for the rule being refused registration simply because once read in the Federal jurisdiction it might arguably have a wider implication than it does when it's read within the confines of the Queensland State - the previous Queensland State legislation. That's not a ground for refusing to register. One cannot adjourn. One cannot deal with it the way one would in a conveniently belong application where, for example, your Honour might determine, "Well, I think that these people could be more conveniently represented by this organisation over here in relation to this aspect of the rules and I'll give you an opportunity to change the rules to meet that determination because I'm not going to grant it," or something of that kind. All of those processes are quite possible, and if the organisation fails to amend their rules by deleting those parts, for example, then their application would simply be refused.

PN447

None of those mechanisms apply here because there is no process by which your Honour can stop my client's registration, refuse it and force them to go and change their rules - back in the State jurisdiction, to change their rules to put points of limitation into their rules and then come back with another application. So my learned friend was unable, as my note that I made of his submissions was that there must be some sort of intermediate step between my client's application and your Honour's granting of that application whereby the rules can all be vetted by some intermediate functionary somewhere to see whether they're likely to be any bigger in this jurisdiction than they were in the State jurisdiction.

PN448

There is no such step, there is no such functionary as I understand it. There is no power on anyone to hold up this application on that ground, or to refuse it pending the failure of my client to agree to such a proposition. If my client meets the criteria under section 19 of the registration and accountability schedule, that's it. That's case over, as it were, and my client is entitled to be registered, and the one thing that no one can look at in that respect in terms of conveniently belong issues, is its eligibility rule because the Act and the regulations specifically say so.

PN449

So from that point of view in my submission there is nothing, even if your Honour were persuaded to read some words into the regulations that aren't there, there is no mechanism by which such an amendment, as it were, could be implemented in a practical sense so as to prevent my client from succeeding in their application for registration, and one has to say, if it transpires that by some sort of historical coincidence the eligibility rule which my client has enjoyed for very many years allows it to hypothetically exercise rights of representation in a wider pond than they were previously, that's very interesting, and it's also very interesting that another organisation that has the words "in the State of Queensland" in its rules, can't do that.

PN450

Well, if their rules remain in the form "in the State of Queensland" and they apply for registration only for the State of Queensland because that's what their rules say, then they only get what they apply for. My client hasn't applied to be limited by the State of Queensland. That might have been the practical effect of the way things operated or the legal effect of the way things operated previously. But it's applied for registration of a rule which is wider than that and is not confined in that way, and the union that's got "in the State of Queensland" in its eligibility rule, there's nothing under this Act that prevents it from applying to the State Registry to take the words "in the State of Queensland" out and then bringing an application to this Commission to be registered with an unfettered set of rules, unless the State Registry determined that the words "in the State of Queensland" should remain there but I'm not aware of any authority as to why the State Registry would do that thing. But again - - -

PN451

THE VICE PRESIDENT: When you say whether that led to unintended consequences or anything else or undesirable consequences with a potential for demarcation disputes interstate, that's really beside the point. The point is the application of the statutory tests.

PN452

MR HERBERT: Yes, the application of the statutory tests, and while we're at that, your Honour, section 19 itself has a couple of small areas of guidance in relation to that. The parts of section 19 that were removed from application - as soon as I find them - were section 19(j), which is the conveniently belong test, and (2) and (3) which are the subsequent sequela to the conveniently belong test. What wasn't removed is (i), that's 19(1)(i). It's still there:

PN453

The registration of the Association refer the Parliament's intention in enacting this schedule (see section 5 and the Objects set out in section 3 of the Act).

PN454

If one goes to section 5 of that schedule, one of the objects in (e), (3)(e) is:

PN455

To facilitate the registration of a diverse range of employer and employee organisations.

PN456

"To facilitate" and (i) was left in there so that a diverse range - and this is the sentiment which has been called in recent years the move towards competitive unionism under the Act, that is, that to allow there to be overlapping coverage in many situations and that diversity in organisations is encouraged under this legislation ahead of strict demarcation arrangements and there is a recent decision, it's not in our list of authorities, a recent decision in a matter in which I was involved, Kaufman SDP, who granted eligibility coverage by the Australian International Pilots' Association over the top of the Australian Federation of Air Pilots' coverage in respect of a whole range of smaller airlines and Qantas subsidiaries and Jetstar and people of that kind.

PN457

So that there is now replica coverage between those two organisations as a consequence of the operation of the conveniently belong test. Now, a generation ago that would have been inconceivable that that could have happened. It is now under this legislation and part of the facilitation of the diverse range of employer organisations in accordance with 19(1), it is not permissible. Now, this is but another example of that and if it turns out that my client's coverage, theoretical or hypothetical or even actual ability to cover extends out in circumstances where other organisations currently have territory which they claim as their own.

PN458

Well, ordinarily that organisation would have a right to, if the application was an application from an organisation other than a transitionally registered association, that existing Federal organisation would have had a right to invoke the conveniently belong test and a union, a State union in my client's position would have been tied up forever one would imagine, because there would be very little in the Federal jurisdiction in the railways area, one would think, that wasn't already covered by a Federally registered union. My client would hit the ceiling in relation to those matters one would think and would have a dreadful and debilitating fight in order just to get itself registered in the Federal jurisdiction in that situation.

PN459

So that - - -

PN460

THE VICE PRESIDENT: How does that submission fit with the cases you've referred to regarding the translation of State demarcation orders into the Federal jurisdiction with potential wider leader impact?

PN461

MR HERBERT: Well, your Honour, the demarcation orders were cast - the section relating to demarcation orders and regulations was cast so as to ensure that the demarcation orders themselves were confined to the subject matter and the participants who were the previous participants in the subject matter, but to enhance the practical effect of those because of the fact that there was a translation from the State jurisdiction to the Federal jurisdiction where there were Federal unions who weren't excluded by those orders on the previous occasion because they didn't need to be and couldn't be, in any event, by the State jurisdiction.

PN462

They now need to be in order to protect the integrity of the demarcation order. Now, it's the same principle that I'm talking about in relation to that if, when those orders come up, there is a whole new set of players and there was a whole new set of overlaps that are created over those demarcation orders which didn't previously exist. So that that's why there's a reference to the Commission having a power to grant orders against organisations. Previously there was no power in the State Commission to grant orders against Federally registered organisations than there is now in order to keep them away and that they are - that the transitionally registered organisations have the capacity to keep those organisations at bay.

PN463

There's a whole other part of the Act that allows transitionally registered associations which become fully registered organisations to seek demarcation orders again in order to protect their new found status and the demarcation orders that they have. That's the next round of battles. But it's all part of the same milieu that the legislation is trying to come to grips with the situation where there are organisations - or two jurisdictions are being melded together in circumstances where they don't comfortably fit one with the other because there were previously various areas where the organisations covered each other in a hypothetical sense. But in a real sense the Federal organisation may have had no practical in the State jurisdiction. The State union had that coverage.

PN464

Now, they're being brought up, there has always remained, and the arguments put in the Amcor case, the CFMEU had always retained the theoretical capacity to make a demand and to seek Federal coverage in relation to the Amcor plant. They just hadn't done it for 15 years, but they've had the coverage for many years to do it, and the same thing applies here. I gather from the submissions we've heard that the RTBU has the theoretical coverage over the areas previously covered by my client in the State area, the RTBU have had it in the Federal area. If my client were to seek to simply come up as a cold start applicant, not being a transitionally registered association, the conveniently belong test, one would have thought, would be the end of it. That application would probably stop my client from coming into the Federal jurisdiction at all in favour of the RTBU.

PN465

The legislative policy that seems to have been implemented here is that that shouldn't occur, that an organisation should be able to come into this jurisdiction, and if it means in so doing, because of the nature of the rule that it has, that it can then travel a little wider, well, so be it. But you see, one of the things that hasn't been pointed out, your Honour, is that in light of the fact that all of these constitutional corporations have been bought into this jurisdiction where previously they were almost exclusively in the State jurisdiction, the RTBU now has a bigger paddock to play in than it did before as well.

PN466

It now has the capacity to seek to represent employees in these constitutional corporations which are now exclusively Federally represented. Whereas it may previously not have had the capacity to do so because it's a Federal union and they're in the State system. So that it's not as if my client has got some unintended windfall and everybody else has taken a step backwards.

PN467

THE VICE PRESIDENT: I think there might be some precedent for Federal unions that deal with employers covered in one State.

PN468

MR HERBERT: But with 111AAA, under the old regime that's existed up until March 2006, under 111AAA it would have been very difficult for a Federally registered union to seek coverage in areas in respect of which my client had State awards.

PN469

THE VICE PRESIDENT: To make a new Federal award, you mean?

PN470

MR HERBERT: Yes, yes.

PN471

THE VICE PRESIDENT: Yes.

PN472

MR HERBERT: And to effectively industrially represent those persons in the relevant tribunals without a right of audience in the State Commission, with 1111AAA so that they couldn't make - not easily make Federal awards - - -

PN473

THE VICE PRESIDENT: Commence a bargaining period, negotiate with the employer, have an agreement made and confer jurisdiction on the Federal tribunal.

PN474

MR HERBERT: In circumstances where there's an existing State award, that's a very problematic matter. All I'm saying about it, I'm not saying it's impossible. What I'm saying is all of those impediments in relation to State jurisdiction and the existence of Federal unions trying to intrude in the State jurisdictions have now been wiped away in favour of unions such as the RTBU. They don't have to trouble themselves with the Federal/State divide any more. It's my client who's seeking to scrabble whatever ground that they previously had and it's been suggested in indignant tones that my client really shouldn't have one millimetre more in terms of breadth of coverage than it had.

PN475

The RTBU isn't saying, well, we'll stand back and we will see cease and desist and we won't seek to cover any of the areas that you covered when they were State jurisdictions. So again it doesn't go to the legal interpretation other than to show that there are so many swings and roundabouts here that the argument that says it's inconceivable because of this windfall of this union and what are they doing getting a windfall, the Parliament could never have expected that they would get a windfall, just doesn't, when you examine the whole totality of the picture, it's not a submission that holds any water with respect.

PN476

So that just to conclude on this part of the submissions, your Honour, the fact of the way in which section 19 of schedule 1 has been modified by the regulations makes it very clear that it was intended that whatever eligibility rule the transitionally registered association had when it applied for registration, it was entitled to keep and the implications of that can be sorted out at another time in another place, but they cannot be determined here.

PN477

They mean what they mean and they are what they are and this jurisdiction is required by the terms of the legislation to accept them in that form and if there's any difficulties associated with overlapping coverage, demarcation, there are ample provisions in the schedule 1 for demarcations if they actually arise, because we're dealing in hypothetical terms now, because none of this has happened, but if they were to actually arise post registration, then there are ample provisions in the regulations to deal with demarcation disputes that might come up there, and that's the way the matter is very carefully designed in my submission to be engineered.

PN478

If your Honour goes to the explanatory memorandum in relation to the regulations that I handed up a moment ago - - -

PN479

THE VICE PRESIDENT: I might mark both of those documents together, the explanatory memorandum, the extracts tendered in relation to the Act and the explanatory statement in relation to the regulations, exhibit K14.

EXHIBIT #K14 EXPLANATORY MEMORANDUM AND EXTRACT TENDERED RE THE ACT AND EXPLANATORY STATEMENT IN RELATION TO THE REGULATIONS

PN480

MR HERBERT: Thank you, your Honour. If your Honour goes through to page 128 under regulation 4.2, paragraph 582 of the memorandum, regulation 4.1 provides:

PN481

Chapter 3 of part 6 of the regulations explains how section 19 schedule 1 of the Act applies to TRAs. Section 19 sets out the criteria for registration -

PN482

et cetera -

PN483

19(i)(j) and subsections 19(ii) and (iii) of schedule 1 constitute what's generally referred as the conveniently belong rule.

PN484

Which is self evident. 584:

PN485

In order to ensure that the conveniently belong rule does not apply in relation to TRAs seeking registration as an organisation. Regulation 3.2 provides that paragraph 19(1)(j), 19(ii) and (iii) do not apply to TRAs which apply for registration under schedule 1.

PN486

Pretty plain, the conveniently belong rule does not apply.

PN487

Now, what is being said here is that despite what the regulations say, despite what the memorandum says there's a new conveniently belong rule being put up for your Honour to implement despite the intention that there be no conveniently belong rule apply and the conveniently belong rule relates to the issue of, by the insertion, as it were, of a geographical boundary so that anything that may extend beyond your previous historical coverage under the other system bound by other laws when you were in another emanation before you became registered Federally, anything that extends beyond that you can't have because in effect we can more conveniently deal with that, or you shouldn't have it, it's ours.

PN488

Now that's what a conveniently belong test is. Even though it's in your rule, you shouldn't have it because we're here. That's the basis of our objection. It's - - -

PN489

THE VICE PRESIDENT: When you say that it's - the words were there, you're entitled to the words, the denotation is the same.

PN490

MR HERBERT: Yes, yes.

PN491

THE VICE PRESIDENT: On the State registration, or the Federal. There's a connotation that it may change and therefore the practical meaning given the changed context, but that's something which you say is, so be it.

PN492

MR HERBERT: One couldn't say, given the enormous amount of detail that went into these regulations and the interplay between them that the Parliament didn't give this matter any consideration. They obviously did, but they dealt with it, as far as anything was thought of here, the matter's been dealt with by way of simply wiping out the conveniently belong rule and not inserting another test that says, "Make sure you stay within your previous State boundaries when you come up here." And that's the statutory rule.

PN493

Now, if some find that inconvenient, that's as may be, but you can't say that the outcome is so inconceivable that a Parliament couldn't have possibly meant it, and (b) here are the clear words that Parliament obviously left out. It's a drafting error. It must have meant, and here are the words. It doesn't pass any of those tests and so that it's effectively in terms another form of conveniently belong rule that is being sought to be applied.

PN494

For those reasons and the reasons set out in the written submissions, your Honour, which I don't need to go to again, unless there is anything your Honour wishes to ask me about them, we say that the submissions that suggest that we should be subjected to some mysterious intermediate process where our rules are vetted, so as to limit them in some way and be changed by some process that we haven't been explained how it works, that that submission must fail and that I apprehended my learned friend's stopped short of submitting that the application must be refused outright and as a transitionally registered association, if as a matter of historical accident or even by design, my client has a rule which when interpreted in the context of a Federal jurisdiction that gives it a wider practical application than it might have had when interpreted in the context of the State jurisdiction, that that historical fact means that my client's application must be dismissed.

PN495

I didn't understand that submission was to be made. What I did understand the submissions made is that we have to go back and be subject to some process or other whereby there's some surgery taken to our rule, to my client's rules, so that the rules sit with the expectations of the RTBU. Well, as I say, there is no jurisdiction, power, procedure or anything for a process like that to occur. Therefore the only process that can occur under section 19 on the must register terminology of section 19 of schedule 1 is that the rules in the form that they are must be registered.

PN496

In relation to the second matter that's raised by my learned friend, and that goes to the application of what is said to be the substantial identicality point, my learned friend's language, with respect to him, slipped from substantially identical to substantial similar in the course of his submissions and of course, that's the vice of the submission. The word "identical", one has to assume, is used advisedly and it's not - identical is not, if you'll pardon the expression - identical, dissimilar. It's not even similar to similar. It's a very long way away.

PN497

The words that are used in the regulation say "substantially identical". Now, my submission is one reads substantially identical, if you need to massage it around to get some better idea of what it's intended to mean, it means identical in substance. And some support for that is found in paragraphs 585 and 586 of the memorandum, explanatory statement in relation to the regulations themselves. 585 reg 4.4 provides that:

PN498

A transitionally registered association which is in substance the same as a State branch and existing Federally registered association will not be eligible for registration as an organisation.

PN499

And over to 586:

PN500

This reflects the fact that a State registered organisation will often be, in a practical sense, indistinguishable from a State registered association. For example, they may share the same premises, have identical offices and personnel, use the same equipment, stationery, represent the same types of employees or be otherwise practically indistinguishable. To avoid two substantially identical identities -

PN501

et cetera -

PN502

regulation 4.3 provides the Commission must refuse to grant an application if the TRA is substantially identical to another organisation or a State branch or are the constituent part of an organisation.

PN503

Now, the affidavit material, your Honour, I don't need to go to in any length. It's all uncontested, but if I refer your Honour to the affidavit of Mr Smith that was filed on 26 September 2007 there is a summary of the relevant criteria and whether they are met or not conveniently, if I can ask your Honour to note, from paragraphs 155 onwards, it summarises all the relevant criteria, and can I just summarise that and I'd ask your Honour to have regard to that. That's paragraphs 155 through to the end of 170.

PN504

Your Honour, the two organisations do not share the same premises. They have no common offices and personnel, the don't use the same equipment and stationery, to a very limited extent there is an overlap in relation to the types of employees they represent, the RTBU is a much broader church than my client. It has a division which represents those people but you'd hardly say that that division is the union, and to say that they're otherwise practically indistinguishable, given that my client is a free standing State union that cut the paint, as it were, with the other organisation some years ago when a failed amalgamation occurred and has continued to operate, as Mr Smith's affidavit deposes in much wider terms than I've taken you to, they operate from their own premises under their own steam, under their own funding, they have no other affiliations with any other organisation, they receive no assistance from any other organisation or employer or anyone else. They are simply an older style independent State registered union which has no relevant connection with the RTBU.

PN505

It just happens to have shared classifications which comprise the majority of my client's eligibility rule and a relatively small part of the RTBU's eligibility rule and other than that they are not - they have essentially nothing to do with each other. They go into the same room and engage in similar collective bargaining negotiations where the interests of both sets of members are in contention at the same time, but beyond that, that's the extent of their contact in the real world.

PN506

So that if one reads "substantially identical" as meaning identical in substance or the other words that are used in the explanatory note, "practically indistinguishable", and words of that kind, then in practical terms you'd have to say the two organisations have absolutely nothing to do with each other. The submission seems to be put that so long as there are cultural similarities in the sense that they represent people in approximately the same area, that's enough to make them identical in substance and in practice and they're plainly not.

PN507

But the money goes a little deeper than that, your Honour, because on my learned friend's submission my client is in fact a lot worse off by reason of these regulations rather than better off and the reason seems to be, as I follow the argument, that section 4.3 of the part 4 of chapter 6 of the regulations provides that:

PN508

Section 19 of the RAO schedule applies in relation to the association as if the section required the Commission to refuse to grant an application for registration made by a transitionally registered association if the transitionally registered association is substantially identical to a body.

PN509

Et cetera. That's the substantial identicality point. Now, that means, if my friend's submission is right, if my client has some overall significant overlapping coverage with another organisation which isn't it and has essentially not much to o with it at all, then you would have thought that my client would be, as I mentioned earlier, in very serious trouble if it had to go through the conveniently belong test. It would be confronted with some serious considerations all of that.

PN510

What is being suggested is that because it is a transitionally registered organisation it has been - the legislation says that it is exempted from the operation of the conveniently belong test so in fact those sections don't apply. However, it has an obstacle which is vastly more serious. If it is found to be substantially identical in the sense my learned friend puts it, the Commission must refuse the application. That is, my client doesn't even get a run at the conveniently belong test, because the conveniently belong test has been taken out where it could actually pit itself in a beauty contest, as it were, against another organisation and say, this organisation couldn't more conveniently represent our members, and wouldn't or couldn't more effectively do that.

PN511

We want to pit our reputation and our performance against this other union and we want the Commission to assess that under the conveniently belong test, and we want to have a go. Well, they can't do that because of what regulation 4.3(1) says, but if there's any suggestion of this so called substantial identicality, which is the reason you'd think why they'd been accepted for the conveniently belong test in the first place, they're actually prohibited from being registered. So the conveniently belong test, as it's in schedule 19, has been taken out, something else has been put in which is dramatically more fierce because they don't even get to enter the contest.

PN512

They don't get to compare their abilities, they don't get to run the gauntlet of conveniently belong. They're just out, full stop, no questions. Now, that can't conceivably have been what's intended, so that transitionally registered organisations who are being given this exemption from conveniently belong so they don't have to go through the argument about whether they're better or more effective than these other organisations because presumably they already exist and they're already functioning in the State, that the same hand that gives them that exemption and gives them that leg up to make the registration easier makes it impossible because the closer they are to another union, and the more they need to be exempted from the conveniently belong test, the more substantially identical they become, fatal.

PN513

So the unions that really need the exemption are given a fatal dose in its place. That is, they're prevented from becoming registered at all on my friend's submission. One would have thought that the purpose of this provision, when one reads the explanatory memorandum related to the regulations, the purpose of that provision was to prevent the registration of alter ego State unions, which really are simply the State branch of the union which has assumed a different designation and got itself registered under the State legislation and on McJannet principles has become a separate legal entity in its own right, but to all intents and purposes operates as the State branch of, and everyone knows what unions they are and people have seen them over the years.

PN514

So that you don't have a situation where the Miscellaneous Bean Packers' Union, for example, doesn't achieve two Federal registrations. One, by dint of its original registration and another by virtue of the fact that its State branch has got corporate status, becomes a transitionally registered association and it can get registered and sit next to it when it's really only the State branch of that. That's the sort of scenario, very clearly, that is, when you look at the explanatory memorandum and the regulations themselves is intended to be avoided. It's not intended to erect a more onerous conveniently belong test in the path of these organisations because they've got another - there is a Federally registered union that has territorial aspirations over its area and has a degree of overlapping coverage or will have once the State union becomes registered.

PN515

That scenario is the reason why the conveniently belong test was abolished. One wouldn't suggest that scenario as a reason why a more onerous test should be inserted over the top. So for those reasons, in my submission, the submissions of my learned friend in relation to the material identicality provision also should be rejected. So that my client then is an eligible application, being a transitionally registered association.

PN516

Might I say in relation to - I should have - I'm not sure if I emphasised the point that under chapter 6, part 4, those provisions, that is, the exclusion of the conveniently belong test and the inter position of the other test which is in regulation 4.3 are mandatory in relation to transitionally registered associations. They can't come at the regulations as a clean start union and get access to the conveniently belong test because of the historical fact that they are a transitionally registered association and that they took the first step first. Then the regulations say that you don't get a shot at the conveniently belong test because that provision doesn't apply to you. In fact, there's a mandatory refusal provision in its place which, as I say, is vastly more onerous than the conveniently belong test was. At least my client would have a shot at the conveniently belong test and some prospects, I would have thought, but given its history and performance, but it has no prospects according to my learned friend, Mr Kenzie, and must be refused.

PN517

Now to adopt the principle applied by him in relation to his primary submission, that is inconceivable that Parliament could have intended a result of that kind. But as I've already submitted, if you go back to the explanatory memorandum in relation to the regulations and you look at what they're talking about there about State branches of unions being, in effect, the State registered union, they're being the same thing, being materially identical and unable to be differentiated in any way in any serious practical way at all, practically indistinguishable I think are the words that he used, then the answer to that submission becomes clear.

PN518

Your Honour, I think I dealt with all I need to say about the third submission of my learned friend to the effect that it is accepted that the changes to rules must be done under the State jurisdiction because until Federal registration occurs my client remains a State union and the Act seems to very clearly contemplate that it will order its affairs in accordance with the jurisdiction that applies to it in respect of its rules and other things because the registration accountability provisions don't apply to it in relation to matters pertaining to rule changes and things of that kind, there is no rule change mechanism available under the Federal Act unless and until my client is actually registered under the Federal Act.

PN519

Prior to that it seems the only rule change mechanism available to it is in the only jurisdiction that currently has control over its rules and that is the Queensland State Commission. So we accept, as we put it in the submissions, that we must go there, but that will be a matter, as I understand it, on my instructions, of a formality in relation to requesting that Registry to accept whatever rule changes will be necessary and I understand that Ms Keating tendered a letter this morning from the Queensland State Registry indicating that there will be no difficulty about those matters. So that's not a submission of any substance in relation to the proper progression of this matter in my submission.

PN520

Unless there's anything further, your Honour, those are my submissions.

PN521

THE VICE PRESIDENT: Thank you, Mr Herbert. Mr Kenzie?

PN522

MR KENZIE: I note the time but I can deal with matters in reply I think with some real expedition if that's convenient?

PN523

THE VICE PRESIDENT: If you wish to you're more than welcome to, Mr Kenzie.

PN524

MR KENZIE: Thank you, your Honour. Firstly, nothing I think turns on this in the result, but our friend commenced by saying that we hadn't pressed the third contention, but the truth of the matter is we had and do press the third contention, but we understand that the thrust of that contention is accepted. We haven't seen the letter from the Queensland Registry, but there is not much point debating the matter further, because on the point of law the parties are agreed and those submissions have been fortified further by Mr Herbert's helpful reminder of the provisions relating to the state of play at the time of transitional registration, namely those provisions that - and the explanatory memorandum that ensures that there is a maintenance of activity at the State level.

PN525

Now, your Honour, dealing with matters in the order that my friend did, he appeared to vacillate in relation to what he said was the effect of what was happening here. There was at different times in his submission the suggestion of some resistance to the notion that the Queensland State union was in fact circumscribed by the legislation pursuant to which it was registered, the only legislation that has underpinned its existence until - and will continue to underpin its existence until final Federal registration is achieved.

PN526

In our original submissions we pointed to those considerations which would be relevant to a proper understanding of the conditions of eligibility and their extent insofar as the State union is concerned. We put the submission that it could not seriously be contended that the State union absent Federal registration was in a position in which it could validly enrol, represent, deal with by way of representations conduct valid elections for members of the organisation on an Australia wide basis. Its whole existence is legislatively circumscribed by the Acts Interpretation Act Queensland we frankly don't apprehend the basis of any intelligible argument to the contrary.

PN527

At one point of time our friends suggested that there was some latent capacity. We have no consciousness of what a latent capacity might be. Mr Nolan suggested to me there might be a latent capacity to declare war on Poland, but it doesn't advance the debate to say that there is a latent capacity. The fact of the matter is that as everyone knows, the State organisation was affected by the legislation pursuant to which it was registered. It is futile to contend to the contrary.

PN528

At the other end of the spectrum, although my friend at different times talked about some slight extension, and other descriptions were used, at the end of the day there was no attempt to flee from the proposition that registration under the Federal Act, if achieved, would give rise to a totally different situation and at the end of the day our friend was driven to say, look, the words are the words, the Federal Act takes us as we find us and one must proceed on the basis that it cannot be assumed that Parliament didn't intend this result and at the end of the day that is the debate that has to be faced up to.

PN529

Our friend suggested during the course of his submissions that you didn't have to face up to that debate, you could put all that off to another day, but in our respectful submission the Commission is required to address the consequences of what is before it in order to come to grips with the question of what the legislation means. It cannot be approached on the basis that it may have a dire consequence. It cannot be approached on the basis that those issues don't have to be addressed. They do have to be addressed in our respectful submission and the Commission will come to grips with whether the legislation in its existing form contemplates the results that we contend are at stake here and which Mr Herbert ultimately concedes really would flow.

PN530

Our friend then went to what he described as the massive dislocation and changes that flowed from Federal legislation and he advanced a theory that basically went like this because State unions were affected by change, Parliament has enacted legislation that gives them a quid pro quo, and the quid pro quo for the removal of their protection, presumably this is protection from organisations that always had the capacity to engage in industrial agreements in Queensland, the quid pro quo was not only entry to the Federal system, but entry to the Federal system on the basis that their entitlements were massively increased.

PN531

As was pointed out during the course of the debate, that conflates a number of notions and proceeds on the basis that entry into the Federal system means entry into the Federal system on a national basis. From the time of the Jumbunna case Federal organisations have existed on a State basis. As we recall the Jumbunna case, about a century ago the High Court dealt with the notion of whether you could have a dispute which involved an organisation registered under the Federal Act which was a State confined organisation and could it engage in a Federal industrial dispute, and the answer to that was yes.

PN532

Our friend is conflating those two propositions. All of the issues that face a State organisation that wants to become a transitional association and get entrée into the Federal system can be met by acknowledging that it can get into the Federal system on a basis that equates with its State coverage and the only question that is raised is whether the legislation, as properly interpreted, gives rise to a conclusion that a State registered union, a TRA, can demand effectively entry into the Federal regime in circumstances where there is no capacity relevantly to object and thereby widen its practical coverage in a fundamental way.

PN533

Our friend referred to the removal of the conveniently belong provisions, but in our respectful submission, accepting everything that was said about the fact of removal of those provisions, they don't assist in getting to the result that our friend contends. They go the other way. They tell you that within the range of operation of entry to the Federal system there is an absence of capacity to object, but the notion that conveniently belong provisions are removed in relation to the process of registration of a TRA, which is acknowledged and of course accepted, in circumstances where, if a Federally registered organisation wants to extend its eligibility it has to go through section 158(4) does not get you to the conclusion that section 19 is to be construed as requiring the Commission to rubber stamp an application that will have those dramatic changes.

PN534

Section 19 didn't have that impact in the past. It hasn't been changed in any relevant way. The fact that the conveniently belong provisions have been removed do not amount to a basis for suggesting that registration equals registration plus multiplication of conditions of eligibility. The fact that the conveniently belong provisions have been removed in that context is suggestive of a proposition that TRAs are fast tracked into the Federal system without the need or relevance for anyone to complain about an area of conjoint coverage where there is a process of effective representation. That is, you can cover this, we can cover that and we think we can do it better. That is removed from the equation as it otherwise would be with a State organisation. If the State organisation came into the Federal system, otherwise there would be a debate about the scope of people who are affected by the change, that would be governed by the conditions of eligibility.

PN535

Parliament has said, that goes. But it doesn't take you to the stage of saying and, so does all consideration of just what change would be effected by the registration of the TRA.

PN536

THE VICE PRESIDENT: Don't you bear the onus of demonstrating how the Commission is required to give effect to the proposition that you advance and that there is power and authority, I guess, to exercise that function now at this stage and preclude the organisation being registered with the consequences that you point to?

PN537

MR KENZIE: Yes, we do in this sense, that it is incumbent on us to advance suspicion to the Commission as to what the legislation actually means, and in our respectful submission, the Commission is not powerless because section 19, properly construed, means what it has always meant, and that is that where it refers to an association seeking registration as an organisation, it refers to an association seeking registration for what it is, and if an organisation, if a TRA comes to the Commission seeking registration on the basis that that registration will turn it into something else, it is an association that does not answer the description under section 19.

PN538

The Commission is not then powerless. The Commission can adjourn the proceedings. The Commission could dismiss the application if pressed on the basis that it's going to turn the association into something else. But the notion that the Commission is powerless to do anything about that is simply wrong. If the Commission is of the view that section 19 means what we say it means, namely that it provides a mandatory basis for the Commission to act if satisfied of the matters that are advanced, it is to register if it's satisfied of those matters and it is not register otherwise, then the question for the Commission is whether it is satisfied that those conditions are satisfied.

PN539

If the Commission is not satisfied that those conditions are satisfied, it could dismiss the application, but it would not be powerless to, in the face of an application by an organisation which answered the description under section 18B, it could provide the association, the applicant with an opportunity to put its rules into a situation which made it registerable. That is what the Commission is doing in a non conditions of eligibility context right now. It is saying to the association, look, you've come up here, you want to change your rules it eh context of this application to give rise to a result that's registerable. Go and do it.

PN540

I note that Mr Herbert said that an organisation, that an association that was registered under the Queensland Act which did have words of its conditions of eligibility that confined it to Queensland could, if it wanted to do so, go to the Registry and have those words removed and come back and make an application presumably to be, to put it in the same position as he says his client's in here. But he apparently takes the view that you couldn't do the opposite and seek to have your rules put into a situation where the coverage was made certain and consistent with your existing historical coverage. There's no reason why that couldn't happen, but we do bear the onus, because we are asking for a result that involves the proposition that some words are to be read into section 19. We bear that onus.

PN541

We bear the onus of putting to and defending a proposition before the Commission that that is what section 19 is all about and that there is, and always has been an implication in section 19 that what goes in the front door comes out the back door, and not some different animal. Yes, and that is why our submissions of course are founded or are tendered by recourse to the legal background or underpinnings of the two pieces of legislation. The Acts Interpretation Act underpins the State Act and the Federal Acts Interpretation Act underpins the Federal Act.

PN542

The notion and the legal effect of the rules, when it goes through this process, will be unaffected by that change, is not easy to discern. Mr Herbert simply asserted that there would be no change in circumstances where the Federal Act took his client's rules as they found them. There is a legal effect in the Federal Act taking his client's rules as they find them. The effect is that there will be registration and that registration of that new body will be underpinned by the Federal Acts Interpretation Act and that those rules will not be circumscribed by legal considerations that mandated a different interpretation today.

PN543

Now, next, if it please the Commission, our friend's criticised us for what he termed a historically based submission. It is true that we have had regard to the history of the legislation, but defensibly so in our respectful submission. We have referred to the history of section 19 because what you're asked to do, you're asked to do under section 19 and unless section 19 is read in such a way as allowing a transformation of an organisation in a way that hitherto has not been contemplated, there simply is no capacity under section 19 to give rise to that result and our submission is that there's always been that limitation understood, that you were actually registering and giving effect to what was presented before you and that remains the case today.

PN544

THE VICE PRESIDENT: Do you say that if there was a case of a new association seeking registration and it was an association with an eligibility rule that covered, for argument's sake, train drivers and bus drivers, yet the actual members of the association at the time of establishment was only one category and not the other, that it could proceed the registration and would not comply with section 19 because it didn't have members in the bus driver category?

PN545

MR KENZIE: No. Our submission doesn't - there is no suggestion of that in our submission. Our submission does not depend upon the fact of membership. Our submission simply depends upon the legal relationship between the conditions of eligibility of the State union and the conditions of eligibility of the Federal union and what is legally embraced as a result of those two concepts. The question of whether registration prospects would be affected by only partial occupation of your conditions of eligibility are issues going to merit, but not issues going to jurisdiction and we would not - our submissions are submissions that are advanced regardless of the extent to which, if any, the conditions of eligibility had been utilised. They are matters of merit.

PN546

Our submission is a submission about jurisdiction and jurisdiction alone. It wouldn't be any better if Mr Herbert's clients had historically fully occupied their ranges of capacity within Queensland or whether they had only enrolled some of the categories. The submission would be the same. Your Honour, I am still unsure as to whether this point will matter or whether it will assist your Honour, but our friend demonstrated, I think, that the explanatory materials were designed to give rise to a conclusion that a transitional association is a halfway house or a point along the way and that a transitionally registered association was not intended to be subject to schedule 1 and so in terms of accountability, elections and matters like that, section 1 was not intended to apply. It was still intended to be a State association.

PN547

It may be no more than a matter of drafting, but the simple notion that schedule 1 has no application to transitional associations is, in any event, and must be too simplistic, because on any view there is an aspect of schedule 1 that has relevance to transitional associations, and that is there can't be and hasn't been any suggestion at least from this side of the bar table that schedule 1 is inapplicable to transitionally registered associations and therefore they are not picked up under section 18B and are not able to make application which gives rise to section 19 of schedule 1.

PN548

They are plainly embraced. It would be a conclusion that they're not embraced at least to an extent by schedule 1, would be difficult to accommodate with this proceeding. I'm sure it's not a submission that would be advanced by the applicant and it may be no more than a matter of drafting. I take on board what Mr Herbert has done in relation to - there is an element of intent to keep TRAs immune from the full responsibilities of schedule 1. I think everyone understands that. It may be no more than a matter of drafting, but there is certainly a slide from that reasoning to the reasoning that's suddenly a TRA emerges as a fully fledged applicant under section 18B and it can then get registered. We had not taken the point, but the consequence of our friend's submission is that.

PN549

Our friend submitted that the Commission as presently constituted has no capacity to stop this application on the grounds that are advanced. The Commission is powerless. It must let the matter go through and any argument about the extension of capacity to enrol is a matter that would be worked out in another place at another time. In our respectful submission that is not correct. That is Mr Herbert expressing the conclusion that this debate is all about. That is the very issue of construction here. The issue of construction is as to whether the Commission is not empowered in this regard and whether the Commission is required to let this matter go through to the keeper.

PN550

In our respectful submission if the proper construction of section 19 is that it doesn't embrace the capacity to fundamentally enlarge your conditions of eligibility, then the Commission is not disempowered. The Commission is clearly empowered. If in the past the Commission had been faced with an application under section 19 which was from an organisation that said, our conditions of eligibility are that we can enrol engine drivers, but they are also elastic conditions of eligibility which will magnify into the future into some unrecognisable and unexaminable form, the Commission would have been historically entitled to say that is not an application that the Commission, in its jurisdiction, would entertain and there would be capacity to go back and put your conditions of eligibility into a form that was able to be assessed, and the position is no different today in our respectful submission.

PN551

I think in relation to the second point, the regulation 4.3 aspect, I think, issue is pretty well joined, your Honour. I was accused by Mr Herbert of using the words "substantial similarity". I think, subject to correction, what I was doing in that regard was actually utilising the words of the note where those words actually find their way into the section and in any event, I think issue was joined and there's nothing I'd seek to add to our submissions in relation to regulation 4.3. Those are the matters.

PN552

MR HERBERT: Your Honour, there's one matter so there be no confusion about what the submission is, if I might, with your Honour's leave, it's just simply the issue of section 3 of schedule 10 which says, "The provisions of this Act apply", et cetera, and we've used that as a basis because this Act, it was defined in the Act as not including schedule 1 that somehow or other there's the implicity in that is the submission that section 18B doesn't pick up transitionally registered associations. There's a very simple answer to that, your Honour, and it's probably my fault for not stating it clearly before.

PN553

Section 3 of schedule 10 applies the Act without schedule 1 to transitionally registered associations in the same way as they apply in relation to an organisation. Now, section 19 of schedule 1 doesn't apply to organisations because that's the means by which you become registered. Organisations don't apply for registration, because they already are. So a transitionally registered - so that there is no impediment, there's no anomaly in the submission we put, but section 19 does apply to transitionally registered associations when they make application because it's a matter that doesn't apply to organisations.

PN554

So that there's no difficulty in the way - the way my friend put the submission, and he said he wasn't taking a point about it, and then did - that somehow or other it's implicit to the submission that because this Act is defined as meaning absent schedule 1, would mean that transitionally registered organisations can't apply. But that's the way in which the Act applies and it applies in the same way as it would apply to organisations which doesn't include section 19.

PN555

THE VICE PRESIDENT: So those provisions are well drafted, yes.

PN556

MR HERBERT: Your Honour, I don't mind being verballed by my learned friend, but I prefer not to be verballed by your Honour particularly in such a pejorative matter as that. Thank you, your Honour.

PN557

THE VICE PRESIDENT: Thank you, Mr Herbert. Thank you, counsel, for your submissions. I'll reserve my decision. The Commission will now adjourn.

<ADJOURNED INDEFINITELY [4.45PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #K5 LETTER AFULE TO REGISTRAR RE DEED OF SETTLEMENT AFULE AND AMWU DATED 26/11/2007 PN168
EXHIBIT #K6 LETTER CFMEU TO COMMISSION DATED 22/11/2007 PN169
EXHIBIT #K7 LETTER FROM AFULE RE DEED OF AGREEMENT AFULE AND AWU DATED 26/11/2007 PN174
EXHIBIT #K8 SUBMISSIONS PN194
EXHIBIT #K9 LETTER FROM QUEENSLAND INDUSTRIAL REGISTRY PN244
EXHIBIT #N2 RTBU OUTLINE OF SUBMISSIONS DATED 2/11/2007 PN259
EXHIBIT #N3 AFFIDAVIT OF MR THOMAS PN261
EXHIBIT #N4 AFFIDAVIT OF MR WRIGHT PN261
EXHIBIT #N5 RTBU REPLY TO APPLICANT SUBMISSIONS PN261
EXHIBIT #N6 VARIOUS EXTRACTS AND MATERIAL BUNDLE OF DOCUMENTS PN261
EXHIBIT #K10 PRIMARY SUBMISSIONS DATED 26/09/2006 AND FILED 26/09/2007 PN363
EXHIBIT #K11 AFFIDAVIT OF MR SMITH SWORN 21/09/2007 PN363
EXHIBIT #K12 FURTHER SUBMISSIONS BEING RESPONSE TO RTBU OUTLINE OF SUBMISSIONS DATED 16/11/2007 PN363
EXHIBIT #K13 FURTHER AFFIDAVIT OF MR SMITH SWORN 16/11/2007 PN363
EXHIBIT #K14 EXPLANATORY MEMORANDUM AND EXTRACT TENDERED RE THE ACT AND EXPLANATORY STATEMENT IN RELATION TO THE REGULATIONS PN479