[2020] FWC 1489

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
s.158(1) RO Act—Rules of organisations

Australian Rail, Tram and Bus Industry Union
(D2019/1)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 19 MARCH 2020

Application by RTBU for consent to alter eligibility rules – privatisation of public bus services in New South Wales – TWU and employers in Transit Group oppose proposed rule alteration – partial consent to proposed rule alteration.

[1] The Australian Rail, Tram and Bus Industry Union (RTBU) has applied for consent from the Fair Work Commission (Commission) to alter its eligibility rules in accordance with s 158 of the Fair Work (Registered Organisations) Act 2009 (RO Act) (Application).

Proposed amendments to the RTBU’s eligibility rules

[2] The RTBU wishes to alter its eligibility rules as follows (underlining is used to indicate the proposed amendments):

“4 – ELIGIBILITY FOR MEMBERSHIP

(1) The following shall be eligible to become members of the Union:-

(i) permanent or casual employees, including persons training for employment, in the tramway services of Australia and motor omnibus services and trolley bus services and light rail services run in conjunction therewith or controlled thereby, and also employees of the State Transit Authority of New South Wales, the Public Transport Corporation of Victoria, the State Transport Authority of South Australia, the Metropolitan Transport Trust Tasmania, the Brisbane City Council and the Metropolitan (Perth) Passenger Transport Trust and any Commonwealth, State or Local Government, in tramway or motor omnibus or trolley bus or light rail services together with such other persons whether employed in the industry or not who at any time when training for employment or working in the tramway, trolley bus, motor omnibus or light rail services have been admitted as members and to continue that membership.

Provided nothing in this paragraph (i) shall permit the Union to enrolled as members persons employed in the States of Victoria, Queensland, Tasmania and Perth as clerks, ticket examiners, depot starters, assistant depot starters or inspectors; and

(ii) an unlimited number of employees employed in or in connection with the Railway and Tramway industry or industry is governed and controlled directly by the Governments of the Commonwealth of Australia and the States of Queensland, New South Wales, Victoria, South Australia, Western Australia and Tasmania, or indirectly by such Governments, or any of them through Commissioners, Boards, Managers, Directors, or other means, and also all railway systems in the Commonwealth of Australia owned and controlled by private persons or companies, and the Secretary and/or any employee of the Railway Institute established by or under the direction or with the approval of the Commissioners, Boards, Managers, Directors or other controlling authorities of any of the railway systems in the Commonwealth of Australia; and

(a) an unlimited number of railway employees (adults or junior, male or female) who become and remain members of the Union and persons who while being members of the Union retire from the railway industry upon the ground of ill health or having reached retiring age and whose membership has not been terminated pursuant to this Rules;

(b) for the purposes of sub–paragraph (iii)(a) above, “Employee” or “Railway Employee” means any officer or employee employed by any Railway Department and also any officer or employee employed in any railway system in the Commonwealth owned or controlled by private persons or corporations other than officers in a supervisory position employed at an annual rate of salary and shall include the Secretary or any employee of any Railway Institute established by or under the direction or with the approval of the Railway Commissioner or other controlling authority of any railway system in the Commonwealth and “Railway Industry” has a corresponding meaning; and

(iii) an unlimited number of persons employed in the Railway Train Running Industry including Locomotive cabdrivers, Electric Train cabdrivers, Fireman, Electric Helpers, Chargemen and Cleaners, Packers and Trimmers, Wash–out Men, Wash–out Men’s Assistants, Motor Drivers and any other worker engaged in and about the working or management of or incidental to any Steam locomotive or Motor driven by electricity or other power used on any Railway;

provided that, except as provided in Sub-Rules 4(3), 12(3) and 12(4), a person shall only be eligible to remain as a member while he/she continues to meet one or other of the eligibility criteria specified in the foregoing paragraphs.

(2) Each of the paragraphs numbered (i) to (iv) in Sub-Rule 4(1) shall be interpreted separately. Accordingly, each paragraph shall neither limit nor be limited by the provisions of any other paragraph.

(3) Notwithstanding the proviso to Sub-Rule 4(1), a person who is admitted to membership pursuant to the provisions of Rule 10 and who subsequently elected as a paid Office Bearer of the Union or becomes an employee of the Union, shall be entitled to remain as a member while holding such Office or engaged in such employment.

(4) Without in any way limiting or being limited by the provisions of sub rules (1), (2) and (3) inclusive, the following persons shall be eligible for membership of Union:

(i) All employees of the Transport Service of New South Wales and any successor, assignee or transmittee, whether direct or indirect, of the business and/or the roles, functions or responsibilities (or any part thereof) the Transport Service of New South Wales where such employees are employed in the provision of bus services by the State Transit Authority of New South Wales and its public subsidiary corporations; and

(ii) All employees of the State Transit Authority of New South Wales and any successor, assignee or transmittee, whether direct or indirect, of the business and/or the roles, functions or responsibilities (or any part thereof) of the State Transit Authority of New South Wales; and

(iii) All employees of Keolis Downer Hunter Pty Ltd and any successor, assignee or transmittee, whether direct or indirect of the business (or any part thereof) of Keolis Downer Hunter Pty Ltd where such employees are employed in or in connection with the provision of bus services in the area identified as Outer Metropolitan Bus Contract Region 5 – Newcastle otherwise known as State Transit Region 5 Newcastle; and

(iv) All employees of Transit Systems Pty Ltd and any successor, assignee or transmittee, whether direct or indirect of the business (or any part thereof) of Transit Systems Pty Ltd where such employees are employed in or in connection with the provision of bus services in the area identified as Sydney Metropolitan Bus Service Contract 6 otherwise known as State Transit Region 6; and

(v) All employees of Transit Systems West Pty Ltd and any successor, assignee or transmittee, whether direct or indirect of the business (or any part thereof) of Transit Systems West Pty Ltd where such employees are employed in or in connection with the provision of bus services in the area identified as Sydney Metropolitan Bus Service Contract 6 otherwise known as State Transit Region 6; and

(vi) All employees of Transit Systems West Services Pty Ltd and any successor, assignee or transmittee, whether direct or indirect of the business (or any part thereof) of Transit Systems West Services Pty Ltd where such employees are employed in or in connection with the provision of bus services in the area identified as Sydney Metropolitan Bus Service Contract 6 otherwise known as State Transit Region 6.”

Reasons for proposed alteration to RTBU’s eligibility rules

[3] In New South Wales, various public bus services have been privatised and there is expected to be further activity on this front in the foreseeable future. In particular, in 2016, the operation of public buses in Newcastle (region 5) was privatised. In 2018, the operation of public bus services in an area known as region 6, encompassing part of Sydney’s inner west, was privatised. In 2019, the New South Wales Government announced its intention to privatise the operation of public buses in regions 7, 8 and 9.

[4] The RTBU has traditionally represented bus drivers who work on public buses and who are employed by a State or Commonwealth Government. The privatisation of the operation of public buses in New South Wales has meant that some drivers of public buses in New South Wales are not eligible to join the RTBU. 1 The purpose of the RTBU’s rule variation is to alter coverage to explicitly include those employed to operate a public bus service that was previously operated by the New South Wales Government. This would include:2

• persons whose employment transferred from the public sector to a private bus operator following a transmission of business (i.e. privatisation) (Legacy Drivers); in addition to

• other persons who are employed by the private bus operator to operate that public bus service (New Drivers)

in region 6 or any other region in New South Wales where the operation of public bus services is privatised.

[5] The RTBU is primarily concerned to cover bus drivers, but rule 4(1)(i) of the RTBU’s current rules simply refers to employees who are employed in tramway services, and omnibus services and light rail services run in conjunction therewith or controlled thereby. The rule is not limited to bus drivers. For that reason, the RTBU has drafted its proposed alteration to its eligibility rules in the same broad fashion, notwithstanding the fact that its primary concern is bus drivers.

Legislative scheme

[6] Section 158 of the RO Act governs a proposed alteration to the eligibility rules of an organisation registered under the RO Act, such as the RTBU. Section 158 provides:

“158 Change of name or alteration of eligibility rules of organisation

(1) A change in the name of an organisation, or an alteration of the eligibility rules of an organisation, does not take effect unless:

(a) in the case of a change in the name of the organisation – the FWC consents to the change under this section; or

(b) in the case of an alteration of the eligibility rules of the organisation:

(i) the FWC consents to the alteration under this section; or

(ii) the General Manager consents to the alteration under section 158A.

(2) The FWC may consent to a change or alteration in whole or part, but must not consent unless the FWC is satisfied that the change or alteration has been made under the rules of the organisation.

(3) The FWC must not consent to a change in the name of an organisation unless the FWC is satisfied that the proposed new name of the organisation:

(a) this is not the same as the name of another organisation; and

(b) is not so similar to the name of another organisation as to be likely to cause confusion.

(4) The FWC 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 FWC, another organisation:

(a) to which those persons could more conveniently belong; and

(b) that would more effectively represent those members.

(5) However, subsection (4) does not apply if the FWC accepts an undertaking from the organisation seeking the alteration that the FWC considers appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of that organisation and the eligibility rules of the other organisation.

(6) The FWC may refuse to consent to an alteration of the eligibility rules of an organisation if satisfied that the alteration would contravene an agreement or understanding to which the organisation is a party and that deals with the organisation’s right to represent under this Act and the Fair Work Act the industrial interests of a particular class or group of persons.

(7) The FWC may also refuse to consent to an alteration of the eligibility rules of an organisation if it:

(a) is satisfied that the alteration would change the effect of any order made by the FWC under section 133 about the right of the organisation to represent under this Act and the Fair Work Act the industrial interests of a particular class or group of employees; and

(b) considers that such a change would give rise to a serious risk of a demarcation dispute which would prevent, obstruct or restrict the performance of work in an industry, or harm the business of an employer.

(8) Subsections (6) and (7) do not limit the grounds on which the FWC may refuse to consent to an alteration of the eligibility rules of an organisation.

(9) Where the FWC consents, under subsection (1) to a change or alteration, the change or alteration takes effect on:

(a) where a date is specified in the consent – that date; or

(b) in any other case – the day of the consent.

(10) This section does not apply to a change in the name, or an alteration of the eligibility rules, of an organisation that is:

(a) determined by the FWC under subsection 163(7); or

(b) proposed to be made for the purposes of an amalgamation under Part 2 of Chapter 3 or Division 4 of Part 7 of Chapter 11; or

[7] Regulation 124 of the Fair Work (Registered Organisations) Regulations 2009 (RO Regulations) permits certain persons to object to the grant of consent to an eligibility rule change under s 158 as follows:

“124 Change of name or alteration of eligibility rules of organisation - objections (s 158)

(1) Any interested organisation, association or person (the objector) may, no later than 35 days after a notice of the receipt of an application under subregulation 121(1) (the original application) is published in the Gazette, lodge with the FWC a notice of objection to the change of name, or the alteration of the eligibility rules, to which the original application relates.

(2) The notice of objection must:

(a) be lodged with the FWC; and

(b) comply with the requirements of regulation 14.

(3) The FWC may allow an objector to amend a notice of objection if:

(a) a further application is made; and

(b) the objector satisfies the FWC that the objector has further grounds for objection arising from the application mentioned in paragraph (a).

(4) Within 7 days after a notice of objection is lodged with the FWC, the objector must serve a copy of the notice on the organisation that lodged the original application.

(5) An organisation:

(a) may, no later than 14 days after service on it under subregulation (4) of a copy of the notice of objection, lodge with the FWC, in answer to the objection, a written statement signed by an officer of the organisation authorised to sign the statement; and

(b) must, no later than 7 days after lodging a written statement under paragraph (a), serve a copy of the statement on the objector.”

General principles

[8] In AMWU v ResMed Limited, 3 a Full Bench of the Commission adopted the following statement from Re Australian Licenced Aircraft Engineers Association4concerning the general principles which are applicable to the interpretation and application of s 158 of the RO Act [references omitted]:

“[12] Section 158, in respect of alterations to eligibility rules, is the same in substance as s.204 of the former Workplace Relations Act 1996 (WR Act). In Re CPSU, Community and Public Sector Union a Full Bench of the Australian Industrial Relations Commission (AIRC) considered the nature of the discretionary power exercised in relation to eligibility rules alterations under s.204 of the WR Act. The Full Bench said:

‘[71] The discretion under section 204 is exercisable by reference to several ‘statutory’ considerations, some of which if satisfied condition the exercise of the discretion. Some other considerations are also prescribed by the section and may be given determinative weight at the discretion of the decision maker. The discretion may also be exercised by reference to considerations that are not directly specified by the section...

[72] ... However subsections 204(2), (3), and (4) require consent to be refused if the designated Presidential Member is satisfied or of the opinion as to the criteria specified. In relation to those criteria at least, and subject to the qualification in subsection 204(5), the discretion under section 204 may be said to be structured, although, as his Honour observed: ‘On the other hand, the failure to satisfy those requirements (the subsection 204(4) criteria) does not oblige a designated Presidential member to give consent to such an alteration.’ The criteria in subsections 204(6A) and 204(6B) are expressed in less mandatory terms. Subsection 204(6C) explicitly opens the exercise of the discretion to consideration of grounds that are not limited to those grounds. Moreover, as Williams SDP held ‘in determining an application for consent … the public interest as provided for in s.90 is a relevant and significant consideration’. Although Mr Bromberg in his submissions suggested there was doubt about whether the public interest could relevantly be considered, we consider that the weight of Commission precedents, established practice, and the combined effect of subsection 204(6C) and Regulation 51 leave little room for any such doubt.’

[13] Subsections 204(2), (3), (4) and (5) of the WR Act referred to in the above passage correspond with the same numbered subsections in the current s.158. Subsections 204(6A), (6B) and (6C) correspond with the current subsections 158(6), (7) and (8). The Regulation 51 referred to (that is, reg.51 of the Workplace Relations Regulations) corresponds with regs.124 and 14 of the RO Regulations.

[14] I consider that the Full Bench’s analysis in Re CPSU is, subject to one proviso, fully applicable to s.158 of the RO Act. Section 158(2) provides that the Commission “may” consent (relevantly) to a change or alteration to the eligibility rules of an organisation. Where a statutory conferral of power uses the word “may”, the exercise of the power is discretionary, unless the statute demonstrates a contrary intention. The discretion conferred by s.158(2) is conditioned in a number of respects. Subsection (2) requires that consent not be granted unless the Commission is satisfied that the rules alteration has been made under the rules of the organisation. Subsection (4) also requires that consent not be granted if, in the Commission’s opinion, the persons who would become eligible for membership because of the alteration could more conveniently belong to and be more effectively represented by another organisation. However, subsections (2) and (4) do not limit the grounds upon which consent may be refused, as subsections (6), (7) and (8) make clear. Subsections (6) and (7) identify specific grounds upon which the Commission, in the exercise of its discretion, may refuse consent, and subsection (8) makes it clear that the Commission has a general discretion as to the grounds upon which it may refuse to grant its consent.

[15] The proviso is that there is no equivalent in the RO Act to s.90 of the WR Act, which required the AIRC to take the public interest into account in the performance of its functions. The Commission’s discretion under s.158 must, however, be exercised in accordance with usual principles - that is, it must be exercised in a bona fide fashion having regard to the policy and purpose of the statute. In this respect, s.5 of the RO Act is of significance, in that it sets out the legislature’s intention in enacting the RO Act. Section 5 provides (excluding the note):

Parliament’s intention in enacting this Act

(1) It is Parliament's intention in enacting this Act to enhance relations within workplaces between federal system employers and federal system employees and to reduce the adverse effects of industrial disputation.

(2) Parliament considers that those relations will be enhanced and those adverse effects will be reduced, if associations of employers and employees are required to meet the standards set out in this Act in order to gain the rights and privileges accorded to associations under this Act and the Fair Work Act.

(3) The standards set out in this Act:

(a) ensure that employer and employee organisations registered under this Act are representative of and accountable to their members, and are able to operate effectively; and

(b) encourage members to participate in the affairs of organisations to which they belong; and

(c) encourage the efficient management of organisations and high standards of accountability of organisations to their members; and

(d) provide for the democratic functioning and control of organisations; and

(e) facilitate the registration of a diverse range of employer and employee organisations.

(4) It is also Parliament's intention in enacting this Act to assist employers and employees to promote and protect their economic and social interests through the formation of employer and employee organisations, by providing for the registration of those associations and according rights and privileges to them once registered.

(5) Parliament recognises and respects the role of employer and employee organisations in facilitating the operation of the workplace relations system.

[16] Leaving aside the mandatory provisions in subsections (2) and (4), the Commission would endeavour to exercise its discretionary power to grant or refuse consent to alterations to eligibility rules in a way which gives effect to the legislature’s intention as expressed in s.5 and as otherwise expressed in the text of the RO Act.

[17] Section 158(2) provides that the Commission may consent to a change or alteration “in whole or part”. Section 204(2) of the WR Act made provision to the same effect, as did the Industrial Relations Act 1988 and the Conciliation and Arbitration Act 1904. In National Tertiary Education Industry Union v Community and Public Sector Union the AIRC (Williams SDP) determined that power to consent to an alteration in part was not confined to the “blue pencil test” - that is, “the physical deletion or striking out of parts of the proposed alteration”. In this respect, the AIRC followed the Full Bench decision of the Conciliation and Arbitration Commission in Re Federated Miscellaneous Workers’ Union of Australia concerning s.139(2) of the Conciliation and Arbitration Act 1904, which provided in respect to alterations of eligibility rules that “The Registrar may consent to the change or alteration in whole or in part”. The Full Bench said:

‘The ‘blue pencil’ rule as it was described by Mr Northrop postulates that section 139(2) divorces from the function of the Registrar any power to alter the rules in form or in substance other than by the mere deletion of words. Taken to its logical conclusion this would mean that if an organization applied for eligibility in respect of, for example, candle-stick makers in New South Wales, Victoria, Queensland, South Australia, Western Australia, Tasmania, Australian Capital Territory and the Northern Territory the Registrar could delete the State of Victoria or such further States or Territories from the rule as he saw fit; but if the rules sought coverage for ‘candle-stick makers in Australia’ the Registrar would not be permitted to qualify the rule by a proviso or exception as to a State or Territory.

...

We consider that section 139(2) can be construed so as to allow a Registrar to amend rules in respect of which consent is sought for the purpose of consenting in part to the extension sought. The sub-section connotes a consent to the substance of the rules rather than to the form in which those rules have been drafted. Amendment by way of modification of, or qualification to, the form of the rules as drafted must be required from time to time in order to give effect to a partial consent to the substance.

However, two important factors must be borne in mind. Firstly the power to amend must be strictly confined. It can only be used, apart from `blue pencil' deletions, so as to authorise amendment which, as a matter of construction, exclude persons who would otherwise have been eligible under the rules as proposed.

Secondly, no amendment should be made by the Registrar which would be calculated to prejudice the position of an objecting organization or a potential objector to such an amendment. This is a matter to be considered in each particular case. It means no more than procedural justice should be observed in the exercise of the functions under section 139(2).’

[18] Where it has been determined that partial consent should be given to an alteration to an eligibility rule by way of the addition of a textual limitation, it was held in NTEU v CPSU and in Re Shop, Distributive and Allied Employees’ Association (Boulton J) that it was not necessary that the partial alteration again be approved in accordance with the organisation’s rules.”

[9] The Full Court of the Federal Court 5 dismissed an application by Resmed for judicial review of the decision of the Full Bench of the Commission in ResMed, albeit the Full Court did not consider the general principles set out above.

[10] I will apply the general principles set out in paragraph [8] above in determining the RTBU’s application for consent to alter its eligibility rules. In addition to those general principles, I make the following observations in relation to the way in which my task under s 158 of the RO Act must be performed:

(a) Unlike the union monopoly coverage situation conferred by the relevant legislation prior to the enactment of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth), 6 the current statutory regime permits competition between unions for members, provided the requirements of s 158 of the RO Act are met. In Re CPSU, the Full Bench held that it was a purpose of the Workplace Relations Act 1996 (WR Act) “to allow for competition between organisations; and, to discourage primarily, if not only, that kind of competition which manifests as a demarcation dispute. That purpose may properly be said to be consistent with encouraging competition between organisations”.7 One of the reasons the Full Bench reached that conclusion was the inclusion of a new object in the WR Act directed to ensuring “freedom of association, including the rights of employees and employers to join an organisation or association of their choice…”8 [emphasis added]. The objects of the FW Act include “enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented”,9 but do not expressly include joining an organisation of an employee’s “choice”. The objects of the RO Act do not include joining an organisation of an employee’s “choice”. The statutory purpose of the RO Act is focused on discouraging industrial disputation and ensuring unions comply with their rules and applicable standards of conduct. Notwithstanding this difference between the objects of the WR Act and the FW Act/RO Act, it is clear from, inter alia, s 158(4) of the RO Act that the current statutory regime permits competition between unions for members, provided the requirements of s 158 of the RO Act are met.10

(b) The application of s 158(4) of the RO Act involves a comparative exercise between the relative capacities of the organisations in question. 11 The expression “more conveniently belong” in s 158(4) is oriented towards the perceived convenience of the employees who would become eligible because of the proposed alteration.12 The expression “more effectively represent” concerns the relative capability of the organisations in question to effectively represent the industrial interests of that class of employees.13 The two limbs of the one test are connected and many of the considerations relevant to assessing the “effectively represent” limb may be relevant to the “conveniently belong” limb and vice versa.14

(c) To refuse an application under s 158(4), the relevant employees must more conveniently belong to the other organisation, and it must also be the case that the other organisation would represent them more effectively. 15

(d) To apply s 158(4) of the RO Act, it is necessary to identify the class of “persons who would be eligible for membership because of the alteration” in order that the specified statutory tests for consent may be applied to that class. 16 Identification of that class requires a comparison of the existing coverage of the organisation to the coverage it would have if the Commission were to consent to the proposed rule alteration.

(e) Section 158(4) of the RO Act is conditional: it does not apply if the Commission accepts an undertaking from the applicant organisation that it considers appropriate to avoid demarcation disputes that might otherwise arise. 17

(f) If (and only if 18) the Commission forms the view that a “better organisation” exists for all or part of the relevant employees, then the Commission must consider whether to accept an undertaking under s 158(5). If any such undertaking is not accepted, the proposed rule alteration must be refused insofar as it applies to the class of persons for which a “better organisation” exists, save that an applicant may be afforded an opportunity to provide a different undertaking which may be acceptable.19

(g) The test of which is the better organisation is to be applied at the time of the decision by the Commission. The test involves broad value judgments. 20

Objections to proposed rule change

[11] The Transport Workers’ Union of Australia (TWU) objects to the Application on the following grounds (particulars and facts relied on omitted):

“1. In relation to those persons who would otherwise be eligible for membership of the RTBU because of the proposed alteration there is another organisation to which those persons could more conveniently belong and which could more effectively represent those persons.

2. The scope of the proposed rule alteration is vague and uncertain.

3. The scope of the application would increase the risk of industrial disharmony.

4. The proposed alteration would go against a long-standing informal understanding between the two organisations.”

[12] Transit Systems Pty Ltd (Transit Systems), Transit Systems West Pty Ltd (TSW), Transit Systems West Services Pty Ltd (TSW Services) and their related and associated entities (collectively, the Transit Group) object to the Application on the following grounds (particulars and facts relied on omitted (for the most part)):

“The RTBU application seeks to circumvent the decision of SDP Hamberger which deals with the eligibility of RTBU members whose employment transfers to private entities and the change is unnecessary

…

The proposed rule change is discriminatory against Transit Systems

21. Transit Systems is one of many privately owned public transport (bus services) providers operating under contracts with the NSW Government and other state governments.

…

24. The RTBU seeks to alter its rules to single out Transit Systems so that it can recruit new members if they are employed by Transit Systems in Region 6. It does not seek to be able to recruit new members employed by any other private providers.

…

27. It would not be conducive to a stable industrial relations system if every time the RTBU considers that it would like to target an area for a recruitment drive that it seeks to alter its rules to include that specific region or specific employer.

Obstruction of the performance of work in an industry, harm to the employer’s business and disruption of services to the community

…

29. Transit says that there have already been disruptions and the obstruction of work performed in the industry and harm done to the employer, and indeed the travelling public, as a consequence of the actions of RTBU members (whether or not the membership was known to be valid at the time in question as the incident predated the SDP Hamberger decision) in Region 6.

30. Specifically on Monday 3 December 2018 approximately 70 drivers employed by Transit Systems in Region 6 called in sick requiring hundreds of bus services to be cancelled. Transit Systems believed that the drivers had engaged in a ‘blue flu’ and commenced proceedings in the Fair Work Commission [C2018/6801]. The RTBU subsequently appeared in proceedings before Deputy President Bull, in which he determined that the drivers had engaged in unlawful unprotected industrial action ([2018] FWC 7527) and made orders to prevent further unlawful industrial action (PR702844).

…

Multiple Union Coverage

31. The proposed RTBU eligibility rule is drafted broadly. It provides that all Transit Systems employees employed “in or in connection with the provision of bus services” can be members. It appears not to be limited to bus drivers and could include maintenance, clerical and managerial employees.

32. Transit Systems has a long history of agreement making with its maintenance employees and their representative unions and employs many clerical employees and managers in office-based roles. There is nothing in the RTBU file material, or otherwise available to Transit Systems, that would suggest that these workers need to be able to be represented by the RTBU.

33. If any variation is made to the RTBU rules to specifically apply to private sector employees it should be limited to bus drivers.

34. Transit Systems has a long history of dealings with any union entitled to represent any of its employees, including the AMWU regarding mechanics and the TWU in relation to bus drivers. Bus drivers employed by Transit Systems can conveniently belong to the TWU.”

Hearing

[13] The Application was the subject of a hearing before the Commission in Sydney on 4, 5, 6, 16 and 17 December 2019. The RTBU adduced evidence from the following witnesses:

(a) Mr Allan Barden, National Assistant Secretary of the RTBU;

(b) Mr David Babineau, Divisional Secretary of the Tram and Bus Division of the New South Wales Branch of the RTBU;

(d) Mr Bullent (Bill) Akdeniz, Bus Operator;

(e) Mr Duncan McKay, Bus Operator; and

(f) Mr Philip Pasfield, solicitor for the RTBU.

[14] The following witnesses were called by the TWU to give evidence:

(a) Mr Adam Carter, Branch Assistant Secretary of the Queensland Branch of the TWU;

(b) Mr Matthew Burnell, Senior Branch Official of the TWU;

(c) Mr Matt Threkheld, Executive Director of BusNSW, the peak body for the private bus and coach industry in New South Wales;

(d) Ms Marta Folkard, Bus Operator and TWU Delegate at the Leichardt depot;

(e) Mr Darren Woods, Members’ Service Centre Official with the TWU;

(f) Mr James Hansen, Bus Driver with Busways Pty Ltd;

(g) Mr Robert Gibson, Deputy Head of Human Resources for Busways Group Pty Ltd;

(h) Mr Jim Glasson, Principal of Transport Outcomes Pty Ltd;

(i) Mr Mike McNess, Senior Organiser of the TWU;

(j) Mr Michael Pieri, Assistant State Secretary of the TWU (NSW Branch);

(k) Mr Nimrod Nyols, Lead Official of the TWU; and

(l) Mr Gavin Webb, Chief Legal Officer of the TWU (NSW Branch).

[15] Transit Systems adduced evidence from Mr Len Kidd, General Manager, NSW for the Transit Group, and Mr Mark Peters, Transit Systems Area Manager South, Hoxton Park/Kingsgrove/Tempe.

[16] In determining the Application and forming the necessary broad value judgments required by s 158 of the RO Act, I have paid careful attention to all the evidence adduced, 21 even though I have not included express references to all such evidence in the reasons for my decision. I have also had regard to the oral and written submissions made on behalf of the RTBU, the Transit Group and the TWU, including the RTBU’s written submissions in reply dated 31 January 2020 and the TWU’s written submissions in response dated 14 February 2020.

Validity of the TWU’s objection

[17] The RTBU contends that the TWU did not make its objection to the Application in accordance with the TWU’s rules. The evidence discloses that the TWU’s New South Wales State Secretary, Mr Richard Olsen, made the decision to object to the Application and the objection filed in the Commission by the TWU was signed by the TWU’s (NSW Branch) Chief Legal Officer, Mr Webb. The RTBU submits that Mr Olsen did not have the power under rule 69(3) of the TWU’s rules to make the objection because the Application is a matter “occurring in a State or Territory that may affect Members living in another State or Territory” within the meaning of rule 68(5)(a), with the result that the power to make the objection rested with the relevant officer of the federal level of the TWU. There was no decision made, so the RTBU submits, in accordance with the TWU’s rules, by anyone at the federal level, from the National Council down to the National Secretary. As such, it is contended that no decision was made to object and there is no valid objection before the Commission

[18] The TWU submits that it did make its objection in accordance with its rules and, in any event, first, even if Mr Webb did not have actual authority to make the objection, he had apparent authority to do so and that is enough, and, secondly, even if the TWU’s objection was not validly made, the Commission now has before it evidence in relation to a range of matters, including on the question of whether there is another organisation to which the relevant persons could more conveniently belong and that would more effectively represent those members, and the Commission will need to consider such evidence in determining whether it is satisfied of the relevant criteria in s 158 of the RO Act.

[19] As to its rules, the TWU submits that they have to be applied in a sensible way, recognising the important and independent operation of the branch of the union within the relevant state or territory and noting that rule 31 of the TWU’s rules states that the business of the union within a particular state or territory is under the control of the Branch Committee of Management of that state or territory.

Consideration of validity of TWU’s objection

[20] The TWU’s rules relevantly provide:

“31. Branch Committee of Management Powers

(1) The Branch Committee of Management has control of all business of the Union within the State or Territory of the Branch.

(2) Without limiting sub-rule (1), the powers and functions of the Branch Committee of Management include:

(a) dealing with industrial matters in accordance with rule 69;

…

33. National Secretary

(1) The National Secretary is the chief executive officer of the Union.

(2) The powers and functions of the National Secretary include:

…

(f) dealing with industrial matters in accordance with rule 68;

…

37. Branch Secretary

(1) Each Branch must have a Branch Secretary.

(2) The Branch Secretary is the chief executive officer of the Branch.

(3) The powers and functions of the Branch Secretary include:

…

(d) dealing with industrial matters in accordance with rule 69;

…

PART 9 – INDUSTRIAL MATTERS

68. National Industrial Disputes, Awards and Agreements

(1) (a) National Council or the National Committee of Management may determine that any matter relating to an industrial dispute, award, agreement, or other industrial matter be:

(i) submitted to any industrial tribunal, court or authority; or

(ii) the subject of any other action.

…

(5) If a matter relates to:

(a) an industrial dispute, award, agreement, or other industrial matter occurring in a State or Territory that may affect Members living in another State or Territory; or

(b) an existing industrial dispute, award, agreement, or other industrial matter that is being dealt with by a National industrial tribunal, court or authority;

the relevant Branch Secretary must notify the National Secretary in writing of the matter and all relevant details.

…

69. State Industrial Disputes, Awards and Agreements

(1) A Branch Committee of Management may determine that any matter that:

(a) relates to an industrial dispute, award, agreement, or other industrial matter solely confined to one State; and

(b) does not relate to any matter the subject of rule 68;

be:

(d) the subject of any other action.

(2) The relevant Branch Secretary must take any action necessary to have a matter referred to in sub-rule (1) determined.

(3) Subject to sub-rule (1), a Branch Secretary may determine that any matter that:

(a) relates to an industrial dispute, award, agreement, or other industrial matter solely confined to one State; and

(b) does not relate to any matter the subject of rule 68;

be:

(d) the subject of any other action;

and must take any action necessary to have the matter determined…”

[21] Mr Oslen, in his capacity as Branch Secretary, made the decision to object to the Application. 22 In order for Mr Oslen to have had the power to make that decision under rule 69(3) of the TWU’s rules, the objection to the Application must have related “to an industrial dispute, award, agreement, or other industrial matter solely confined to one State” and not related “to any matter the subject of rule 68”.

[22] As to the confinement or otherwise of the matter to one State, each proposed amendment of the RTBU’s rules is expressly limited to New South Wales or some region within New South Wales. Accordingly, it is clear from the terms of the proposed rule alteration that it would, if granted, operate solely within New South Wales. It follows that rule 69(3)(a) is satisfied.

[23] As to rule 69(3)(b), the issue is whether the proposed rule alteration “may affect Members living in another State or Territory” within the meaning of rule 68(5)(a). The RTBU submits that the answer to this question is yes, whereas the TWU submits that the answer is no. There is no suggestion that rule 68(5)(b) is engaged. No doubt that is because it is accepted that there is no “existing” dispute etc to which the matter relates.

[24] The rule amendment, if granted, will not permit persons outside New South Wales to join the RTBU. It will not, therefore, have any direct impact on members of the TWU living in another state or territory. It may have an indirect impact on such persons, including insofar as success or failure of the present Application: (a) may encourage or discourage, as the case may be, similar applications to be made by the RTBU in respect of other states or territories and (b) strengthen or weaken, as the case may be, the overall position of the TWU in terms of its financial position or potential industrial strength. Indeed, a number of the witnesses called by the TWU to give evidence in these proceedings expressed concerns about the possibility of the RTBU making similar applications in respect of other states or territories.

[25] The question is whether, on the proper construction of the TWU’s rules, the word “affect” in rule 68(5) of the TWU’s rules includes indirect impacts of the kind to which I have referred. The proper approach to the interpretation of union rules was summarised by the Full Bench in AMWU v Resmed Limited 23 as follows (references omitted):

“(1) Union eligibility rules will be construed objectively.

(2) The nature of union eligibility rules means that they should be construed liberally rather than narrowly or technically.

(3) It is permissible to have regard to any common understanding among people concerned with relevant industries and particularly with industrial matters of the ordinary application of the words used, and to the previous use of the words in the relevant organisation’s rules and in statutory provisions, decisions, determinations, awards, reports and other papers concerned with the relevant industry or industries. Federal awards, including consent awards, made by Commonwealth industrial tribunals at a time when the legislative award-making power was founded upon the industrial disputes power in s.51(xxxv) of the Constitution, are important sources in this respect since a union may only be a party to an industrial dispute involving employees eligible to be its members.

(4) If there is ambiguity as to the meaning of words in the eligibility rules, assistance may be sought in the terms of the industry rule (subject to it being understood that the scope of the eligibility rule is not restricted by the scope of the industry rule).

(5) Words in an eligibility rule should not be read in isolation such as to give the rule a wide and indefinite scope of operation that is unlikely to have been intended.

(6) Terms used in union eligibility rules should not be interpreted statically in accordance with the meaning they bore at the time that they were first introduced into the rules. Although such terms will have a fixed connotation, they bear a changing denotation - that is, they may be interpreted in accordance with their appropriate current meaning, taking into account changing technologies and methods of work. This may mean that eligibility rules may cover industries or callings not known when the rules were originally drafted.

(7) The words “in or in connection with” are words of expansion. However, for the requisite connection to be established, the work of the employees in question must be referable or significant to the work of the second group of employees with whom there is said to be a connection. It is not sufficient that the work of the relevant employees makes it possible for an employer to conduct a business involving the performance of work by the second group of employees.”

[26] Further to principles (1) and (2) in the previous paragraph, while union rules are to be construed objectively, a liberal and purposive approach should be taken to the construction of the rules. 24

[27] The ordinary meaning of “affect” is “to act on; produce an effect or change in”. 25 This meaning is broad enough to include indirect impacts of the kind to which I have referred. However, the words in rule 68(5) “should not be read in isolation such as to give the rule a wide and indefinite scope of operation that is unlikely to have been intended”;26 they must be construed in context. Part of the relevant context includes the fact that, under rule 31 of the TWU’s rules, the business of the TWU within a particular state or territory is under the control of the Branch Committee of Management of that state or territory. If a Branch Secretary’s power under rule 69(3) of the TWU’s rules were limited such that the Branch Secretary could not make a decision to take action in relation to a matter solely confined to one state if the matter relates to a dispute etc that may have an indirect impact on members living in another state or territory, the power of the Branch Secretary would be quite limited, because the outcome of many disputes or applications which reduce or increase the power, influence or financial position of a particular state or territory branch of the TWU are likely to weaken or strengthen, as the case may be, the overall position of the TWU, which may, in one sense, “affect Members living in another State or Territory”. I am therefore of the view that the meaning of the word “affect” in rule 68(5)(a) of the TWU’s rules is not so broad as to include indirect impacts of the kind to which I have referred.

[28] Accordingly, I am satisfied that Mr Olsen’s decision to object to the Application relates “to an industrial dispute, award, agreement, or other industrial matter solely confined to one State” and does not relate “to any matter the subject of rule 68”, including “an industrial matter occurring in a State or Territory that may affect Members living in another State or Territory”. It follows that Mr Olsen’s decision to object to the Application was made in accordance with the TWU’s rules.

[29] In light of my conclusion in relation to the proper construction of the TWU’s rules, it is not necessary to determine the TWU’s alternative arguments concerning the validity of its objection, but I will do so to reduce the likelihood of multiple appeals.

[30] As to the TWU’s first alternative argument, any “conduct engaged in on behalf of a body corporate by an officer, director, employee or agent of the body corporate within the scope of his or her actual or apparent authority … is taken, for the purposes of this Act, to have been engaged in also by the body corporate”. 27 The TWU’s objection to the Application was signed and filed by Mr Webb, the Chief Legal Officer of the TWU (NSW Branch). It is clear that Mr Webb, in his role as Chief Legal Officer, has apparent authority to sign and file documents in the Commission on behalf of the TWU. It follows, in my view, that Mr Webb’s conduct in signing and filing the TWU’s objection to the Application is taken, for the purposes of the RO Act, to have been engaged in also by the TWU, even if Mr Webb did not have actual authority to so act.28

[31] As to the TWU’s second alternative argument, no objection was made by the RTBU to the admission into evidence of a range of documents, witness statements, and oral evidence given by employees, members and officers of the TWU, on the basis that there was no valid objection before the Commission. Given that such material has been admitted into evidence and is before the Commission, I agree with the TWU’s submission that such evidence cannot be ignored in determining whether I am satisfied of, and have formed the requisite opinions about, the various statutory criteria in s 158 of the RO Act.

Validity of objection made by entities in the Transit Group

[32] The RTBU contends that regulation 124(2)(b) requires compliance with regulation 14 in order to be a valid objection. Regulation 14 requires that the person who is making the objection be identified, with the result that there can be no valid objection in respect of a corporation which has not been identified. The RTBU accepts that three corporations in the Transit Group have been identified, namely, Transit Systems, TSW and TSW Services.

[33] The Transit Group submits that it was necessary and appropriate to file its objection on behalf of “all related and associated entities” of the three named entities because the proposed alteration of the RTBU’s eligibility rules does not include any reference to the entity within the Transit Group which employs the New Drivers.

Consideration of validity of Transit Group’s objection

[34] Regulation 124(2)(b) requires a notice of objection to an application for an alteration of an eligibility rule to comply with the requirements of regulation 14, which requires, inter alia, an objector to state the “name and address of the organisation, association or person lodging the notice of objection”. Save for Transit Systems, TSW and TSW Services, the objection filed by the Transit Group does not, in terms, state the name and address of the entities that are objecting to the Application. Instead, it refers to those entities as “all related and associated entities” of the three named Transit Group entities.

[35] It does not automatically follow that any defect in an objection to an application under s 158 of the RO Act means that there is no valid objection before the Commission. For example, regulation 179(1) of the RO Regulations permits the Commission to “exempt a person from compliance with a procedural requirement under the Act or these Regulations if the FWC is satisfied there are special circumstances”.

[36] I am satisfied that there is a valid objection filed on behalf of Transit Systems, TSW and TSW Services to the Application. Each of those entities plainly has standing to make the objection in the terms filed. It is therefore appropriate that I consider and determine the objection so filed, and it is not necessary to decide whether a valid objection has been made by or on behalf of entities in the Transit Group other than Transit Systems, TSW and TSW Services.

[37] Had it been necessary to decide whether a valid objection had been made by or on behalf of entities in the Transit Group other than Transit Systems, TSW and TSW Services, I would have invited submissions on Regulation 179(1) of the RO Regulations. My preliminary view on that issue is that there are special circumstances in this case because the proposed alteration to the RTBU’s eligibility rules: (a) does not identify the employer of the main group of employees the subject of the Application, namely the employer of the New Employees (Transit Services), and (b) includes employees of successors, assignees or transmittees of businesses or parts of business conducted by various entities in the Transit Group in circumstances where it is not presently possible to determine which entities may be caught by any successions, transmissions or assignments which have not yet taken place.

Was the proposed rule alteration made under the RTBU’s rules (s 158(2))?

[38] Neither the TWU nor any entity within the Transit Group identified any issue in relation to s 158(2) in their objections filed in the Commission.

[39] In final submissions, the TWU submitted that the RTBU did not make the alteration to its eligibility rules under its rules, for two reasons:

• first, the RTBU failed to comply with rule 40(8) of its rules by not providing at least 14 days’ notice of its proposed rule alteration to all members of the RTBU’s National Fleet Manufacture, Overhaul, Maintenance and Service Division Committee; and

• secondly, the RTBU failed to comply with rule 40(8) of its rules by not providing at least 14 days’ notice of its proposed rule alteration to all members of the RTBU’s National Administration, Technical, Supervisory and Professional Division Committee.

[40] The RTBU submits that the TWU did not make an objection to the Application on the basis that the proposed rule change was not properly approved in accordance with the RTBU’s rules, with the result that the TWU’s submissions on this topic should be rejected out of hand as an abuse of process.

[41] In any event, the RTBU submits that the matter raised by the TWU in final submissions is a “non-issue”. The RTBU contends that rule 40(8) of its rules is a procedural rule which provides that an agenda must be provided 14 days in advance of a meeting, however nothing in the RTBU’s rules states that a failure to do so would invalidate any decision made at such a meeting. The RTBU submits that the rules concerning validity are contained in rule 87, all of which have been complied with.

Consideration of compliance with RTBU’s rules

[42] Regardless of whether any objection or submission has been made in relation to compliance with the RTBU’s rules, I am required by s 158(2) of the RO Act to be satisfied that the rule change has been made under the rules of the organisation.

[43] The RTBU’s eligibility rules are set out in rule 4. The power to amend the RTBU’s rules is contained within rule 87:

“87 – AMENDMENT TO RULES

(1) Except as provided in this Rule, the National Council shall have power to rescind, alter or amend these Rules in accordance with the procedure set out in Sub-Rule 87(2).

(2) Any rescission, alteration or amendment to these Rules shall be of no effect unless it complies with the following provisions:-

(i) the National Secretary shall forward all members of the National Council written notice of the proposed rescission, alteration or amendment which sets out the proposal in full;

(ii) such notice shall specify the time and place of the National Council meeting which is to consider the proposal or the details of the ballot which is to determine the matter, which meeting or ballot shall be not less than one month after the date of the notice;

(iii) the voting meets the requirements of these Rules for carriage of a resolution at a meeting or ballot of the National Council.

…

(4) Any rescission, alteration or amendment to any provisions of these Rules which relate to National Divisions or Branch Divisions, including this Sub-Rule 87(4), shall be of no effect unless, in addition to complying with Sub-Rule 87(2), it is ratified by the National Division Committees and the Branch Divisional Committees of the National or Branch Division(s) affected…”

[44] Rule 40 of the RTBU’s rules governs National Division Committees:

“40 – NATIONAL DIVISION COMMITTEES

(1) There shall be a National Divisional Committee for each Division established by the National Council.

(2) A National Divisional Committee shall comprise the Assistant National Secretary for the National Division, the Branch Divisional Secretaries, and those National Divisional Delegate from the Branch to the National Council which represent that National Division. Where a Branch has combined National Divisions, the combined National Divisional Delegates from the Branch to the National Council shall have the right to attend National Committee meetings of the Division included in the Branch combined Division. The National President, the National Vice-Presidents, the National Secretary and the Assistant National Secretary shall all be ex-officio members of each National Divisional Committee.

(3) A National Divisional Committee shall meet biennially on the day immediately preceding the biennial meeting of the National Council. Additional meetings may be held with the approval of the National Executive either immediately preceding meetings of the National Executive or at such other times and places as the National Executive determines…

…

(5) A National Divisional Committee is bound by these Rules and the policies and decisions of the National Council and the National Executive and any decision in conflict with the Rules or the said policies and decisions shall be void and of no effect.

…

(8) Where a meeting of a National Divisional Committee has been scheduled in accordance with the provisions of Sub-Rule 40(3), the Assistant National Secretary (Divisional) shall send a Notice of Meeting, together with an Agenda, to all members of the Committee at least fourteen days prior to the meeting.

…

(10) A quorum for a meeting of the National Divisional Committee shall be a majority of the members of the Committee entitled to attend.

(11) Each member of a National Divisional Committee shall have one vote. A resolution shall be carried if a majority of members present and voting, vote in favour.

(12) Notwithstanding anything elsewhere contained in these Rules, a meeting of a National Committee may be held via telephone conference or video conference when a majority of the members of the Committee so agrees or when determined by the National Executive.”

[45] Rule 58 of the RTBU’s rules pertains to Branch Divisional Committees. Sub-rule 58(11) provides as follows:

“Notwithstanding anything elsewhere contained in these Rules a meeting of the Branch Divisional Committee may be held by telephone conference or video conference when a majority of the members of the Committee so agrees.”

[46] Mr Barden addressed the making of the alteration to the RTBU’s eligibility rules in his statutory declaration made on 15 January 2019. 29 Mr Barden was not cross examined in relation to this issue. I accept as truthful and reliable the evidence given by Mr Barden in relation to the process adopted by the RTBU in amending its eligibility rules.

[47] Mr Barden gave evidence that the proposed rule change was unanimously approved by the National Council of the RTBU and was unanimously ratified by each of the following National Divisional Committees and Branch Divisional Committees: 30

• Special Tram and Bus Division Committee (National);

• Special Tram and Bus Division Committee (NSW);

• National Fleet Manufacture, Overhaul, Maintenance and Service Division Committee;

• NSW Fleet Manufacture, Overhaul, Maintenance and Service Division Committee;

• National Administration, Technical, Supervisory and Professional Division Committee; and

• NSW Administration, Technical, Supervisory and Professional Division Committee.

[48] There is no evidence to suggest that any other National Divisional Committees or Branch Divisional Committees were “affected” by the rule change within the meaning of rule 87(4) of the RTBU’s rules.

[49] I am therefore satisfied that each of the Councils and Divisional Committees required by rule 87 of the RTBU’s rules to approve or ratify the rule amendment did so in relation to the proposed amendment to rule 4.

[50] I am also satisfied that the notice requirements imposed by rule 87(2)(i) and (ii) were met in relation to the proposed amendment to rule 4. 31

[51] For the reasons set out in the previous five paragraphs, I am satisfied that the RTBU’s proposed amendment to rule 4 has been made under the rules of the organisation. Accordingly, the requirements of s 158(2) of the RO Act have been met.

[52] In my opinion, it matters not, for two reasons, whether the notice and agenda requirements for National Divisional Committee meetings or Branch Divisional Committee meetings, as set out in rules 40 and 58 respectively of the RTBU’s rules, have been met. First, it is clear from the terms of rule 87 that it establishes all the requirements for a valid rule amendment to the RTBU’s rules. In particular, sub-rule 87(1) provides that “Except as provided in this Rule, the National Council shall have power to rescind, alter or amend these Rules in accordance with the procedure set out in sub-rule 87(2)”. Sub-rule 87(2) sets out the relevant procedure to be followed, including the notice requirements for a meeting of the National Council. In contrast, rule 87 does not impose any notice requirements for meetings of National Divisional Committees or Branch Divisional Committees. Insofar as those Committees are concerned, the obligation imposed by rule 87(4) is for any such Committees “affected” by the “rescission, alteration or amendment” to ratify it. Otherwise, the “rescission, alteration or amendment … shall be of no effect.” 32 Secondly, even if rule 40 and/or rule 58 of the RTBU’s were relevant, sub-rule 40(12) provides that “Notwithstanding anything elsewhere contained in these Rules, a meeting of a National Committee may be held via telephone conference or video conference when a majority of the members of the Committee so agrees or when determined by the National Executive.” Rule 58(11) is in similar terms and permits a meeting of the Branch Divisional Committee to be held by telephone conference when a majority of the members of the Committee so agrees. The documents annexed to Mr Barden’s statutory declaration establish that the National Executive determined to hold meetings of the relevant National Divisional Committees via telephone conference on particular dates and a majority of the members of each of the relevant Branch Divisional Committees agreed to hold the relevant meeting by telephone conference on particular dates.33 Accordingly, the requirements of rules 40 and 58 were met in relation to the relevant meetings of the National Divisional Committees and the Branch Divisional Committees.

Identifying the relevant class of persons

[53] In order to identify the class of persons who would be eligible for membership because of the alteration, it is necessary to compare the existing coverage of the organisation with the coverage it would have if the Commission were to consent to the proposed rule alteration.

[54] The starting point in this exercise is the proper construction of the RTBU’s current eligibility rules, particularly rule 4(1)(i). Senior Deputy President Hamberger considered this issue in Transport Workers’ Union of Australia. 34 The Senior Deputy President reasoned and concluded as follows in relation to this issue (references omitted):

“[57] I am satisfied that Rule 4(1)(i) covers three distinct groups of employees.

[58] First, there are ‘permanent or casual employees, including persons training for employment, in the tramway services of Australia and motor omnibus services and trolley bus services and light rail services run in conjunction therewith or controlled thereby’. I am satisfied that this only covers employees of bus services run in conjunction or controlled by a tramway service. This construction is consistent with the decisions of Sheather C in Altona Bus Lines and of the Full Bench in TWU v Serco.

[59] Secondly, there are ‘employees of the State Transit Authority of New South Wales, the Public Transport Corporation of Victoria, the State Transport Authority of South Australia, the Metropolitan Transport Trust Tasmania, the Brisbane City Council and the Metropolitan (Perth) Passenger Transport Trust and any Commonwealth, State or Local Government, in tramway or motor omnibus or trolley bus or light rail services.’

In effect, this group includes employees employed by government bus services.

[60] Thirdly, there are

‘such other persons whether employed in the industry or not who at any time when training for employment or working in the tramway, trolley bus, omnibus or light rail services have been admitted as members and who continue that membership.’

Prima facie, this includes employees who joined the RTBU while employed in a bus service and who have continued their membership – even if they no longer work in the industry. The implication for present purposes is that employees who worked for the Transport Service and who joined the RTBU at that time – and who have retained their membership since being transferred to Transit Systems – are still eligible to be members of the RTBU, a concept Mr Gibian described during these proceedings as ‘legacy membership’.

[61] The TWU opposed this reading of the third category of employees. It referred to the words towards the end of Rule 4(1) which say:

‘… provided that, except as provided in Sub-Rules 4(3), 12(3) and 12(4), a person shall only be eligible to remain as a member while he/she continues to meet one or other of the eligibility criteria specified in the foregoing paragraphs.’

[62] The TWU submitted that these words:

‘…are plainly intended to limit coverage to circumstances in which a person remains employed in a substantive area of coverage of the RTBU, subject to sub-rules 4(3), 12(3) and 12(4). Sub-rule 4(3) relates to elected officers and sub-rule 12(3) and (4) deal with Life Membership and Associate membership. Those provisions deal with the limited circumstances in which membership can persist notwithstanding that a person has ceased employment in an area of the union’s coverage.’

[63] I see no reason to limit the third category of employees in Rule 4(1)(i) in the way the TWU has proposed. The words the TWU cites provide that (subject to the special situations relating to Life Members, Associate Members and officers and staff) one can only remain a member of the RTBU if one continues to meet the eligibility criteria set out in the foregoing paragraphs (which includes Sub-rule (4)(1)(i)). However, former employees of a public sector bus operation such as the Transport Service who have subsequently continued their membership continue to meet the eligibility criteria in the relevant paragraph. ‘Legacy membership’ is itself ‘one or other of the eligibility criteria specified’ provided in ‘one of the foregoing paragraphs’. I note that the rules operate differently for former rail employees who do not have in their relevant eligibility sub-rules an equivalent category of ‘legacy membership’ (though there is scope for some retired rail workers to remain as members of the RTBU.) The words towards the end of Rule 4(1) cited by the TWU are likely to have more effect in relation to these groups of employees.

[64] In conclusion, I am satisfied that employees who were previously members of the RTBU while working for the Transport Service and who have retained that membership after being transferred to Transit Systems are entitled to continue to be members of the RTBU.

[65] The TWU also submitted that even if this were true, it did not necessarily mean that the RTBU is entitled to represent the industrial interests of the relevant employees.

‘The entitlement to represent industrial interests of persons is not membership, it is defined by the scope of the eligibility. And the scope of the eligibility is the scope of the group of persons, employees, who are able to become members.’

[66] The TWU cited in support of its position the judgement of the High Court in Regional Express Holdings. However, I do not consider that judgement to be supportive of the TWU’s position. That case revolved around whether ‘the condition “entitled to represent the industrial interests of” is logically to be understood as something which may arise otherwise than from a person’s membership of the organisation.’ In particular, the issue was whether an organisation could be entitled to represent the interests of a person under the FW Act even if that person was not its member.

[67] The Court found that the term ‘entitled to represent the industrial interests of the employee’ in the FW Act is used to mean ‘an organisation’s entitlement to represent the industrial interests of persons eligible for membership of the organisation.’

[68] In my view, there is no doubt that the RTBU is entitled to represent the interests of its members who fall within the scope of its eligibility rule.”

[55] The RTBU contends that Senior Deputy President Hamberger’s decision, and the decisions he relies on, are wrong, insofar as they conclude that the RTBU’s eligibility rules only cover employees of bus services where such services are run in conjunction with or controlled by a tramway service. The RTBU submits that the reasoning of these decisions turns on the placement of the word “and” in the first part of rule 4(1)(i), which is “a highly technical (perhaps even pedantic) reading of a document of a type of which it is accepted should not be construed in that way”. 35

[56] The RTBU also submits that further doubt is cast on Senior Deputy President Hamberger’s interpretation of rule 4(1)(i) when the equivalent rules of the New South Wales state-registered organisation, the Rail Tram and Bus Industry Union, are considered (emphasis added):

“(1) The following shall be eligible to become members of the Union:

(i) permanent or casual employees, including persons training for employment, in the tramway services and motor omnibus services and the trolley bus services and light rail services run in conjunction therewith or controlled thereby…”

[57] The RTBU contends that, on a fair reading, the insertion of the additional “the” bifurcates the rule differently, permitting the RTBU in New South Wales to enrol persons employed in:

• private tram and bus services; and

• trolley bus and light rail services run in conjunction with or controlled by said services.

[58] This was not, so the RTBU contends, brought to the Commission’s attention in any of the three previous decisions.

[59] The RTBU contends that it is not necessary to resolve the disputed interpretation of rule 4(1)(i) of its rules for the purposes of these proceedings. Instead, the RTBU says its right to cover the whole group of employees the subject of these proceedings is, or has been in previous matters, contested by the TWU, and the proposed rule change would remove this doubt. The RTBU relies on its arguments concerning the proper interpretation of rule 4(1)(i) to demonstrate that this is not a matter involving a union flagrantly disregarding the limitations put on its sphere of industrial activity by its registered rules: rather, the RTBU has (with appropriate caution …) been acting on a legitimately held view”. 36

[60] The TWU contends that Senior Deputy President Hamberger was correct in relation to his construction of rule 4(1)(i) insofar as it concerns employees of bus services run in conjunction or controlled by a tramway service, but incorrect in relation to his construction of rule 4(1)(i) insofar as it concerns employees who were admitted as members of the RTBU at a particular time and who have continued that membership.

[61] In my view, it is desirable to reach a conclusion as to the proper construction of rule 4(1)(i) of the RTBU’s rules, rather than consider the Application on the basis of an assumption as to coverage. If the RTBU is correct in its contention that its current rules permit it to have as members persons employed in bus services, the rule change sought by the RTBU would be unnecessary. Further, the benefit of construing both the current rules and the proposed rule alteration is so that the class of “persons who would be eligible for membership because of the alteration” can be identified with precision. 37 The specified statutory tests for consent can then be applied to that class of persons.38

[62] I agree with Senior Deputy President Hamberger’s reasons and conclusion in relation to the proper construction of rule 4(1)(i) of the RTBU’s rules. In addition to the reasons relied on by the Senior Deputy President, I rely on the history of rule 4(1)(i), which was considered by the Full Bench in TWU v Serco Australia Pty Ltd, 39 one of the decisions relied on by the Senior Deputy President. In Serco, the Full Bench stated:40

“In view of the lack of clarity in respect to the expression, it is proper that we take into consideration its intention and purpose in the context in which it appears in the rules. To that end, reference needs to be made to the history of the relevant part of the PTU's eligibility rules.

As we have stated earlier, the relevant part of the eligibility rules had its origins in the eligibility rules of the former ATMOEA. Prior to 4 September 1934, that part of the rules of that organisation limited that organisation's constitutional coverage to "employees ... in the tramway services of Australia". By decision of the Industrial Registrar on that date, that part of the rules was amended to read "employees ... in the tramway services of Australia and motor omnibus services run in conjunction therewith or controlled thereby".

It is apparent from a reading of the Industrial Registrar's decision that the intention and purpose of the alteration was to enable the organisation to cover persons employed by existing tramway services in omnibus services run by those tramway services in connection with those tramway services or in particular substitution for those tramway services. The factual context in which he was being asked to grant the application was that some of the existing tramway services had begun to operate omnibus services either in connection with or in place of tramway services. There were, however, some privately owned and operated motor omnibuses. The Industrial Registrar had to deal with objections in relation to what was perceived to be a proposal for an extension of the organisation's coverage of traffic employees and workshop employees.

…

The inevitable conclusion to be drawn from the above is that the intention and purpose of the expression "run in conjunction therewith" as it appears in the relevant part of the PTU's eligibility rules is that it is a reference to omnibus services run in conjunction with tramway services by a tramway service. Such a construction is consistent with the rest of the eligibility rules, particularly the expression "controlled thereby"…”

[63] This analysis of the history of rule 4(1)(i) is persuasive and is a surer guide to the proper interpretation of the rule than a comparison between the eligibility rule of the federally registered union (RTBU) and its New South Wales counterpart.

[64] Accordingly, in my view, under the RTBU’s current rules, the following groups of relevant employees are eligible to join the RTBU:

• employees of motor omnibus services, trolley bus services, or light rail services are eligible to become members of the RTBU if such services are run in conjunction with or controlled by tramway services; and

• employees who were admitted as members of the RTBU when they were training for employment or working in the tramway, trolley bus, omnibus or light rail services and who have continued their membership of the RTBU are entitled to remain as members of the RTBU, even if they no longer work in the industry.

[65] It follows that, under the RTBU’s current rules, the following groups of relevant employees are not eligible to join the RTBU:

(a) persons who were employed by the public sector in the provision of public bus services before privatisation and whose employment transferred, following a transmission of business, to a private bus operator, working in the provision of public bus services (e.g. Legacy Drivers), but who were not a member of the RTBU at the time of the transfer or subsequently allowed their membership of the RTBU to lapse; and

(b) persons employed by a private bus operator in the provision of a public bus service who were not employed by the public sector before privatisation (e.g. New Drivers), unless the bus service is run in conjunction with or controlled by tramway services.

[66] The RTBU’s objective in making the Application is to alter its eligibility rule so that these two groups of employees are eligible to join the RTBU. 41

[67] Construing the proposed rule alteration requires some context, particularly in relation to the various relevant entities in the Transit Group. I will set out that context below and then turn to the task of construing the proposed rule alteration.

[68] Public buses operating in region 6 were previously run by the State Transit Authority of New South Wales (STA). In about May 2017, the New South Wales Government announced that it would undertake a competitive tender process to privatise the public bus services in region 6. The successful tenderer was TSW. Since 1 July 2018, TSW has operated the public bus service in region 6.

[69] The Transit Group includes the following entities: 42

(a) Transit Systems is a parent company. It employs Mr Kidd, 43 but does not employ any bus drivers. It owns all the shares issued in TSW, which in turn owns all the shares issued in TSW Services;

(b) TSW is the operator of public bus services in region 6, pursuant to its contract with the State of New South Wales. TSW does not employ any employees;

(d) Transit (NSW) Services Pty Ltd (Transit Services) employs the New Drivers in region 6. Transit Services also employs bus drivers who operate public buses in region 3 in New South Wales. Transit Services and Transit Systems have some shareholders in common.

[70] There are two industrial instruments that apply to bus drivers in region 6:

(a) the privatisation of bus operations in region 6 constituted a transfer of business from a non-national system employer that was a State public sector employer to a national system employer. By operation of Part 6-3A of the FW Act, the transfer of business gave rise to the creation of a new federal instrument, which included the same terms as the State Transit Authority Bus Operations Enterprise (State) Award 2018, which applied to bus drivers in region 6 before privatisation. The new instrument is known as a copied state award (Copied State Bus Award). It applies to Legacy Drivers; and

(b) an enterprise agreement known as the Transit (NSW) Services Pty Ltd Transport Workers’ Union and Bus Drivers Enterprise Agreement 2017 (Transit Services EA) applies to all bus drivers engaged by Transit Services, including the New Drivers in region 6 and all bus drivers in region 3.

[71] There is no dispute between the RTBU and the TWU in these proceedings that Keolis Downer Hunter Pty Ltd (Keolis Downer) operates a tramway service in Newcastle, which is run in conjunction with a public bus service. 44 Accordingly, there is no dispute in these proceedings that all bus drivers employed by Keolis Downer in region 5 to operate public buses are eligible to join the RTBU, whether or not they were employed by the New South Wales Government to work on such buses before privatisation.

Purpose of eligibility rules

[72] I accept the RTBU’s submission that coverage or eligibility rules have the purpose of allowing and limiting persons to join and be represented by the organisation. This is the objective intent of the maker of the rules. The RTBU’s proposed rule alteration must be interpreted in this light; interpretations which do not achieve this purpose and leave the rule with no work to do are unlikely to be correct.

[73] However, and notwithstanding the generosity of approach which must be taken to the interpretation of the rules, “the question of the meaning of the words used remains a legal question”. 45 As the TWU submits, it would be erroneous to interpret a proposed rule change such that it has an effect contrary to the language used and as if it says what it does not say.

[227] The RTBU submits that the scope of its proposed rule alteration is neither vague nor uncertain.

[228] As to the contention that consenting to the proposed rule change would increase the risk of industrial disharmony, the RTBU says that the TWU relies on the fact that the rule change might lead to the TWU and the RTBU competing for members. The RTBU submits that such competition for members is not a demarcation dispute as defined in s 6 of the RO Act and, in the context of the scheme of the RO Act and in particular its focus on encouraging competitive unionism, is not a reason to refuse consent. Further, regardless of the outcome of the Application, there will continue to be two unions representing bus drivers in region 6. Accordingly, to the extent that the Transit Group is concerned about dealing with two unions for bus drivers in region 6, that situation will not change as a consequence of the outcome of this case.

[229] As to the TWU’s submissions concerning the RTBU’s attempts to recruit members who are not eligible to join the union, the RTBU contends that it has always maintained that, correctly interpreted, its rules permit it to enrol and represent the relevant employees. The RTBU acknowledges, however, that at least in respect of the New Drivers, there are two AIRC decisions and one Commission decision to the contrary. No binding declaration has ever been made. The RTBU submits that this is not a matter involving a union flagrantly disregarding the limitations put on its sphere of industrial activity by its registered rules; rather, the RTBU has (with appropriate caution) been acting on a legitimately held view, which is in stark contrast to the position in ALAEA.

[230] The RTBU submits that a number of persons employed in privatised bus services want, for legitimate reasons, to be able to be join the RTBU and do not wish to join the TWU. The RTBU contends that this strongly weighs in favour of consent being granted.

[231] The RTBU submits that Senior Deputy President Hamberger’s decision in Transport Workers’ Union of Australia 138concerned an application under s 768BB for a coverage order in respect of a copied state instrument. Although rule coverage was relevant (and considered), it was not a proceeding to “resolve a demarcation dispute between the two unions” as asserted by Transit Systems. Senior Deputy President Hamberger found that the RTBU was eligible to represent some Legacy Drivers, but was not entitled to represent New Drivers. The point of the Application is to expand the RTBU’s coverage to allow it to represent, among others, the balance of the workforce providing public bus services in region 6. The Senior Deputy President did not make an order, or express a view, about whether the RTBU should be able to represent the balance of the workforce. In no way then, so the RTBU submits, can the Application be viewed as one that seeks to ‘circumvent’ the Senior Deputy President’s decision.

[232] The RTBU submits that the claim by Transit Systems to the effect that the proposed rule change is “discriminatory against Transit Systems”, in the sense that various entities in the Transit Group are named in the proposed rule alteration, is of no weight. There is nothing improper about a rule alteration identifying specific employers, such as Keolis Downer and entities in the Transit Group. Indeed it is sensible to avoid any uncertainty. It does not prevent the rule alteration applying to other employers who are not named but whose employees fall into the rule coverage.

[233] The RTBU rejects the suggestion that consenting to the proposed rule alteration would give rise to industrial disputation.

Consideration of residual discretionary considerations

[234] Where I have already addressed a discretionary consideration above, I will not repeat it here. I will take into account all relevant discretionary considerations in deciding whether or not to consent to the proposed alteration, in whole or part, under s 158 of the RO Act.

[235] I do not accept the argument that consent to the RTBU’s proposed rule alteration should, as a matter of discretion, be refused on the basis that it has the obvious potential to cause disputes and demarcation issues in bus operations.

[236] First, it is apparent from the evidence adduced in these proceedings that there is discontent and some conflict amongst some bus drivers in region 6, but the principal reason for such discontent and conflict is the fact that different terms and conditions of employment apply to different groups of bus drivers (doing the same work) in region 6, namely, the Transit Services EA applies to the New Drivers and the Copied State Bus Award applies to the Legacy Drivers. Numerous witnesses gave evidence to the effect that they believe it is unfair to have different conditions of employment applying to bus drivers who do the same job in the same region. For example, Mr Nyols gave evidence that “the biggest thing, it’s like – and it’s just natural – ‘Why are there different arrangements in place for the same work?’ that is the biggest thing that people dislike, and think is unfair”. 139 The reason why different conditions apply to different groups of bus drivers in region 6 is because the Transit Group made a deliberate decision to use Transit Services to employ the New Drivers and TSW Services to employ the Legacy Drivers.

[237] Secondly, there already exists competition between the RTBU and the TWU for members in region 6, where the Legacy Drivers are eligible to join both the RTBU and the TWU, and region 5 (Newcastle), where all bus drivers are eligible to join both the RTBU and the TWU. There is no evidence of any disputation, or the potential for it, in region 5. Further, the evidence does not cause me to have any concern that, in region 6 or any other region in which public bus operations may be privatised, disputation relating to competition between the RTBU and the TWU for members (assuming the proposed rule alteration were granted) would rise to any particular level that would, in any significant way, prevent, obstruct or restrict the performance of work in the industry or harm the business an employer. 140 The highpoint of the evidence in relation to conflict caused by union recruitment activity concerned events that took place on the day on which an announcement was made that the New South Wales Government intended to privatise public bus services in regions 7, 8 and 9 in New South Wales. On that day, a number of TWU organisers attended depots in regions 7, 8 and 9 and distributed TWU flyers which included recruitment material for the TWU.141 As a result, rank and file members of the RTBU were angry to the point of potential violence directed at TWU organisers.142 RTBU delegates were involved in heated exchanges with TWU organisers, but the RTBU delegates also ‘talked down’ RTBU members from becoming violent.143 I consider this to be an isolated incident which was primarily caused by the timing of the relevant events. On other occasions, the two unions have worked well together,144 but that has not always been the case, including when the RTBU sought to negotiate an enterprise agreement with Transit Systems for all drivers in region 6 without telling the TWU that it was doing so.

[238] Thirdly, there is no evidence of any stoppage of work that is said to be related to the existence of two unions or a demarcation dispute between the two unions. Mr Kidd gave evidence of a stoppage of work, but the RTBU led evidence in proceedings before Deputy President Bull that it had discouraged the relevant action by employees and, in the result, Transit Systems did not press any orders against the RTBU. Orders were made against 10 individual employees. More importantly, there is no suggestion in the evidence that this stoppage of work was in any way related to the existence of the TWU on site, or a dispute between the RTBU and the TWU.

[239] Fourthly, I accept that where two unions have members doing the same job in the same workplace, bargaining for a new enterprise agreement is likely to be more difficult and complex. There is the potential for ‘one upmanship’ in relation to claims and tactics advanced by the different unions. There may also be different claims pursued by each of the unions. 145 However, the evidence in this case does not lead me to have any concern that such matters would be likely to cause such a level of disruption or disputation146 as to warrant the exercise of discretion not to consent to the proposed rule alteration.

[240] Fifthly, although Transit Systems contends that the common theme in its disputes with RTBU members in region 6 is that such members resist the change that necessarily comes with privatisation, the outcome of this Application will not alter the fact that the RTBU has, and is likely to continue to have, a significant number of members in region 6. Further, that a union represents its members who may be resistant to change which is sought to be implemented following privatisation is not a good reason to refuse an application which would give the union greater coverage over the relevant group of employees.

[241] The conduct alleged against the RTBU concerning its recruitment activities falls into two broad categories:

• misrepresenting its capacity to represent individual employees; and

• recruiting members who are not eligible to be members of the RTBU.

[242] As to alleged misrepresentations, there is no dispute that RTBU delegates have informed New Drivers in region 6 that they can represent them in their disputes with Transit Systems. Even though the RTBU’s current eligibility rules do not permit such persons to join the RTBU, I accept the RTBU’s contention that employees to whom the Transit Services EA applies are entitled to be represented by a “representative of their choosing” in relation to disciplinary matters 147 and disputes dealt with under the dispute resolution procedures.148 When RTBU delegates represent New Drivers in such a matter, they do so in their personal capacity and not in their capacity as a delegate of the RTBU. There is no persuasive evidence to the effect that RTBU delegates or officials have told New Drivers anything other than that they can represent them.149 It follows that on the evidence adduced in these proceedings RTBU delegates or officials have not been misleading New Drivers in relation to their capacity to represent individual employees.

[243] As to recruiting members, I find that the RTBU has continued, up to the hearing of this matter in December 2019, to recruit and accept as members persons who it knows the Commission has found are not eligible to be members of the RTBU. 150 I do not accept the RTBU’s submission that it stopped those recruiting activities when it became aware of Senior Deputy President Hamberger’s decision of 9 January 2019. Evidence given by Mr Babineau,151 Mr Akdeniz,152 and Mr McKay153 establishes that the recruitment activities continued after that time. Although I have come to a different view to the one advanced by the RTBU in relation to the proper construction of its current eligibility rules, the construction advanced by the RTBU was arguable. It was certainly not hopeless. However, in circumstances where there are there are two AIRC decisions and one Commission decision against the construction for which the RTBU contends,154 I do not consider that it was reasonable for the RTBU to continue to recruit New Drivers prior to the determination of the present Application. As Vice President Hatcher pointed out in ALAEA155, “section 158 itself, in requiring the consent of the Commission to any alteration to an organisation’s eligibility rules, demonstrates the importance of eligibility rules to the statutory scheme”. Accordingly, this ongoing recruitment activity on the part of the RTBU demonstrates a disregard of the limits of its present coverage and weighs against consent being given to the proposed rule alteration.156 However, the RTBU’s conduct in this regard is not as serious as the conduct of the ALAEA, which “over a period of more than 25 years … persistently and contumeliously enrolled as members and sought to represent persons who on any reasonable view did not fall within the scope of its eligibility rule”.157 In light of these differences, I do not consider it appropriate to impose a condition of the type required by Vice President Hatcher in ALAEA.

[244] As was the case in ALAEA, 158 it is important to consider the interests of the relevant employees in deciding whether or not to exercise the discretion conferred by s 158 to consent to the proposed rule alteration. The evidence establishes that of the New Drivers, about 230 of them have chosen to join the TWU, about 122 of them have chosen to join the RTBU, and a relatively small number of members have (a) left the TWU to join the RTBU159 or (b) left RTBU to join the TWU.160 The fact that there is a substantial number of New Drivers who obviously want the RTBU to be able to represent them is significant and weighs in favour of consent being granted, albeit the number of such persons is fewer than those who want the TWU to represent them. Further, although the period during which the RTBU has represented its members who are New Drivers is not as long as was the case in ALAEA, there would be a disruptive effect to the proper industrial representation of those members if the RTBU were no longer able to have them as members and represent them in all relevant respects. This weighs in favour of the Application being granted, assuming the cohort of employees under consideration is comprised of all New Eligible Members or just the second category thereof (effectively, the New Drivers).

[245] However, if consideration is confined to just the first category of New Eligible Members (i.e. Legacy Drivers who were not a member of the RTBU at the time of the transfer or subsequently allowed their membership of the RTBU to lapse), the evidence does not reveal the preferences of those employees, with the result that this is a neutral discretionary consideration. For the other reasons given in this decision, treating this discretionary consideration as neutral, rather than weighing in favour of consenting to the rule alteration, would not alter my overall conclusion in relation to the Application.

[246] In light of my earlier conclusion that the terms of the alteration to the rules of the RTBU for which consent is sought do not capture the primary group of employees in question (New Drivers), this is a strong discretionary reason why the Application insofar as it has missed its mark should be refused. The meaning of the other proposed sub-rules is, in my view, reasonably clear.

[247] I reject Transit Systems’ contention that the Application seeks to circumvent the decision of Senior Deputy President Hamberger in Transport Workers’ Union of Australia. 161 Senior Deputy President Hamberger found that the RTBU was eligible to represent some Legacy Drivers, but was not entitled to represent New Drivers. The Application seeks to expand the RTBU’s coverage to allow it to represent, among others, the balance of the workforce providing public bus services in region 6.

[248] In my view, the fact that the proposed rule alteration names particular employers including entities in the Transit Group and Keolis Downer is not a consideration which weighs against granting consent. There is nothing improper about a rule alteration identifying specific employers. The naming of such entities does not prevent the rule alteration applying to other employers who are not named but whose employees fall into the rule’s coverage.

[249] I reject the suggestion that the rule alteration could be amended such that it simply covered all employees in region 6, regardless of who is the employer in that region. Any such alteration would expand the scope of the rule alteration proposed in the Application, given my conclusion that the New Drivers are not caught by the rule alteration. It is not possible for the Commission to rewrite the rule alteration to expand coverage from that which is sought. 162

[250] I also reject the argument that the rule alteration should be limited to bus drivers only. Although bus drivers are the primary group of employees with which the Application is concerned, the RTBU’s current rules enable it to have as members employees “in … motor omnibus services”. 163 Accordingly, it is appropriate that the rule alteration be limited, as it is, to the provision of bus services within New South Wales.

[251] I accept that the limitation in the RTBU’s current rules to allow it to enrol as members persons employed in a private bus service only if the bus service is run in conjunction with or controlled by a tramway service is not an historical accident, but it is odd. The RTBU’s rules were deliberately amended in 1934 to reflect a change in the industry at the time, namely, some of the existing tramway services began to operate bus services either in connection with or in place of a tramway service. 164 In recent years, there has been a further change to the industry. In particular, the New South Wales Government has decided to privatise the operation of public bus services in New South Wales. The RTBU has been representing the industrial interests of bus drivers working in the provision of those public bus services for decades. It now wishes to be able to continue representing such workers, notwithstanding they are, or may be (in the case of regions 7, 8 and 9), employed by a private sector employer. In my view, the fact that this change in the industry has been the reason for the RTBU’s proposed rule change, coupled with the RTBU’s long history in representing the relevant class of employees, weighs in favour of the exercise of discretion to grant the Application. Further, it is significant that the RTBU does not seek to amend its rules to cover the private bus sector generally; the proposed rule change is limited to employees in the provision of public bus services.

[252] Finally, and in response to the TWU’s submission that any rule change to address potential privatisation of public bus services in region 7, 8 or 9 should be deferred until a later time, it is not in the interests of the parties to these proceedings or the employees concerned to have a different application made for consent to a rule change after each bus region within New South Wales is privatised. Although the RTBU has missed its mark in relation to the New Drivers in region 6, there should not be any great difficulty in drafting one or more rule amendments to deal with the privatisation of public bus services in New South Wales. If privatisation goes ahead in region 7, 8 and/or 9, proposed rule 4(4)(ii) may well give the RTBU coverage over employees who work in the provision of bus services in those regions after privatisation. If not, a further application may be made by the RTBU, as is likely to be the case in relation to the New Drivers in region 6.

Conclusion

[253] In all the circumstances and for the reasons set out above:

(a) I do not consent to the Application insofar as it applies to proposed sub-rules 4(4)(i), (iv) and (v) of the RTBU’s rules; and

(b) I consent to the Application insofar as it applies to proposed sub-rules 4(4)(ii), (iii) and (vi) of the RTBU’s rules.

[254] In accordance with s 158(9) of the RO Act, the Commission’s consent to the Application insofar as it applies to proposed sub-rules 4(4)(ii), (iii) and (vi) of the RTBU’s rules will take effect on 26 March 2020.

DEPUTY PRESIDENT

Appearances:

Mr I Taylor, of counsel, with Ms L Saunders, of counsel, for the Australian Rail, Tram and Bus Industry Union

Mr M Gibian, of counsel, with Mr G Webb for the Transport Workers’ Union of Australia

Ms S Wellard, solicitor,for Transit Systems

Hearing details:

2019.

Sydney:

4 to 6, 16 and 17 December.

Printed by authority of the Commonwealth Government Printer

1 See paragraphs [54] to [162] below as to the proper construction of the RTBU’s eligibility rule and the classes of employees who are not presently eligible to join the RTBU

2 RTBU’s reply submissions dated 27 August 2019 at [10]

3 [2016] FWCFB 22 (Resmed)

4 [2014] FWC 3658 (ALAEA)

5 ResMed Limited v AMWU (No 2)[2017] FCAFC 14

6 Re CPSU (2000) 100 IR 296 (Re CPSU) at [14]-[81]

7 Re CPSU at [80]

8 Re CPSU at [81]

9 Section 3(e) of the FW Act

10 Re CPSU at [81]

11 NTEIU v CPSU (1999) 93 IR 365 at [203]

12 CPSU[2016] FWC 985 at [29]

13 Ibid; Re CPSU at [95]

14 Re CPSU at [95]

15 CPSU[2016] FWC 985 at [28]-[30]; ALAEA at [19]

16 Re AWU; Ex parte CFMEU (2002) 120 FCR 527 at [44]-[52]

17 Section 158(5) of the RO Act

18 ResMed at [123]

19 ALAEA at [64]

20 Re CPSU at [85]-[96]; ALAEA at [19]-[22]

21 38 exhibits and 4285 paragraphs of transcript

22 Ex 38 at [14]-[20]

23 [2014] FWCFB 3501 at [34]

24 R v Cohen; Ex parte Motor Accidents Insurance Board (1979) 141 CLR 577 at 587; Co-operative Bulk Handling Ltd v Waterside Workers’ Federation of Australia (1980) 49 FLR 355 at 361-2; Electrical Trades Union of Australia v Waterside Workers’ Federation of Australia (No. 2) (1982) 59 FLR 78 at 87

25 Macquarie Dictionary, Revised Third Edition

26 AMWU v Resmed Limited [2014] FWCFB 3501 at [34(5)]

27 Section 344(2) of the RO Act

28 ANMF v KH Essendon (2015) 228 FCR 225

29 Ex 15

30 Ex 15 at ADB-1 to ADB-17

31 Ex 15 at ADB-2

32 Rule 87(4) of the RTBU’s rules

33 Ex 15 at ADB-1 to ADB-17

34 [2019] FWC 71

35 RTBU’s reply submissions dated 27 August 2019 at [30]

36 Ibid at [32]

37 Re AWU; Ex parte CFMEU (2002) 120 FCR 527 at [44]-[52]

38 Ibid

39 (1996) 67 IR 28 (Serco)

40 At pp.31-32

41 PN61

42 Ex 34 at [2]-[12]

43 PN3243-4

44 PN15-16; PN4011

45 Co-operative Bulk Handling Ltd v Waterside Workers’ Federation of Australia (1980) 32 ALR 541 at 547, applying R v Cohen; Ex parte Motor Accidents Insurance Board (1979) 27 ALR 263 at 270

46 (2005) 222 CLR 194 (Gribbles)

47 (2000) 201 CLR 648 (PP Consultants)

48 (1990) 171 CLR 216 (ATOF)

49 RTBU’s submissions in reply dated 31 January 2020 at [45] and following

50 ss 68B and 68C of the Transport Act

51 s 68Q(10) of the Transport Act

52 s 68B(1) of the Transport Act

53 ss 68C(1) and 68Q(10) of the Transport Act

54 s 24(1) of the Transport Act

55 See note to s 68C of the Transport Act

56 s 68C of the Transport Act

57 s 68Q(10) of the Transport Act; also, see note to s 68C of the Transport Act

58 PP Consultants at [18]-[19]

59 PP Consultants at [13]

60 PP Consultants at [13]-[14]

61 (2001) 106 FCR 302

62 At [45]-[46]

63 Gribbles at [20]

64 [2008] FCA 1447 (Urquhart)

65 At [48]-[63]

66 At [76]-[83]

67 At [77]

68 At [83]

69 RTBU’s submissions in reply dated 31 January 2020 at [53]

70 See, too, CPSU v EDS Australia (2003) 129 IR 7 at [104]

71 Gribbles at [20]

72 Gribbles at [34]

73 Gribbles at [39]

74 Gribbles at [35]

75 Ibid

76 Gribbles at [38]

77 Ibid

78 s 20A(1)(a) of the Transport Act

79 s 24(1)(a) of the Transport Act

80 s 24(1)(a) of the Transport Act

81 See note to s 68C of the Transport Act

82 s 68C of the Transport Act

83 See note to s 68C of the Transport Act and s 68Q(10) of the Transport Act

84 Gribbles at [47]

85 PN3365 & PN3467-3477

86 Gribbles at [48]

87 Gribbles

88 Ex 37

89 Ex 25; PN3359-63

90 Ex 25

91 Ex 25 at clause 53.1(b)(iii)

92 Ex 37 at clause 2.1

93 PN3371

94 Ex 25

95 PN3483-5

96 Ex 25

97 Urquhart at [77]

98 PN4068

99 PN4069

100 PN4031-2

101 PN31

102 Re AWU; Ex parte CFMEU (2002) 120 FCR 527 at [44]-[52] & [142]

103 See paragraphs [4] and [50] above

104 PN321-324

105 PN3265

106 Ex 34 at [7] & [9]; PN3287-8

107 Ex 17 at [48]

108 Ex 17 at [48]

109 PN1716

110 PN1716-1718

111 Ibid

112 868 RTBU members – 122 New Drivers = 746 Legacy Drivers

113 PN262-6

114 PN327-331; PN1821

115 PN3397

116 See paragraph [179] above

117 See paragraph [178] above

118 Ex 26

119 Transit Systems West Services Pty Ltd v RTBU[2020] FWCFB 4

120 Australian Competition and Consumer Commission v CC (NSW) Pty Ltd (1999) 92 FCR 375 at [135]- [139]

121 Re CPSU at [56] & [100]-[105]

122 ACCC v Leahy Petroleum Pty Ltd (2004) 141 FCR 183 at [54]

123 Ibid

124 Ibid

125 Ibid; TPC v Email Ltd (1980) 43 FLR 383 at 385

126 ACCC v CC (NSW) Pty Ltd (No 8) (1999) 92 FCR 375 at [141]; Rural Press Ltd v ACCC (2002) 118 FCR 236 at [76]

127 News Ltd v Australian Rugby Football League Ltd (1996) 139 ALR 193 at 344

128 Luxton v Vines (1952) 85 CLR 352

129 PN4187

130 See, for example, Ex 22 at [10], Ex 18 at [28] & [40]-[41], Ex 27 at [7]

131 PN4187; Ex 29 at [46]-[60]

132 Ex 29 at [47]

133 Ex 29 at [53]-[58]

134 Ex 29 at [58]

135 PN469 - PN472

136 ALAEA at [80]

137 [2019] FWC 71

138 [2019] FWC 71

139 PN536; see, too, PN674, PN1642 & PN2068

140 Re CPSU at [114]

141 PN1094

142 PN1085-6; Ex 10

143 PN1090-4; Ex 10

144 See, for example, PN1523 & PN2009

145 PN2223-4

146 Section 5(1) of the RO Act

147 Clause 19 of the Transit Services EA

148 Clause 31 of the Transit Services EA

149 Ex 8; Ex 15; PN2125 – PN2164

150 PN1064

151 PN995 – PN1007; PN1064

152 Ex 7

153 Ex 13

154 See paragraphs [54] to [62] above

155 At [80]

156 ALAEA at [80]

157 ALAEA at [79]

158 At [81]

159 Ex 8 at [37]-[38]

160 For example, Ms Folkard (Ex 15 at [9]); See, too, Ex 1 at [20] & PN268 – PN271

161 [2019] FWC 71

162 ALAEA at [17]

163 Rule 4(1)(i) of the RTBU’s rules

164 Serco at 31-2