CFMEU v Honourable Senior Deputy President Harrison a member of the AIRC & Ors

[2008] HCATrans 148

[2008] HCATrans 148

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B64 of 2007

B e t w e e n -

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Applicant

and

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

First Defendant

MOUNT ISA MINES LIMITED

Second Defendant

AUSTRALIAN WORKERS’ UNION OF EMPLOYEES, QUEENSLAND

Third Defendant

AUSTRALIAN WORKERS’ UNION

Fourth Defendant

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

Fifth Defendant

AUTOMOTIVE, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION

Sixth Defendant

FEDERATED ENGINE, DRIVERS’ AND FIREMENS’ ASSOCIATION OF QUEENSLAND, UNION OF EMPLOYEES

Seventh Defendant

Office of the Registry
  Brisbane  No B9 of 2007

B e t w e e n -

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Applicant

and

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

First Defendant

DALRYMPLE BAY COAL TERMINAL PTY LTD

Second Defendant

AUSTRALIAN WORKERS’ UNION OF EMPLOYEES, QUEENSLAND

Third Defendant

AUSTRALIAN WORKERS’ UNION

Fourth Defendant

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

Fifth Defendant

AUTOMOTIVE, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION

Sixth Defendant

FEDERATED ENGINE DRIVERS’ AND FIREMEN’S ASSOCIATION OF QUEENSLAND, UNION OF EMPLOYEES

Seventh Defendant

TRANSPORT WORKERS’ UNION OF AUSTRALIA

Eighth Defendant

ELECTRICAL TRADES UNION OF EMPLOYEES, QUEENSLAND

Ninth Defendant

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF EMPLOYEES, QUEENSLAND

Tenth Defendant

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

Eleventh Defendant

Applications for order to show cause

KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 2 APRIL 2008, AT 10.17 AM

Copyright in the High Court of Australia

__________________

MR A.M. SLEVIN:   May it please the Court, I appear for the plaintiffs.  (instructed by Hall Payne Lawyers)

MR J.E. MURDOCH, SC:   May it please the Court, I appear for the second defendant in each matter, that is Mount Isa Mines Limited and Dalrymple Bay.  (instructed by Minter Ellison Lawyers)

MR A.K. HERBERT:   May it please the Court, I appear for the third and fourth defendants, which are the State and federally registered emanations of the AWU respectively.  (instructed by Sciacca’s Lawyers and Consultants)

HER HONOUR:   I do not think there are any appearances for the balance of the defendants in these matters.  There is a submitting appearance for the first, fifth, sixth, eighth, ninth and eleventh and I do not think there is any appearance for the seventh and tenth. 

It is your application.  The reason it was set down for directions hearing, Mr Slevin and gentlemen, is, of course, that there is another matter that was mooted to be brought on at the same time and I think the Deputy Registrar has been waiting to hear what is happening with that because it was thought inappropriate to deal with these two and then have a third in the background.  What is happening with that matter?

MR SLEVIN:   We are not aware of a third matter.  At the moment we have no instructions in relation to any other matter.

HER HONOUR:   I see.

MR SLEVIN:   There are just the two matters, the Dalrymple Bay and the Mount Isa matters.  There is a third matter, the Amcor matter, I am not sure if that is the matter that is being referred to.

HER HONOUR:   Do you think there might be some confusion about whether there is a third matter that is on track.  That is the Amcor matter from the Full Bench that has really set up the issue that we are concerned with today?

MR SLEVIN:   That is right, your Honour, but there is no intention, no instructions at the moment for us to bring any action in relation to that.  So that may be the cause of the confusion, your Honour.

HER HONOUR:   Yes, I see.  This matter is not set down for hearing today but it is probably as well just to mention the different points of view.  Your application is to have the matters remitted, Mr Slevin?

MR SLEVIN:   It is our application to do that, your Honour, and we rely on the outline of submissions in B64 filed on 25 January 2008.  They are an amended outline, your Honour.  The amendment was associated with a misdescription of the second defendant in that matter and so after filing first of all in December the matter was refiled in January and accompanying the application were the outlines of submissions in support of the summons and the remitter and so we rely on that.  In B9 we rely on the outline of 8 February 2008 that was filed with the application in that matter and, of course, we rely on the submissions that were filed, I understand, yesterday in accordance with your direction, your Honour, but I understand forwarded by facsimile last week to the Registry.

HER HONOUR:   Yes.  As I have mentioned, these matters were only set down for mention because of this understanding that the Registrar had that there was another matter which had to be tracked at the same time.  Do the parties wish to proceed this morning with argument in relation to the question of remitter or put the matter over?

MR MURDOCH:   Your Honour, it would probably save the Court’s time and the time of the parties if we proceeded and dealt with the matter.

HER HONOUR:   I am happy to deal with it today.

MR HERBERT:   I agree to that, your Honour.

HER HONOUR:   Yes, all right then, Mr Slevin.

MR SLEVIN:   We are happy to proceed.  Your Honour, we only have brief oral submissions to make.  As I said, we rely on the outlines filed and the submissions provided.

HER HONOUR:   It is more a matter of procedure really and what benefit there is in it either remaining with this Court or, at a practical level, being remitted. 

MR SLEVIN:   Yes.

HER HONOUR:   The matter is here now but if you had wanted it to go the Federal Court, there are other paths for you to have taken it there, are there not?

MR SLEVIN:   We do not believe so, your Honour.

HER HONOUR:   You would have had to have had another stage?

MR SLEVIN: There is an exclusion section 39B in relation to officers under the Workplace Relations Act.

HER HONOUR:   I see.  Sorry, I was not aware of that.

MR SLEVIN:   Yes.  These matters are commenced in this Court and ‑ ‑ ‑

HER HONOUR:   So we will deal with the question of remitter.  It is put against you in Mr Murdoch’s submissions that there is no dispute of fact here and there are a large number of matters which are awaiting determination on the same question that was set up by the Full Bench decision.

MR SLEVIN:   Yes.  Your Honour, in relation to these two matters, there are no disputed facts.  I just cannot say about the other 20 matters that Mr Murdoch refers to in his submissions as to whether there is any disputed facts in those matters, but I agree with Mr Murdoch’s assessment in terms of the facts associated with these matters.

HER HONOUR:   Yes.  Why do you say the matters ought to be remitted?

MR SLEVIN:   We say, your Honour, and you are familiar with the background, that the two matters involve orders made by single members of the Australian Industrial Relations Commission against the background of the Full Bench decision of the Australian Industrial Relations Commission, that is the Amcor matter.  The plaintiff challenges the orders of the single members of the Commission and brings the applications for prerogative relief.  The issues that arise in the application are set out in paragraph 6 of the outlines filed and we understand there is no contest that those are issues that arise in the two matters.

HER HONOUR:   Is it thought that the Federal Court with the background of some of its judges might be able to bring something to bear before the matter was dealt with by this Court, assuming that that was necessary?

MR SLEVIN:   Yes.  That is essentially our submission.

HER HONOUR:   That must essentially be it.

MR SLEVIN:   That is right.  The Federal Court has not considered the matters.  They are matters about the construction of the Workplace Relations Regulations made under the Workplace Relations Act. Section 847 of the Workplace Relations Act sets out the jurisdiction of the Federal Court and includes matters under the Workplace Relations Act.  We say that is the appropriate court to deal with it in these circumstances.  If it remains in this Court, this Court will not have the benefit of the views of the Federal Court.  It is the usual course in industrial matters and that is accepted by my friends that a remitter will happen or occurs in these sorts of matters.

Once remitted, section 851 of the Workplace Relations Act operates and that means the Full Court of the Federal Court will deal with the matters.  It appears to us that the defendants oppose the usual course because they seek certainty in relation to the provisions in dispute and that they also seek expedition.  It is our submission that both certainty and expedition, as it were, can be achieved in the Federal Court and we add to our response the matter that I raised that it is the Federal Court that has jurisdiction over the Workplace Relations Act and the Federal Court has as yet not dealt with the question.  There is nothing more to our submissions in support of the remitter than that, your Honour.  We say that the usual course should be followed and that there is no need for the matter to remain in this Court, if your Honour pleases.

HER HONOUR:   Thank you, Mr Slevin.  Yes, Mr Murdoch.

MR MURDOCH:   Your Honour, I too would ask that the Court take as read the outlines dated 26 March 2008 which have been filed in the Court.  Your Honour, as we see it, the Court as presently constituted has a discretion to exercise.  We ask that your Honour decline to exercise your discretion to remit the matter.  If the matter is remitted, in our submission, it would not further refine the issues because the issues as stated by my learned friend, Mr Slevin, are frankly the agreed issues.  The issues have been refined and defined since the Full Bench of the Commission dealt with the matter in December 2006.  Further to that, there are no issues of fact.  The questions to whether exposure of the issues to three justices of the Federal Court would, to put it bluntly, add value ‑ ‑ ‑

HER HONOUR:   It might finalise the matter.

MR MURDOCH:   It might, your Honour.  But, with respect, your Honour, having regard to the history of matters that relate to contested union coverage issues ‑ ‑ ‑

HER HONOUR:   Does this have a wider ramification than just the transitional arrangements in the regulations?

MR MURDOCH:   Your Honour, in our view it does.  Perhaps my learned friend, Mr Herbert, can give a union perspective but, from an employer perspective, we see it this way.  Both of my client companies were long‑term participants in the State industrial system.  The effect of the WorkChoices amendments to the Workplace Relations Act 1996 were to effectively conscript constitutional corporations into the federal system. That meant that longstanding industrial arrangements, both as to employee entitlements and also as to union demarcation and representation rights, were to a large extent put into the melting pot. So far as employee entitlements were concerned, there were transitional arrangements to bring them over automatically.

In respect of union coverage and demarcation rights, there was no automatic transitional process.  There was a process whereby an application could be made by the employer particularly in situations where State registered unions sought transitional registration under WorkChoices and the Australian Workers’ Union did that and the State alter ego of Mr Slevin’s client did that.  However, a three‑year period was prescribed to enable the transition to be accomplished ‑ ‑ ‑

HER HONOUR:   Is that the three‑year period that concludes in December of next year or is 31 December the period by which the WorkChoices is no longer effective?

MR MURDOCH:   The three years, your Honour, initially was to expire on 26 March 2009.  It has recently been enlarged.  The new Government in its amendments has extended it to the end of December 2009.  But, nevertheless, the process for obtaining transitional registration and obtaining cognate representation orders to reflect the transitional registration has to be achieved in that window. 

HER HONOUR:   What happens after that period, though, with these questions of representation?  Does it revert to the State system?

MR MURDOCH:   No, it assumes that those former State unions which now have transitional registration will take the next step which is to obtain full registration and whereupon there would be a need for the representation orders, which have been made by the Commission ‑ ‑ ‑

HER HONOUR:   Would have to be revisited at that point.

MR MURDOCH:   Yes, they would.

HER HONOUR:   Different questions and potentially different parties to the representation question?

MR MURDOCH:   Well, at a practical level, probably not, though I concede it is dangerous to generalise.

HER HONOUR:   It is being revisited.  So part of the problem given rise to with the transitional provisions is that some parties were not – the CFMEU was not a party to the original order made, the State order.

MR MURDOCH:   That is so, though ‑ ‑ ‑

HER HONOUR:   You say that would continue; it would not change?

MR MURDOCH:   That is so and the view that we took before the Commission is that there was no natural justice issue because of the fact that there was a legislative intervention and it occurred in circumstances where, as I put it earlier, my clients were conscripted by force of legislation and taken out of the State system.  The legislative scheme which was before the Commission for interpretation and which arises in this matter is largely centred around how you make an order in the federal jurisdiction with the same effect as the order that existed in the State jurisdiction.

HER HONOUR:   I see, yes.

MR MURDOCH:   In the days of the State jurisdiction, the order applied as between the unions which were able to participate in the State system.  Now that my clients are in the federal system, the contention that we advance and the Australian Workers’ Union advance is that to have an order of the same effect as the former State order it needs to touch all organisations, both transitionally registered or newly registered or formerly registered which might have potential rights of coverage.  Ultimately, your Honour, the core issue is which unions have rights to represent and speak for workers both at a tribunal level in an enterprise bargaining level and at a domestic level within the two organisations?

HER HONOUR:   From what you say, the question will certainly alter at the end of the transitional period.

MR MURDOCH:   Yes, it will in ‑ ‑ ‑

HER HONOUR:   It will be a different question.

MR MURDOCH:   But our view is that it simply takes the same issues to another stage where, instead of transitional arrangements, the parties would be advocating permanent arrangements.

HER HONOUR:   But the answer in relation to the transitional arrangements will not necessarily provide the answer for the future.

MR MURDOCH:   We believe it will, your Honour, because the legislative provisions have close similarities so that what happens here, in our view, will have a long‑term effect.  Our immediate concern, though, is that much has to happen in the three‑year now extended window and the Full Bench, which was chaired by Justice Giudice who is a judge of the Federal Court as well as being president of the Commission, dealt with the Amcor case as if it were a test case in a Commission sense.  For example, there was an invitation extended to other interested parties to participate.

HER HONOUR:   Yes, I saw that.

MR MURDOCH:   Mount Isa Mines Limited participated.  Without criticising Mr Slevin’s clients, inexplicably they did not seek to challenge that decision and the result of that has been that single presidential members have proceeded, particularly in the case of Dalrymple Bay and Mount Isa Mines Limited, to follow on and give the same rulings on the law as the Full Bench gave in Amcor.  If the Amcor matter had been challenged in the same way as these matters are challenged, the parties would now be almost a year further down the track.  For whatever policy reason, my learned friend’s clients delayed.

HER HONOUR:   Yes, I wondered about that.

MR MURDOCH:   As we see it, it disadvantaged my clients and Mr Herbert might say they disadvantage his client.  Whether it advantages the CFMEU, it is hard to say, but conservatively we would assess it as being more likely to advantage them than disadvantage them.  So you have a situation where my clients, who have successfully argued the points at Commission level and done so successfully, would be disadvantaged, whereas the party that was unsuccessful at Commission level potentially might be advantaged because of the fact that so much of the three‑year period will be eaten up. 

If the matter goes to the Full Federal Court, on past experience, even with efficient parties and an efficient court, it could well cost six to nine months of time and then there is the likelihood that the unsuccessful party there, because of what is at stake, would wish to agitate the matter in the High Court anyway.  That would mean that, given the High Court’s ‑ ‑ ‑

HER HONOUR:   What has to be determined in this window?  Can you just explain to me what it is that the orders for representation affect in this period through to December?  What has to be determined in the Commission?

MR MURDOCH:   So far as Mount Isa Mines Limited and Dalrymple Bay are concerned, we currently have orders so that superficially we have the benefit of them, but whilst the matters are subject to challenge, there is frankly uncertainty.  But in terms of what has to be done, we have an indirect interest in Mr Herbert’s clients being able to perfect their position in relation to ‑ ‑ ‑

HER HONOUR:   Yes, but what does the representation, what hearings or issues would the representation of the AWU and others affect?  What are they connected to?

MR MURDOCH:   Your Honour, it operates at three levels.  The first level is with domestic issues at the particular workplaces.  If, for example, the CFMEU were to assert that they had the right to represent persons at the workplace, while my clients have the benefit of the order, the practical benefit of the order is diminished because of the fact that it is subject to challenge and subject to challenge through a lengthy process.  Secondly, if applications are brought in the Australian Industrial Relations Commission by the CFMEU, my clients would no doubt wish to advance the orders as a block to the standing of the CFMEU.

HER HONOUR:   But the status quo does not favour the CFMEU, does it?

MR MURDOCH:   No, it does not, unless the CFMEU seek to take advantage of the fact that the current orders are subject to challenge.  The third is in relation to enterprise bargaining where enterprise bargains may be made for a period of three and, in some cases, five years and if either of my clients wish to bargain collectively at this time, they need a degree of certainty as to which organisation is likely to have rights through the period of the enterprise bargain, so that there is a need for certainty, in my submission.

Your Honour, these are unusual matters brought about through the fact that there is a major transition which has had to be accomplished in a relatively short period of time from the State system to the federal.  I am aware that the High Court has an extremely busy program, but certainly for the industrial parties concerned, these are important issues and for those reasons we urge that the usual path of remission not be followed.

HER HONOUR:   Thank you, Mr Murdoch.  Mr Herbert.

MR HERBERT:   Thank you, your Honour.  Your Honour, I adopt what my learned friend, Mr Murdoch, has said and I say in addition to that that the impact - your Honour asked some questions about the impact of the further step in the transition process.  The transition process, so far as my State registered client, the third defendant, is concerned, is that, firstly, having been conscripted along with the constitutional corporations into the federal system by virtue of its significant proportion of its membership being employed by constitutional corporations, it is permitted to seek, firstly, transitional registration which is more or less a formality and then to – there was a period of three years set which has now been extended to nearly four years during which it and all transitionally registered organisations are entitled to make up their mind as to whether they wish to seek full federal registration or not.

If they do and are successful, they become fully registered organisations.  If not, at the end of the transitional period their transitional registration is cancelled and they cease to have any standing under the federal Act.  The State registered AWU, which is the union in contention in these proceedings, is a transitionally registered association.  That was the basis of the application that is now challenged and has made application for full federal registration but that is pending before the Commission.  That is the situation in relation to the registration of organisations.

In relation to the demarcation orders, because there are two steps, the demarcation order situation is also dealt with in the transitional provisions in the Act in two steps.  The first step entitles the transitionally registered union to make application to, as it were, bring up its demarcation arrangements with it.  That is the matter of contention in these arrangements.  That having occurred, however, once it obtains full federal registration, there is a second step that needs to be undertaken and that is the step which requires it to obtain demarcation orders again under the provisions of the federal Act that apply to fully registered organisations, and I have referred to them in my written outline of submissions which I should have asked your Honour to take as read.  They were filed, I think, on 31 March.

Your Honour, the position then is, in order to obtain representation orders, it is necessary to access the ordinary provisions in the Act that apply to all registered organisations with the exception that there are special arrangements for registered organisations which were formerly State transitional organisations such as my client then will be and they allow for a number of scenarios.  I have referred to the regulations in my written submissions, your Honour, and without taking your Honour to them, I will tell your Honour what they are. 

It is the Workplace Relations (Registration and Accountability of Organisations) Regulations 2003.  It is the short form of the RAO Regulations.  Those regulations make provision for how the normal provisions in relation to demarcation orders or representation orders are to be modified in the case of former State transitional unions such as my client.  There are two scenarios that are relevant.  One is if my client had an order under the transitional arrangements, having had a previous State order.  The other scenario is if my client did not have an order under the previous transitional arrangements but had an order under the State system.  They are the two scenarios.  At the moment my client is in the position of having a previous State order and having an order under the transitional arrangements.

These proceedings put that under challenge and the outcome of the proceedings will be different depending upon which of those scenarios maintains its position, because the RAO Regulations say that if there is an order of the Amcor kind in force at the time that the organisation applies for an order under the permanent arrangements, then the Commission is required to make, in effect, the same order.  If not, they have to go back to the State order and make an order to the same effect as the existing State order.  But the State order by then, as in this case, has been modified so as to include provision for excluding coverage of federally registered organisations such as my learned friend, Mr Slevin’s, client.  To simply adopt that same order in favour of my client once they obtain full federal registration would be a much more convenient course than having to go back and fight the fight again, that is, to bring up the State order.

There is now great uncertainty because if these matters go forward and the time that my learned friend, Mr Murdoch, has referred to is chewed up, we will be getting towards the end of the transitional period by which time my client will have full federal registration.  But it could find itself having the rug pulled from under it to a large extent in the sense that approaching the Commission with a previous order under the transitional arrangements might in fact change so that it is approaching the Commission without ‑ ‑ ‑

HER HONOUR:   I am sorry, could you say that again?

MR HERBERT:   Yes.  If it approaches the Commission as a fully registered organisation seeking replicated demarcation orders and those orders are struck down by these proceedings, then it goes from having orders to not having orders in its favour.  It will then have to go back to the previous State orders and ask for orders to be made to the same effect as the State orders.  So there is a great deal of uncertainty attending upon the question as to whether, in fact, the orders that are now in force are to remain in force because that governs what is to happen very shortly down the track.

My client also presumably by then having transitioned from the stage of being a transitional union to being a fully registered union cannot come back as a transitional union and redo what is sought to be undone in these proceedings because it will no longer have the standing of a transitional organisation which is a critical part of the jurisdiction of the Commission to make these orders.  It will then be a fully registered organisation looking for other orders which are, in part, dependent upon the existence of these orders.

HER HONOUR:   Does Mr Murdoch’s suggestion that the answer provided in the proceedings would resolve the question for the permanent status of the ‑ ‑ ‑

MR HERBERT:   In a practical sense it will because in either case, as I have put in the written submissions, whether one proceeds with the benefit of an order in one’s portfolio or not, the wording of the regulation that provides for permanent demarcation orders is materially the same as the wording that is used for transitional orders, if one is to pick up – if one is not just simply to rewrite the same order, if you have to go back to the State transitional order, the wording is the same in the permanent order provisions and in the transitional order provisions.  So that a determination as to what is meant by “an order to the same effect as” will govern both rounds, the transitional rounds and the federal rounds so that the decision in this matter will govern the ‑ ‑ ‑

HER HONOUR:   So, in a sense, it is not just a window of opportunity.  The window that has to be addressed – what you are talking about is whether or not – is the question of some months, if there are two stages in the final determination of this matter rather than one round of determination?  That is really what we are talking about.

MR HERBERT:   Your Honour, the decision in this matter will govern both rounds and the timing of it ‑ ‑ ‑

HER HONOUR:   The concern is that there might be two levels to a final decision, not one.

MR HERBERT:   Yes.  It will be uncertain as to which regulation applies to the final decision until the standing of the present orders is known.  So there will be a continuing uncertainty about that because if the order is struck down, then another regulation will apply to the application for permanent orders than the one that currently would apply if the application were made today.  So there are continuing provisions.  My client, as is mentioned in the affidavit material, is the State union beneficiary of six orders in Queensland alone, two made as recently as last week or the week before. 

There is one further pending and the expectation is there will be seven of these orders in favour of my client, including the Amcor order and only two of those seven are present before the court.  Those seven, of course, will need to be done again once my client obtains registration, so there will be a total of ‑ ‑ ‑

HER HONOUR:   Of course, you would be confident in maintaining that position, would you not?

MR HERBERT:   Yes, we are but so long as these matters are under challenge, the difficulty would be that my client’s position will, to a large extent, be altered in a fairly uncertain way if it proceeds with its application for full registration in accordance with the transitional scheme and loses the capacity to come back and fix up any problems that might be associated with the transitional order.  It may be they can repair the problem by going right back to the State order and doing it all again as a fully federally registered organisation but that would be a most inconvenient path and may be fraught with some legal difficulties because this has not been done before.

HER HONOUR:   How close is the full registration?  It is at the end of this window.

MR HERBERT:   It is in the pipeline.  I do not understand it is in dispute.  There is quite an extensive advertising period.

HER HONOUR:   We are talking about months, though.

MR HERBERT:   Yes, a fairly short period.  I would think a few months at the most and I do not understand the application is in ‑ ‑ ‑

HER HONOUR:   With that uncertainty, is one path open to postpone the decision for permanent status?

MR HERBERT:   No, your Honour, there are a lot of other matters that flow from that.

HER HONOUR:   So it has to do it anyway?

MR HERBERT:   It must do it.  If it is put up against the time limit and it misses the time limit, it loses its transitional registration and can never come again.  If there were a lengthy objection period, for example, if someone did object, to stall the application and it was not decided by the end of the transitional period, then there is uncertainty as to whether it could persist with the application.  So that would, I think, hold the process and I do not think that my client would adopt the course.  I have not taken any instructions about that, but one doubts whether they would adopt a course of deferring their federal registration. 

There are a lot of other things that are hinged on that because it is not just these orders or these areas where my client has industrial coverage.  It has extensive industrial coverage throughout Queensland in a lot of other industries, all of which have become federally regulated industries where it needs to be involved as a fully fledged union in that rather than it simply being a transitionally registered union with a temporary licence, as it were, to move within the federal system.  So for those reasons, one strongly suspects that that application will go ahead notwithstanding but any further delays in relation to this matter, any unnecessary delays in relation to the determination of this matter would work towards prejudice. 

I really should emphasise, your Honour, that the main point that I wish to bring to your Honour’s attention is that there are a wide range of these matters that are not before this Court and do not necessarily involve my learned friend, Mr Slevin’s, client which this decision will resolve all of those problems, one would think, or all of these uncertainties surrounding those matters.

HER HONOUR:   The matter is already before the Court.

MR MURDOCH:   No, sorry, these two matters that are before the Court are only two of a number.  Not all of my learned friend, Mr Slevin’s, clients are parties to some of the other orders, but my client is and so it has probably the biggest stake, certainly in Queensland, in relation to the finding out what these provisions actually mean.

HER HONOUR:   But those other matters, I have seen reference to them in the material, but they do not have any status in this Court.

MR HERBERT:   No.  But so far as the propriety of the orders that are made, in each of those orders ‑ ‑ ‑

HER HONOUR:   They will be affected by an order, I follow that.

MR HERBERT:   I can tell your Honour, having been in each of those orders, there were orders made that bound federally registered organisations who are not parties to the original proceedings more than a decade ago but the counterpart federal organisations of the stated unions that were parties to those proceedings have been bound into the representation orders in each other case.  A fundamental core of the argument, as I understand it, is that a union that was not party to those proceedings in the State system cannot be bound by the orders that are made in the federal jurisdiction, but I can assure your Honour that has happened on a range of other occasions and the validity of an order based on that argument, or if an order is found to be invalid based on that argument, then a lot of other orders not before this Court will also be invalid.  So the matter spreads.  It has fairly wide wings and it relates to industrial ‑ ‑ ‑

HER HONOUR:   I understand its importance, but the only issue here is a question of expedition and there seems to be some assumption.  I mean – I should not say there is some assumption.  There is no reason the Full Court of the Federal Court cannot expedite if the parties put the case forward to the Full Court of the Federal Court.  The only benefit, it seems to me, that

the defendants are seeking is to have that stage removed and go direct to a final decision.

MR HERBERT:   Yes.

HER HONOUR:   That requires a level of urgency to be apparent, an urgency that finds expression in the need for some months which might be involved in the two‑stage process being obviated.  That is really what it comes down to.

MR HERBERT:   Yes.  Recent experience would suggest, as my learned friend, Mr Murdoch, said, some nine months would be chewed up in that process.

HER HONOUR:   I do not follow that at all.  I am reasonably experienced at how the Full Court matters can be listed and it depends very much on the extent to which the parties are prepared to take up the issue.

MR HERBERT:   Yes.  That is not, as I understand, been taken up yet and I suppose until your Honour’s decision ‑ ‑ ‑

HER HONOUR:   What you are talking about might be the normal course but the Federal Court is quite able to expedite.

MR HERBERT:   Yes.  I can only add, your Honour, that the matter relates to industrial arrangements which have been settled for more than a decade and it has the capacity, if not settled quickly, to undo those settled arrangements and that is why my client is so concerned to ensure that the matter be dealt with expeditiously.

HER HONOUR:   I understand that.

MR HERBERT:   But I think your Honour has the point.

HER HONOUR:   Yes, thank you, Mr Herbert.  Mr Slevin, I do not need to hear from you further.

It appears to me that the two matters ought to be the subject of remitter given the jurisdiction of the Federal Court and that upon remitter a Full Court would deal with the question raised by the Full Bench decision.  As I have mentioned during the course or argument, the only real issue would appear to be the need for expedition.  I do not underestimate the importance of the matter to the parties but the judges of the Federal Court have particular experience with the background to these matters which may be used in aid of the points of construction that will be raised.

I have no reason to doubt that the matter can be expedited within the Federal Court.  Of course the parties must make the necessary representations.  I am therefore persuaded that orders for remitter are appropriate.

Do you have draft orders or will you have those presented shortly?

MR SLEVIN:   We will present them, your Honour.  There is the issue of our costs for today as well, your Honour.

HER HONOUR:   The Act does not apply in relation to these matters.

MR SLEVIN:   We understand the matter proceeds under the Judiciary Act under section 44.

HER HONOUR:   The Workplace Relations Act provision does not carry over to that.  Is it only proceedings brought under the Workplace Relations Act and this is not such a proceeding.  Is that the agreed position?

MR MURDOCH:   I believe that is the case, your Honour.

MR HERBERT:   Yes, there is authority on that, your Honour.

HER HONOUR:   I see.  If that is the agreed basis, is there any basis upon which you can resist an order for costs, Mr Murdoch?

MR MURDOCH:   No, your Honour.

HER HONOUR:   Mr Herbert?

MR HERBERT:   No, your Honour.

HER HONOUR:   There will be an order in each case that the second and third and fourth defendants pay the plaintiffs’ costs of the application today.  Will you have draft orders initialled by the parties presented to my chambers later today?  If you ring my associate, I will approve them before they are sent to the Registry.

MR SLEVIN:   Certainly.

HER HONOUR:   Yes, thank you.  We will adjourn the Court.

AT 11.00 AM THE MATTER WAS CONCLUDED