McJannet v White

No judgment structure available for this case.

Re: VICTORIA JANE McJANNET; CHARLES HENRY LIVINGSTONE and MEDIA, ENTERTAINMENT
AND ARTS ALLIANCE (A registered Industrial Organisation of Employees pursuant
to the Industrial Relations Act 1988)
And: HERBERT WHITE; ARTHUR WESTBROOK; JAMES BEATTIE; MACQUARIE HAYWARD;
WILLIAM MORRIS; EDWARD EASTON and OTHERS
No. Q I4 of 1992
FED No. 848
Number of pages - 44
Industrial Law
(1992) 39 FCR 1

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
INDUSTRIAL DIVISION
Ryan J.(1)

CATCHWORDS

Industrial Law - Unions - registration and incorporation of branch of federally-registered organisation under State legislation - construction of s.26 Industrial Arbitration Act 1916 (Qld) - whether separate legal entity created - effect of amalgamation on rights and obligations of de-registered organisations - construction of ss.6,7 Industrial Relations (Protection from Invalidities) Act 1991 (Qld) - whether registration of union creates proprietary interest in persons procuring registration

Conciliation and Arbitration Act 1904

Industrial Relations Act 1988: ss.253Q, 253R, 253U, 298

Industrial Arbitration Act 1916 (Qld): s.26

Industrial Relations (Protection from Invalidities) Act 1991 (Qld): ss.4, 5, 6, 7

Bailey v Krantz (1985) 13 IR 339

Frizziero v Rice (Unreported, Full Court, Federal Court of Australia, 16 October 1992)

Sharpe v Goodhew (1990) 33 IR 238

Williams Hursey (1959) 103 CLR 30

R v Cawthorne (1979) 22 SASR 433

John v Rees (1970) Ch 345

Nurses Memorial Centre of South Australia Inc. v Beaumont (1987) 44 SASR 454

Bacon v O'Dea (1989) 25 FCR 495

Allingham v Australian Workers' Union (1971) 21 FLR 228

In re Electrical Trades Union of Australia, New South Wales Branch (1963) AR (NSW) 796

Re Ferris (1982) 2 IR 432

HEARING

BRISBANE

#DATE 20:11:1992

Counsel for the applicants: Mr Rothman and Mr Boccabella

Solicitor for the applicants: Goss Downey Carne

Counsel for the first and
second respondents: Mr Herbert

Solicitor for the first and
second respondents: Dillons

Counsel for the third respondent
and the second intervener: Mr Martin

Solicitor for the third respondent
and the second intervener: Crown Law Office

Counsel for the fourth respondent
and the first intervener: Mr Hall

Solicitor for the fourth respondent
and the first intervener: C.A. Sciacca and Associates

ORDER

THE COURT ORDERS:

1. That the applicants have leave to amend their notice of appeal

from the orders of Ryan J made on 19 October 1992 in the light of his Honour's reasons for judgment herein published on 20 November 1992 in such manner as they may be advised, such amended notice of appeal to be filed and served within 21 days of this date.

2. That the District Registrar make available, upon request by the

legal advisers of any party or intervener, any of the materials filed herein, including any exhibits, for the purpose of perusal and/or copying within the precincts of the Registry of the Court.

Note: Settlement and entry of orders is dealt with in O.36 of the Federal Court Rules.

JUDGE1

RYAN J. Pursuant to s.253Q of the Industrial Relations Act 1988 ("the Federal Act"), three organisations registered under that Act, the Australian Theatrical and Amusement Employees Association ("the ATAEA"), the Australian Journalists' Association ("the AJA") and Actors Equity were amalgamated to form an organisation under the name "Media, Entertainment and Acts Alliance" ("the Alliance"). By notice given pursuant to reg. 98E of the Industrial Relations Regulations, 18 May 1992 was fixed as the day on which the amalgamation was to take effect. On the same day, Mr Deputy President Williams of the Australian Industrial Relations Commission made an order pursuant to s.253Q(3)(c) of the Federal Act de-registering the ATAEA and the AJA.

The ATAEA was originally registered on 10 February 1910 as an organisation of employees under the name "Australian Federated Stage Employees Association" pursuant to the Commonwealth Conciliation and Arbitration Act 1904 ("the CAA") as amended. Its rules as registered on 19 August 1916 show that it had six branches, including a Queensland branch. Those rules were divided into "Federal rules" and "State rules". On or about 18 March 1917 registration occurred under the Industrial Arbitration Act 1916 (Queensland) ("the Queensland Act") of an entity under the name "Queensland Branch of the Australian Theatrical and Amusement Union of Employees" ("the ATAUE"). That registration was procured as a result of an application on a printed standard form purportedly issued under the Queensland Act which was in these terms:

"Application for registration of an Industrial Association (or Trade Union) of Employees"

In pursuance of the provisions of "The Industrial Arbitration Act of 1916," we, the secretary and president (or chairman) of the Queensland Branch of the Australian Theatrical and Amusement Industrial Association, hereby make application for registration of the said Industrial Association as an Industrial Union of Employees under the said Act.

We annex hereto -

(1.) List of the members of the applicant Industrial Association (or Trade Union) of Employees (marked "A").

(2.) A list of the officers of the Industrial Association of Employees, viz.: - The President, the Secretary, the members of the committee of management (or executive committee), and all salaried officers, with their official designations (marked "B").

(3.) Two copies of the rules of the Industrial Association (or Trade Union) of Employees (each marked "C").

(4.) A copy of a resolution passed in accordance with the rules by a majority of the members present at a general meeting of the Industrial Association (or Trade Union) of Employees, or by other competent authority in the Industrial Association (or Trade Union) of Employees, in favour of registration under this Act (marked "D").

(5.) A list of callings comprised in the membership or objects of the Industrial Association of Employees (marked "E").

(6.) The localities or districts in which the members of the Industrial Association of Employees exercise their callings (marked "F").

(signed)

T.H. SEWELL

Secretary of Industrial Association of Employees

(signed)

F.W. ARGUS

President (or Chairman) of Industrial Association of Employees"

The affidavit in support of the application was also embodied in a standard printed form. It reads:

"We, TALBOT H. SEWELL and FRANCIS W.C. ARGUS, secretary and president (or chairman) of the Queensland Branch of the Australian Theatrical and Amusement Industrial Association of Employees, make oath and say as follows:-

That we are the secretary and president respectively of the Q'land branch of the Australian Theatrical and Amusement Industrial Association of Employees.

That, to the best of our belief, there is no other existing Industrial Association (or Trade Union) of Employees, whether registered or not registered, the name of which is identical with the proposed name, or so nearly resembles the name as to cause confusion.

That the place of meeting for the business of the abovenamed Industrial Association of Employees, and registered office to which all communications and notices may be addressed is at Trades Hall or Metropolitan Bldg.

That the whole of the objects for which the abovenamed Industrial Association (or Trade Union) of Employees is established are set forth in rule Nos 2 and 3 of the Rules hereto annexed.

That the conditions under which persons may become members of the applicant Industrial Association of Employees, and may continue to be such members are set forth in rule Nos 2 and 19 of the Rules hereto annexed.

That the fines and forfeitures to be imposed on members are set forth in rule No. of the Rules hereto annexed. That the matter of making, altering, amending, and rescinding rules is set forth in rule Nos 9, 10, 14, 28, 30, 31, 33, 37, 42, 44, and 45 of the Rules hereto annexed. That the registration of the Queensland branch of the Australian Theatrical and Amusement Industrial Association of Employees as an Industrial Union will not unjustly affect any other Industrial Union, and that such registration is bona fide in the interests of employees, and not in the interests of an employer or employers.

That, to the best of our knowledge and belief, all the statements in this our affidavit are true."

It seems that the list of members lodged with the application to which I have just referred consisted of persons who were all then members of the Queensland Branch of the ATAEA. The rules lodged with the application under the Queensland Act comprised a copy of the printed rules of the ATAEA as lodged with the Federal Industrial Registrar on 19 August 1916 with one handwritten alteration. That alteration deleted from rule 19, governing contributions payable by members, after the word "Queensland", the words "6d per week for Males and Females when in employment, 3d per week when unemployed" and substituted the words "5/- per quarter male and 2/6 per quarter female payable in advance".
Rules 38 and 39, which were identical in both sets of rules provided, under the heading "ALTERATION TO RULES" as follows:

" 38. No new rules shall be made nor shall any of the rules for the time being of the Branch be altered, added to, amended or rescinded except by and at any meeting of the Federal Council or Committee of Management.

39. Branches may petition the Committee of Management to make new rules, or to add to, amend, or rescind any of the rules for the time being of the Association, and in the event of it refusing to grant such petition, it shall refer same to the next ensuing Federal Council meeting, or to the decision of members by ballot, in which latter event the Committee of Management will be bound by the decision of the members."

Both sets of rules prescribed a form of application for membership in these terms:

"Australian Theatrical and Amusement Employees' Association. Reg. No.

Registered under the Commonwealth Conciliation and Arbitration Act, 1904 and 1910 on February 10, 1910

APPLICATION FOR MEMBERSHIP

I, the undersigned, do hereby apply to become a Member of the above Association, and agree to abide by its Rules. Name ........ ........ .......

Address ........ ........ ......

Proposed by ........ ........ ....

Seconded by ........ ........ ....

Branch of Trade ........ ........ ..

Entrance Fee ........ Paid on .......

Passed ........ ........ ......

ALBERT E. HUCKERBY, General Secretary."

As well, both sets of rules made provision for a Branch of the Association in each State and stipulated that there should be a Federal Council composed of two representatives from each of the New South Wales and Victorian Branches and one representative from each of the other four Branches. Both sets of rules were divided into "Federal Rules" and "State Rules", the latter being apt to govern the administration of each of the State branches.
A copy resolution, which was annexure 4 to the application for registration under the Queensland Act, was a handwritten document which recited:

"Resolution passed in accordance with rules of the Q'land Br. of the Australian Theatrical and Amusement Employees Association by a majority of the members present at a general meeting of the branch is as follows: "That the Q'land Branch of the Australian Theatrical and Amusement Employees Association register under the Q'land Arbitration Act of 1916".

It is common ground that until about 1979, the Queensland Branch of the ATAEA and the ATAUE were administered as if they were one and the same entity. There was a single form of application for membership, one membership card was issued, a single contribution was collected and one election was conducted, apparently under the CAA, for offices in both entities. General meetings and meetings of the executive were held without drawing any distinction between the Queensland Branch of the ATAEA and the ATAUE. Appearances were made as required in the Conciliation and Arbitration Commission and in the Queensland Industrial Commission to procure and vary awards made by those tribunals to which the ATAEA and ATAUE were the respective union parties. A common set of accounts was filed annually to satisfy the respective requirements of the Commonwealth and Queensland Industrial Registrars. From 1944 Mrs Elizabeth Bryan was employed full-time, and acted, as the secretary of both entities which were administered from the same office. Only one bank account was maintained, out of which all expenses, including Mrs Bryan's salary, office rental and auditing fees, were paid without discrimination between the Queensland Branch of the ATAEA, and the ATAUE.
It further appears that until 1973, with one exception, whenever amendments to the rules of the ATAEA were certified by the Commonwealth Industrial Registrar, identical amendments were lodged shortly afterwards with, and accepted by, the Queensland Industrial Registrar as amendments to the rules of the ATAUE.
The exception arose in 1961, when the registered rule of the ATAEA (r.2) governing eligibility for membership was amended to include the following proviso:

"Provided, however, that no persons eligible for members of Actors and Announcers Equity Association of Australia, Federated Storemen and Packers' Association and Theatre Managers' Association as at January, 1955 shall be eligible for membership to this Association."

The Queensland State Industrial Registrar refused to incorporate that proviso in the corresponding provision in the registered rules of the ATAUE.
Another significant change to the registered rules of the ATAEA was certified on 3 July 1978. That change involved the deletion of all rules other than r.2 governing eligibility for membership and the substitution of new rules which included r.54 headed "State Control - Queensland Branch." However, those new rules apparently were not lodged with the Queensland State Industrial Registrar.
It may be that the adoption of those wholesale amendments to the rules of the ATAEA prompted a reaction from the Queensland State Industrial Registrar, because, on 2 June 1978, at a meeting indiscriminately identified as "Executive Meeting", Mrs Bryan as secretary made a report which is recorded as follows in the minutes of that meeting:

"Secretary reported interviewing the State Industrial Registrar re the registration of our Rules. He advised we are a Queensland Union also a Queensland Branch of the Australian Union which is in order but from now on we will have to have a separate set of Rules which do not refer in any way to the Federal body. If we do not complete our rules we will not be registered in the State Industrial Commission, and we therefore could not approach the Commission on any matter. Secretary instructed to prepare such rules for registration. Carried."

In the minutes of a subsequent similar "Executive Meeting" on 3 August 1978 this entry occurs:

"Rules to be registered under State Industrial Conciliation and Arbitration Commission Secretary reported a draft copy of rules had been submitted to the Registrar for his advice."

Apparently after that and further consultation with the Queensland State Industrial Registrar, an application on 13 September 1979 was made to that Registrar for the "registration of a complete alteration of the registered Rules of the Queensland Branch of the Australian Theatrical and Amusement Union of Employees". That application was accompanied by a statutory declaration by Mrs Bryan in which she declared that "in making the alteration of the Rules of the Industrial Union the application for the registration of which is appended this declaration - the Rules of the said Industrial Union have been duly complied with". However, there is no evidence that those revised rules were adopted by the Federal Council or Federal Committee of Management as required by rule 38 of the rules lodged with the Queensland Industrial Registrar as the rules of the ATAUE. Nor is there any evidence that the revised rules were ever formally adopted by a meeting of any "executive" or a general meeting of members in Queensland. Nevertheless, the new rules were certified by the Queensland Industrial Registrar on 20 November 1979.
In the meantime, on 26 July 1979, a meeting of an "executive" was held at which business was conducted, as it had been in the past, without differentiating between matters arising under Queensland State Awards and matters of federal concern. The minutes of that meeting contain the following extract:

"Industrial Registrar Queensland Industrial Commission Re Rules for the Queensland Branch of the Australian Theatrical and Amusement Union of Employees - Secretary reported having interviewed the Registrar again on the 25th. July 1979 when he considered our rules could be prepared to be submitted to the Barrister for Registration. Secretary reported she is taking action in this matter. She also advised having had a conversation re the conduct of the Union concerning finance and other matters. It was made plain that no money that was the property of the Federal Branch could be used for the Queensland Union. Secretary then submitted that as the matter of the Queensland Union looking after the interests of the Federated Jewellers Watchmakers and Allied Trades Union is the responsibility of the Queensland Union as the Federal Union has nothing whatever to do with that and it is a decision of the Queensland Union solely it was decided that from lst. July 1979 all monies received from the Federated Jewellers Watchmakers and Allied Trades Union for the conduct of that Union should be paid into the funds of the Queensland Branch of the Australian Theatrical and Amusement Union of Employees, also monies received from any other sources that are solely a matter between that source and the Queensland Union and have nothing whatever to do with the Federal Union should also be paid into the funds of the Queensland Union."

On the same day, the same executive members apparently conducted another meeting for which the following separate set of minutes was produced:

"QUEENSLAND BRANCH OF THE AUSTRALIAN THEATRICAL and AMUSEMENT UNION OF EMPLOYEES

MINUTES OF INAUGURAL MEETING 26th. JULY 1979 EXECUTIVE MEETING

Chairman H.White President

Present A.Moody, N.R.Jackson, R.J.Atkinson, A.Westbrook, J.Beattie, E.Bryan.

Apology E.Morris who is working. Secretary reported to the meeting when she had contacted Mr Morris about the meeting and was advised of the business to come before that meeting he had asked the Secretary to advise the meeting that he was in complete agreement with any decisions arrived at after having the business clearly explained to him.

Secretary explained to the meeting that to continue our interest in Queensland Industrial matters, such as continuing to be catered for by our State Award such as the Theatrical Award - State - it is necessary that we complete all the requirements of the Industrial Conciliation and Arbitration Act. It is also necessary that we constitute a Fund for the Queensland Union.

After hearing the Secretary's explanation in this matter it was decided that we take out a cheque Account in the Commonwealth Savings Bank in the name of the Queensland Union.

The Secretary prepare books of account for the Queensland Union by banking all monies received from the Jewellers Watchmakers and Allied Trades Union and any other sources which are solely matters concerning the Queensland Union into the Funds of the Queensland Union in the bank account operating that Union. Accounts As per folio No 1 for nil passed for payment. This Postage and Petty Cash cheque will cover the cost of stationery necessary to prepare the records of transactions for stationery etc. at this time Decided also to have a stamp made - Queensland Branch of the Australian Theatrical and Amusement Union of Employees.

There being no further business at this time the Meeting closed"

The references in the two sets of minutes of 26 July 1979 to moneys received from the Jewellers Watchmakers and Allied Trades Union arose from a long-standing arrangement under which the latter Union made payments for secretarial work performed for it by Mrs Bryan.
After the administrative bifurcation in 1979, reflected by the two sets of minutes to which I have referred, separate meetings of the executive of the Queensland Branch of the ATAEA and of the ATAUE were conducted and recorded in separate minutes. Separate financial records were maintained and separately audited. The first separate annual accounts for the ATAUE were as follows:

" QUEENSLAND BRANCH OF THE AUSTRALIAN THEATRICAL and AMUSEMENT UNION OF EMPLOYEES RECEIPTS EXPENDITURE Jewellers Union 500 00 Industrial Registrar 39.00 PETTY CASH 40.00 $ 79.00 Cash Commonwealth Bank a/c 912-912 421.00 $500.00 $500.00 LIABILITIES ASSETS NIL Cash C,Wealth Bank $421.00 AUDITOR'S REPORT

We report that we have examined the Books of Account and Vouchers of the Queensland Branch of the Australian Theatrical and Amusement Union of Employees for the twelve months ended 31st. December

1979. The statement of Receipts and Payments is in accordance with the Books of Account and the Balance Sheet in our opinion gives a true and fair view of the state of affairs of the Union. ALLAN D. AITKEN and SON PUBLIC ACCOUNTANTS"

In 1984 a returning officer employed by the Australian Electoral Commission conducted an election for offices within the Queensland Branch of the ATAEA. It has been suggested that the same returning officer was requested to conduct an election at the same time for offices within the ATAUE, but that request was declined. At all events, no separate election was conducted in 1984 for any offices within the ATAUE, and the candidates declared elected to offices within the Queensland Branch of the ATAEA purported to occupy and perform functions of the corresponding offices within the ATAUE.
It has further been suggested that in 1987 a Mr Robert McPherson (now deceased) was requested to conduct an election for offices with the ATAUE. There is no documentary evidence to indicate that Mr McPherson did anything to comply with that request. However, at the same time a returning officer conducted an election for offices within the Queensland Branch of the ATAEA. The conduct of that election was initiated by the publication on 30 June 1987 of the following notice:

" AUSTRALIAN THEATRICAL

AND AMUSEMENT EMPLOYEES

ASSOCIATION

QUEENSLAND BRANCH

NOTICE TO MEMBERS

The Deputy Industrial Registrar, Brisbane Registry, has made arrangements with the Electoral Commissioner under Section 170 of the Conciliation and Arbitration Act 1904 for me to conduct an election for the following offices in the above Organisation: Branch President/Federal Council Delegate

Branch Vice-President

Branch Secretary/Treasurer/Federal Council Delegate/Federal Executive Member

Branch Assistant Secretary

Branch Executive Members (3)

Delegates to State Council (9) representing the following sections:

Projectionists (1), Front of House (3), Back of House (1), Television (1), TenPinBowling (1), Skating (1), Outdoor (1). Nominations, which comply with the requirements of the registered Rules of the Organisation, are invited (refer Rules 47(c), 54(e) and 54(l) and may be made at any time from 14 July 1987 so as to reach me not later than twelve o'clock noon on Friday 31 July

1987. Nominations sent by post must also reach me by that time. Nomination forms with instructions for their completion may be obtained from my office or from the Queensland Branch office of the Organisation. Otherwise nominations may be made in any form that complies with Rule 41 of the Rules of the Association. A notice containing detailed information regarding nominations has been posted to all financial members of the Organisation. Any member seeking further details about nominations should contact the Returning Officer.

Should a ballot be necessary, voting material will be posted to eligible members at their address shown in the Organisation's records. I intend to open the ballot on 18 August 1987 and close it at 9.00am on Tuesday 8 September 1987.

G.L. Hodge

Returning Officer

30 June 1987"

There was no contest for some offices specified in that notice and on 26 October 1987 the returning officer declared the result of the poll for three contested offices. As in 1984, the successful candidates in the 1987 election purported to occupy and perform the functions of the corresponding offices within the ATAUE. In addition those candidates were certified by Mr Beattie as Secretary on 16 May 1989 as comprising a "full and true list of the Officers" of the ATAUE.
In 1990 Mr Keith Smith J.P. was appointed to conduct and did conduct an election for offices within the ATAUE. Also in that year the Australian Electoral Commission conducted an election for offices within the Queensland Branch of the ATAEA.
From at the latest 1986, officials at a State level in Queensland commenced the practice of requiring applicants for membership who were employed in areas covered by awards of the Queensland Industrial Commission to complete an application in the form of a white card headed "Queensland Branch of the Australian Theatrical and Amusement Union of Employees" above the following text:

"Room 1E, Dunstan House, Elizabeth Street, Brisbane Phone: 221 8150 Fax: 221 9710 APPLICATION ONLY

I hereby make application to become a Member of the above Association, and I solemnly and sincerely pledge my word and honour as a Member, when admitted, that I will, to the best of my ability, abide by the Constitution, Rules and By-Laws of this Association.

Full Name

........ ........ ........ .....

(in Block Letters)

Signature of Applicant ........ .. Date ..... Proposed by........ ........ ........

Seconded by........ ........ ........

Class of work performed........ ........ .. Entrance Fee ........ ... Paid on........

Passed ........ ...... Branch........ .

(Reverse of card)

Street and No.

........ ........ ........ ..

Suburb or Town

........ ........ ........ ..

Postcode

........ ........ ........ .....

Place of Employment

........ ........ ........

Date of Commencement of Employment

........ ........

Date of Birth

........ ........ ........ ...

PLEASE COMPLETE AND RETURN TO UNION OFFICE."

Entrance fees and membership contributions from those persons have been banked in an account in the name of the ATAUE and have been reflected in the accounting records maintained in the name of the ATAUE.
From about the same time applicants for membership employed in areas covered by federal awards were required to complete an application in the form of a pale green card headed "Australian Theatrical and Amusement Employees Association" which was otherwise identical with the application reproduced above except that the concluding instruction read "PLEASE COMPLETE AND RETURN TO ASSOCIATION'S OFFICE" and their entrance fees and membership contributions were banked in an account in the name of the Queensland Branch of the ATAEA and have been reflected in the separate accounting records maintained and audited under that name.
Similarly differentiated membership cards have been issued from about the same time to persons respectively treated as members of the ATAEA and the ATAUE.
Activities were conducted from the same union office at 236 Elizabeth Street Brisbane until some time after 30 May 1991 when the following letter was written to the landlord of those premises:

"The lease of Room 1E, First Floor, Dunstan House, 236 Elizabeth Street Brisbane expires on the 31st July 1991. This lease is in the name of the Australian Theatrical and Amusement Employees Association (Queensland Branch), who will in the near future amalgamate with Actors Equity and join them in their Spring Hill office.

The other half of the Union, the Queensland Branch of the Australian Theatrical and Amusement Union of Employees is not party to this amalgamation and wishes to remain as tenants of Room 1E, Dunstan House under existing conditions, rent etc. as required by you.

Trusting you will give consideration to this request."

As a result of the process to which I have just referred, an almost complete separation has occurred between persons treated as members of the ATAUE on the one hand, and of the Queensland Branch on the other. Approximately ten persons have as a result of specific requests made by them, been treated as members of both bodies. The numerical division of the remaining members at the present time is that 480 have been treated as members of the ATAUE and 148 have been treated as members of the Queensland Branch of the ATAEA. However, the evidence does not disclose any purported resignations from the ATAEA by any of those who have been treated as members only of the ATAUE.
On 21 February 1991, an application, No. U8 of 1992, was filed in the Queensland Industrial Relations Commission for approval of an amalgamation between the ATAUE and the Queensland State-registered Australian Workers' Union which is registered in that Commission under the name, "The Australian Workers' Union of Employees, Queensland." After hearings which commenced on 26 March 1992, Mr Commissioner Edwards of the Queensland Industrial Relations Commission, on 4 June 1992, issued a decision and made the following declarations:

"1. That the amalgamation would further the Objects of the Industrial Relations Act 1990-1991 and without limiting the generality of this Declaration would in particular be conducive to the provision of a framework for the orderly conduct of industrial relations in Queensland and the efficient management of industrial organizations;

2. That there is a community of interest between the applicant industrial organizations in relation to their industrial interests and, without limiting the generality of this Declaration, that in particular a substantial number of members of each of the industrial organizations is -

(a) eligible to become members of the other industrial organization;

(b) engaged in the same work, in aspects of the same work, or similar work;

(c) bound by the same awards;

(d) employed in the same or similar work by employers engaged in the same industry;

(e) engaged in work, or in industries, in relation to which there is a community of interest."

By the same decision the submission of the application to ballot was approved. By a postal ballot of the Federal Council of the ATAEA which closed on 29 April 1992, these resolutions were carried:

"A. "Whereas this organisation has agreed to and taken steps to amalgamate with the with the Australian Journalists Association and Actors' Equity, the Federal Council hereby directs that each of the officers namely Herbert White, Arthur Westbrook, James Beattie, Karen Hollingsworth, Macquarie Hayward, William Morris and Edward Easton of the Queensland registered "Queensland Branch of the Australian Theatrical and Amusement Union of Employees" being the Queensland branch of this union, take all steps necessary to secure the registration of the amalgamation within the Queensland system of industrial regulation, with the Queensland registered branches of Actors Equity (Actors', Entertainer's and Announcers' of Equity Association, Queensland. Union of Employees) and the Australian Journalists Association."

B. "Whereas this organisation has agreed to and taken steps to amalgamate with the Australian Journalists Association and Actors' Equity, the Federal Council hereby directs that each of the officers namely Herbert White, Arthur Westbrook, James Beattie, Karen Hollingsworth, Macquarie Hayward, William Morris and Edward Easton of the Queensland registered "Queensland branch of the Australian theatrical and Amusement Union of Employees" being the Queensland branch of this organisation take all steps to discontinue the purported amalgamation with the state registered AWU. This Federal Council hereby rescinds any motion purportedly passed by the Queensland branch either in its state registered form or otherwise, purporting to implement or approve the purported amalgamation with the AWU. To any extent necessary and without limiting the generality of this motion and direction the persons named in this motion shall rescind any motion passed by the Queensland branch in any capacity purporting to implement and/or approve any purported amalgamation with the state registered AWU. Further those persons named shall take all steps to discontinue the application (No. U8 of 1992) before the Queensland Industrial Relations Commission seeking approval of the amalgamation.

The Federal Secretary is hereby empowered to take all steps necessary to implement this motion."

Those resolutions were notified on 5 May 1992 to Mr James Beattie as "Secretary - Queensland Branch, Australian Theatrical and Amusement Employees Association (Registered in the Queensland Industrial System as the "Australian Theatrical and Amusement Union of Employees"). However, neither Mr Beattie nor any of the other first respondents has complied with the resolution of the Federal Council.
On 3 June 1992, the Federal Management Committee of the third applicant, the Alliance, carried a resolution in these terms:

"Whereas the Australian Theatrical and Amusement Employees Association, the Australian Journalists' Association and Actors' Equity have amalgamated pursuant to the Industrial Relations Act 1988 (Cwth) to form the Media, Entertainment and Arts Alliance and the Australian Industrial Relations Commission has fixed 18 May, 1992 as the 'Amalgamation day' when the new organisation takes effect, the Federal Management Committee hereby directs Herbert White, Arthur Westbrook, James Beattie, Macquarie Heyward (sic), William Morris and Edward Easton to take all steps to implement that amalgamation and in particular so as to ensure the amalgamation is fully effective to:-

(a) provide to Tara Ferrier all accounts of the Queensland Branch of the former Australian Theatrical and Amusements Association (registered in the Queensland system of industrial regulation as the Queensland Branch of the Australian Theatrical and Amusement Union of Employees)

(b) take all steps forthwith to transfer the property in all forms, (including real property, plant and equipment, all other chattels, choses in action, bank and financial institution accounts, interests in any leases of any kind, cash on hand and all other property whatsoever) of the Queensland Branch of the former Australian Theatrical and Amusements Association (registered in the Queensland system of industrial regulation as the Queensland Branch of the Australian Theatrical and Amusement Union of Employees) to the Queensland Branch of the Media, Entertainment and Arts Alliance and for those purposes to liaise with Tara Ferrier who is authorised to give a receipt on behalf of the amalgamated union.

(c) pay any further monies received in any form by the Queensland Branch of the former Australian Theatrical and Amusements Association (registered in the Queensland system of industrial regulation as the Queensland Branch of the Australian Theatrical and Amusement Union of Employees) to the Queensland Branch of the Media, Entertainment and Arts Alliance.

(d) direct all employers receiving payroll deductions for subscriptions of members to pay such sums to the Queensland Branch of the Media, Entertainment and Arts Alliance.

(e) discontinue the proceedings being U8 of 1992 in the Queensland Industrial Relations Commission purporting to amalgamate with the Australian Workers Union and take all steps to withdraw the application and to rescind any motion purporting to implement that purported state amalgamation and further in particular to authorise Tara Ferrier to appear in the Queensland Industrial Relations Commission to withdraw the application and do all things necessary to give that effect."

However, except for delivering to Ms Ferrier seven boxes of documents and other property concededly belonging to the ATAEA, the first respondents have not complied with the directions given to them by the Federal Management Committee of the Alliance.
Against this factual background the Alliance and two individual applicants have sought, pursuant to ss253X and 253ZC of the Federal Act, the following substantive orders:

"1. An order restraining the Respondents and each of them, by themselves or by their servants or agents, from taking any further steps to implement a purported amalgamation between the former Queensland Branch of the Australian Theatrical and Amusement Employees Association (registered in the Queensland system of industrial regulation under the name of the Queensland Branch of the Australian Theatrical and Amusement Union of Employees) and the Australian Workers' Union of Employees, Queensland.

2. A declaration that the former Queensland Branch of the Australian Theatrical and Amusement Employees Association is one and the same as the Queensland Branch of the Australian Theatrical and Amusement Union of Employees registered under the Industrial Relations Act (Queensland).

3. A declaration that all the assets and all interests in any property held in the name of the Queensland Branch of the Australian Theatrical and Amusement Union of Employees are the assets of the Media, Entertainment and Arts Alliance.

4. An order directing the Respondents to take all steps to transfer title in or convey all property or assets or any interest therein, held in the name of either the Queensland Branch of the Australian Theatrical and Amusement Employees Association or the Queensland Branch of the Australian Theatrical and Amusement Union of Employees, to the Media, Entertainment and Arts Alliance.

5. An order for an account of any monies or assets or any other interest in property held in the name of either the Queensland Branch of the Australian Theatrical and Amusement Employees Association and the Queensland Branch of the Australian Theatrical and Amusement Union of Employees, which has been spent, conveyed or otherwise disposed of by or with the approval of the Respondents or any of them in the last year.

6. An order that the Respondents take all steps to give the Queensland Branch Secretary of Media, Entertainment and Arts Alliance all the business, membership and all other records of the former Queensland Branch of the Australian Theatrical and Amusement Employees Association (registered under the Queensland system of industrial regulation as the Queensland Branch of the Australian Theatrical and Amusement Union of Employees).

7. A declaration that all members of the former Queensland Branch of the Australian Theatrical and Amusement Employees Association (registered under the Queensland system of industrial regulation as the Queensland Branch of the Australian Theatrical and Amusement Union of Employees) are now members of the Media, Entertainment and Arts Alliance."

It is submitted on behalf of the applicant that what was registered in Queensland in 1917 was the Queensland Branch of the ATAEA. That was capable in law of being achieved, it was argued, by application of the reasoning which led Gray J in Bailey v Krantz (1985) 13 IR 339 to hold, at 378, that "what was registered in South Australia in 1919 was the South Australian Branch of the Union." I accept that generally it is consonant with the objects of a federally-registered organisation to procure registration under the industrial legislation of a State with a view to having the interests of its members represented or advanced before an industrial tribunal or arbitral body established under the same or cognate State legislation. For examples of a broad interpretation of the objects of a federally-registered organisation, see The Australian Workers Union v Coles (1917) VLR 332 at 336 and 337 and Williams v Hursey (1959) 103 CLR 30 at 59. However, that approach does not illuminate the question of what it is which emerges after State registration has been procured. That depends essentially upon the proper construction of the State legislation.
Section 26 of the Queensland Act provided:

"(1.) The registrar may, on application made as prescribed, register as an industrial union under this Act any industrial association or trade union of employees.

On such registration the industrial association or trade union shall be an industrial union until such registration is duly cancelled.

(2) Such application shall be in the form prescribed, and shall be signed by the secretary and the president or chairman of the association or union.

Notice of such application shall be published as prescribed.

(3) Upon an application to be registered as an industrial union, the registrar may require such evidence as to him seems fit, either oral or on affidavit -

(a) Of the authority of the person signing the form of application;

(b) That the persons on whose behalf the application is made should not in the public interest or for other good reason join an industrial union which has already been registered;

(c) That the rules of the applicant association or union and their administration provide reasonable facilities for the admission of new members, and do not impose unreasonable conditions upon the continuance of their membership, and are not in any other way tyrannical or oppressive;

(d) That the registration of the applicants will not unjustly affect any other industrial union;

(e) That the application is bon fide in the interests of employees, and not in the interests of an employer or employers.

(4.) Within the prescribed time and in the prescribed manner any industrial union or employer may, by notice to the registrar, oppose such application.

(5.) The registrar shall fix a day for considering any objections on any of the above grounds to the granting of the application, and shall notify the same as prescribed.

(6.) No branch of a trade union shall be registered unless it is a bon fide branch of sufficient importance to be registered separately.

(7.) Any decision of the registrar under this section with respect to an objection taken as aforesaid, or on refusal of registration, shall be subject to appeal to the Court as prescribed.

(8.) Any industrial association consisting of employees employed by the Government shall be qualified for registration as an industrial union under this Act: Provided it would be so qualified if its members were not employed by the Government."

There was no definition in the Queensland Act of either of the expressions "industrial association" or "trade union" although "industrial union" was defined in s.4 as "an industrial union registered as an industrial union under this Act."
In my view, "trade union" in s.26 of the Queensland Act connotes a trade union registered under the Trade Union Act 1916 of the State of Queensland, and "industrial association" in the same Act comprehends all other associations of employees having as their objects the protection and advancement of the industrial interests and conditions of those employees. In that sense, "industrial association" was capable of referring to a "trade union" in the acceptation of that term as a matter of ordinary usage. See e.g. Albion Quarrying Co. Pty. Ltd. v Associated Quarries Pty. Ltd. (1945) VLR 1 at 21. So understood, an "industrial association" within the meaning of s.26 of the Queensland Act could be constituted by a trade union not registered under the Trade Union Act 1916, including an organisation registered under the CAA.
The members of a trade union in that wider sense, including the members of a federally-registered organisation, gathered for administrative purposes in a branch, could also have been regarded collectively as an industrial association registrable under the Queensland Act.
A corresponding facility to obtain registration was expressly conferred on such a group under the South Australian Industrial Code which was discussed in my judgment, with which Keely and Sheppard JJ. agreed, in Frizziero v Rice (unreported, 16 October 1992) at p 16. The extension of a similar facility was not negated by s.26(6) of the Queensland Act which, I consider, did no more than qualify its extension to members of a branch of a trade union registered under the Trade Union Act 1916, by stipulating that those members had to be associated in that branch in good faith and, as so associated, had to be of sufficient importance to warrant the registration of a separate entity.
The analysis of s.26 of the Queensland Act which commends itself to me is not significantly different from that propounded by Pincus J in Sharpe v Goodhew (1990) 33 IR 238 where his Honour observed, at 245:

"The expression "trade union", not defined in the 1916 Act presumably was intended to refer to a trade union registered under the Trade Union Act 1915 (Q); it also appears to me to cover, albeit somewhat loosely, the federal union. Queensland statutes are, prima facie, to be read down so as to refer only to matters and things in Queensland, but that principle does not apply so as to require one to treat the words "trade union" in s 26 as referring only to unions having their being wholly within the State. That is, although apart from subs (6) a mere branch would not have been registrable, that provision made a branch registrable, whether or not the trade union of which it was a branch was a purely Queensland trade union. In my opinion a Queensland branch of FEDFA could have been validly registered. Because of the modern fashion of registration of shelf companies and the like having a purely theoretical existence, some might approach s 26 of the 1916 Act with the preconception that it permits similar registration, of mere names. One thing which seems clear, however, is that it does not. The Registrar's power is, prima facie, limited to registering an "industrial association or trade union of employees", which means I think an organised existing body of persons (putting aside the question whether that body may be one which is already incorporated). Section 26(6) may be described as an exception to that proposition, because it permits registration of a branch in certain circumstances. But the conditions prescribed for registration of a branch reinforce the construction I have put on ss 26(1), namely that there must be, in reality and not merely in theory, an existing industrial association or trade union to be registered. If the Registrar purported to register a non-existent body or branch he went beyond his legal authority and registered nothing. It is true that a branch of an organisation is not a legal entity and is merely a collection of people, but the expression "bona fide branch" connotes that the collection of people is an organised one, a unity in a practical sense."

In Sharpe v Goodhew there was no pre-existing Queensland branch of the Federal Union, the FEDFA, although there was a Southern Queensland branch. As his Honour found, the application for registration under the Queensland Act was signed by the General Secretary of the federally-registered FEDFA and the President of its Southern Queensland branch.
Counsel for the applicants cited each of Williams v Hursey and Sharpe v Goodhew as well as Bailey v Krantz, as authority for their proposition that it is "legally possible for a branch of an organisation to seek and obtain for itself registration under the Queensland Act." However, in my view, the proposition is contradicted by these observations of Fullagar J in Williams v Hursey (supra) at 54:

"..whatever the rules may do or fail to do, they have, in my opinion no application to the present cases for the reason that the "Hobart Branch" of the federation is not an "unincorporated society, fellowship, club or association". It has no separate identity - no existence apart from the registered organization, of which it is an integral and inseverable part. Its members are merely a section of the total membership of the federation - locally organized for the sake of convenience, but in no respect independent of the federation, and in all respects subject to the control of the federation. The branches are permitted within limits to make rules of their own, but the rules which they make derive authority from the rules of the federation. It is contemplated that a branch may have "property and moneys", but, if r.15 of the Hobart branch rules means that the beneficial ownership thereof is in the members of the branch, it is inconsistent with r.10 (A) of the rules of the federation which makes the "fund and property" of the organization and its branches subject to the "care, superintendence, management and administration of the governing body of the Organization for the carrying out of the objects of the Organization". The position is precisely analogous to that which was held by this Court to subsist in Hall v Job (1952) 86 CLR 639 and there is a passage in the judgment in that case which, if we read "Federation" or "Organization" for "Institution" and "Branch" for "Lodge", is exactly applicable to the present case."

It is only by construing s.26 of the Queensland Act as extending the facility of obtaining registration to the members of a branch of a federally-registered organisation that the legal impossibility indicated in the passage just cited from Williams v Hursey is avoided. Likewise, by construing s.26 as extending the facility of obtaining registration to the members of a branch of an unincorporated association, being a trade union registered under the Trade Union Act 1916 or an industrial association other than a federally-registered organisation, the corresponding impossibility implicit in the passage from Hall v Job (1952) 86 CLR 639 at 649 is avoided. I reiterate the gloss on that passage which I ventured in Frizziero v Rice (supra) at p 15.
In the light of its concluding sentence, the passage from the judgment of Pincus J in Sharpe v Goodhew which is reproduced above indicates that his Honour regarded "branch" in this context as a compendious reference to "members of a branch". That understanding enabled his Honour to find that what emerged after registration under the Queensland Act was something separate and distinct from the existing, federally-registered, organisation. Thus, he observed, at 245:

"Apart from the point just discussed, it is necessary to see what, if anything, was registered as an industrial union under the 1916 Act, for the purpose of determining the effect of that registration upon the federal union, which was in existence when registration occurred and of course still exists. According to counsel for FEDFA, the effect of the new registration was to give the existing body a new source of incorporation. If I accept the respondents' argument, the effect of what was done must have been to register a mere name which, over the course of many years, became an autonomous State union displacing whatever presence the federal union had in Queensland. I do not accept the ultimate conclusion which follows from either of these contentions, but am persuaded that what the Registrar purported to register was not any existing branch or body."

That the Queensland Act was concerned to attach registration, and incorporation under s.37, to a body having members in Queensland and rules of its own, and not to a mere abstraction postulated for administrative convenience within a federally-registered organisation, is made clear by s.27 which provided:

"Every application for registration as an industrial union shall be accompanied by -

(a) A list of its members;

(b) A list of the officers of the union, viz. - the president or chairman, the secretary, the members of the committee of management or executive committee, and all salaried officers, with their official designations;

(c) Two copies of the rules of the union;

(d) A copy of a resolution passed in accordance with the rules by a majority of the members present at a general meeting of the union, or by other competent authority in the union, in favour of registration of the union under this Act;

(e) A list of callings comprised in the membership or objects of the union;

(f) The localities or districts in which the members of the union exercise their callings."

The effect of the Queensland Act was considered by Wanstall A.C.J. in Allingham v Australian Workers' Union (1971) 21 FLR 228 in which the defendants were, respectively, the federally-registered Australian Workers' Union and the Australian Workers' Union of Employees, Queensland, which, on 23 March 1917 had been registered under the Queensland Act. The certificate of that registration was described by his Honour, at 233 as "undoubtedly, the birth certificate of the second defendant."
Extensive reference was made in Allingham v AWU to two judgments of the New South Wales Industrial Commission (In re Benson and Electrical Trades Union of Australia, New South Wales Branch (1962) AR (N.S.W.) 516 and In re Electrical Trades Union of Australia, New South Wales Branch (1963) AR (N.S.W.) 796). In the latter case, the Commission observed, at 805:

"Here we wish to make two observations on the matter of union membership. The first is that persons who become members of an organization registered under the Commonwealth Act become members of the organization itself. They do not become members of a branch of the organization as distinct from the organization itself - unless the branch is separately registered as an organization which is an exceptional situation and is not the situation here - for the branch has not separate existence apart from the organization. The members of an organization, of course, are attached to various branches, but that is irrelevant to present considerations. Every branch is part of the whole and does not exist separately: Williams v Hursey (1959) 103 CLR 30; see also Benson and Electrical Trades Union (1962) AR

(N.S.W.) 516. The second observation is that in any event a branch of a federal organization is quite a separate and distinct entity from a trade union registered in this State under the Trade Union Act: Brailey v Sydney Branch of the Waterside Workers' Federation of Australia (1935) AR (N.S.W.) 148; see also Lasbies v Mackay (1945) AR (N.S.W.) 562. And a fortiori a federally-registered organization is a separate and distinct entity from a New South Wales registered trade union. By their applications to become members of a federal organization persons who apply do not, in any circumstances, thereby become members of a trade and industrial union."

After distinguishing the history of the AWU in Queensland from that of the entities discussed in the two Electrical Trades Union cases, Wanstall A.C.J. continued, at 252:

"I hold that the body known as the Australian Workers' Union (Queensland Branch), and registered as a trade union under Queensland law, is a legal entity, with a legal personality of its own, separate and distinct from that of its members, and from that of the federal organization (the first defendant) and that it is not merely a part of the latter in the sense in which Williams v Hursey (1959) 103 CLR 30 defined the Hobart branch of the Waterside Workers Federation. I also hold that in fact it is the Queensland branch of the first defendant, and functions as such. Next I hold that the second defendant is a corporation distinct in law from the legal personality which is the trade union, and distinct from the first defendant, and distinct from its own members. I agree with the submission that the Queensland branch of the Australian Workers' Union has two identities in State law, one as the personality which is the registered trade union, and the other as the corporation which is the registered industrial union.

I hold on the facts that each of the plaintiffs, by paying his subscription and obtaining his ticket, became a member of (1) the first defendant, (2) the second defendant, and (3) the registered trade union, and that his membership of each still subsists."

I consider that the judgment in Allingham v AWU supports my conclusion that it is legally impossible for an industrial union registered under the Queensland Act to be a branch of a federally-registered organisation. It is true that in the passage just quoted it was held that "in fact (the Australian Workers' Union, Queensland Branch) is the Queensland branch of the first defendant." However, that can only be reconciled with his Honour's other conclusions if it encapsulates a pure finding of fact that the Queensland-registered trade union and the branch of the federally-registered organisation had the same members and officers and were administered without any distinction in practice being drawn between them.
The distinctiveness in law between an incorporated industrial union registered under the Queensland Act and a related federally-registered organisation was also recognized by Fitzgerald J in Re Ferris (1982) 2 IR 432 where his Honour observed, at 434:

"Members of the federal body in Queensland are also members of one or more distinct legal entities registered under or continued by the Industrial Conciliation and Arbitration Act 1961-1980 (Q). There is no present need for a detailed discussion of the situation which exists, how it arose, or of the practical consequences. Such matters may be seen from, for example, Allingham v Australian Workers' Union (1971) 21 FLR 228; (1972) Qd R 217, where a number of earlier decisions were referred to. All that is currently important is that the qualifications for membership of the federal body are narrower than those for membership of the entity or entities registered under the Queensland legislation, so that not all members of the latter are eligible members attached to the Queensland branch of the federal body."

In the alternative, it was contended on behalf of the applicants that what was done in 1917 was an act of the ATAEA as an organisation so as to achieve the incorporation for a second time of that body "operating through its Queensland manifestation namely the Queensland branch." In support of that contention I was referred to The Queen v Cawthorne (1979) 22 SASR 433. In that case, King C.J. pointed out at 436:

"One type of body qualified for registration is therefore an association consisting of not less than twenty employees. An association does not cease to be an association when it is incorporated under the Associations Incorporation Act. A corporate personality is superimposed on the pre-existing association, but the association continues its existence as an association. After incorporation under that Act the P.S.A. remained, as it still remains, an association of not less than twenty employees. It is therefore entitled to apply for registration under the Industrial Conciliation and Arbitration Act unless the word "association" is to be read down so as to mean an association which has not been incorporated under any other Act, that is to say an unincorporated association. I do not see why the meaning of the word should be so restricted. There is, to my mind, nothing inconceivable in the notion of a body drawing corporate status from two or more statutory sources. Such a body would have the capacities and powers conferred by both statutes and would be subject to the obligations imposed by both. Mr Bleby, for F.C.U., argued that the provisions of the Industrial Conciliation and Arbitration Act relating to incorporation contemplate that the applicant for registration is an unincorporated association. They are, I have no doubt, designed to confer corporate status on an unincorporated applicant association, but they are also capable of application to an association already incorporated under another statute. The effect of those provisions, if applied to an association already incorporated under the Associations Incorporation Act, is to provide an additional legal source of corporate status for the association. The association, upon registration, would be incorporated under both Acts, have the powers and capacities conferred by both, and be subject to the obligations imposed by both. So far as I can see, there is no conflict between the two statutes, and the mere possibility of such a conflict arising in the future is not a sufficient ground for restricting the meaning of "association" to exclude an already incorporated association."

See also per Walters J at 441 and per White J at 445, and especially at 447 where his Honour observed:

"The name and seal of the incorporated association will necessarily be the same under both Acts, because the application under the Act and the lodged rules are those of the association as incorporated under the Incorporation Act. There would thus be no difficulty arising from the name of the applicant. The perpetual succession and the right to sue and be sued are virtually identical in both Acts. The Act appeals to s. 20 of the Incorporation Act on the topic of contracts so those provisions are identical. The powers regarding real and personal property are very much the same in the two Acts. The only major difference is that the Incorporation Act contains elaborate provisions for winding up associations which have "ceased to exist", while the Industrial Act has no such provisions but confines itself to quite different discipline of non-conforming registered associations by cancelling their registration and dissolving their incorporation

(s.142)."

I accept that it is possible for a body incorporated under one statute to acquire a separate layer of incorporation, as it were, under another statute. However, if the Queensland Act afforded that facility to federally-registered organisations, the ATAEA in 1917 did not purport to avail itself of it. What was done was to seek to register a body, variously styled "the Queensland Branch of the Australian Theatrical and Amusement Industrial Association" and "the Queensland Branch of the Australian Theatrical and Amusement Association of Employees" ("ATAAE"), different in name from the ATAEA and having as its members only those persons named in the list which accompanied the application being, presumably, the members at that time attached to the Queensland Branch of the ATAEA.
On this analysis, the ATAEA, in 1917, through two of its officers, Mr Sewell and Mr Argus, procured the incorporation of a new legal entity, distinct from itself but bound to itself in a number of significant respects. The most important of those was that the new body had a set of rules which were identical with those of its federally-registered sponsor and could only be amended by resolution of its Federal Council or Federal Committee of Management. I do not consider that this analysis is made untenable by John v Rees (1970) Ch 345. In that case it was held that a small unincorporated association, the Pembrokeshire Divisional Labour Party ("P.D.L.P."), which was affiliated with a much larger association, the British Labour Party ("the Labour Party") could not, by resolution, lawfully disaffiliate from the Labour Party unless its rules had first been altered. That conclusion was expressed as follows by Megarry J at 390:

"Second, quite apart from procedural defects (which might be cured if another meeting were held), there is the substantial question whether, as matters stand, P.D.L.P. is able to disaffiliate or sever itself from the Labour Party, whatever the procedure adopted. Mr Hirst very properly accepts that P.D.L.P. cannot do so in breach of its own rules, and so if, as I have held, P.D.L.P. is governed by Set B, the question is whether Set B (or any other relevant rules) prevents severance or disaffiliation. It seems to me clear that P.D.L.P. is bound to the Labour Party by Set B and, through Set B, by the constitution of the Labour Party. In Mr Sparrow's phrase, P.D.L.P. and the Labour Party are so clamped together by these provisions that they cannot be separated without first altering those provisions. Not surprisingly, Set B, Set C and the Labour Party constitution all dovetail in with each other."

In the present case, the critical question is not how the ATAUE could lawfully be removed from the control of the ATAEA through its Federal Council or Federal Committee of Management but whether, from the outset, it became a separate entity.
In John v Rees, Megarry J observed at 389:

".. I do not consider that an organisation which affiliates itself to the Labour Party thereby becomes a "mere branch" of that party, whatever that may mean, any more than an individual member does. Such an organisations remains, I think, a separate entity, though bound by certain obligations. On the other hand, the rules do seem to me to require acceptance of the constitution, programme, principles and policy of the Labour Party both by P.D.L.P. and by its members."

Somewhat analogously, for the reasons given above, the ATAUE, I consider, upon registration, became a separate entity from the ATAEA though bound to it by force of an identical set of rules.
That conclusion leads to consideration of the applicants' next contention that, in any event the changes to the rules of the ATAUE, purportedly adopted in 1979, were ineffectual because they were not made in accordance with the then-registered rules of either the ATAEA or the ATAUE and had not been certified as then required by s.139 of the CAA. That section was in these terms:

"(1) A change of the name of an organization or an alteration of its rules in so far as they relate to conditions of eligibility for membership or the description of the industry in connexion with which the organization is registered shall not have effect unless the Registrar consents to the change or alteration upon an application made as prescribed.

(2) The Registrar may consent to the change or alteration in whole or in part.

(3) The Registrar shall record the change or alteration to which he has consented in the register and upon the certificate of registration and thereupon the change or alteration shall have effect.

(4) An alteration of the rules of an organization to which the consent of the Registrar under this section is not required does not have effect until particulars of the alteration have been filed in the office of the Registrar and the Registrar has certified that, in his opinion, the alteration complies with and is not contrary to the provisions of this Act, of the regulations or of an award and is not otherwise contrary to law."

Of course, as a State-registered entity the ATAUE was obliged to comply, in seeking to change its own rules, with the provisions of its own rules as lodged with the Queensland Industrial Registrar. As far as those rules specified a mode of altering the rules themselves, including the requirement that they be altered only at a meeting of the Federal Council or Federal Committee of Management, when construed in accordance with the principles enunciated, e.g. in Roots v Mutton (1978) 32 FLR 15 at 18, they were mandatory. However, since, as I have found, the rules as lodged with the Queensland Registrar were not the rules of the ATAEA, although substantially identical therewith, alterations to them did not require to be certified under s.139(4) of the CAA, they not being the rules of an "organisation" as defined in that Act.
Nevertheless, the evidence compels the conclusion that the new set of rules certified by the Queensland Industrial Registrar on 20 November 1979 was never validly adopted as the rules of the ATAUE. That, however, is not destructive of the existence of the ATAUE as a separate legal entity. I agree with the views expressed by Pincus J in Sharpe v Goodhew (supra) that the effect of s.73 of the Industrial Conciliation and Arbitration Act 1961 (Qld) (now s.13.76 of the Industrial Relations Act 1991) is to exclude the possibility of a void registration and leave even a mistaken registration merely subject to cancellation in the discretion of the Full Industrial Court. The apparent breach of the rules of the ATAUE constituted by the purported adoption of the amendments to those rules in 1979 would seem to have been cured by s.13.101 of the Industrial Relations Act 1990 (Qld) which provides:

"(1) Subject to this section, at the end of 4 years from -

(a) the doing of an action by persons purporting to act as a collective body of an industrial organization, or of a branch of an industrial organization and purporting to exercise power conferred by or under the rules of the industrial organization or branch;

(b) the doing of an action by a person purporting to hold an office in an industrial organization, or in a branch of an industrial organization, and purporting to exercise power conferred by or under the rules of the industrial organization or branch;

(c) the alleged election or alleged appointment of a person to an office in an industrial organization, or in a branch of an industrial organization;

(d) the alleged making, or alleged alteration, of a rule of an industrial organization, or of a branch of an industrial organization;

the action, election, appointment or making or alteration of the rule is taken to have been done, or to have occurred in accordance with the rules of the industrial organization or, as the case may be, the branch.

(2) This section -

(a) does not affect the validity, operation or enforcement of any judgment, order, declaration, direction or sentence or other judicial act of the Industrial Court or any other court made or imposed before the end of the 4 years referred to in subsection (1);

(b) extends to an action, alleged election, alleged appointment or alleged making or alteration of a rule, whenever done or occurring, including one done or occurring before the commencement of this Act, or done or occurring in relation to an association before it became an industrial organization."

However, the validity of the 1979 changes to the rules of the ATAUE does not require determination in the present proceedings. Nor do I accept the submission made on behalf of the applicants that, if the ATAUE had achieved a separate existence upon registration in 1917, it had gone out of existence or was defunct by 1979. As von Doussa J pointed out in Nurses Memorial Centre of South Australia Inc v Beaumont (1987) 44 SASR 454 at 463, "the notion that an incorporated association can suddenly cease to have any members, yet continue to exist as an association, is difficult to comprehend." That conforms with the views which I expressed in Frizziero v Rice (supra) at 11.
However, I am not able to find on the evidence in the present case that, by 1979, the ATAUE had no members. It is true that, at all times from 1917 to 1979 the two entities, the ATAEA and the ATAUE, were administered without any formal distinction being drawn between them. They had common officials and an identical list of members. However that does not permit the inference that persons admitted to membership or elected to office in Queensland for many years before 1979 became members or officers only of the ATAEA. The maxim omnia praesumuntur rite esse acta, which is discussed in John v Rees (supra) at 387-388, I consider, negatives that inference. Thus, for example, persons who appeared in the Queensland Industrial Commission in relation to awards binding on the ATAUE under that name are to be taken as having been members or officers of the ATAUE or authorized by its members or officers.
I accept the submission of Mr Rothman, who appeared with Mr Boccabella for the applicants, that the effect of Part IX of the Federal Act governing the amalgamation of organisations is that the proposed de-registering organisations, upon being de-registered under s.253Q(3)(c), merge with the proposed amalgamated organisation. In consequence of that merger, the rights and obligations of the de-registered organisations, and of their members as far they derive from that membership, are enforceable by or against, or in respect of, the amalgamated organisation. That consequence is to be contrasted with the effect of an order of this Court directing the cancellation of the registration of an organisation. By force, formerly of s.143(6) of the CAA, and now of s.298 of the Federal Act, the cancellation of registration pursuant to an order of that kind deprives the organisation of the status of a corporation but allows it to continue as an unincorporated association operating pursuant to the same rules but having no separate and distinct existence from its members; (see Bacon v O'Dea (1989) 25 FCR 495 at 500 and 508).
The Queensland Branch of the ATAEA was at all times merely a group of members of the federally-registered organisation collected together by its rules for internal administrative convenience; (Williams v Hursey (supra) at 54; Imlach v Daley (1985) 7 FCR 457 at 462; Bacon v O'Dea (supra) at 507-508; and Frizziero v Rice (supra) at 13). Accordingly, upon the de-registration of the ATAEA pursuant to s.253Q of the Federal Act, the rights of that group of members, and whether they continued to be collected together as a group, fell to be determined according to the rules of the Alliance as those rules took effect on the amalgamation day. However, because, by virtue of its registration in 1917, the ATAUE acquired a corporate existence separate from its members, it was as a matter of law, unaffected by the federal amalgamation.

Section 5 of the Industrial Relations (Protection from Invalidities) Act 1991 of the State of Queensland ("the Invalidities Act") provides:

"(1) In any proceedings, the validity of -

(a) the legal existence or registration of an industrial organisation; or

(b) a rule of an industrial organisation; or

(c) a decision made in relation to an industrial organisation; or

(d) the operation of a rule or decision referred to in paragraph (b) or (c);

cannot be challenged, impugned or in any way affected by reason only of one or more of the grounds specified in subsection (2).

(2) The grounds are -

(a) that the industrial organisation is also a federal organisation or a branch or part of a federal organisation; or

(b) that the members of the industrial organisation are also members of a counterpart federal body and -

(i) no register of members separate and distinct from the register kept by the counterpart federal body is kept by the industrial organisation; or

(ii) no application for membership or membership fee separate from the application made or fee paid to the counterpart federal body has been made or paid to the industrial organisation by any member; or

(c) that the industrial organisation keeps and maintains no or insufficient records or rules that are separate and distinct from records or rules kept and maintained by a counterpart federal body; or

(d) that officers of the industrial organisation have been elected or appointed by, or are also officers of, a counterpart federal body; or

(e) any matter consequent upon or arising out of matters referred to in paragraphs (a) to (d) (both inclusive)."

Certain terms in that section are defined as follows in s.4 of the same Act:

"(1) In this Act, unless the contrary intention appears - "certificate" means a certificate issued under section 6; "Commonwealth Act" means the Industrial Relations Act 1988 of the Commonwealth or any previous Act within the meaning of that Act; "federal organisation" means an organisation within the meaning of the Commonwealth Act;

"invalidity" includes a nullity;

"previous Act", in relation to the Industrial Relations Act 1990, means any Act in existence at any time before that Act that provided for the registration of industrial unions.

(2) For the purpose of this Act, a federal organisation or a branch or part of a federal organisation is a counterpart federal body of an industrial organisation if a substantial number of the members of each are -

(a) members or eligible to be members of both; or

(b) engaged in the same work, in aspects of the same work or similar work; or

(c) employed in the same or similar work by employers engaged in the same industry; or

(d) engaged in work or in industries in relation to which there is a community of interest."

The Invalidities Act also contains machinery affording to an industrial organisation protection against invalidity by providing:

"6.(1) Upon application under section 7, the Industrial Commission may issue a certificate declaring that a matter specified in the certificate -

(a) while the certificate is in force, is not to be challenged, impugned or in any way affected in any proceedings upon the grounds of an invalidity specified in the certificate; or

(b) is valid notwithstanding the existence of an invalidity specified in the certificate.

(2) An invalidity specified in a certificate is to be one specified in subsection (3) or (4).

(3) An invalidity specified in a certificate may be an invalidity -

(a) consisting of, resulting from, or arising out of a contravention of -

(i) a requirement of the Industrial Relations Act 1990 or a previous Act; or

(ii) a requirement of a rule of an industrial organisation; and

(b) occurring because an industrial organisation or a body or person acting or purporting to act on behalf of an industrial organisation, in reliance upon -

(i) a provision of the Commonwealth Act applicable to a counterpart federal body of the industrial organisation; or

(ii) a provision of a rule of a counterpart federal body of the industrial organisation; believed that the requirement had been complied with or did not apply.

(4) An invalidity specified in a certificate may be an invalidity consisting of, resulting from or arising out of the admission by an industrial organisation to its membership of persons not entitled to be so admitted under its eligibility rules.

(5) A certificate may be issued for the purpose of protecting from the invalidity to which it applies -

(a) an industrial organisation or a branch or part of an industrial organisation; or

(b) a body of or within an industrial organisation acting or purporting to act on behalf of the industrial organisation; or

(c) a person acting or purporting to act on behalf of an industrial organisation.

(6) A certificate may apply with respect to a matter whether it occurs -

(a) before or after the issue of the certificate; or

(b) before or after the commencement of this Act.

(7) The Industrial Commission may issue a certificate -

(a) as an interim certificate pending any proceedings; or

(b) as a provisional certificate under section 10; or

(c) subject to such conditions as it thinks fit.

(8) A certificate has effect according to its tenor.

(9) For the purpose of this section -

(a) a body or person is not taken to purport to act on behalf of an industrial organisation unless the body or person was so acting in good faith; and

(b) an act is taken to be done in good faith unless the contrary is proved.

7.(1) An application for a certificate may be made by -

(a) an industrial organisation; or

(b) a person who satisfies the Industrial Commission that the person has a sufficient interest in the granting of the certificate; or

(c) the Minister.

(2) The Industrial Commission -

(a) is not bound by the content of an application; and

(b) may specify a matter in a certificate notwithstanding that it is not included in an application for the purpose of the certificate.

(3) For the purpose of an application, the Industrial Commission may dispense with proof of any matter and rely upon general circumstances in any case where proof of the matter is not reasonably practicable because of the effluxion of time."

I have been provided, by way of practical illustrations of the working of ss.6 and 7 of the Invalidities Act with certificates issued both on 25 June 1992 by Mr Commissioner Dempsey of the Queensland Industrial Relations Commission to the Federated Liquor and Allied Industries Employees Union of Australia, Queensland Branch Union of Employees, and the Federated Miscellaneous Workers' Union of Australia, Queensland Branch Union of Employees. That was apparently done to clear the way for the amalgamation, at a Queensland State level, of those two industrial unions. However, no similar certificate has been applied for, or issued, in respect of the ATAUE or the Queensland State-registered counterpart of Actors' Equity. Nevertheless, it was submitted on behalf of the applicants that such a certificate could be issued giving effect, at a Queensland State level, to the amalgamation already effected federally between the ATAUE and Actors' Equity.
In my view, the Invalidities Act does not dispense with the need for a resolution in favour of amalgamation at a State level of those purporting to hold relevant offices within the ATAUE. Given such a resolution, resort may be had to the Invalidities Act to overcome any doubts or difficulties as to the authority or title of the proponents of the resolution to carry it and put in into effect. However, it is clear from the evidence before the Court that those presently purporting to occupy relevant offices within the ATAUE are opposed to any amalgamation, at a Queensland State level, with Actors' Equity. Rather, those officers are actively pursuing an amalgamation with the Queensland-registered AWU.
In the alternative, it was contended on behalf of the applicants that by force of the Federal Act, an amalgamation has already occurred at a Queensland State level, between the ATAUE and the Queensland-registered Actors' Equity. Since I have concluded that the ATAUE, upon registration in 1917, acquired a legal existence separate and distinct from the ATAEA and its members, that contention must be rejected.
The final alternative argument advanced on behalf of the applicants was that the registration of the ATAUE in 1917 was procured by the applicants for that registration on behalf of the members of the Queensland branch of the ATAEA in their capacity as such members. Accordingly, so the argument went, there was no pre-existing association to support the registration and incorporation of the ATAUE. If that should not be seen as a fatal impediment to the incorporation of the ATAUE it was submitted that since its "incorporator" was the ATAEA or its Queensland Branch, the ATAUE was an asset of the ATAEA or its Queensland branch. As such, it vested in the Alliance pursuant to s.253R of the Federal Act.
That section provides:

"(1) On the amalgamation day, all assets and liabilities of a de-registered organisation cease to be assets and liabilities of that organisation and become assets and liabilities of the amalgamated organisation.

(2) For all purposes and in all proceedings, an asset or liability of a de-registered organisation existing immediately before the amalgamation day is taken to have become an asset or liability of the amalgamated organisation on that day."

I do not consider that the Queensland Act created any proprietary interest in an industrial union registered thereunder which was capable of vesting in the person or persons (including a federally-registered organisation) which procured or sponsored the registration of the industrial organisation. That is not to say that a contractual relationship or actual or constructive trust, may not come into existence by virtue of the registered rules of an industrial organisation, which obliges its officers or members for the time being to conduct its affairs or deal with assets of which it is the legal owner, as directed by a federally-registered organisation or some other person. However, whether any direction of that kind can be enforced in respect of the ATAUE or its assets does not arise for determination in the present application.
The applicants also relied on s.253U of the Federal Act which is in these terms:

"(1) On and after the amalgamation day, an instrument to which this Division applies continues, subject to subsection (2), in full force and effect.

(2) The instrument has effect, in relation to acts, omissions, transactions and matters done, entered into or occurring on or after that day as if a reference in the instrument to a de-registered organisation were a reference to the amalgamated organisation."

The relevant definitions, as contained in s.234 of the Federal Act, are:

""instrument" means an instrument of any kind, and includes:

(a) any contract, deed, undertaking or agreement; and

(b) any mandate, instruction, notice, authority or order; and

(c) any lease, licence, transfer, conveyance or other assurance; and

(d) any guarantee, bond, power or attorney, bill of lading, negotiable instrument or order for the payment of money; and

(e) any mortgage, charge, lien or security; whether express or implied and whether made or given orally or in writing;

"instrument to which this Division applies", in relation to a completed amalgamation, means an instrument:

(a) to which a de-registered organisation is a party; or

(b) that was given to, by or in favour of a de-registered organisation; or

(c) in which a reference is made to a de-registered organisation; or

(d) under which any money is or may become payable, or any other property is to be, or may become liable to be, transferred, conveyed or assigned, to or by a de-registered organisation."

It was argued that instruments lodged with or issued by the Queensland Industrial Registrar from the time of the initial registration in 1917 (including, I presume, the certificate of registration of the ATAUE), were given to, by or in favour of, the ATAEA or contain references to the ATAEA. Accordingly, so the argument went, those instruments are to be construed and given effect, after 18 May 1992, as if they referred to the Alliance. Since I have held that from the moment of its incorporation the ATAUE was, as a matter of law, a separate entity from the ATAEA, this argument must be rejected.
Counsel for the applicants also relied on s.253X of the Federal Act which provides

"(1) The amalgamated organisation must take such steps as are necessary to ensure that the amalgamation, and the operation of this Subdivision in relation to the amalgamation, are fully effective.

(2) The Court may, on the application of an interested person, make such orders as it considers appropriate to ensure that subsection (1) is given effect to."

However, for the reasons already given in respect of instruments issued by or reposing with the Queensland State Industrial Registrar, the officers of the ATAUE, in their capacity as such officers, cannot perform or refrain from any act which, in law, would effectuate the amalgamation by which the Alliance came into existence. Likewise, any difficulty, if there be one, which has arisen in this case, has stemmed from the facility afforded by Commonwealth and State legislation to create and maintain in parallel two separate legal entities without effectively distinguishing between them for purposes of practical administration. The difficulty does not arise in relation to the application of Subdivision F of Division 7 of Part IX of the Federal Act so as to enliven this Court with jurisdiction under s.253ZC of that Act.
It was for these reasons that, on 19 October 1992, I ordered that the application be dismissed.

Citations

McJannet, V.A. & ors v White, H. & ors [1992] FCA 848 ((1992) 39 FCR 1)

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[1992] FCA 848

20 NOVEMBER 1992