Menon, in the matter of an election for offices of the Manufacturing Division of the Construction, Forestry, Maritime, Mining and Energy Union (No 3) - [2021] FCA 1263

FEDERAL COURT OF AUSTRALIA
Menon, in the matter of an election for offices of the Manufacturing Division of the Construction, Forestry, Maritime, Mining and Energy Union (No 3) [2021] FCA 1263

File number(s): QUD 168 of 2021

Judgment of: WHEELAHAN J

Date of judgment: 18 October 2021

Catchwords:
INDUSTRIAL LAW – Inquiry into an election for offices in an organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth) – election for offices in the Manufacturing Division of the Construction, Forestry, Maritime, Mining and Energy Union which concluded in July 2021 – where the applicant alleges irregularities – whether the exclusion of certain members from the roll of members eligible to vote in the elections constituted an irregularity – whether the rejection of certain candidates’ nominations for office constituted an irregularity – construction of the Rules of the Union and Rules of the Manufacturing Division of the Union – effect of purported resignations from a District of the Manufacturing Division – effect of purported resignation from the Manufacturing Division – no irregularity found.

HIGH COURT AND FEDERAL COURT – application and effect of a declaration made in another proceeding –whether reasons for judgment are available in the construction of a court’s declaration – in the circumstances of this case reasons for judgment so available.

Legislation:
Fair Work (Registered Organisations) Act 2009 (Cth) ss 6, 9, 27(a), 154A, 154B, 154B(2), 164, 164A, 182, 191, 193, 201, 205(3), 206(1), 206(2), 206(4), 206(5), 206(6), 230, 237, 252-254

Evidence Act 1995 (Cth) s 91

Spencer Bower and Handley, Res Judicata (4^th edition)

Cases cited:
Amalgamated Society of Engineers v Smith (1913) 16 CLR 537

An Application by Howard, Laurence Francis for an inquiry into an election in the Slaters, Tilers and Roofing Industry Union of Victoria (1983) 72 FLR 411

Arnold v Britton [2015] 1 AC 1619

Athens v Randwick City Council (2005) 64 NSWLR 58

Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251

BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCAFC 132; 219 FCR 245

Cameron v Australian Workers’ Union (1959) 2 FLR 45

Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218; 228 IR 195

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; 253 CLR 243

Gordon v Gonda [1955] 1 WLR 885

Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896

Leveridge v Shop Distributive and Allied Employees’ Association (1977) 17 ALR 145

Lim v Comcare [2019] FCAFC 104; 165 ALD 217

Menon, in the matter of an election for offices of the Manufacturing Division of the Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 620

Menon, in the matter of an election for offices of the Manufacturing Division of the Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2021] FCA 859

Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; 256 CLR 104

O’Connor v Setka [2020] FCAFC 195

Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629; 129 FCR 558

R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13

R v Isaac; ex parte Transport Workers’ Union of Australia (1985) 159 CLR 323

Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900

Ransley v Australian Public Service Association (1985) 12 IR 55

Re Amalgamated Metals Foundry and Shipwrights Union, Ex parte Adamson (1984) 4 FCR 319

Re Australian Journalists’ Association; Ex parte Nicholson (1990) 27 FCR 75

Re Australian Postal and Telecommunications Union (NSW), Ex parte Wilson (1979) 28 ALR 330

Re Communication Workers’ Union of Australia Postal and Telecommunications Branch, New South Wales (1996) 67 IR 246

Re Elections for Offices in Australasian Meat Industry Employees Union (1963) 5 FLR 260

Re Kelly; Application for an Inquiry in Relation to an Election for the Office in the New South Wales Local Government Clerical, Administrative, Energy, Airlines & Utilities Branch of the Australian Municipal, Administrative, Clerical and Services Union (No 2) [2011] FCA 490

Re McJannet; ex parte Minister for Employment, Training and Industrial Relations (Qld) (1995) 184 CLR 620

Re Nimmo; Application for an Inquiry Relating to an Election for an Office in the Australian Education Union (NT Branch) [2011] FCA 38; 192 FCR 111

Re Cholosznecki; Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union [2006] FCA 452; 151 IR 218

Repatriation Commission v Nation (1995) 57 FCR 25

Rounsevell v Mitchell (1968) 11 FLR 414

Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; 240 CLR 45

Rule v Australian Workers’ Union (1985) 9 FCR 280

Sans Souci Ltd v VRL Services Ltd [2012] UKPC 6

Slea Pty Ltd v Connective Services Pty Ltd [2018] VSCA 180

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362

Williams v Hursey (1959) 103 CLR 30

Wood v Capita Insurance Services Ltd [2017] AC 1173

Yates Property Corporation v Boland (1998) 89 FCR 78

Division: Fair Work Division

Registry: Queensland

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 251

Date of hearing: 16-19 August 2021

Counsel for the Applicant: Mr W Friend QC with Mr H Clift

Solicitors for the Applicant: Hall Payne Lawyers

Counsel for the First to Fifteenth Interested Persons: Mr H Borenstein QC with Mr Y Bakri

Solicitors for the First to Fifteenth Interested Persons: Slater & Gordon Lawyers

Counsel for the Sixteenth Interested Person: Mr R Schulte

Solicitors for the Sixteenth Interested Person: Australian Government Solicitor

REASONS FOR JUDGMENT

QUD 168 of 2021

ARTURO "BLUEY" MENON

Applicant

WHEELAHAN J:
Introduction

This proceeding concerned the election for certain offices in the Manufacturing Division of the Construction, Forestry, Maritime, Mining and Energy Union (the Union) in election E2020/114, which concluded in July 2021. Part 3 of Chapter 7 of the Fair Work (Registered Organisations) Act 2009 (Cth) (RO Act) confers on this court jurisdiction to conduct an inquiry into claimed irregularities in relation to such an election. Upon the application of the applicant, Mr Menon, Collier J ordered that an inquiry be conducted into alleged irregularities in respect of the election, and subsequently pursuant to s 201 of the RO Act, ordered that the inquiry be conducted before me commencing 16 August 2021: [2021] FCA 620. Mr Menon alleged two categories of irregularity occurred in relation to the election for eight offices, the nature of which I will outline below. The court’s task at the inquiry was to inquire into and determine the question whether an irregularity had happened in relation to the election. As these reasons will show, I have determined that question in the negative.
Election for offices in the Manufacturing Division of the Union
The election was conducted by the Australian Electoral Commission pursuant to s 182 of the RO Act. The person within the Commission conducting the election is referred to in s 191(1) of the RO Act as the “returning officer”. An officer or employee of the Union, which is a registered organisation for the purposes of the RO Act, is required to comply with a request of the returning officer to make available a register of members: s 191(2). Under s 193(1), in conducting an election, a returning officer must comply with the rules of the organisation or branch, subject to the provisos that the returning officer –
(b)may, in spite of anything in the rules of the organisation or branch, take such action, and give such directions, as the electoral official considers necessary:
(i)to ensure that no irregularities occur in or in relation to the election; or
(ii)to remedy any procedural defects that appear to the electoral official to exist in the rules; or
(iii)to ensure the security of ballot papers and envelopes that are for use, or used, in the election.
There are two issues that were pressed by the applicant in the course of the inquiry. First, the returning officer acted upon a certified list of financial members of the Manufacturing Division as at 4 March 2021 that was supplied by the Division, and it was alleged that there were some 83 financial members of the Manufacturing Division, namely timber workers resident in northern New South Wales, who were incorrectly excluded from that list and who were thereby excluded from voting. Second, in the course of conducting the elections, the returning officer disallowed the nominations of six candidates for election to eight offices and representative positions in the Manufacturing Division, and the validity of their rejection was challenged by the applicant. These candidates included three members of the Union who were northern New South Wales-based timber workers whom the applicant claimed were attached to and were financial members of the NSW District of the Manufacturing Division, and a further three persons whom the applicant claimed were attached to and were financial members of the Victorian District of the Manufacturing Division.
The conduct of the inquiry
Mr Menon was represented at the inquiry by Mr Friend QC and Mr Clift. Mr Menon is a member of the Manufacturing Division of the Union and is attached to the Queensland Northern Territory Western Australian District (QNTWAD) of the Division where he currently holds the office of Secretary. Mr Menon and others stood for election under a ticket styled “Members First”.
Sixteen interested persons were given leave to appear at the inquiry. The first to fifteenth interested persons are officers of the Manufacturing Division who were associated with an opposing ticket styled “Union Strong”, and were represented by Mr Borenstein QC and Mr Bakri.
The sixteenth interested person, the Australian Electoral Commission, was represented by Mr Schulte, and took a position at the inquiry that was consistent with the principles referred to in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35-36.
Having regard to COVID-19 restrictions in place in Victoria and New South Wales, the court conducted the inquiry online via Microsoft Teams, with counsel appearing and witnesses giving evidence from remote locations. The hearing of the inquiry proceeded very efficiently, and this was due to the efforts of court staff, and to the high level of assistance and co-operation from all counsel and their instructing solicitors.
Evidence at the hearing of the inquiry was given by affidavit. In addition, a number of deponents were cross-examined. No objections to evidence required rulings. Instead, counsel for the parties agreed on parts of affidavits that were not read, and parts of the evidence that were received for limited purposes.
Section 205(3) of the RO Act provides that the procedure of the court upon an inquiry is, subject to the Act and the Rules of court, within the discretion of the court. The court is not bound to act in a formal manner, and is not bound by any rules of evidence. The court may inform itself on any matter in such manner as it considers just. Although the court is not bound by the rules of evidence, the determination of whether an irregularity has happened must be on the balance of probabilities: s 206(2). It necessarily follows that an inquiry under s 201 of the RO Act is not a licence to determine a matter in the absence of probative material, and that the principles relating to findings on the balance of probabilities, and the requirement that there be actual persuasion, apply: see Re Communication Workers’ Union of Australia Postal and Telecommunications Branch, New South Wales (1996) 67 IR 246 at 275 (Moore J) and the cases cited therein. To the extent that onus of proof is relevant, the applicant bears the onus: Re Nimmo; Application for an Inquiry Relating to an Election for an Office in the Australian Education Union (NT Branch) [2011] FCA 38; 192 FCR 111 at [28] (Reeves J); Re Kelly; Application for an Inquiry in Relation to an Election for the Office in the New South Wales Local Government Clerical, Administrative, Energy, Airlines & Utilities Branch of the Australian Municipal, Administrative, Clerical and Services Union (No 2) [2011] FCA 490 at [15] (Flick J).
The task of the court upon an inquiry into an election for office is set out in s 206 of the RO Act –
206 Action by Federal Court
(1)At an inquiry, the Federal Court must inquire into and determine the question whether an irregularity has happened in relation to the election, and such further questions concerning the conduct and results of the election as the Court considers necessary.
(2)For the purposes of subsection (1), the Court must determine whether an irregularity has happened on the balance of probabilities.
(3)In the course of conducting an inquiry, the Court may make such orders (including an order for the recounting of votes) as the Court considers necessary.
(4)If the Court finds that an irregularity has happened, the Court may, subject to subsection (5), make one or more of the following orders
(a)an order declaring the election, or any step in relation to the election, to be void;
(b)an order declaring a person purporting to have been elected not to have been elected, and declaring another person to have been elected;
(c)an order directing the Commissioner to make arrangements
(i)in the case of an uncompleted election—for a step in relation to the election (including the calling for nominations) to be taken again and for the uncompleted steps in the election to be taken; or
(ii)in the case of a completed election—for a step in relation to the election (including the calling for nominations) to be taken again or a new election to be held;
(d)an order (including an order modifying the operation of the rules of the organisation to the extent necessary to enable a new election to be held, a step in relation to an election to be taken again or an uncompleted step in an election to be taken) incidental or supplementary to, or consequential on, any other order under this section.
(5)The Court must not declare an election, or any step taken in relation to an election, to be void, or declare that a person was not elected, unless the Court is of the opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have happened or may happen, the result of the election may have been affected, or may be affected, by irregularities.
(6)Without limiting the power of the Court to terminate a proceeding before it, the Court may, at any time after it begins an inquiry into an election, terminate the inquiry or the inquiry to the extent that it relates to specified matters.
The main points that arise from s 206 are as follows. First, the questions to be determined include whether there was an irregularity, which is a defined term –
irregularity, in relation to an election or ballot, includes:
(a) a breach of the rules of an organisation or branch of an organisation; and
(b) an act or omission by means of which:
(i)the full and free recording of votes by all persons entitled to record votes and by no other persons; or
(ii)a correct ascertainment or declaration of the results of the voting;
is, or is attempted to be, prevented or hindered; and
(c)a contravention of section 190.
By its terms, s 206(1) authorises an inquiry that is not confined to specific irregularities which have been raised by the applicant in his originating application, because the inquiry may extend to such further questions concerning the conduct and results of the election as the court considers necessary. This is consistent with the interpretation of provisions relating to the conduct of inquiries under previous legislation: Re Elections for Offices in Australasian Meat Industry Employees Union (1963) 5 FLR 260 at 265 (Dunphy J); Re Australian Postal and Telecommunications Union (NSW), Ex parte Wilson (1979) 28 ALR 330 at 333 (Sheppard J); Re Amalgamated Metals Foundry and Shipwrights Union, Ex parte Adamson (1984) 4 FCR 319 at 343 (Gray J); Rule v Australian Workers’ Union (1985) 9 FCR 280 at 296-297 (Wilcox J).
Second, the powers of the court under s 206(4) to make one or more of the orders set out therein are discretionary. The discretion is to be exercised in a way that seems most beneficial to the registered organisation and its members, bearing in mind any relevant statutory objects: Re Australian Journalists’ Association; Ex parte Nicholson (1990) 27 FCR 75 at 83 (Wilcox J).
Third, s 206(5), which is important, precludes the court from declaring an election, or any step taken in relation to an election, to be void, or declaring that a person was not elected, unless the court is of the opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have happened or may happen, the result of the election may have been affected, or may be affected, by irregularities.
Fourth, s 206(6) empowers the court to terminate an inquiry in whole or in part at any time after its initiation. On 27 July 2021, the court exercised this power in relation to the election of the Divisional Secretary, Mr O’Connor: [2021] FCA 859. Further, at the conclusion of the hearing the court terminated the inquiry to the extent that it related to the nomination of five persons whose circumstances were not pursued at the hearing.
The parties submitted that argument on the question of any relief or remedy should be deferred until after the court had made findings as to whether there were any irregularities, and I will adopt that course.
The issues arising at the inquiry
The two main issues that arose at the inquiry are conveniently considered at a factual level under the following topics –
The northern New South Wales timber workers
(1)The first topic concerns 83 members of the Union to whom I will refer as the northern New South Wales timber workers. I will explain in more detail how the issues relating to those timber workers arise, but for present purposes the issues may be identified as being: (1) whether 83 persons were incorrectly excluded from the list of financial members submitted to the returning officer; and (2) whether the nominations of three candidates for election to an office and representative positions in the Manufacturing Division were incorrectly disallowed. The three candidates whose nominations were disallowed were Messrs Ian McHugh, Phillip Wilson, and Greg Wimble.
The Victorian-based nominees
(2)The second topic concerns the disallowance of the nomination of three persons based in Victoria who sought nomination for offices of the Manufacturing Division. Those persons are Ms Kylie Brown, Mr Benjamin Smart, and Mr Adam Tester. The circumstances of those persons are common to the extent that they had, at different points in time, purported to resign from the Manufacturing Division of the Union, and had become members of the Construction and General Division. Prior to the elections, they had sought to return to the Manufacturing Division, and questions arise as to their eligibility for nomination.
In relation to all the areas of inquiry it will be necessary to give some attention to the rules of the Union, to which I will refer as the National Rules, the rules of the Manufacturing Division, to which I will refer as the Manufacturing Rules, and to the decision of the Full Court in O’Connor v Setka [2020] FCAFC 195.
Some features of the National Rules and the Manufacturing Rules

The Union has some structural complexity, being the product of the amalgamation of a number of unions over many years. The history of amalgamations was referred to by the Full Court in O’Connor v Setka at [14]-[22] and [41]-[70], upon which the parties accepted I may act, and for that purpose the reasons of the Full Court were received into evidence: cf, Evidence Act 1995 (Cth), s 91. It will be necessary to refer to some of that history in more detail later in these reasons. The National Rules establish four industry-based Divisions according to which the Union is divided –
(1)the Construction and General Division;
(2)the Manufacturing Division;
(3)the Mining and Energy Division; and
(4)the Maritime Union of Australia Division.
National Rule 27(ii) provides that each Division has autonomy to decide matters that do not directly affect the members of another Division –
Each Division shall have autonomy to decide matters which do not directly affect the members of another Division without any interference by any other body within the Union, including but not limited to:
(a)       The industrial interests of its members.
(b)       The election of officers within the Division.
(c)       Matters arising from the Objects of the Division.
(d)       Structure of the Division.
National Rule 27(iii) provides that each Division shall have autonomy in relation to its funds and property. In this respect, it is to be noted that s 154A of the RO Act provides that the rules of an organisation may provide for the autonomy of a branch in matters affecting members of the branch only, and s 154B provides that the rules of an organisation may provide for a fund of the branch that is to be managed and controlled under the rules of the branch. Under s 154B(2), the branch fund may consist of (inter alia) the amounts of entrance fees, subscriptions, fines, fees or levies received by the branch, less so much of the amounts as is payable by the branch to the organisation. The term “branch” is not defined in the RO Act, and in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218; 228 IR 195 at [67] Jessup J left open the question whether a Division of the Union, as then constituted, was a “branch” for the purposes of the RO Act. (Note that an appeal to the Full Court was allowed, and a subsequent appeal to the High Court dismissed: BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCAFC 132; 219 FCR 245; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; 253 CLR 243.) National Rule 5 defines “branch” as a branch of the Union that covers a geographic area, whereas “Division” is separately defined to mean a Division of the Union established, as far as practicable, on industry or occupational lines.
National Rule 27(iv) requires that each Division have its own rules, according to which the Manufacturing Division has the Manufacturing Rules.
National Rules 27(vii) and (viii) allow for a Division to allocate responsibility to another Divisional Branch of another Division the Union –
(vii)Any Division may, in accordance with their rules, allocate any Branch of the Union or any other Divisional Branch of any Division of the Union the responsibility for a Divisional Branch or part of a Divisional Branch where it is, in the opinion of the Division not appropriate or economic to establish and/or maintain a separate Divisional Branch in that area.
(viii)Where any Division allocates any of its Divisional Branches to a Divisional Branch of another Division, the latter Divisional branch shall pay capitation fees to and be represented by the first mentioned Division on the basis of the number of members so allocated.
Under National Rule 7(iv), a member is attached to the Division covering the relevant industry or employment of the member –
A member shall be attached to the Division of the Union covering the industry or employment of the member and shall be in only one such Division. Each member shall be notified of the Division to which such member is attached or any other classification relevant to the Rules of the Union and such Division or classification shall be entered on the record of the Union in relation to that member which record shall be conclusive proof of the Division and/or classification to which that member is assigned.
The term “Rules of the Union”, which is employed in the above Rule, is defined by the National Rules as follows –
“RULES OF THE UNION” means all of the Rules of the Union as read and construed in totality while “NATIONAL RULES” shall refer to these rules, “BRANCH RULES” shall refer to the Rules of any Branch of the Union established under the Rules of the Union, “DIVISIONAL RULES” shall refer to the Rules of any Division established in accordance with the Rules of the union, and “DIVISIONAL BRANCH RULES” or “DIVISIONAL DISTRICT BRANCH RULES “shall refer to the rules of Divisional Branches, being a branch of a Division, established in accordance with the Rules of the union.
National Rule 26 makes provision for the binding nature of all the Rules of the Union –
These National Rules and all the rules of the Union, and all alterations, additions or rescissions thereof or thereto, shall apply to and be binding on all Divisions, Branches, and Divisional Branches in all sections of the Union and all members who now, or who may hereafter, belong to the Union until they are made or become null and void according to the law.
In O’Connor v Setka, the Full Court held at [126]-[127] that National Rule 26 requires all Divisions and all members to comply with all Rules which may be applicable to them from time to time, which involves reading all the Rules as a whole. Manufacturing Rule 35 makes provision for the imposition of sanctions for any breach of the Rules, such as fines, removal from office, and suspension and expulsion from membership of the Union. Furthermore, the Rules of the Union are enforceable by proceedings brought under s 164 of the RO Act, of which O’Connor v Setka was an instance.
Manufacturing Rule 2 provides for the attachment of members of the Union to the Manufacturing Division in the following terms –
2 - ELIGIBILITY FOR DIVISION
Every member who is a member of the union by virtue of Rule 2 Sub-Rule (C), (F) and (R) of the National Rules shall belong to this Division.
Sub-Rules 2(C), (F) and (R) of the National Rules that are referred to above provide for different categories of eligibility, and are artefacts of the amalgamation of different unions over many years. One of the unions that was amalgamated was the Federated Furnishing Trade Society of Australasia (FFTS), which occurred in March 1993. The type of work that was undertaken by the members of the FFTS is reflected in National Rule 2(F), which maintains a reference to “awards of the Society” in the last line –
(F) Without limiting the generality of any other sub-rule or paragraph or being limited thereby an unlimited number of persons who are employed in, or competent to be employed in or in connection with the following industries or trades are eligible to be members of the Union:
Piano and piano-player makers and tuners, organ-makers, and makers of gramophones and all other musical instruments, cabinet-makers, wood-carvers, billiard table makers and fitters, clock-case makers, coffin-makers, 3-ply veneer workers, chair and couch makers, or other articles of sitting accommodation, sewing machines, upholsterers, carpet and linoleum planners and all floor covering layers, outdoor hands, measuring, fixing, soft furnishings, blind cutting, making, painting, fixing, french-polishers, enamellers, spraying machine operators, makers of wireless instrument cases or cabinets, woodturners, mantel-piece makers, overmantel-makers, mattress-makers, wire-weavers, picture-frame makers, bedding-makers, quiltmakers (including eiderdown), venetian and wireblind makers, bamboo pith and cane and wicker workers, packers of crockery and furniture mantlepieces, pictures, carpets, drapery, plate and sheet glass in warehouses, shops, factories or stores, glass bevellers, glass benders, glass worker (excepting those on spectacles, lenses or frames and employees in firms where such employees are engaged on work connected with the manufacture or repair of scientific, precision or other instruments such as binoculars, microscopes, military, aircraft and naval instruments), glass lampshade workers, safety glass workers, toy makers and/or toy repairers in establishments where the chief product or products or one of the chief products manufactured in such establishments is otherwise provided for herein; cutters, silverers, glaziers, glass polishing, cutting, painting, cementing, leadlight glaziers and cutters, and all woodworking or other machinists, and operators of other mechanical devices preparing material for above employees; millwright's baby carriage makers, upholstresses, new and second-hand carpet, drapery, table and lampshade hands; flock-workers, rag-pickers and fumigators; timber stackers, yardmen, and labourers, and all other employees working in new and secondhand furniture factories, piano factories, organ factories, mantel-piece factories, billiard-table factories, overmantel factories, bedding-factories, mattress factories, venetian and wire-blind factories, picture-frame factories, plate-glass factories, luxfer glazing factories, bamboo pith cane; Reed-tex, Hytex, and wicker-work factories, sewing machine factories, flock factories, window background workers, display article workers, refrigerator workers, incubator workers, together with such other persons, whether employees engaged in the industries or not, as have been appointed officers of the Union and admitted as members thereof, provided that a branch may issue a clearance to any member whom it may be considered should not retain his membership on the ground that he is working in an industry not governed by any awards of the Society.
Upon amalgamation with the FFTS in March 1993 there was initially a union-based Division of the Union known as “the FFTS Union Division”: see O’Connor v Setka at [21]. Later, in February 2002 it was resolved that the FFTS Union Division be integrated into the Forestry Division of the Union, to be known as the Forestry, Furnishing, Building Products and Manufacturing Division, which became known as the FFPD Division: see O’Connor v Setka at [55]-[57]. As the Full Court in O’Connor v Setka further recounts and summarises at [58]-[63], a new Rule 42D of the National Rules was introduced to give effect to the restructuring of the Divisions proposed by the resolution referred to above. Rule 42D, which is set out in full at [58] of the Full Court’s reasons, provided (inter alia) for the continued operation of the Victorian and Queensland Divisional Branches of the FFTS Division, within the restructured Division, for a period of up to four years expiring on 26 March 2005. Subsequently, in March 2018 when the Maritime Union of Australia and the Textile, Clothing and Footwear Union of Australia were amalgamated with the Union, the name of the FFPD Division was changed to the Manufacturing Division: O’Connor v Setka at [65].
Another category of work for which persons are eligible for membership of the Union, and who attach to the Manufacturing Division, is timber workers falling within National Rule 2(C) –
(C)Without limiting the generality of the foregoing and without being limited thereby the following are eligible to be members of the Union:
(i)All persons who are employed or are usually employed in any position on or in or in connection with (a) saws and wood working machines; (b) handling and treating timber and articles manufactured therefrom; (c) sawmills, timber yards, box and case factories, saw makers shops, joiners workshops, car and waggon shops, coach builders workshops, coopers workshops, furniture factories wooden sporting goods factories and veneer and plywood factories; (d) the preparing of woodwork for joiners, carpenters, builders, implement makers, coachbuilders, car and waggon builders, furniture factories, box and case factories, wooden sporting goods factories, veneer and plywood factories and coopers shops; (e) falling splitting and hewing timber.
Provided that millwrights, blacksmiths and maintenance engineers employed as such elsewhere than in bush sawmills, and fitters and/or turners, other than wood turners, shall not be eligible for membership unless covered by the provisions of paragraph (ii) hereof.
In these Rules, the words “wood and/or timber” without in any way limiting the ordinary meaning of the words, shall also be deemed to include any artificial or laminated or manufactured material now in existence or hereafter coming into existence from whatever materials made or constructed or manufactured, which is or can or may be used in the place of wood or timber, and which can be handled and/or treated and/or machined and/or worked in a similar way and with similar machines and/or tools, as in the case of wood or timber …
In 1990, the Australian Timber Workers Union amalgamated with the Pulp and Paper Workers’ Federation of Australia to become the Australian Timber and Allied Industries Union (ATAIU). In September 1991, the ATAIU amalgamated with the Building Workers’ Industrial Union of Australia, which in turn amalgamated in February 1992 with the United Mineworkers Federation of Australia to form the Construction, Forestry and Mining Employees Union. Subsequent amalgamations included the amalgamation in 1994 with the Builders’ Labourers’ Federation: see the account in O’Connor v Setka at [15].
National Rule 7 contains provisions concerning the manner in which a person may become a member of the Union, the allocation of members to a Division, and for the resolution of disagreements concerning the Division, Branch and Divisional Branch to which a member should appropriately be attached. The following account of National Rule 7 draws substantially upon the Full Court’s consideration of it in O’Connor v Setka at [32]-[36].
National Rule 7(i) provides for applications for membership of the Union, not for applications for membership of a Division –
(i)A candidate for membership of the Union may make application to the National Secretary, the Division covering the occupation or industry in which the person is employed, the Branch covering the area in which the person is employed or resides, or the Divisional Branch covering the industry or occupation in which the person is employed, usually employed or desirous of being employed and the area in which the person resides or is employed, and such application shall be made and dealt with in the manner and subject to the conditions … required by the rules of the Division. Any application shall be forwarded to the office in the appropriate division which under the rules of that division deals with such applications. The decision to accept or reject that application shall be made in accordance with the Rules of that division by that office. Provided that where a person makes application to any officer of the Union that application shall be a valid application for membership of the Union and the Union shall, treat the member as a member of the Division to which the officer is attached, until transferred in accordance with the rules.
(Emphasis added)
National Rule 7(iv) provides for the allocation of members to a Division –
(iv)A member shall be attached to the Division of the Union covering the industry or employment of the member and shall be in only one such Division. Each member shall be notified of the Division to which such member is attached or any other classification relevant to the Rules of the Union and such Division or classification shall be entered on the record of the Union in relation to that member which record shall be conclusive proof of the Division and/or classification to which that member is assigned.
(Emphasis added)
National Rule 7(v)(a) concerns the validity of an application for membership of the Union –
(a)Notwithstanding anything elsewhere contained in the Rules of the Union no application for membership of the union shall be void or irregular only for the reason that the form of application is not fully completed or completed at all, or that some other form of application is used, or any other procedure under the Rules has not been complied with provided that the person intended to, and did in fact, in some way or other, apply for membership and the Union treated the person as a member. A member may be transferred to another Division, Branch or Divisional Branch without loss of continuity of membership. Without limiting the generality of the foregoing, a person who, at the time of application for membership was not eligible to be or become a member, shall be and become a member as soon as the person is eligible to be and become a member or earlier if by any Act, law or other Rule the membership is otherwise validated provided that the person performs an act which evidences an intention to be or become a member. For all purposes the payment of union dues in whole or in part shall be taken to be, without limiting the generality of the foregoing, a method by which a person intended to, and did in fact, in some way or other, apply for membership and/or evidences an intention to be or become a member.
National Rule 7(v)(b) is intended to ensure that no question of invalidity will arise by reason of a member having been attached to an incorrect Division, Branch or Divisional Branch –
(b)Without affecting or detracting from the requirements of sub-rules 42(iii) and 42(xii) and without limiting the rights of a member or a Division, Divisional Branch or authorised officer thereof, to seek or obtain a transfer of Division or Divisional Branch in accordance with the rules, no membership of the union and no membership or attachment to a Division, Branch or Divisional Branch of the Union shall be invalidated, void or otherwise treated as irregular on account of the member being attached to a Division, Branch or Divisional Branch which, in accordance with the Rules, may not be the correct Division, Branch or Divisional Branch provided that the member was eligible for membership of the Union and the member was aware of the Division, Branch or Divisional Branch to which the member was attached. …
Relevantly, National Rule 7(v)(b) continues –
… Every member of the Union who, on the records of the Union, is financial and is, on those records, attached to a Division, Branch or Divisional Branch shall be treated for all purposes as a financial member thereof and shall be entitled to all rights and required to comply with all obligations which attach thereto until transferred in accordance with the Rules.
National Rule 7(viii) provides two means by which a member may be transferred from one Division or Divisional Branch to another. The first is available when the Divisional Secretary or Divisional Branch Secretary considers that the member should belong to another Division or Divisional Branch: National Rule 7(viii)(a). The second is available when a Divisional Secretary or Divisional Branch Secretary considers that a member attached to another Division or Divisional Branch should more appropriately be attached to their Division or Divisional Branch: National Rule 7(viii)(b). The second of these Sub‑Rules provides –
(viii) …
(b) … where a Divisional Secretary or a Divisional Branch Secretary forms the view that a member of another Division or Divisional Branch ought to be a member of the Division or Divisional Branch to which the Divisional Secretary or Divisional Branch Secretary is attached, the Divisional Secretary or Divisional Branch Secretary shall contact the … Divisional Branch Secretary of the Divisional Branch to which the member is now attached and seek agreement that the member be transferred. Where agreement cannot be reached the matter may be referred to the National Secretary and be determined by the National Executive or an officer designated by the National Executive.
…
(d)Any determination by the National Executive or officer designated by the National Executive shall use the principles established in and by sub-rules 42(i) and 42(iii) hereof.
Nothing in these paragraphs shall affect or detract from the provisions of subrule(s) 42(i), (iii) and (xii) and membership of a Division or a Divisional Branch shall be valid notwithstanding an irregularity in, breach of or failure to comply with the procedures in either one or both paragraphs (a) or (b) herein.
In this connection, the Full Court observed that “National Rule 7(viii)(b) contemplates a process of consultation in the first instance followed, if necessary, by reference to the National Secretary for determination by the National Executive or by an officer designated by the National Executive”: at [36].

National Rule 8(iv) provides for the Union to reach agreement with another organisation for the granting of automatic membership of the Union –
(iv) (a)Notwithstanding anything contained in Rules 7 and 8 of these National Rules or any Divisional Rules to the contrary, the Union may reach agreement with any organisation of employees, trade union, industrial union or organisation, whether incorporated or otherwise or whether registered under a law of the Commonwealth, State or Territory or unregistered (herein referred to as an “association”), which agreement may provide for automatic membership of this Union for members of any such association and may provide for the receipt and holding of moneys jointly or in common by the aforementioned association and this Union and conversely the automatic membership of members of this Union in such an association.
(b)The Union may, by agreement or unilaterally, grant to any class of members, who are members of another association of a kind referred to in paragraph (a) hereof, membership and waive the requirement to pay an entrance fee and/or contributions in whole or in part.
…
The above Rule is relevant context to a service agreement to which I will later refer, entered into between the Queensland Northern Territory Divisional Branch (QNTDB) of the Construction and General Division, and the Construction, Forestry, Maritime, Mining and Energy Union, Industrial Union of Employees, Queensland, which is a state-based union registered under the Industrial Relations Act 2016 (Qld), with a separate legal identity, and to which I will refer as the Queensland State Union.
I referred at [34] above to National Rule 7(i), which concerns membership of the Union. That Rule requires that applications for membership of the Union be forwarded to the office of the appropriate Division, and the decision to accept or reject the application is to be made in accordance with the rules of that Division by that office. Manufacturing Rule 5 relates to membership of the Manufacturing Division, and provides (inter alia) –
5 - MEMBERSHIP
(i) A candidate for membership of the Division may make application to the Divisional Secretary or the District Secretary covering the area in which the candidate resides or is employed and such application shall be made and dealt with in the manner and subject to the conditions including conditions as to any probationary period required by the Manufacturing Division Rules.
…
Manufacturing Rule 5(iii) provides for referral of an application by the Secretary of the relevant District for consideration by the Divisional Executive –
(iii)An application for membership of the Division may be referred by the Secretary of the relevant District to the Divisional Executive for consideration or decision. Where in any case the admission to membership of any person applying is rejected such person shall have the right to appeal to the Divisional Conference the decision of which shall be final.
The Divisional Conference shall decide the appeal at a meeting specially conducted for that purpose and the appellant shall have the right to attend the meeting and state a case on the appeal.
National Rule 7(iii)(b) provides separately for an appeal to the National Executive of the Union by a person whose admission to membership is rejected.
Under Manufacturing Rule 4, a “District” is synonymous with a “Divisional Branch” which is the corresponding term employed in the National Rules, and this is also reflected in the definition of “District” in the National Rules. In these reasons, I similarly use the terms synonymously. Subject to some immaterial exceptions, the Manufacturing Rules require all members to be attached to a District covering the locality in which they reside. In this respect, Manufacturing Rule 5(iv) provides –
(iv)All members shall be deemed to be attached to the District covering the locality in which the member resides, except:
(a)where the member is eligible for membership of the Division pursuant to Sub Rule 2(C) of National Rule 2 Constitution to the PPW District; and
(b)members in the TCF Sector who reside in Queensland, who shall be deemed to be attached to the NSW District.
The Districts are identified in Manufacturing Rule 18, and include the “NSW District”, the “Victorian District”, and the “Queensland Northern Territory Western Australian District” defined earlier as QNTWAD. Manufacturing Rule 18 i (a) provides for the NSW District –
(a)the NSW District which shall consist of:
1.all members resident in that [sic] State of NSW and the Australian Capital Territory other than those persons who are eligible for membership of the PPW District as provided for in (f) of this Sub Rule; and
2.all members of the TCF Sector resident in the State of Queensland;
Neither the PPW District nor the TCF Sector, referred to in the above Rule, is material to this inquiry.
Manufacturing Rule 18 i (e) provides for the QNTWAD –
(e)the Queensland Northern Territory Western Australian District consisting of all members resident in the States of Queensland, Western Australia and the Territory of the Northern Territory other than those persons who are eligible for membership of the PPW Branch pursuant to (f) of this Sub Rule and other than those persons who are eligible for membership of the TCF Sector resident in the State of Queensland;
The Manufacturing Rules also provide for District Management Committees, District Officers, District Executives, Divisional Officers, a Divisional Executive, and a Divisional Conference, and for elections to offices of the Division.
National Rule 11 provides for the resignation from membership of the Union (not Divisions of the Union) –
11 – RESIGNATION OF MEMBERS
(1)A member may resign from membership of the Union by a written notice addressed and delivered to the Divisional Branch Secretary or other officer of the Divisional Branch authorised to receive such correspondence.
(2)The notice of resignation will take effect where that member,
(a)       ceases to be eligible to become a member of the Union:
(i)on the day on which the notice is received by the Union; or
(ii)on the day specified in the notice, which is a day not earlier than the day when the member ceases to be eligible to be a member;
whichever is later; or
(b)       in any other case:
(i)at the end of 2 weeks after the notice is received by the Union; or
(ii)       on the day specified in the notice;
whichever is later.
(3)All contributions and or levies due in relation to the period before the members resignation took effect are to be paid. Where the member fails to do so the Union may prosecute such member in the appropriate court for the recovery of that amount.
(4)A notice delivered to the person mentioned in sub-rule (1) shall be taken to have been received by the Union when it was delivered.
(5)A notice of resignation that has been received by the Union is not invalid because it was not addressed and delivered in accordance with sub-rule (1).
(6)A resignation from membership of the union is valid even if it is not effected in accordance with this rule if the member is informed in writing by or on behalf of the union that the resignation has been accepted.
The above Rule substantially corresponds to the terms of s 174 of the RO Act relating to resignation from membership of a registered organisation.
National Rule 5 provides for a definition of “financial member” –
“FINANCIAL MEMBER” shall mean any member who has paid all subscriptions, fines, levies and dues in accordance with the Rules of the Union.
That term is deployed in, among other Rules, National Rule 7(v)(b), set out at [38] above, and National Rule 17 concerning the election of delegates to Divisional Conferences.
Manufacturing Rule 4 defines “financial member” and “member” as follows –
“FINANCIAL MEMBER” shall mean any member of the Manufacturing Division who has paid all subscriptions, fines, levies and dues in accordance with Rule 6 of the Manufacturing Division Rules.
“MEMBER” shall mean a member of the Manufacturing Division and membership shall have a corresponding meaning.
National Rule 8(i) provides that “entrance fees and contributions payable … for membership or continuous membership of the Union shall be in accordance with the Rules of the Division to which, in accordance with the Rules of the Union, the person or member is to be or is assigned”. Manufacturing Rule 14 A (i) provides that the Divisional Office shall collect all entrance fees, contributions, levies and fines and all other monies relating to membership.
Entrance fees and contributions for the Manufacturing Division are the subject of Manufacturing Rule 6. The relevant features of Manufacturing Rule 6 are that: Sub-Rule 6(iii) provides that the Divisional Executive may waive entrance fees and contributions; Sub-Rule 6(iv) provides that if payment is not made within three months of becoming payable, the defaulting member is deemed to be unfinancial; Sub-Rule 6(vii) provides that contributions are to be paid to the Divisional Secretary or an authorised agent of the Division; and Sub-Rule 6(v), which is important, relevantly provides that an unfinancial member will not be eligible to receive any benefits or exercise any membership rights –
6 - ENTRANCE FEES AND CONTRIBUTIONS
(i) Applicants for membership of the Division shall pay on application an entrance fee in accordance with these rules. Such entrance fee if applicable shall not exceed $300.00. The payment of the entrance fee shall not be a condition precedent to any person being constituted a member under these rules.
(ii) The contribution payable by each member shall be fixed by the Divisional Executive subject to the processes provided for in Rule 14.
(iii) The Divisional Executive may if, in its opinion it is desirable or necessary for financial or any other reason that the aforesaid entrance fees or contributions should be altered, waived or suspended, make such decision as it deems desirable or necessary, and the altered, waived or suspended entrance fee and/or contribution payable shall be applicable to the member(s), group or class of members concerned.
(iv) Members must pay any entrance fee, contribution, levy and fine imposed in accordance with these rules, subject to any decisions made by the Divisional Executive in accordance with Rule 6 (iii) or Rule 28. A member will be deemed to be unfinancial if any such payment is not made within three months of becoming payable in accordance with these rules.
(v) An unfinancial member will not be eligible to receive any benefits, participate in any deliberations, propose or second any new applicant member for admission, or exercise any authority or any membership rights.
(vi) A member shall be deemed to be financial immediately upon payment of all arrears outstanding.
(vii) Contributions shall be paid to and collected by the Divisional Secretary, or an authorised agent of the Division.
(viii) The Divisional Executive may fix a special or different rate of contribution and/or entrance fee for any class of members within the Division.
Any decision made by the Divisional Executive in accordance with this rule must not discriminate between members on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
(ix) A member shall, when applying for membership be informed of the financial obligations arising from membership and the circumstances, and the manner, in which a member may resign from the organisation and shall be informed of such in writing.
In addition to Manufacturing Rule 6(v), National Rule 8(ii) makes provision for the consequences of non-payment of fees, contributions, levies or fines –
(ii)Any member who has failed to pay the entrance fees, or contributions, levies and fines imposed in accordance with the rules of the union on or before the date specified in such rules, shall be deemed to be unfinancial, and shall not be eligible to receive any benefits, participate in any deliberations, propose or second any new applicant for admission or exercise any authority or any membership rights, provided that the rules may provide that some members or some class or classes of members may vote in a ballot and/or may differentiate between classes of members as to the amount of any contribution and/or entrance fee.
Pursuant to Manufacturing Rule 8(i), the supreme governing body of the Manufacturing Division is the Divisional Conference, which is required to meet every two years. The Divisional Conference includes delegates from each District, the number of whom is determined on a pro rata basis based upon membership of the District and the aggregate income received by the Division in relation to members of the District. National Rule 17(ii) provides that the election of District (ie Divisional Branch) delegates shall be by direct ballot of the financial members and in accordance with the Rules of the relevant Division –
(ii)The method of electing Divisional Branch delegates to Divisional Conference shall be in accordance with the Rules of the Division every four (4) years in conjunction with the Divisional Branch elections. Such election shall be by direct ballot of the financial members of each Divisional Branch.
Under Manufacturing Rule 8(iv), representatives of the District other than ex officio representatives are elected by secret postal ballot every four years in accordance with the provisions of Manufacturing Rule 32. In relation to the method of nomination and election, Manufacturing Rule 8(viii) provides –
(viii)The method of calling nominations and the election of District delegates to Divisional Conference shall be under the provisions of Rule 32 of these Rules.
Manufacturing Rule 32 concerns elections, and provides (inter alia) –
32 - ELECTIONS
(a) (i) Any member of the Division who is financial as provided for in Rule 6, at the time of nominations and has three years financial membership, may nominate for the following positions:
Divisional Secretary
Divisional President
Divisional Senior Assistant Secretary
Divisional Assistant Secretary
…
(b) …
(iii) (A)The scale of financial membership of the District necessary for members to nominate for the following positions is as follows:
District Secretary (other than the NSW District Secretary) – 3 years financial membership
NSW District Secretary – 2 years financial membership District President – 1 year financial membership
District President – 1 year financial membership
District Vice President - 1 year financial membership
District Assistant Secretary/ies other than Victoria District TCF Assistant Secretary (if any) - 1 year financial membership
Victoria District TCF Assistant Secretary – 1 year financial membership of the TCF Sector
Victoria District TCF Full Time Officer – 1 year financial membership of the TCF Sector
District Management Committee Members – 1 year financial membership
PPW Sub Branch Secretary - 1 year financial membership
PPW Sub Branch Senior Vice President - 1 year financial membership
PPW Sub Branch Junior Vice President -1 year financial membership
PPW Sub Branch Committee of Management Members -1 year financial membership
District Organiser - 1 year financial membership
…
(iv) The term of office for the above positions shall be four years and such term shall commence from the 2^nd of January following the election.
(c)(i) Nominations for the above positions, shall be called by the Divisional Returning Officer by notification on the union website on 11 August 2020 and each four years thereafter following that date.
(ii) Nominations shall open on 18 August 2020 and each four years thereafter following that date, other than in respect of the position of ordinary TCF Sector Council member. Any member desiring to nominate for the above positions shall apply either personally or in writing to the Divisional Returning Officer for a nomination form. Such forms shall be signed by the candidate and:
(A) if nominating for any of the positions listed in paragraph (a)(i) of this rule – signed by at least ten financial members of the Manufacturing Division;
(B)if nominating for the position listed in paragraph (a)(ii) of this rule – signed by at least ten financial members of the TCF Sector;
(C) if nominating for the position of District Secretary – signed by at least ten financial members of that District;
(D) if nominating for any other position listed above – signed by at least five financial members of the Manufacturing Division;
and forwarded by certified post to the Divisional Returning Officer or handed personally at the Divisional Office or, in the case of an election conducted by the Australian Electoral Commission at the office nominated by it and a receipt thereupon obtained.
(iii) Nominations shall be closed at noon on 1 September 2020 and each four years thereafter following that date, other than in respect of the position of ordinary TCF Sector Council member. Nominations must be received by the Divisional Returning Officer by that time on the date to be eligible.
(iv) A member having nominated for any office in accordance with these Rules may withdraw the nomination by notifying the returning officer in writing of an intention to do so at any time up to 14 days after the closing of nominations. The returning officer on receipt of a notification from a member wishing to withdraw a nomination shall immediately take the appropriate steps to withdraw the members name from the ballot papers prior to their distribution.
(v) Candidates may include with their nomination form, a statement not exceeding 200 words and in respect of District Management Committee member 50 words, containing only the candidate's personal history and only the candidate's policy statement.
(vi) The Divisional Returning Officer shall examine all nominations to ensure that they are in order and if any nominations are found to be defective, the Divisional Returning Officer, before rejecting the nominations, shall notify the person concerned of the defect and where practicable to do so give them the opportunity of remedying the defect within a period of not less than seven days after being so notified.
…
(xiii) For the purpose of the election the books of the Division shall be deemed to have closed as at 1 August in the year of the election. Only members who are shown in the records at the office of the Division as having paid all contributions, levies and fines prior to 1 August shall be entitled to vote. Provided that any member who at any time prior to the closing of the ballot satisfies the Divisional Returning Officer that they have paid all contributions, levies and fines prior to the 1 August in the year of the election shall be entitled to receive a ballot paper and the Divisional Returning Officer shall send by post, a ballot paper in accordance with sub-rule (c)(xii)(a) of this rule. Provided that for the purpose of the position of ordinary TCF Sector Council member, a reference to 1 August in this Sub Rule does not apply.
…
In the present case, the conduct of the election by the Australian Electoral Commission was delayed as a result of Covid‑19 restrictions. The powers under s 193(1)(b) of the RO Act (see [2] above) were exercised to override the provisions of the Manufacturing Rules and resulted in an alternate timetable being set. No issue was raised as to the validity of the exercise of these powers under the RO Act, or as to the new timetable, which commenced with a close of the roll on 4 March 2021. The Australian Electoral Commission, by one of its returning officers, gave notice that nominations were to be made at any time from 22 March 2021, and that they were required to reach the returning officer by email not later than noon on 6 April 2021. The timetable initially provided for a voting period between 18 May 2021 and 16 June 2021, but this was later varied, and voting for contested positions opened on 9 June 2021 and closed on 7 July 2021.

The Manufacturing Rules are expressed to be binding upon all members belonging to the Division –
17 - RULES BINDING ON MEMBERS AND DISTRICTS
These Divisional Rules, and all alterations, additions or rescissions thereof or thereto, shall apply to and be binding on all Districts of this Division and on all members who now, or who may hereafter, belong to the Division until they are made or become null and void according to law.
O’Connor v Setka [2020] FCAFC 195
Before coming to the circumstances in more detail, and to the parties’ submissions, I will summarise the Full Court’s decision in O’Connor v Setka¸ because it was a central element of the submissions of counsel for the applicant.
Mr O’Connor brought a proceeding under s 164 of the RO Act against 30 respondents associated with the Construction and General Division, including Mr Setka, seeking, inter alia, directions that they comply with the rules of the Union together with declaratory and other ancillary relief. The foundation for the relief sought was an allegation that the Construction and General Division had encouraged members who were attached to the Manufacturing Division (because they fell within the occupations described in National Rule 2(F)) to resign their membership of that Division and to join the Construction and General Division. Mr O’Connor’s case was that this activity was in breach of the National Rules.
At [11], the Full Court identified the principal issue on appeal as being “whether members of the Union in Victoria in the occupations described in Rule 2(F) of its Rules are, in accordance with the Rules, properly allocated to the Manufacturing Division”. That issue arose because the respondents to the appeal had submitted that upon a proper construction of the National Rules, each of the relevant members correctly belonged to the Construction and General Division, relying on National Rule 42(iii)(c) in the form set out in the Full Court’s reasons at [68] –
(c)There will be a Construction and General Division which shall consist of all members of the union employed in or in connection with the Construction industry (including shopfitting) and all other members of the Union not referred to in sub-rules (iii) (a) (b) and (d) herein.
At [13], the Full Court stated that Mr O’Connor’s application under s 164 of the RO Act required a construction of the Rules, taking into account the circumstances in which they were made. The Court also stated that the application for the declaration that Mr O’Connor sought went somewhat further, as it involved the Court making findings which did not turn solely on the proper construction of the Rules of the Union.
The primary judge in O’Connor v Setka [2020] FCA 441 at [128]-[129] held that National Rule 42(iii)(c) was to be construed as meaning that all members of the Union not employed in or in connection with the construction industry who are eligible to be members of the Union under National Rule 2(F) properly belong to the Manufacturing Division. This construction qualified the eligibility criteria in National Rule 2(F).
The Full Court allowed the appeal. After conducting a detailed analysis of the Rules of the Union, including by reference to many amendments to the Rules over the years, the Full Court held that the recruitment of Union members attached to the Manufacturing Division by members of the Construction and General Division was not in accordance with the Rules of the Union. The material elements of the Full Court’s reasoning were as follows –
(a)The Union has a Divisional structure which is industry-based, and under which every member is attached to one Division and only one Division: [83], [85].
(b)In this context, Manufacturing Rule 2 (set out at [28] above), which provides for eligibility for membership of the Manufacturing Division, was binding on all members of the Union: [129].
(c)The Rules of the Union provide for the allocation of members to the appropriate industry-based Divisions. The Rules do not give members of the Union a choice as to which Division they are to be attached. Instead, the Rules provide for members to be attached to the Division “covering the industry or employment of the member”: [83], [87].
(d)National Rule 7 provides for the allocation of members to Divisions, National Rule 7(iv) providing that a member shall be attached to the Division covering the industry or employment of the member and shall be in only one such Division: [85]
(e)The Division of the Union to which a member is attached is to be entered on the record of the Union in relation to that member and that record constitutes conclusive proof of the Division to which the member is assigned (National Rule 7(iv)): [85].
(f)The Rules accommodate disputes concerning the allocation of members, and make provision for the resolution of disagreements: [86].
(g)Although the National Rules contemplate that a member may seek a “transfer” from one Division to another (National Rule 7(v)(b)), they do not confer any right upon a member of the Union to transfer. In particular, there is no provision in the Rules for a member, while remaining a member of the Union, to resign his or her membership of a Division and to make application to join another Division: [88].
(h)To the contrary, National Rule 7(v)(b) provides that every member of the Union who is, on the records of the Union, financial and who is on those records attached to a Division, Branch or Divisional Branch shall be treated for all purposes as a financial member thereof and “shall be entitled to all rights and required to comply with all obligations which attach thereto until transferred in accordance with Rules” (emphasis added): [88].
(i)National Rule 7(viii) (set out at [39] above) provides the principal means by which a member may be transferred from one Division to another. From the perspective of the individual member, this transfer may be involuntary: [89].
(j)For the reasons given by the Full Court, the Rules do not provide for the resignation of a member from a Division while that person remains a member of the Union, from which it followed that there should not be any encouragement of members to do so. Instead, if it is thought that a member of one Division should be allocated to another Division, then the procedures for transfer from one Division to another in National Rule 7(viii) should be invoked: [93].
(k)National Rule 42, upon which the respondents to the appeal had relied as a qualification on the eligibility criteria in National Rule 2(F), was a transitional provision directed to amalgamations that had occurred in the past, and to the transition from union-based divisions to industry-based divisions that had occurred. That restructuring had taken place through the resolution in February 2002 and the insertion of Rule 42D to which I referred at [30] above: [94]-[103].
(l)For the above reasons, the Rules of the Union relating to the transfer of members between Divisions were not being observed in relation to the over 200 Union members in Victoria who were encouraged to resign from the Manufacturing Division in order to join the Construction and General Division: [105].
In consequence of its reasons, the Full Court made the following declaration –
[T]he Court declares that, under the Rules of the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU), the persons eligible for membership pursuant to Rule 2(F) are, until alteration of the Rules or a contrary decision by the National Executive (in either case, in accordance with the Rules), attached to the Manufacturing Division and not to the Construction and General Division.
Counsel for the applicant submitted that the declaration of the Full Court was clear on its terms, it had immediate operation, and it has the effect of attaching all members of the Union eligible under Rule 2(F) to the Manufacturing Division. Counsel submitted that recourse could not be had to extrinsic material, such as the Full Court’s reasons, as an aid to the interpretation of the declaration.
In Gordon v Gonda [1955] 1 WLR 885, a dispute arose about the effect of an order of a court in earlier proceedings which declared that an interest in shares was held on trust, when the earlier proceedings had concerned partnership property. Evershed MR at 890 described this as an unexpected form of order when regard was had to the pleadings in the action. Evershed MR at 892-893 then framed and addressed the issue as follows –
The question is: When regard is had to the pleadings and to the history which I have stated and to the fact that the pleadings were read in this order and the evidence was referred to, does the declaration in the order assume some different aspect? Is what I have called its prima facie meaning thereby altered? I cannot think that it is. I cannot myself think that the fact that one is entitled to look at the pleadings and entitled to have regard to the circumstances that I have mentioned can in any way qualify the plain meaning of the words which follow.
Hodson LJ agreed with Evershed MR, as did Romer LJ, who at 897 added –
It is only if the order is open to some other construction, that it is ambiguous in its terms, that it appears to me to admit of the argument which Mr. Shelley addressed to us, that in the circumstances which existed, namely, the pleadings in the action and the acceptance by the judge of the view that there was a partnership and in view also of the general law which is applicable as between partners, the judge cannot have intended to hold that the defendant was a trustee of the shares which were allotted to him. In my opinion there is no such ambiguity as to render that argument permissible, because this order, as I have already said, proceeds (and, in my opinion, proceeds only) upon the footing of a trusteeship.
The Court of Appeal in Gordon v Gonda did examine the pleadings, and in turn the reasons for making the declaration, but held that the declaration was clear, and was not to be qualified as a result of recourse to the circumstances in which it was made.
Gordon v Gonda was cited more than 55 years later by the Privy Council in Sans Souci Ltd v VRL Services Ltd [2012] UKPC 6 on appeal from the Jamaican Court of Appeal. The issue in Sans Souci was the proper construction of an order of a court that allowed an appeal from an award of some arbitrators, and remitted the matter to determine the issue of damages only. The issue was whether the question of damages generally was remitted, or only the disputed question that the court had upheld on appeal. On appeal to the Privy Council, the appellant submitted that in the absence of any ambiguity in the language of the order, it should not be construed by reference to the reasons for making it. In giving the opinion of the Board, Lord Sumption, stated –
13.In the opinion of the Board, this approach to the construction of a judicial order is mistaken. It is of course correct that the scope of a remission depends on the construction of the order to remit. But implicit in the Proprietor’s argument is the suggestion that the process of construing the order is to be carried out in two discrete stages, the first of which is concerned only with the meaning of the words, and the second with the resolution of any “ambiguities” which may emerge from the first. The Court’s reasons, so it is said, are relevant only at the second stage, and then only if an “ambiguity” has been found. The Board is unable to accept these propositions, because the construction of a judicial order, like that of any other legal instrument, is a single coherent process. It depends on what the language of the order would convey, in the circumstances in which the Court made it, so far as these circumstances were before the Court and patent to the parties. The reasons for making the order which are given by the Court in its judgment are an overt and authoritative statement of the circumstances which it regarded as relevant. They are therefore always admissible to construe the order. In particular, the interpretation of an order may be critically affected by knowing what the Court considered to be the issue which its order was supposed to resolve.
14.It is generally unhelpful to look for an “ambiguity”, if by that is meant an expression capable of more than one meaning simply as a matter of language. True linguistic ambiguities are comparatively rare. The real issue is whether the meaning of the language is open to question. There are many reasons why it may be open to question, which are not limited to cases of ambiguity.
15.As with any judicial order which seeks to encapsulate in the terse language of a forensic draftsman the outcome of what may be a complex discussion, the meaning of the order of the Court of Appeal in this case is open to question if one does not know the background. The order refers generally to “the issue of damages” because if the arbitrators were to decide that there were “unrecoverable expenses”, they would not simply deduct them from the amount which they had awarded. They would have to deduct them from the undiscounted gross management fees, and then discount the net figure for early receipt. But the reference in the order to “the issue of damages”, although necessary, begged the question “Which issue of damages?” The order does not itself answer it. Only extrinsic evidence can do that. …
16.Of course, it does not follow from the fact that a judgment is admissible to construe an order, that it will necessarily be of much assistance. There is a world of difference between using a Court’s reasons to interpret the language of its order, and using it to contradict that language. The point may be illustrated by the decision of the Court of Appeal in England in Gordon v. Gonda [1955] 1 WLR 885, where an attempt was made to contradict what the Court regarded as the inescapable meaning of an order, by arguing that the circumstances described in the judgment could not have justified an order which meant what it clearly said. Therefore, it was said, the judge must have meant something else. The answer to this was that any inconsistency between the circumstances of the case or the reasoning of the Court and the resultant order was properly a matter for appeal. A very similar argument was rejected by the Board for the same reason in Winston Gibson v Public Service Commission [2011] UKPC 24. Decisions such as these (and there are others) are not authority for the proposition that a Court’s reasons are inadmissible to construe its order. They only show that the answer depends on the construction of the order and that the reasons given in the Judgment may or may not make any difference to that.
I am alive to the possibility that Lord Sumption’s statements of principle in relation to the construction of court orders might have been influenced by the English principles applicable to the construction of contracts, stated in authorities such as Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 at 912-913 (Lord Hoffmann), Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251 at [8] (Lord Bingham of Cornhill) and [39] (Lord Hoffmann), and Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900 at [14] (Lord Clarke of Stone-Cum-Ebony). See also the later cases of Arnold v Britton [2015] 1 AC 1619 at [15]-[17] (Lord Neuberger of Abbotsbury), and Wood v Capita Insurance Services Ltd [2017] AC 1173 at [10]-[13] (Lord Hodge). The English authorities arguably take a broader view than the Australian authorities of when recourse may be had to circumstances outside the terms of the contract where the terms of the contract are otherwise unambiguous: cf, Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; 240 CLR 45 at [39] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). However, it is notable that at [14] of San Souci Lord Sumption stated that the real issue is whether the meaning of the language is open to question, which is allied to the idea of constructional choice: cf, Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; 256 CLR 104 at [49] (French CJ, Nettle and Gordon JJ).
Gordon v Gonda was also cited in the principal authority relied on by counsel for the applicant, being the decision of the Full Court in Repatriation Commission v Nation (1995) 57 FCR 25. That case concerned an order made in an earlier stage of the dispute that “the matter” be remitted to the Administrative Appeals Tribunal. One question was what was actually remitted to the Tribunal by the order. In addressing this issue, at 33-34 Beaumont J (Black CJ and Jenkinson J agreeing) stated –
The rule in England is that when a judgment is clear as to its terms, not even the pleadings nor the history of the action may be utilised to construe the judgment contrary to its clear meaning (see Halsbury’s Laws of England, (4th ed, 1979), Vol 26, p273). Where, however, the judgment or order is ambiguous, it may be permissible to resort to extrinsic material, including the reasons for judgment, to resolve the ambiguity (see Gordon v Gonda [1955] 2 All ER 762 at 765, 768) [also reported at [1955] 1 WLR 885].
A similar approach has been taken in this country. If, as in the case of a “speaking” order (see, eg, ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 262) its true meaning is “immediately plain”, the terms of the order will speak for themselves. If this is not the case, the true meaning may be ascertained according to ordinary rules of construction (see Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 per Windeyer J at 503; McNair Anderson Associates Pty Ltd v Hinch [1985] VR 309 at 311-312; cf. Kwikspan Purlin System Pty Ltd v Commissioner of Taxation (Cth) (1986) 86 ATC 4,602 at 4,605; Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230 at 232; Sharpe v Goodhew (unreported, Federal Court, Drummond J, 11 December 1992), at pp 10-12; Australian Securities Commission v Skase, (unreported, Federal Court, Drummond J, 13 January 1993) at pp 16-17. Under the ordinary rules of construction, evidence of surrounding circumstances is admissible to assist in the interpretation of an instrument if the language is ambiguous or susceptible of more than one meaning, but not admissible to contradict the language of the instrument when it has “a plain meaning” (see Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 per Mason J at 352).
In the above passage, Beaumont J adopted for the purposes of construction of court orders the “true rule” stated by Mason J in Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 352 that evidence of surrounding circumstances may not be used to contradict the language of an instrument that has a plain meaning. However, at least where there is a constructional choice, it is permissible to have recourse to circumstances and things external to the contract to identify the commercial purpose or objects to be secured by a contract as an aid to construction: Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd at [49] (French CJ, Nettle and Gordon JJ). The question whether regard may be had to such circumstances or things in order to identify the existence of a constructional choice did not arise in Mount Bruce Mining. Different principles are engaged in relation to the construction of a statute. There, regard is to be had to the context and purpose of a statutory provision at the first stage of construing the text of a provision: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ).
In Yates Property Corporation v Boland (1998) 89 FCR 78, in the context of an application to vary final court orders so as to resolve an ambiguity, Drummond J, with whom Sundberg J and Finkelstein J agreed, stated at 78-79 that it was quite unrealistic to attempt to understand a court order in isolation from the context of the reasons for it being made –
It is impermissible, in my view, as well as being quite unrealistic, to attempt to read, that is, to understand, an order in isolation from the context of the reasons for it being made. The Full Court of the Supreme Court of Queensland, in Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230 held that, in interpreting an order of a court framed in unambiguous language, regard should still be had to the reasons given by the Court for making the order because they form part of a context in which the order was made. The case for referring to the reasons for an order where there is any suggestion that the order may be expressed in unclear terms is a fortiori.

Ms Smart then telephoned Mr Abboushi. Ms Smart stated in her affidavit that she recalled that Mr Abboushi was on his mobile telephone and that he was driving. Ms Smart recalled Mr Abboushi stating, “Ben did the wrong thing by resigning”, “floor layers are really lucky”, and “we had people stay back on board”. Ms Smart said that she told Mr Abboushi that he should save those comments for her husband, and that she just wanted to get the money sorted.
Ms Smart stated in her affidavit that at first Mr Abboushi told her that Mr Smart might have to pay the money that he owed. Ms Smart then stated that she told Mr Abboushi that she wanted to have the $1,454.30 waived, and that it was unrealistic to expect a member to pay that amount of money during the pandemic. Ms Smart stated that Mr Abboushi responded by stating he did not expect Mr Smart to pay the $1,454.30, and told her that he had decided that Mr Smart did not have to pay the sum of $1,454.30, but only the sum of $495 going forward. Save for the comments referred to in the previous paragraph, Ms Smart did not set out her conversation with Mr Abboushi in her affidavit in direct speech. She stated the she was on the telephone to Mr Abboushi for about 15 minutes all up.
In cross-examination, it was put to Ms Smart that what Mr Abboushi had said was that Mr Smart could re-join without first paying the arrears –
Q:I suggest to you that Steve said you could re-join without first repaying the arrears, and you would only have to pay the $495 for the current term. I suggest to you that’s what he said to you?
A:He certainly cut the conversation by saying I wouldn’t have to pay the [1454.30] – by which, I was relieved.
Ms Smart stated that after she spoke to Mr Abboushi, she contacted the office of the Manufacturing Division again, and spoke to the lady to whom she had spoken earlier (who was Ms Bui). Ms Smart stated that she told Ms Bui that she had spoken to Mr Abboushi who had said that Mr Smart did not have to pay all the money owed. Ms Smart stated that she then paid the sum of $495 over the telephone by credit card, that she was told that Mr Smart was now “all paid up”, that she was given a receipt number, and was told that Mr Smart should expect to receive his union card or registration number in the post.
In cross-examination, it was put to Ms Smart that she was not told that Mr Smart was “all paid up” in the sense of having paid arrears –
Q;Now, I suggest to you that the woman did not tell you, after you paid the 495, that Ben was all paid up in the sense of having paid up his arrears. That’s correct, isn’t it?
A:She – I paid the 495, and that’s all I had to pay, correct.
Q:And that you were all paid up for that?
A:I was all paid up for Ben’s account.
Q:Well, she didn’t - - -?
A:Which is why my text message – I don’t know what she said. But in my text message to Ben, I explained where we were at, and I think I say 495, receipt number.
Q:Correct. And you say, paid to 30 September?
A:Yes.
Q:And that’s correct, because that’s what you were paying. You were paying from April to September?
A:Yes.
Ms Smart produced some screen shots of text messages that she exchanged with Mr Smart that support her evidence that she was told that the amount outstanding was $1,454.30, and that a “re-join fee” was $495. The text messages do not expressly record any representation that the Manufacturing Division agreed to waive the sum of $1,454.30. Ms Smart also produced a page from a diary which contained miscellaneous handwritten notes. The notes support Ms Smart’s evidence that she was told that “$1,454.30 + 495” was outstanding. It was not submitted that any part of the notes recorded a representation that the arrears would be waived.
Evidence of Thuy Bui
Ms Bui has been employed as a membership officer by the Manufacturing Division of the Union since 2018, prior to which she was employed as a membership officer by the Textile Clothing and Footwear Union before its amalgamation with the Union.
Ms Bui confirmed that she had two telephone conversations with Ms Smart. In relation to the first conversation, Ms Bui confirmed that she told Ms Smart that Mr Smart had arrears owing. However, she denied that she said that it was in Mr Abboushi’s “discretion” to waive the arrears that were owing.
Ms Bui stated that about an hour after her first conversation with Ms Smart she received two text messages from Mr Abboushi, which she produced, and which stated –
Ben Smart wife will call now to pay $495
Don’t wipe the arrears
Ms Bui disputed the accuracy of Ms Smart’s account of their second telephone conversation. Ms Bui’s account in her affidavit was as follows –
Emma told me that she “would like to pay”. I responded to this by saying words to the effect: Steve has told me that you need to pay $495. I did not tell her that [Mr] Smart did not have to pay all the money owed. Also, I did not tell her that [Mr] Smart “was all paid up”.
Ms Bui recorded in the Division’s membership records the following, which she produced –
Steve agreed for mbr to pay for the new term 1/4/21 to 30/9/21, keep the arrears (C&G will have to pay) - TB.
Ms Bui stated that she inserted the reference “C&G will have to pay” because at the time she was aware that there was a case in the court about these members and in that case the Manufacturing Division was claiming that the Construction and General Division should pay to the Manufacturing Division the contributions which had not been paid by Manufacturing Division members who had been poached by the Construction and General Division.
The membership record is time-stamped at 11:00, and I find that Ms Bui’s conversations with Ms Smart occurred in the morning. Ms Bui confirmed by an internal email sent on the afternoon of 25 March 2021 at 3:52 pm that Ms Smart had paid $495. In relation to both Mr Smart and Mr Tester, to whom I will refer later in these reasons, Ms Bui stated in the email –
This morning 2 Floor Layer ex-members (C&G poached) below contacted us to re-join. Steve already spoke to them and advise me to charge them the term of 1/04/2021 to 30/09/2021 & keep their arrears for future reference.
Ms Bui was cross-examined about what she told Ms Smart in relation to the arrears –
Q:And did you tell her that she only had to pay four hundred – or that her husband had to pay $495?
A:I think – yes. I said to her she – she had to [pay] 495, yes
Q:Did you tell her that if she paid $495 her husband would still be unfinancial? Let me put it another way, Ms Bui. Did you tell her that the arrears would stay on the books if she only paid the $495?
A:No, I didn’t say that.
Evidence of Steven Abboushi
In relation to the evidence of Ms Smart, Mr Abboushi stated that he could not recall a conversation with Ms Smart on 25 March 2021. However, in view of other evidence, he accepted that he had spoken to Ms Smart. As to what he said, although he could not recall speaking to Ms Smart, he asserted the following in his affidavit –
… However, I am sure that in neither of my conversations with Tester or any other members did I agree to waive any arrears of contributions and that is because of the matters in paragraphs 27-29 above. I am sure that if I had made a decision contrary to the above non-waiver policy I would definitely have remembered it.
The matters in “27-29 above” to which Mr Abboushi referred were his conversation with Ms Kaplanis, and Ms Kaplanis’s email of 25 March 2021, to which I referred at [188] above.
In cross-examination, Mr Abboushi confirmed that he had no recollection of the telephone conversation with Ms Smart, and the following exchange occurred –
Q:All you can say is what you think might have happened based upon what you think – what you now know?
A:That’s right.
Nomination of Benjamin Smart for election
Mr Smart’s endeavours to renew his financial association with the Manufacturing Division coincided with his nomination for election. Mr Smart sought to run for election as part of the “Members First” ticket with which Mr Menon and Ms Brown were involved, and on 1 April 2021, Mr Smart was nominated for the office of Divisional Assistant Secretary. Mr Smart’s nomination was signed by Mr Menon as one of the nominators.
On 13 April 2021, one of the returning officers wrote to Mr Smart stating that his nomination was defective because it did not comply with the requirements of Manufacturing Rule 32(a)(i), stating –
1.You have not paid membership contributions due to the Division for the period of 1 April 2019 to 31 March 2021.
2.Therefore, you do not satisfy the requirement in rule 32(a)(i) of having continuous financial membership of the Division during the last 3 years.
3.Further that on 24/09/2019 you resigned [from] the membership of the Division
4.That you have not made a further application for membership since your resignation, instead you made a payment on 25 March 2021 for the period of 1 April 2021 to 30 September 2021.
5.Your resignation and failure to make a further application for membership in accordance with the rules is evidence that you are not a member of the Division.
Solicitors acting on behalf of Mr Smart responded to the returning officer by letter dated 20 April 2021, disputing that his nomination was defective, including by submitting that the three years financial membership required by Manufacturing Rule 32(a)(i) did not have to be continuous.
Subsequently, on 11 May 2021, one of the returning officers wrote to Mr Smart stating that his nomination for election to the office of Divisional Assistant Secretary had been rejected because he had not provided the returning officer with information that satisfied her that he was eligible to stand for office.
Benjamin Smart – analysis
Before analysing the legal consequences of the dealings between Mr Smart and the Manufacturing Division, and whether he was a financial members at the time of his nomination for election, it is necessary to make some findings of fact.
First, I find that by his resignation dated 24 September 2019, Mr Smart resigned from the Union. My reasons for that finding are substantially the same as those which I identified at [181] in relation to the resignation of Ms Brown. It is likely that Mr Smart then re-joined the Union by applying for, and then being accepted as a member of the Construction and General Division. The resignation aside, all the evidence points to Mr Smart being eligible for attachment to the Manufacturing Division by operation of Manufacturing Rule 2, and National Rule 2(F). However, on the assumption that he was accepted as, and became a financial member of the Construction and General Division, then it would appear that the effect of National Rule 7(v)(b) would have been to validate his membership of the Construction and General Division subject to any agreement or determination under National Rule 7(viii) to transfer Mr Smart to the Manufacturing Division, and subject to any order that the court might make exercising powers under s 164A of the RO Act to rectify the breaches of the Rules of the Union that the Full Court in O’Connor v Setka found that the respondents to that appeal had committed.
Second, I find that the conversations that Ms Smart had with Ms Bui and Mr Abboushi occurred on the morning of 25 March 2021. That finding is supported by the content of the internal email sent by Ms Bui to which I referred at [208] above, which referred to the two members contacting her in the morning. In relation to Mr Tester, it is also supported by Ms Bui’s direct evidence of her recollection that the conversation occurred in the morning.
There was no direct evidence as to when on 25 March 2021 the discussion between Mr O’Connor, Mr Abboushi, and Mr Skourdoumbis took place concerning the policy that would be adopted on arrears owing by members who had purported to join the Construction and General Division. Neither Mr O’Connor nor Mr Skourdoumbis identified a precise day on which the discussion took place, and while Mr Abboushi stated that the discussion took place on 25 March 2021, he did not state at what time. No witness was cross-examined about the time at which the discussion took place. I do not make any finding about when on 25 March 2021 that discussion took place. There is circumstantial evidence pulling in different directions. The evidence of Ms Kaplanis, who received a telephone call from Mr Abboushi between 3:00 pm and 3:30 pm reporting on his discussions with Mr O’Connor and Mr Skourdoumbis, suggests that the discussion occurred in the afternoon, and after Mr Abboushi’s conversations with Ms Smart and Mr Tester. On the other hand, the representations that were made to Ms Smart and Mr Tester by Mr Abboushi that they were required to pay only the $495 for the upcoming six month period is broadly consistent with the outcome of the discussion recorded in Ms Kaplanis’s email. On this state of the evidence and in the absence of cross-examination on the topic, I do not have an affirmative state of satisfaction as to when on 25 March 2021 the discussion between Mr O’Connor, Mr Abboushi, and Mr Skourdoumbis took place.
Third, in relation to Ms Smart’s conversation with Mr Abboushi, I accept that there was likely to be scope for different perceptions about what was said. Mr Abboushi does not recall the conversation. Nonetheless, I find that it is unlikely that Mr Abboushi intended to convey to Ms Smart that the arrears would be waived. That is because in all the circumstances, it is unlikely that Mr Abboushi would have stated that the Division had agreed to waive the arrears without first speaking to Mr O’Connor, and if he had already spoken to Mr O’Connor, then it is unlikely that he stated to Ms Smart that the Division would waive the arrears contrary to the outcome of the discussion that he had with Mr O’Connor and Mr Skourdoumbis. Mr Abboushi’s text to Ms Bui stating, “Don’t wipe the arrears”, is also inconsistent with a statement that the Division would waive the arrears. I do not accept Ms Smart’s affidavit evidence that Ms Bui referred to a waiver of fees as being within the discretion of Mr Abboushi. Having observed both Ms Smart and Ms Bui give evidence, I prefer Ms Bui’s denial that she spoke those words. For these reasons, I am not persuaded to find that Mr Abboushi stated to Ms Smart that the arrears of membership contributions would be waived. It is more likely that what was conveyed was that Mr Smart would be permitted to “re-join” the Manufacturing Division without paying the arrears, but not that the arrears would be waived.
It is next necessary to construe Manufacturing Rule 32. As I mentioned, Mr Smart was nominated for the position of Divisional Assistant Secretary. Manufacturing Rule 32(a)(i), set out under [58] above, provided for a qualifying period of financial membership of three years. Counsel for the applicant submitted that there did not need to be three continuous years, and to require that the three years be continuous was to read words into the provision. Counsel for the applicant also relied on the reference to “continuous membership” in Manufacturing Rule 28(x), set out at [163] above, and submitted that had the makers of the Rules intended that three years financial membership was to be continuous, the Rules would have said so.
I have concluded that while it is possible that Manufacturing Rule 32(a)(i) might have been clearer on this point, the better view is that the Rule requires that three years financial membership be continuous up until the time of nomination. That is the more natural reading of the Rule and is more consistent with the evident purpose of the Rule, and is also preferable when regard is had to some of the features of the Manufacturing Rules identified at [130] above. I do not consider that it would be a natural reading of the Rule to allow it to be engaged by a period of three years financial membership at any time in the past, or to permit the aggregation of separate periods of membership so as to make up a combined period of three years. The purpose of rules of this nature was referred to by Spicer CJ in Cameron v Australian Workers’ Union (1959) 2 FLR 45 at 59, noting that the rule under consideration there was more explicit –
Provisions of this type are not uncommon and are designed to ensure that those who undertake the tasks of administration of the organization have more than a fleeting interest and experience of its character and objectives. They also provide some assurance to the ordinary member who may have little knowledge of those for whom he votes that the candidates at least have the qualification of continuous association with the organization over a period of years.
Likewise, Smithers J in Leveridge v Shop Distributive and Allied Employees’ Association (1977) 17 ALR 145 stated at 156 –
It is clear from the authorities that provisions of the kind under discussion are not uncommon in registered organizations. They are based on considerations going to the stability of the organization, and the desirability of persons in office being acquainted with the rules, with the industry and with the practical administration of a union as a registered organization.
Not much turns on the reference to “continuous membership” in Manufacturing Rule 28(x), which is aberrant, as it has no operation within the Rules, and is obviously an artefact of bygone drafting.
Benjamin Smart – conclusions
It follows that Mr Smart was not eligible for nomination for the position of Divisional Assistant Secretary. He did not have three years financial membership of the Manufacturing Division at the time he was nominated, irrespective of his financial status. Moreover, I find that in circumstances where Mr Smart had resigned from the Union on 24 September 2019, and had likely re-joined the Union through the Construction and General Division, that he was not at the time of his nomination attached to the Manufacturing Division. That is because there is no evidence of any transfer process having taken place under National Rule 7(viii), or otherwise. And for the reasons I have given at [68]-[84] above, the declaration made by the Full Court in O’Connor v Setka was not an order that by its own force attached Mr Smart to the Manufacturing Division at a time when he was a financial member of the Construction and General Division. In the event that I am wrong in this analysis, and Mr Smart had enjoyed a continuous period of membership of the Manufacturing Division at the time of his nomination, then I further find that he was not financial because of arrears he owed to the Manufacturing Division. For the reasons I have given, I am not persuaded that the Manufacturing Division waived his arrears.
Adam Tester
Mr Adam Tester is a carpet layer/floor layer who joined the Union in 2009, and was initially attached to the FFPD.
On 4 September 2019, Mr Tester submitted a written resignation to the Manufacturing Division, which was in a similar form to the resignations submitted by Ms Brown and Mr Smart. The text of Mr Tester’s resignation was as follows –
CFMEU – Manufacturing Division
RESIGNATION
If you are a member of another state or division of the union,
please contact them directly
Date:    4/9/19
Membership No:…15229
Re: Membership Resignation
I ……ADAM TESTER…….
Wish to resign from the CFMEU Manufacturing Division, as I am
Not Working in the Trade
Retired
Unemployed
Other
Please sign and return to:
MAIL:
CFMEU – Manufacturing
Membership Department
Level 1, 165 Bouverie Street
Carlton Vic 3053
Email:
[redacted]@cfmeumd.org
Signature: [Signed]
Mr Tester stated that in September 2019 he joined the Construction and General Division of the Union after he had been contacted by Kylie Brown.
Mr Tester stated that he became aware of the Full Court’s decision in O’Connor v Setka in 2020. In about March or April 2021 he spoke with Kylie Brown who invited him to stand for election for an office in the Victorian District of the Manufacturing Division. Mr Tester stated that shortly after his discussion with Ms Brown, he contacted the office of the Manufacturing Division and spoke to Ms Bui. Mr Tester stated that Ms Bui told him that he owed arrears, and that he would have to pay in order to become financial. Mr Tester stated that Ms Bui told him to call Mr Abboushi, which he then did, and spoke to him in a short conversation on about 25 March 2021. Mr Tester’s account of that conversation was –
I told him that I wanted to join back up to the Manufacturing Division and that the office had told me that I owed arrears. He started laughing and said something about me ‘coming crawling back’ but told me that he would need to speak to someone to see if I had to pay all my arrears. …

Mr Tester stated that Mr Abboushi called him back about an hour later –
… confirming that he ‘spoke to the guys up top’ and that they were going to waive the arrears. This meant that I would only need to pay the re-joining fee of $495.
Mr Tester stated that he then called Ms Bui and asked her to send him the invoice for payment. Mr Tester produced an email from Ms Bui sent at 2:06 pm on 25 March 2021 and a “member statement” addressed to Mr Tester which showed an opening balance of zero, and a charge for subscription fees to 30 September 2021 in the sum of $495 including GST. The covering email from Ms Bui stated –
As per our phone conversation, please see attached the member statement for the period of 1/04/2021 to 30/09/2021 as Steve Abboushi instructed.
On 1 April 2021, Mr Tester paid the sum of $495 to the Manufacturing Division.
On 6 April 2021, Mr Tester was nominated for election to the office of member of the Victorian District Committee of Management, and to the representative position of Victorian Delegate to the Divisional Conference.
On 13 April 2021, one of the returning officers wrote to Mr Tester stating that his nomination for the office of District Management Committee Member was defective because it did not comply with the requirements of Manufacturing Rule 32(b)(iii)(A). The letter stated –
The relevant facts presented to me are:
1.You have not paid the membership contributions due to the Division for the period between 1 October 2019 and 31 March 2021.
2.That you are not therefore, a financial member of the Division pursuant to rule 6.
The records showed that you owed $990.00 when nominations closed on 6/04/2021, thus making you an unfinancial member.
Rule 32 (c) (vi) requires that I give you the opportunity of remedying the defect within a period of not less than seven days, where practicable.
On 20 April 2021, Mr Tester wrote to the returning officer in response to the letter of 13 April 2021. Having observed Mr Tester give his evidence, it is obvious that his letter of 20 April 2021 was drafted for him by someone else. In his response, Mr Tester made the following points. First, he stated that he had understood from conversations with officials of the Manufacturing Division that “any purported arrears of membership contributions” were waived. Second, Mr Tester stated that he had continued, since the decision of the Full Court in O’Connor v Setka, to pay fees to the Construction and General Division claiming that he had not been aware until recently of the Full Court’s order. Mr Tester claimed that National Rule 7(v)(b) operated so that at the time of his nomination he was a financial member. Third, Mr Tester stated that to avoid any doubt he had paid the “purported arrears”. Fourth, he stated that he had held a period of one year’s financial membership of the District “at any point of time” and that consequently his nomination was not defective.
On 20 April 2021, the same returning officer separately wrote to Mr Tester stating that his nomination for the representative position of District Delegate to Divisional Conference was defective because it did not comply with the requirements of Manufacturing Rules 6(iv) and (v), which relevantly deem members who have not made required payments within three months to be unfinancial, and prevent unfinancial members from exercising membership rights (extracted at [54] above). The letter stated (inter alia) –
Following a check of the CFMMEU - Manufacturing Division - Victorian District’s records, it appears to me that your nomination is defective because it does not comply with the requirements of the above rule:
1. You have not paid membership contributions due to the Division since 1 October 2019 up to 31 March 2121, therefore making you an unfinancial member pursuant to the above Rule 6.
Rule 32 (c) (vi) requires that I give you the opportunity of remedying the defect within a period of not less than seven days, where practicable.
On 20 April 2021, Mr Tester paid the sum of $1,000 in cash to the Manufacturing Division, the receipt of which the Division acknowledged by email sent to Mr Tester at 8:25 am. Later in the day at 1:41 pm, Ms Kaplanis, the Division Manager, sent an email to Mr Tester, stating –
We refer to the payments you have recently made to the Manufacturing Division office on 6th and 20th April 2021, on account of membership contributions.
We have been informed by the Construction and General Branch in Victoria that at these times, you were enrolled as a member of the Construction and General Division, in that Branch.
Under the rules of the Union, a member cannot be in two divisions of the Union at the same time.
Therefore, we cannot accept your payment of contributions on account of membership in the Manufacturing Division.
Please advise your bank account details for the return of those payments.
On 27 April 2021, Ms Kaplanis sent by registered post a cheque to Mr Tester in the sum of $1,495 which was banked on 10 June 2021.
On 12 May 2021, one of the returning officers wrote to Mr Tester stating that his nominations had been rejected because he had not provided the returning officer with information that satisfied her that he was eligible to stand for office.
Evidence of Thuy Bui
Ms Bui agreed that she spoke to Mr Tester on 25 March 2021, and stated that the conversation occurred in the morning. She stated that she brought up Mr Tester’s membership record and told him that the records indicated that he was in arrears, and that he needed to speak to the relevant organiser, who was Mr Abboushi, about his debt, and gave him Mr Abboushi’s number and suggested that he call him. She denied saying to Mr Tester that he owed arrears that he would have to pay to become financial for the rest of the dues period. After this first conversation with Mr Tester, Ms Bui sent Mr Abboushi an email that foreshadowed that Mr Tester would call him –
Adam is going to call you re re-joining. He owed $990.00 before [he] resigned on 6/03/2020. Now he wants to re-join, I told him to contact you for advice about his debt.
Ms Bui stated that shortly after sending the above email Mr Abboushi called her, and told her that if Mr Tester wished to re-join the Division, that she should bill him for the new term but that she should keep the arrears on the system. Ms Bui recorded the substance of this instruction in the electronic records that were maintained by the Division.
Ms Bui then had her second conversation with Mr Tester. Ms Bui’s affidavit evidence of that conversation was –
During our conversation I told Tester that to re-join he needed to pay dues for the new term and that I would send him an invoice for this amount. I didn’t say anything during this conversation about the arrears nor did Tester. Tester did not offer to pay the arrears. It is not correct that Tester asked me to send him “the invoice as discussed with Steve”.
Ms Bui stated that she then updated the electronic records of the Division, making the following entry which is timestamped at “11:00”, and which she produced –
Steve advised that billing mbr for the new term 1/4/21 to 30/09/21, keep the arrears (C&G will have to pay) - TB
Evidence of Steven Abboushi
Mr Abboushi stated in his affidavit that he could not recall the conversations with Mr Tester on 25 March 2021, but by reference to other evidence accepted that he had done so. He asserted, however, that he was sure that he would not have agreed to waive membership contributions –
However, I am sure that in neither of my conversations with Tester or any other members did I agree to waive any arrears of contributions and that is because of the matters in paragraphs 27-29 above. I am sure that if I had made a decision contrary to the above non-waiver policy I would definitely have remembered it.
As I stated earlier, the matters in “27-29 above” to which Mr Abboushi referred were his conversation with Ms Kaplanis, and Ms Kaplanis’s email of 25 March 2021, to which I referred at [188] above.
Evidence of Leo Skourdoumbis
Mr Skourdoumbis denied that the Manufacturing Division had ever waived arrears of any membership fees owed by Mr Tester. He stated that the Divisional Executive had not passed a resolution to that effect.
Adam Tester – analysis
I find that Mr Tester resigned from the Union on 4 September 2019. I make this finding for substantially the same reasons as the corresponding findings that Ms Brown and Mr Smart resigned their membership of the Union.
I find that Mr Tester then re-joined the Union in the Construction and General Division. This finding is supported by Mr Tester’s direct evidence that he did so, together with the hearsay statements in Ms Kaplanis’s email to Mr Tester of 20 April 2021 to which I referred at [238] above, the substance of which was that the Manufacturing Division was informed by the Construction and General Branch in Victoria that Mr Tester was a member of the Construction and General Division. Although this statement was hearsay, I give it weight as I am not bound by the rules of evidence, and because the representations within it were not the subject of any dispute on the evidence, and are consistent with Mr Tester’s own evidence.
Adam Tester – conclusions
I find that at the time of Mr Tester’s nomination to the office of member of the Victorian District Committee of Management, and to the representative position of Victorian Delegate to the Divisional Conference, Mr Tester was ineligible for nomination. In respect of both positions that was because he was not a member of the Manufacturing Division. In respect of the position of member of the Victorian District Committee of Management, he was also ineligible for the more specific reason that he did not at the time of nomination have one year financial membership.
Results of the inquiry
For all the reasons set out above, I am not persuaded on the balance of probabilities that there were any relevant irregularities in the election. I have rejected the applicant’s claims that there was an irregularity by the exclusion of the 83 northern New South Wales timber workers from the certified list of financial members that was supplied to the returning officer by Mr O’Connor, that there was an irregularity by the rejections of the nominations of Messrs McHugh, Wimble and Wilson, and that there was an irregularity by the rejections of the nominations of Ms Brown, Mr Smart and Mr Tester. Accordingly, I have determined that an irregularity did not happen in relation to the election. I do not consider the determination of any further question concerning the conduct and results of the election necessary.
I will hear submissions from the parties as to the orders, if any, which should now be made.

I certify that the preceding two hundred and fifty-one (251) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan.
Associate:
Dated: 18 October 2021

File number(s):	QUD 168 of 2021
Judgment of:	WHEELAHAN J
Date of judgment:	18 October 2021
Catchwords:	INDUSTRIAL LAW – Inquiry into an election for offices in an organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth) – election for offices in the Manufacturing Division of the Construction, Forestry, Maritime, Mining and Energy Union which concluded in July 2021 – where the applicant alleges irregularities – whether the exclusion of certain members from the roll of members eligible to vote in the elections constituted an irregularity – whether the rejection of certain candidates’ nominations for office constituted an irregularity – construction of the Rules of the Union and Rules of the Manufacturing Division of the Union – effect of purported resignations from a District of the Manufacturing Division – effect of purported resignation from the Manufacturing Division – no irregularity found. HIGH COURT AND FEDERAL COURT – application and effect of a declaration made in another proceeding –whether reasons for judgment are available in the construction of a court’s declaration – in the circumstances of this case reasons for judgment so available.
Legislation:	Fair Work (Registered Organisations) Act 2009 (Cth) ss 6, 9, 27(a), 154A, 154B, 154B(2), 164, 164A, 182, 191, 193, 201, 205(3), 206(1), 206(2), 206(4), 206(5), 206(6), 230, 237, 252-254 Evidence Act 1995 (Cth) s 91 Spencer Bower and Handley, Res Judicata (4^th edition)
Cases cited:	Amalgamated Society of Engineers v Smith (1913) 16 CLR 537 An Application by Howard, Laurence Francis for an inquiry into an election in the Slaters, Tilers and Roofing Industry Union of Victoria (1983) 72 FLR 411 Arnold v Britton [2015] 1 AC 1619 Athens v Randwick City Council (2005) 64 NSWLR 58 Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251 BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCAFC 132; 219 FCR 245 Cameron v Australian Workers’ Union (1959) 2 FLR 45 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218; 228 IR 195 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; 253 CLR 243 Gordon v Gonda [1955] 1 WLR 885 Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 Leveridge v Shop Distributive and Allied Employees’ Association (1977) 17 ALR 145 Lim v Comcare [2019] FCAFC 104; 165 ALD 217 Menon, in the matter of an election for offices of the Manufacturing Division of the Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 620 Menon, in the matter of an election for offices of the Manufacturing Division of the Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2021] FCA 859 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; 256 CLR 104 O’Connor v Setka [2020] FCAFC 195 Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629; 129 FCR 558 R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 R v Isaac; ex parte Transport Workers’ Union of Australia (1985) 159 CLR 323 Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900 Ransley v Australian Public Service Association (1985) 12 IR 55 Re Amalgamated Metals Foundry and Shipwrights Union, Ex parte Adamson (1984) 4 FCR 319 Re Australian Journalists’ Association; Ex parte Nicholson (1990) 27 FCR 75 Re Australian Postal and Telecommunications Union (NSW), Ex parte Wilson (1979) 28 ALR 330 Re Communication Workers’ Union of Australia Postal and Telecommunications Branch, New South Wales (1996) 67 IR 246 Re Elections for Offices in Australasian Meat Industry Employees Union (1963) 5 FLR 260 Re Kelly; Application for an Inquiry in Relation to an Election for the Office in the New South Wales Local Government Clerical, Administrative, Energy, Airlines & Utilities Branch of the Australian Municipal, Administrative, Clerical and Services Union (No 2) [2011] FCA 490 Re McJannet; ex parte Minister for Employment, Training and Industrial Relations (Qld) (1995) 184 CLR 620 Re Nimmo; Application for an Inquiry Relating to an Election for an Office in the Australian Education Union (NT Branch) [2011] FCA 38; 192 FCR 111 Re Cholosznecki; Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union [2006] FCA 452; 151 IR 218 Repatriation Commission v Nation (1995) 57 FCR 25 Rounsevell v Mitchell (1968) 11 FLR 414 Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; 240 CLR 45 Rule v Australian Workers’ Union (1985) 9 FCR 280 Sans Souci Ltd v VRL Services Ltd [2012] UKPC 6 Slea Pty Ltd v Connective Services Pty Ltd [2018] VSCA 180 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 Williams v Hursey (1959) 103 CLR 30 Wood v Capita Insurance Services Ltd [2017] AC 1173 Yates Property Corporation v Boland (1998) 89 FCR 78
Division:	Fair Work Division
Registry:	Queensland
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	251
Date of hearing:	16-19 August 2021
Counsel for the Applicant:	Mr W Friend QC with Mr H Clift
Solicitors for the Applicant:	Hall Payne Lawyers
Counsel for the First to Fifteenth Interested Persons:	Mr H Borenstein QC with Mr Y Bakri
Solicitors for the First to Fifteenth Interested Persons:	Slater & Gordon Lawyers
Counsel for the Sixteenth Interested Person:	Mr R Schulte
Solicitors for the Sixteenth Interested Person:	Australian Government Solicitor