Re The Australian Industrial Relations Commission; Ex parte The Construction, Forestry and Mining Employees Union

[1992] HCATrans 122

•

•

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney	No S39 of 1992
In the matter of -

An.application for Writs of

Prohibition, Mandamus and

Certiorari against THE

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

Ex parte -

THE CONSTRUCTION, FORESTRY AND MINING EMPLOYEES UNION

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 15 APRIL 1992, AT 10.00 AM

Copyright in the High Court of Australia

Construction 1 15/4/92

MR s. ROTHMAN: If the Court pleases, I appear with my

learned friend, MR R. REITANO. (instructed by

Taylor & Scott)

HIS HONOUR:	Thank you, Mr Rothman.
MR ROTHMAN:	Your Honour, this is an application for an

order nisi for prerogative writs - - -

HIS HONOUR:	Yes, I have read all the papers.
MR ROTHMAN:	I have prepared an outline of submissions which

perhaps is a little more fulsome. I was not aware

of which members of the Court would be on the

Court.

HIS HONOUR:  Thank you. You might just resume your seat and

I will have a look at this. Yes, I have read

those. I will hear your submissions as long as you

want to put them, but I should tell you I have read

the material clearly, I think this is a hopeless

application.	I do not think it is a case for
prohibition, mandamus or certiorari.	I have read

your submissions below, I have read the judgment

and I have now read your outline of submissions.

I really think that the terms of section 251 are

too emphatic. But you can convince me. I can be

persuaded. I have given it a lot of thought and I

really do not think that you can overcome it,

Mr Rothman.

MR ROTHMAN: If Your Honour pleases. Can I do two things: I

do not wish to repeat anything that I have put

below -

HIS HONOUR:  No, no; and I do not want to stop you in any

way but I thought I should tell you - - -

MR ROTHMAN:  I understand what Your Honour is putting and I

appreciate it. Your Honour, if Your Honour has

read the submissions below I do not wish to labour

the points too much.	Can I take Your Honour to two
matters.	I take it Your Honour has before you the

Industrial Relations Act and the Regulations.

HIS HONOUR:	Yes.
MR ROTHMAN:	Your Honour will see 251(3) is the prescription

as to limiting our rights or the rights of a party.

Regulation 70 paragraph (b):

any proposed alterations of the eligibility

rules of an existing organisation -

252(l)(b) is in, in my respectful submission,

deliberately different terms. It is:

Construction 15/4/92

that a person who is not eligible for

membership of an existing organisation

concerned -

HIS HONOUR:  I am sorry?

MR ROTHMAN: Section 252(l)(b). The Commission below

confined regulation 70 to the same meaning as

section 252(l)(b).

HIS HONOUR:  Yes.

MR ROTHMAN: That is:

that a person who is not eligible for

membership of an existing

organisation ..... would not be eligible for

membership of the proposed amalgamated

organisation -

Regulation 70(b) is, in my respectful submission, deliberately different wording. Regulation 70(b) says submissions can be made on -

any proposed alterations of the eligibility

rules of an existing organisation -

HIS HONOUR: Yes.

MR ROTHMAN:  And I remind Your Honour that an amalgamation

may be effected by an alteration to the eligibility

rules, as it was done in this case. Can I also

remind Your Honour that - - -

HIS HONOUR:  Would you just take me to the part in the

judgment where the Full Court confined that -

MR ROTHMAN:  Yes. The judgment is SJB 10 in the papers at

page 8, about point 5 on the page:

scope of reg 70 which provides - The next, and related, issue concerns the

and they repeat regulation 70 -

It is submitted by the appellants that it is

open to them to raise issues, in submissions

made pursuant to the grant of leave ••.•. having
regard to the generality of the language of

the regulation and in particular reg 70(b).

However the regulation has to be construed by

reference to the provisions of the IR Act to

which it relates.

Regulation 70 relates to 251, not 252(1\(b). They

then go on to confine its meaning to

section 252(1)(b). This is in circumstances where

Construction 3 15/4/92

the Conunission itself held that it had power under

lll(l)(g) to dismiss the application totally on the

grounds of public interest.

HIS HONOUR: This is Deputy President Williams?

MR ROTHMAN:  Deputy President Williams so held and, indeed,

the Full Bench confirmed.

HIS HONOUR:  I really have difficulty, myself, seeing how

you can make submissions under 111, having regard

to the terms of 251(3). The only way you can get

there is by section 43, is it not?

MR ROTHMAN:  No, Your Honour. What we say is that

section lll(l)(g) relates to the power that the

Conunission exercises. Regulation 70 and

section 251(3) relates to the subject-matter. So that the subject-matter of the submissions relate to the alteration to the eligibility rules but the

power that may be exercised after those submissions

are made are the powers under lll(l)(g).

Can I remind Your Honour of the Citicorp case,

167 CLR. In the Citicorp case the mandatory

provisions relating to dispute finding were held to

be not such as would preclude the Conunission from

dealing with a section lll(l)(g) application prior

to the finding of dispute.

HIS HONOUR:  Yes, I know, but this is another problem I

have. How does this fall within 111? How does it

come within the definition of "industrial dispute"?

MR ROTHMAN:  Your Honour, 111(2) - and that is also dealt

with in Citicorp - makes clear that the reference

to industrial dispute in section 111 is a reference

to "any other proceedings before the Conunission".

HIS HONOUR:  Yes.

MR ROTHMAN:  And Deputy President Williams,

Deputy President Moore in an earlier decision, and
on appeal, the Full Bench held that lll(l)(g) was a
power available to the Conunission in an

amalgamation proceeding. There is no issue as to

the ability - there may be in the court - but there

was no issue in terms of the decision of the

Conunission as to the availability of the powers

under lll(l)(g). The only question became whether

or not the applicant prosecutor could make
submissions on the alteration to FIMEE's rules in

the hope, anticipation, expectation, that an order

would be made under lll(l)(g) to dismiss the whole

of the application.

Construction ·	15/4/92
HIS HONOUR:	But if you look at 235, for example, it says

the Presidential Member can perform an act only in

accordance with this division, and they include,

among other -

an alteration of the eligibility rules of an

organisation;

MR ROTHMAN:  With respect, Your Honour is misreading

section 235. Section 235 - subsection (2)

Your Honour is referring to?

HIS HONOUR:	Yes.
MR ROTHMAN:	Section 235 is referring to an act which

purports to effect an amalgamation without going

through this division. Your Honour may recall, for

example, from Your Honour's previous experience,

that previous amalgamations were effected, for

example, between the Boilermakers and the Sheet

Metalworkers and the like by an extension of the

rules of one organisation and the deregistration of

another, without formally amalgamating.

HIS HONOUR: Yes.

MR ROTHMAN: Section 235(2) finds its precursor in the

Conciliation and Arbitration Act and was put in in

or about 1967 or thereabouts to stop amalgamations

being performed otherwise than in accordance with

the amalgamation provisions of the Act. It does

not stop other powers of the Commission being
exercised; it merely stops an act which is sought

for the purposes of a proposed amalgamation being

done otherwise than in accordance with this

division.

HIS HONOUR:	The difficulty I have with your submissions are these: 251(3) seems to me to be controlling and it
saya th&t a submission by a person - - -
MR R0'.l'BNAH: Other than the applicant.
HIS HOHOURa	- - -other than the applicant may only be made

•in relation to a prescribed matter".

MR ROTHMAN: Yes.

HIS HONOUR:  Now, the prescribed matter here is:

any proposed alteration of the eligibility

rules of an existing organisation concerned in

the proposed amalgamation;

Now, you can make submissions in relation to that

matter but - - -

Construction 5 15/4/92

MR ROTHMAN:  That is all we seek to do, I might add. Can I

just say this to Your Honour - - -

HIS HONOUR:  When you say that is all you seek to do, you

seek to go beyond that, do you not, because you

seek to invoke 111? You are going to submit that

the matter should be dismissed.

MR ROTHMAN:  In so far as, Your Honour - and I think that is

in the terms of the full submissions below - only

in so far as it affects an extension of the rules

of FIMEE to include the ASC&J. In other words,

that part of the matter which effects an alteration

of the rules of FIMEE to extend its eligibility

rules to include the eligibility rules of the ASC&J

is sought to be dismissed. If one put in "FIMEE"

instead of "an existing organisation", we seek to

make submissions on the proposed alteration of the

eligibility rules of FIMEE, which is an

organisation concerned in the amalgamation.

HIS HONOUR: Yes. This is the difficulty I have, and

perhaps it is the same difficulty the Full Bench

had:  241, when you are dealing with community of

interests, lays down fairly explicitly in

subsections (S) and (6) of what the presidential

member has got to be satisfied for there to be a

community of interest. When you go to 250(a)(i) -

and that is the paragraph we are really concerned

with here, are we not?

MR ROTHMAN:  Yes.

HIS HONOUR: At first blush the whole matter is at large7 it

is:

the granting of an approval for the

submission -

but by inference, 252 confines the scope of what

submissions can be made even by the applicants.	I
mean, the matter is just not - - -

MR RO'l'HMAlfa With respect, that is not so, for this reason

that at a. hearing arranged under section 250, or at
that hearing, submissions are also made, for

example, on the question of whether a "Yea" case

under section 2530 has been made out and whether a

"No" case has been made out by objectors to the

amalgamation, and that is not included in the terms

of section 252. Similarly, submissions are made on

the date to be fixed for the ballot and that is not

included in - - -

HIS HONOUR:  No, but under section 252:

Construction 6 15/4/92

If, at the conclusion of the hearing arranged

under section 250 in relation to a proposed

amalgamation, a designated Presidential Member

is satisfied:

(a) •••••

( b) •••••

( C) • • • • •

( d) •.••• ( e) •••••

the Presidential Member must approve the

submission of the amalgamation to ballot.

MR ROTHMAN:	Yes, Your Honour.
HIS HONOUR:	And submissions under 251, by the applicant,

are confined to those matters under 252, plus these

other matters that you refer to under 253, and so

on. But when you are dealing with what the

applicant can submit in terms of the rules,

252(l)(b) confines it, does it not?

MR ROTHMAN:	Your Honour is now talking about the applicant for prerogative writ?
HIS HONOUR:	No, no, I am talking about the applicant for

amalgamation.

MR ROTHMAN:  No, Your Honour, in my respectful submission,

there is no confining of the submissions that may

be made by the applicant anywhere in the division.

Section 251(2) makes clear:

Submissions may be made by the applicants.

On any relevant matter.

HIS HONOUR: Well, that is the whole question. What is a

"relevant matter"?

MR ROTHNAJf:  '!'hat is the point I am getting to, Your Honour,

with respect.

HIS HOJ10UBt That ia right, and "relevant matter" sends you

first to 252, do they not?

MR ROTHMAN:  Yes, Your Honour.

HIS HONOUR: There are matters under, what, 253? What other

matters; are the "Yes" and "No" cases?

MR ROTHMAN: Well, 253 does not arise if one is satisfied

under 252.

HIS HONOUR:  Yes.

Construction 7 15/4/92

- MR ROTHMAN1 There are submissions that could be made under

253B, the "Fixing Commencing and Closing Days of
Ballot"; 2530, the "'Yes' Case and 'No' Case";
253E, any "Alteration and Amendment of Scheme".

There are also submissions and, indeed, were submissions made in this matter as to whether or

not the applicants for amalgamation have satisfied

the requirements of section 240, section 241 - - -

HIS HONOUR:  That is "Committee of Management" - report of

"Committee of Management" or - - -

MR ROTHMAN:	Yes, Your Honour.
HIS HONOUR:	But when you are looking at the issue of the

rules -

MR ROTHMAN:  And section 244, I should add, that is the

"Application for Exemption from Ballot" which is a

rather important issue.

HIS HONOUR:  Yes. But when you are looking at the question

of alteration of the rules or proposed alterations

of the eligibility rules of an existing
organization, the applicants themselves cannot go

beyond 252(l)(b), can they?

MR ROTHMAN: With respect, Your Honour, that argument

presupposes that nothing else is relevant, and that

is the argument that we are now dealing with.

HIS HONOUR:  I know it does, but how do you make it

relevant? That is what I do not understand.

MR ROTHMAN:  Your Honour, can I deal with it in another way,

it may be perhaps easier?

HIS HONOUR: Yes.

MR ROTHHAR:  Your Honour, there are two ways in which an

or:ganiaa~ion can amalgamate, and Your Honour will

have seen that in the submissions.

HIS HOllOUR: Yee, I know.

MR RO'l'IDIAHs There is the true merger creating a new

organization and there is the host organization

proposition.	Now, in a true merger, that is never
dealt with under section 252.	It is never approved
under section 252.	It must be dealt with under

section 253, and the Commission is required to take

into account a whole range of matters including

"conveniently belong" and the like, even though it

has no different effect than the host organization

altering its rules.

Construction 15/4/92

What is relevant for the applicants for

amalgamation are the matters that relate to

section 252, the other matters that are raised in

the Act, for example, exemption from ballot, and
the like, and any answer to a matter that can be

raised by persons who have been granted leave under

section 251(3). So that to answer what the applicants can do, one must also answer the

question that is before the Court, that is, what

the persons who are granted leave under

section 251(3) can do.

Now, the Commission has held that

section 111(1)(9) powers are available. The

Commission, for example, says it could of its own

motion dismiss the application. No doubt, it would

have to raise that with the applicant and the

applicant would be entitled to make submissions on

it. What we say is that regulation 70 is in

deliberately wider terms than section 252(1)(b).

It deliberately relates to any proposed alteration

of an existing organization's rules. That is

because, in the scheme of rationalization of

organizations, you could have a situation where an
amalgamation took effect with a host organization

where there was no need to alter the eligibility

rules.

Indeed, the applicant/prosecutor before the

Court today, if it amalgamated, for example, with

the ASC&J, would not need to alter any of its

eligibility rules, and that is not only an

hypothetical but a real possibility that occurs

under the Act.

So, there are two kinds of even host

organization amalgamations: those that necessitate

a change to the eligibility rules and those that do not. Now, if there is no change to the eligibility

rules of the host organization other than the name,

then there is no objection that could be made and

no submissions that could be made by any other

person, and there is an amalgamation almost as a

rubber stamp, save and except for the vote of the

members, which is hardly a rubber stamp, I suppose.

Where there is an extension of the eligibility

rules of the host organization, the Act makes it

clear that persons can be granted leave and can

make submissions on that, that is, on the

eligibility rule.

HIS HONOUR:  I know you say that but in the end the

presidential member has got to be satisfied of the

matters in 252, and if he is, he has to approve the

submission of the application to the ballot and so

far as the rules are concerned, 252(l)(b) is the

Construction 9 15/4/92

matter. What happens in a case, if he was

satisfied within 252(l)(b) but accepted your

general submission?

MR ROTHMAN Your Honour, can I take Your Honour to the

Citicorp case, 167 CLR 513?	I have taken the
liberty of photocopying the case.	I suppose I

should answer Your Honour's question first and then

take Your Honour to the supporting material.

Your Honour, the submissions that are made

relating to the alteration to the rule precludes

the Commission from coming to the satisfaction

because what the Commission does is, it says, "This
submission is so powerful" - and it would have to

be a powerful submission because it would have to

overturn the prima facie right to have the

amalgamation go ahead.

Section lll(l)(g) provision was described by His Honour Justice Deane in the QEC case as being

an exceptional jurisdiction in which the Commission

has granted jurisdiction itself to refuse to
exercise its own jurisdiction and that is
effectively approved at page 517 by the Full Court

in which Your Honour was a member.

HIS HONOUR: Yes, I remember.

MR ROTHMAN:  Your Honour will recall the passage from the

QEC case. That effectively says it defeats a prima

facie right to have the jurisdiction conferred

exercised. Now, we say it would have to be a

powerful case to have the Commission come to the

view that, despite the mandatory provisions of

section 252, it is in the public interest that we

should dismiss these proceedings in so far as they

effect an alteration to the rules of FIMEE to

include the ASC&J because it has an overriding

concern as to the public interest implications.

HIS HONOUR: But if you look at the machinery, 252 says that

if a presidential member is satisfied of those

matters, then he or she must approve the submission

of the amalgamation 'to the ballot.

MR ROTHMAN:  Yea, Your Honour, in the same way that

section 101 says that the Commission shall

"determine the parties" and "record its finding".

But the Court in Citicorp held that even though

that is in mandatory terms, section 4l(l)(d) allows

it to dismiss the proceedings before the finding is

made.

Can I take Your Honour to page 517 of the

Citicorp case. At about point 2 the Court refers

to Reg v Alley, and the reference there to the

Construction 10 15/4/92

judgement of His Honour Justice Mason, as he then

was, that:

section 24(1) -

that is the precursor to section 101 -

imposed a duty enforceable by mandamus, the

making of correct findings under that
sub-section was not a condition precedent to

the further exercise by the Commission of its

jurisdiction ..... was clearly intended as a

procedural bar to the exercise of powers
capable of affecting substantive rights -

Now, the Court goes on to say - the argument was put:

From this purpose there is to be discerned an

intention that the substantive powers

conferred by s.41(1) should not be exercised

prior to the making of a dispute finding.

The power conferred bys. 4l(l)(d), if

exercised, would defeat a prima facie

right ••... However, the exercise of the power

would not affect substantive rights and

liabilities as would the exercise of the power

in para. (b) ••••• the purpose attending

s. 24(1) would not serve to indicate an

intention precluding the power from being

exercised on the basis that, if jurisdiction

were to exist, it should not be exercised.

And, although it might be a rare case in which it would be appropriate to exercise the power on that basis, there are nonetheless good

practical reasons in relation to that rate

case for the power to be so construed.

Nor can it be argued that the power

conferred by s.4l(l)(d) should be construed as

exercisable only after the making of a dispute	finding on the basis that the terms of
s. 24(1) would require a dispute finding to be
made even in a case in which the Commission
had decided not to exercise its jurisdiction.
The duty imposed bys. 24(1) is imposed in
relation to proceedings. The power conferred
bys. 4l(l)(d) is a power to dismiss
proceedings or to stay proceedings, albeit
that the statutory expression is to "refrain
from further hearing ••••. ". To the extent
that proceedings were dismissed or stayed
under s. 41(l)(d) there would be no
proceedings before the Commission in which the
Commission could proceed to a dispute finding.

Construction 11 15/4/92

And that is precisely the same analogy in relation

to section 252. To the extent that lll(l)(g) was

used to dismiss or stay the proceedings, there

would then be no proceedings and no hearing left to

remain on which the presidential member could be

satisfied of the matters raised in section 252.
Both sections of the Act are in mandatory terms.

The Commission itself has held that lll(l)(g) is a power available to the Commission and, in our

respectful submission, the express words of
regulation 70 make it such that to the extent that

the lll(l)(g) submission is being put in relation
to an alteration of the rules of the existing

organization, it is allowed to be put.

Annetts v Mccann would suggest that any

limitation on the right of the party given leave to

make submissions should be strictly construed.

HIS HONOUR:  Yes, but the difficulty I still have is how you

can use 111 as a result of you getting a right to
make submissions under 251(3) and regulation 70.
Would you explain to me how you seek to make use of

111 in that context?

MR ROTHMAN: 

Yes, Your Honour. Can I, before I do that, do

two things: can I give Your Honour an extract of -
Your Honour has before you, I take it the

Industrial Relations Act that was amended in 1991?

You have the service, is that right, Your Honour?

HIS HONOUR: 

Yes, I have got the service.

MR ROTHMAN: 

The 1988 Act was significantly different in

relation to amalgamations and the Conciliation and

Arbitration Act was significantly different. I

have taken the liberty of photocopying from CCH

Services the relevant sections. Can I take the

Court very briefly to that?

HIS HONOUR: Yes.
MR ROTHMAN:	I do so because I have to concede that the

second reading speech makes mention of

amalgamations and seeks to speed them up, and makes

them easier to speed them up, according to the

minister. I do not take the Court to that. But

can I take the Court to the Conciliation and

Arbitration Act, particular section 158H. That was

objections to an amalgamation, and

subsection (l)(c) relates to "an alteration of the

rules of an organization". So, regulation 70 has

its precursor in the previous Conciliation and

Arbitration Act and was in, relevantly, the same

terms in the 1988 Act as section 238 and

regulation 79.

Construction 12 15/4/92

So, the submission I make in relation to that

is that the legislature has, in relation to this

area, deliberately chosen words which it knows to

have been construed under the Conciliation and
.Arbitration Act as including alterations to the

eligibility of a host organization.

HIS HONOUR:	I appreciate what you say about that but - - -
MR ROTHMAN:	Can I then go back to Your Honour's question?

HIS HONOUR: Yes.

MR ROTHMAN:  And can I say this: the Commission is entitled

to refuse leave to a person under section 251(3).

So the Commission has a control on who may be heard

at all. The regulations provide that once a person

is granted leave under subsection (3) they may make

submissions on the prescribed matters in

regulation 70 and relevantly, 70(b). I have taken

the Court to what I can say is the express words in

paragraph (b).

Now, we say here that we can make submissions

on the alteration of the eligibility rules

including the ASC&J and there is no limitation at

all in regulation 70 or section 251(3) which
confines our right to make submissions on the

proposed alterations of the eligibility rules of

FIMEE.

HIS HONOUR:  And what is the next step after that? You can

make the submission - - -?

MR ROTHMAN: Yes, make the submission. The Commission below

is then in a position where, if it finds we have

overturned the prima facie right to the exercise of
the jurisdiction of the Commission, it can dismiss

the proceedings. If it does not so find, it is

required to satisfy itself in accordance with

section 252 if it can so do.

Now, I should point out to the Court that in

this case it was submitted below in summary of the

arguments that are to be put, that the

applicant/prosecutor here says the ASC&J is defunct

in the States of Queensland, New South Wales, ACT,

Western Australia and the Northern Territory and we

say that is a matter which, prima facie, overturns

the exercise of the jurisdiction in 252(l)(b). The

public interest aspects of granting to a live
organization eligibility in relation to an

organization which is defunct in those other States

is something which the Commission would not do,
given the importance of overlapping membership

coverage, end of the Commission's jurisdiction and

the administration of the Act, and I refer·

Construction 13 15/4/92

Your Honour to Brideson's case and the acceptance by this Court of that proposition.

So that we say and we concede that the

submissions that would be made under 251(3) would

have to be extremely powerful submissions because

they would have to overturn the prima facie right

under civil law to have an administrative tribunal

exercise the jurisdiction that is conferred upon

it. But we say our case is such a case which

overturns that right.

Now, the Conunission may well say, "Well, I want to hear what it is you have to say. What is

the stongest case you say", and dismiss it in terms

that, on any analysis, the case we put would not

amount to such a case, that they would refuse to

exercise jurisdiction. That is a matter that they

can easily deal with if they so desire, and we do

not resile from that proposition. But what they
have done instead is to say, "You can't make any

submissions at all on that question because we are

going to read down the express words of

regulation 70(b), so that you can make submissions

only on the alteration to the extent that it goes

beyond the matters that are within 252(l)(b)."

HIS HONOUR:  But does that not follow from the very fact

that 251 itself is dealing with a hearing arranged

under section 250? Section 252 is dealing with a

hearing arranged under section 250, and

regulation 70 is dealing with a hearing arranged

under 250 and 252? I mean, surely, just by a

process of construction, that is why you read

regulation 70 down in that way.

MR ROTHMAN:  I understand what Your Honour is putting to me

but we want to give the words in regulation 70(b)

their, we say, clear and unambiguous meaning. They

are express and they entitle us to make the

submissions that we wish to make below. We say

that to the extent that it is read down by

reference to 252(l)(b) - Your Honour reads it down because of 252(l)(b) are the only matters that are

relevant.	We say lll(l)(g) is relevant; the
Commission says section 111(1)(9) is relevant.	We
say, if it was read down by meaning you can only

make submissions on matters that are relevant, we

would agree with that, but the Conunission finds

lll(l)(g) is relevant; we say, "Well, we want to

make submissions on 111(1)(9) to the extent that it

affects an alteration of rules of FIMEE", and they

say, "No, you can't do that because

regulation 70(b) is confined to 252(l)(b)."

Construction 14 15/4/92

Now, the only way, in our respectful

submission, that you can so confine it is to say

section lll(l}(g) is not relevant at all.

HIS HONOUR:  So, that is my prima facie view about the

matter. You have made some ground with me this

morning simply by reason of drawing my attention to

the way the Commission expressed itself. I must

say, I had not read the Commission's reasons that

way but, plainly, what you say is correct, I think,

about the way that they have construed the whole

operation - the matter.

But carry on with your submissions. At the moment, I tend to be against you because I think

that section 111 is irrelevant really but - - -

MR ROTHMAN: That is a different issue.

HIS HONOUR:  I know. It is a matter perhaps you should

address me on because I think what I will do in
this case in any event is I am going to reserve my

decision on this.

MR ROTHMAN: If Your Honour pleases.

HIS HONOUR:	If you have been taken by surprise, then if you want any - - -
MR ROTHMAN:	No, Your Honour, I cannot say - I mean, I did address below on the question of the operation of
section 111 and it is certainly contained in the
submissions that are annexed to the document. That
may be the easiest way for Your Honour to deal with
the matter.

HIS HONOUR: Yes. Is this annexure SJBS?

MR ROTHMAN: It is SJB4 and SJBS, I think. SJB4 turned out

to be because the stay application turned into the

appeal proper. The Commission itself finds, of

course, that section lll(l)(g) operates. That, I
can take Your Honour to very briefly.	His Honour

Deputy President Williams deals with that at

page 35 of what was the appeal book below, which is

SJB3. On the off page, which was not numbered,

unfortunately, but I will call 34A for the purposes

of this proceedings, and did below, indeed, there

is a reference to the application of section 111 by

the Deputy President. He there refers to the

arguments of counsel for the applicants for

amalgamation.	He then deals, at about point 5 on
page 35:

S.111(1) is itself expressed to be

"subject to this Act". As stated in the

Citicorp case, "that subsection serves to

Construction 15 15/4/92

indicate that the powers conferred by s.111(1)

may not be exercised contrary to any

prohibition, limitation or qualification found

in the Act."

I can find nothing in the context of

Division 7 which militates against the

reference in s.111(2) to "any other proceeding

before the Commission" including a proceeding

under Division 7. Nor can I find anything in

Division 7 which constitutes a prohibition,

limitation or qualification on the powers

conferred by s.111(1) being exercisable in

such a proceeding. The provisions of

ss.252(8) and 253A(9) -

these were matters that were drawn to His Honour's

attention by myself below -

support the view that the powers conferred by

s.lll(l)(m) are so exercisable.

That deals with powers to adjourn and the like.

Section lll(l)(m) "adjourn to any time and place"-

are so exercisable. It would be strange

indeed if, in amalgamation proceedings, the

Commission did not have the powers conferred by

paragraphs (j) or (m) -

and (j) deals with "sit at any place" -

of s.111(1).

I am therefore of the view that s.111 does

apply in proceedings before the Commission under Division 7 of Part IX of the Act and

that, in so far as they are appropriate, the

Commission, in such proceedings, may exercise

any of the powers conferred by s.111(1).

Now, in my respectful submission, that is the finding of the Commission. It was not disturbed on

appeal. Indeed, I recall, although I did not come

armed with a reference, that it was confirmed on

appeal and, indeed, in other proceedings was found
to operate in the way here found by

Deputy President Williams. Deputy President Moore, who presided in the appeal in the Full Bench,

decided in the matter of the Independent Teachers'

Federation, 34 IR - I have to rely on my memory, I

did not bring a reference - found that

section lll(l)(g) was applicable and section 90 was

applicable to the provisions of rule changes which
are themselves mandatory in section 204, and also

held that section lll(l)(g), in a matter that

ultimately came before the Court in Pillar, and

Construction 16 15/4/92

Macdonald the applicants put and what the Commission

for other reasons came before the Court - what

found that lll(l)(g) was available to the

holds in that the Commission says lll(l)(g) is

available but submissions may not be put in

relation to it by anyone other than the applicant.

HIS HONOUR: Well, what does the Commission mean on page 7

of their judgment - it is the Full Bench - in the

first paragraph, the second-last sentence:

The invocation of the powers under s.lll(l)(g)

is not a prescribed matter and by operation of s.251(3) is not a matter that may be raised in

submissions by an organisation or person who
might otherwise have been given leave to make

submissions under that section.

MR ROTHMAN:	Yes, they are there referring to - - -
HIS HONOUR:	I may have misled you earlier when I said I did not think section 111 was relevant. What I was
really saying was that I did not think section 111 was relevant to regulation 70 or that it in any way was connected with regulation 70.
MR ROTHMAN:	We do not say it is connection with

regulation 70, Your Honour, and we do not have to

say that.

HIS HONOUR:  You say it is a consequence of it, do you not,

or it can be utilized as a consequence of your

submission?

MR ROTHMAN:  As a consequence of the submission, it is a

power that can be utilized by the Commission, yes, Your Honour. Now, the Commission holds it has the power to exercise lll(l)(g). The only way we say

that regulation 70 can be confined to

section 252(l)(b) would be to say that

section 252(l)(b) is the only relevant matter. I

mean, obviously people cannot make submissions on
matters that are not relevant. To the extent that

the Commission holds, as it did - certainly

Deputy President Williams did - that

section lll(l)(g) was relevant, we say one cannot

then read down regulation 70 to exclude submissions

relating to that alteration to rules and thereby

seeking to have the Commission exercise its powers

under section lll(l)(g).

Now, the reference that Your Honour has made

to page 7 of the decision of the Full Bench really

relates to the ability of the applicant to make the

submissions, not to the power of the Commission to

exercise section lll(l)(g).

Construction	17	15/4/92
HIS HONOUR:	Yes.	Your argument is that this is a

misconception of your argument, really, is it?

MR ROTHMAN:  Yes, Your Honour, in a sense it is. Yes, it is

a misconception of regulation 70 and our argument.

we say, look, we are not seeking to make writ large

on section lll(l)(g). We do not say, for example,

that one can put submissions that this organization

ought not to be amalgamated because it does not

properly represent the interests of its members, or

that it does not bona fide act as a union instead

of an employer's organization or the like. But we

do say, however, that regulation 70 allows us to

put submissions on the alteration to the

eligibility rules of FIMEE.	And that is all we
seek to do.

In the end, the Commission is entitled to then

look at those submissions and say, these

submissions are so powerful that we are going to

overturn the prima facie right to have our

jurisdiction exercised.

HIS HONOUR:  Yes. I do not think you would understand they

were your submissions from reading the judgments

below, and I must say I did not really understand

your submissions in that way below, but I

understand the way you put it now.

MR ROTHMAN:  Your Honour, I have often been accused of being

obtuse. We say, Your Honour, that in terms of the relevance of section lll(l)(g) that falls directly

from the decision of the Court in Citicorp.

HIS HONOUR:  I understand that. But the way you put it is

that you say, looking at the literal meaning of

regulation 70(b), we can range far and wide as long

as we are within the terms of that section. That

goes beyond 252(l)(b). Then we are entitled to ask

the Commission to exercise its powers under

section lll(l)(g) to dismiss the proceedings before

the Commission ever comes to satisfaction under
section 252.	Is that the way you put it?

MR ROTHMAN:	Yes, Your Honour.
HIS HONOUR:	Is there anything further you want to put to

me?

MR ROTHMAN:	I think Your Honour really understands the issue and it does not get any better by repeating
it.

Does Your Honour want to hear me on the

question of a stay?

Construction	18	15/4/92
HIS HONOUR:	I certainly do, yes.	Why should you get a stay

even if your submissions were ultimately upheld?	I
mean, you can unscramble the pot, as the Shop
Assistants and the AWU purported amalgamation
showed.	I mean, it is messy, but - - -

MR ROTHMAN:  That is putting it mildly, Your Honour. We say

it is more than messy and, in some senses, the Shop

Assistants case shows it is almost impossible to

unscramble the egg.

His Honour Justice Dawson, I have to say,

dealt with a similar stay application, and I think

Your Honour was on the Full Court that dealt with

the order nisi that came before the Court. That

decision is reported in 65 ALJR. It is Re Moore;

Ex parte Pillar. His Honour Justice Dawson granted

a stay to the order, and that has its own problems,

and this matter is dealt with in paragraph 13 of the outline of submissions that I have handed up

today.	I hope nothing turns on the paragraph
number.

At page 684, His Honour, at point D, in the

second column, refers to the sufficient arguability

of the case, the grant of the order nisi. At about

point E:

The prosecutor sought a stay of the

"order" ....• With some hesitation I acceded to

the application for a stay. Clearly, in view
of the relevant statutory provisions, a stay

of proceedings under 055, r 10 was likely to

be ineffective -

that is not the case in this case, by the way,

because in the Pillar case it was taken at a much
later stage of the amalgamation process.

I ordered, in addition to a stay of proceedings, a stay of the "order" itself.

His Honour then revoked the stay order on the

application of the unions involved in that matter.

There is a clear distinction between, in our

respectful submission, the case of the decision of

His Honour Justice Dawson and the case that is

before the Court now. That is this: in the case

that was before His Honour Justice Dawson, the

rules of the amalgamated organization provided for

separate divisions of the organization for a period

of three to four years in which the members and the assets of the organization would be kept separate -

the two organizations would be kept separate during

that period and, therefore, it was indeed possible

to unscramble the egg.

Construction 19 15/4/92

Similarly, there was a factor in that case as

to the efficacy of the stay order in any event

because of the lateness in which it was taken. In

the case that is before the Court today, we say it

is effectively impossible to unscramble the egg.

The rules of the proposed amalgamated organization provide for a clear subsuming of the assets and to

the membership of the ASC&J in particular. There
is a provision for a trade committee but it is for
those, I think, in the building and construction
industry but it is a trade committee appointed by

the national executive and anyone is eligible. So

that there is no separation at all of the

membership or assets of the organization.

There can be no doubt that there are some

persons who are within the eligibility of the ASC&J

who would be eligible for membership of FIMEE, the

host organization, in any event and to then

ascertain which person joined under which rule or

which person joined or was previously - it would be

easy enough in relation - not easy enough, but

assuming computers, it would be possible - I put it

no higher than that - to separate out the persons

who are currently members of each organization. It

would be impossible, in our respectful submission,

to separate out the people who subsequently become

members of the organization and that would mean it

would be effectively impossible to unscramble the

egg, as Your Honour put it, and we say that the

proceedings would be nugatory, to that extent at

least, if the stay was not granted.

I should say this, Your Honour: it would be

true to say that there still would be a purpose in
the proceedings because my client's major concern

is the eligibility rule rather than any particular

individual member. I have to say that again it is

the proposition that I am putting in these ex parte

proceedings. But, nevertheless, we say that the

stay should be granted in accordance with Order 55

rule 10.

There was one other matter: the amalgamation has not taken effect as yet. There is, indeed, an

inquiry before the court, that is, the Federal

Court of Australia.

HIS HONOUR:  I saw that in a paper. There is a ballot, is

there? Irregularities in the ballot?

MR ROTHMAN: Yes, Your Honour. There has

been ••..• irregularity. The affect of that

irregularity has not been yet determined as to

whether the ballot will be overturned. So that the

stay would effect the status quo - would continue

Construction 20 15/4/92

in operation with the status quo as it currently

exists.

We say, most of the benefits involved in an amalgamation such as that could be achieved in the
short term in terms of consolidation of resources
and the like, in terms of organizing an expenditure

and an industrial representation without the formal

amalgamation having taken effect and we therefore

say the balance of convenience lies with the

maintenance of the status quo pending the

determination by the Court.

We also say, with respect, it is a short

matter before the Court and, while I am mindful of the Court's time, may be able to be heard for that reason more expeditiously than otherwise.

HIS HONOUR:  Yes. Is there anything further?

MR ROTHMAN:	I do not think there is anything.
HIS HONOUR:	Thank you very much.  I am indebted to your

submission. It shows the advantages of oral

argument over relying solely on written material.

I shall reserve my decision in the matter. I will

give a decision as soon as I can but certainly

within the next 10 days or so.

MR ROTHMAN: If Your Honour pleases.

AT 10.57 AM THE MATTER WAS ADJOURNED SINE DIE

Construction 21 15/4/92