Re The Building Workers' Industrial Union of Australia & Ors; Ex parte The Federated Ironworkers' Association of Australia

[1990] HCATrans 205

A -!i_).t1i~~'-'-~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S98 of 1990

B e t w e e n -

In the matter of -

AN APPLICATION FOR WRITS OF

PROHIBITION AGAINST THE

HONOURABLE MR DEPUTY

PRESIDENT MICHAEL FRANCIS

MOORE, THE AUSTRALIAN

INDUSTRIAL RELATIONS

COMMISSION, THE BUILDING

WORKERS' INDUSTRIAL UNION OF

AUSTRALIA, THE FEDERATED

ENGINE DRIVERS' AND
FIREMEN'S ASSOCIATION OF

AUSTRALIA

Respondents

Ex parte -

THE FEDERATED IRONWORKERS'

ASSOCIATION OF AUSTRALIA,

KEVIN NOEL REYNOLDS, JAMES

ALEXANDER BACON, PAUL

BOTTARI and the other

persons named in the First

Schedule attached hereto and

IAN CUMMINGS and the other

persons named in the Second

Schedule attached hereto

Prosecutors

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 31 AUGUST 1990, AT 9.16 AM

Copyright in the High Court of Australia

Ironworkers 1 31/8/90.

MR R. KENZIE, QC:  In this matter I appear with my learned

friend, MR J. PHILLIPS, for the first-named prosecutor in the application for rule nisi

(instructed by McClellands) and I appear with my

learned friend, MR G. KIMBER, for the remaining

parties named as prosecutors. (instructed by

Geoffrey Edwards & Co)

HIS HONOUR: 

Yes, thank you, Mr Kenzie.

MR KENZIE: 

Your Honour, the application for a rule nisi for

the issue of writs of prohibition in this matter is
an application for writs directed to the first

respondent who is a member of the Industrial

Relations Commission, that is, the Federal

Industrial Relations Commission.  The first

respondent is the person described as a designated

Deputy President under the legislation which has existed since 1988, Your Honour, and he is

currently in the process of determining what is
said to be extant applications for alterations to

the rules relating to conditions of eligibility of

two federally registered organizations; they being

the third and fourth-named respondents: the

Building Workers' Industrial Union of Australia and

the FEDFA.

The prosecutors, Your Honour, are all

objectors to those applications and I use the word
"applications" in the sense that there is a

challenge to whether there are extant applications,

Your Honour.

HIS HONOUR:	Yes.
MR KENZIE:	The prosecutors become involved in those

proceedings at various points of time since their

commencement in 1986. The bulk of the prosecutors

have been objectors for the great part of that
period, or all of it. The fifth-named prosecutors

are individuals who have only become involved in

the proceedings recently, indeed during the time

when the question of the jurisdiction of the Commission has been squarely in issue before the Commission.

It would be convenient, Your Honour, if I took

Your Honour first to the Conciliation and

Arbitration Act provisions and the Industrial

Relations Act provisions which are relevant to the

proceedings, the position being that at least in

the contention of the prosecutors, or the

applicants, the BWIU matter was in fact totally

processed within the Conciliation and Arbitration Act and before the introduction of the Industrial

Relations Act. On any view the other application,

that is the FEDFA application, was extant at the

Ironworkers 2 31/8/90

time of tlle. coming into force of the Industrial
Relations Act on 1 March 1989 and was processed,

the applicants' state of finality, after that date.

So, it is necessary to look at both Acts,

Your Honour.

HIS HONOUR: Yes.

MR KENZIE:	The Conciliation and Arbitration provision relevant is section 139, relating to "Alteration of
Name or Rules of Organizations". Section 139(1), Your Honour, provides that:

A change of the name of an organization or an

alteration of its rules in so far as they

relate to conditions of eligibility for

membership or the description of industry in

connection with which the organization is

registered shall not have effect unless the upon an application made as prescribed.

And subsection (2), there is an additional

precondition, Your Honour:

The Registrar may consent to the change or

alteration in whole or in part but shall not

so consent unless he is satisfied that the

change or alteration has been made in

accordance with the relevant procedures laid

down by the rules of the organization.

So that the statute, on any view, goes out of its

way to say that there are preconditions and the
other feature of the statute of course,
Your Honour, is that the initiator of the
proceeding is the organization and not strangers to

the organization or the Commission itself.

The regulations, Your Honour - and I am not

going to read them to Your Honour entirely, but the

relevant regulation is regulation 127,

subregulations (1) to (11), and these regulations

provide for a procedure in relation to the making	of an application. They include provision for the
form of the application the seal and the like and
in subregulation (5) provision for objections by:

organizations or persons interested may,

within thirty-five days after the

advertisement of the notice of the receipt -

et cetera, and there are limitations in relation to

grounds upon which objection can be taken;

provisions in subregulation (7) for the notice of

objection and there is provision for the

constitution of the objectors as parties to the

Ironworkers 31/8/90

proceedings and provisions relating to their right

to be heard.

Now, Your Honour, the first proposition which

we say one takes from all of that is that there is

a statutory mechanism and, indeed, a statutory code

which existed under the Conciliation and

Arbitration Act pursuant to which eligibility rules

could be changed and there was no machinery whereby

the rules of an organization relating to conditions

of eligibility could be changed other than in very

clear and specified circumstances arising from, I

think, old section 142 relating to rights of
representation which are not relevant here,

Your Honour. There was a statutory mechanism whereby applications could be made by one

organization for the exclusive right to represent
over and above another organization and the like,

but that is to one side.

Now Your Honour, I do not take Your Honour to

the forms and the like, but that was the position

in relation to the Conciliation and Arbitration

Act. In relation to the Industrial Relations Act,

which came into force on 1 March 1989, there were

consequential provisions and Your Honour would

have, I think, the Industrial Relations

Consequential Provisions Act (1988).

HIS HONOUR: Section 48 is relevant.

MR KENZIE: Section 48 - has Your Honour seen that?

HIS HONOUR:  Yes.

MR KENZIE: Well I will not read that to Your Honour. There

is no contention, Your Honour, on the prosecutors'

part that section 48 did not operate to catch the

FEDFA matter, which was not resolved in any respect

prior to 1 March 1989, but it was irrelevant on the
prosecutors' contentions to the BWIU matter, which

was completed by that date, we say.

Your Honour, as to the substantial provisions

in the Industrial Relations Act, they can be found
in section 204, which, as the prosecutors contend,

constitutes the code in relation to alterations to

conditions of eligibility. Your Honour will note

that section 48 picked up both industry rules and

eligibility rules. There is no requirement under

the new Act for an industry rule. Section 48

picked up extant applications re industry rules and

indicated that they were to be prosecuted as though

under section 204, but 204 itself says nothing

about industry rules, Your Honour; but 204(1):

Ironworkers 31/8/90

A change in the name of an organisation, or

alteration of eligibility rules of

organisation, does not take effect unless a

designated Presidential Member consents to the

change or alteration.

And subsection 2:

A designated Presidential Member may consent

to a change or alteration in whole or part,

but shall not consent unless the Presidential

Member is satisfied that the change or alteration has been made under the rules of

the organisation.

And then one has the regulations, Your Honour, and

the relevant ones are regulations 48 and 51.

Regulation 48 provides that:

MR KENZIE:

An organization may apply in the approved form

for consent to be given under section 204(1)

of the Act.

An application under subregulation (1) shall

be made by lodging the application, sealed or

signed in accordance with subregulation (3),

in the Industrial Registry accompanied by a

written statement.

Then there is provision for what has to be

contained therein and I will not read that; provision for seal in subregulation (3) and provision for order of disposition and the like.

There are provisions for withdrawal of the

application in regulation 50 and regulation 51

provides in subregulation (1) that:

Any interested organisation, association or

person may, not later than 35 days after a

notice of the receipt· •.... lodge in the

Industrial Registry a notice of objection -

and there are procedures in relation to that which	I will do read to Your Honour but Your Honour will
see that it is a scheme which, although it is not,
I think, a complete mirror of regulation 127, has
the same sort of features within it and is plainly
a statutory and regulatory code which is designed
to ensure that persons who are interested in an application, participants in the industry, be they
unions, individuals, employers, governments or
whatever, have the entitlement to see what changes
are being made to an eligibility rule and provision is made for their right to object within a
specified time and the obvious intent of the code

Ironworkers 31/8/90

is that they will be heard before the consent is

given to the rules.

Again, Your Honour, there are other procedures

in the new Act whereby eligibility rules might be

altered but, Your Honour, they are not relevant

here. we point in particular to section 118 of the

Industrial Relations Act - this is the demarcation dispute provision and there is within section 118 a provision whereby rules relating to eligibility can

be altered but, again, that is exclusive of

section 204. There are other sections within the

Act which relate to alteration of rules, namely,

section 203 by the Industrial Registrar, being
rules other than eligibility rules, but the code in

relation to eligibility rule alteration on the

application of an organization is 204.

Now, Your Honour, the current certified rules

of the Building Workers' Industrial Union,

Your Honour will find, so far as presently relevant in exhibit GMK7 to the affidavit of Mr Keating

filed in this matter, and that exhibit is, in fact,

a decision of Mr Deputy Industrial Registrar

McPherson under the Conciliation and Arbitration

Act given in February 1987. And it is this

decision which it is contended by the prosecutors

gave rise to the conclusion of the proceedings in

1987, and I will tell Your Honour something about

the history of it in a moment if I may.

HIS HONOUR:  I have read most of the papers in the matter.

It seemed to me, subject to what you have to say,

that the critical question is whether or not the Registrar was consenting to a change of rules so that in.the case of the BWIU rules the proviso

finally determined the application.

MR KENZIE:  Yes, Your Honour. That is it. In the

prosecutor's contention it did, because any attempt

to remove that proviso, which is what is now being

sought, necessarily involves the making of an

alteration to the rules which was not in

contemplation at the time of the original

application and is, in fact, a totally different

alteration.

HIS HONOUR:  But the case put against you - and it seems to

me quite frankly to be a powerful case - is that it

was never intended to operate as a final

disposition of the rules. The Deputy Registrar

said so in his judgment, and counsel had conducted

the case on that basis.

MR KENZIE:  Yes, Your Honour. We say several things about

that, Your Honour. The first thing that he says,

the Deputy Industrial Registrar, in that very

Ironworkers 6 31/8/90

exhibit, did not in fact say that he was disposing

of the matter in part when the decision is properly
understood, notwithstanding what was put by the

BWIU, but the second thing that we have to say

about it - and I will go on to deal with it,

Your Honour - is regardless of what the Deputy

Industrial Registrar said or intended, where rules

which are unambiguous are inserted into the

conditions of eligibility, it would not matter

whether the intention of the Registrar was to

finally dispose of the matter, it would not matter

whether the intention of the applicant or the other

parties was to finally dispose of the matter; the

question is do the words in the rule dispose of the

matter.

HIS HONOUR:	Well, the question is whether or not, within the meaning of section 48, there has been a consent
or a refusal of consent. Section 48 is surely the
critical section. It provides:

Where an application for consent to a change -

of the rules -

or an alteration of the rules ..... was made

under subsection 139(1) of the previous Act,

but consent had not been granted or refused
under section 139 ..... the application shall,
after the commencement, be dealt with by a

designated Presidential Member under

section 204.

MR KENZIE:  Yes, Your Honour, but that, with respect,

proceeds on the basis that at the time section 48

operates there is something left in the

application. If an application - - -

HIS HONOUR:  That is not what it says. It says in terms

whether -

consent had not been granted or refused.

MR KENZIE:  Your Honour, may we develop this. We say this,

that if an application was made under the

Conciliation and Arbitration Act and it was sought

to be processed in part by the applicant, if the

applicant sought, in disposing of it in part, to

have inserted in the conditions of eligibility a

form of words in unambiguous terms including a

proviso, that is an indication within the rule,
that although the alteration to the rule made
covered certain areas it did not cover other areas
then, in our respectful submission, so long as
those words were unambiguous and clear, and not

interim, but final, they must inevitably involve a

Ironworkers 7 31/8/90

disposition of the application in so far as it

involves the subject-matter of those words.

HIS HONOUR:  But, the consent was not intended to be given

or refused in respect of part of the application.

Now, whatever the effect of those rules may be as

they stand, the fact is that part of the

application was never disposed of and that part

remained on foot to be dealt with and could be

dealt with, if necessary, by amending what was

already there.

MR KENZIE:  Your Honour, may we put it this way: the

applicant sought a rule, a global alteration, and

the effect of what the Registrar did was to say in

the rule, "I will give you A but not Band I insert

that in the rule" and if the Registrar went on to

say, "But my intention in doing that is only to

consent in part", the fact that the Registrar had

an intention that there would be a balance in the

application is beside the point, in our respectful

submission.

HIS HONOUR:  But why is it beside the point, Mr Kenzie? The

Registrar did not intend to deal with Part B of the

application; that remains to be disposed of and it

can be disposed of by amending the rules. It is

still on foot; there is nothing at all to stop the
Deputy Industrial Registrar from, in your

illustration, modifying A so as to give effect to

B, which was still on foot.

MR KENZIE: Well, Your Honour, it comes back to the question

of whether one accepts that there is anything on
foot, we concede but, in our respectful submission,

the critical question of whether there is anything

on foot must be and must stem from an examination

of the rule and not from a statement of intention of the tribunal. If the rule is certified at the request of the applicant and that rule clearly

says, "You will get A but not B", in our respectful

submission, that is a dispo·sition regardless of the

intention of the tribunal of B.

HIS HONOUR: Well, I think you asked the wrong question.

The correct question is, had the Deputy Industrial

Registrar disposed of B. Everybody - I do not know

whether you concede this - but certainly he did not

intend to dispose of B; none of the other parties

thought that he was disposing of B so Bis still on

foot and he can give effect to B. There is still

an application or there was still an application on

foot to deal with the position in

Western Australia, South Australia and wherever the

other State was that was not being dealt with.

Ironworkers 31/8/90

Now, that part of the application can be dealt

with and, if that means that the rules as amended

by the Deputy in, what was it, February 1987, needs

to be modified in some way, then it can be. I

cannot even see that the point is arguable, with

great respect, Mr Kenzie.

MR KENZIE: Well, Your Honour, in our respectful submission,

the statute constituted a code and the contrary
conclusion to that for which we contend involves

the proposition that if the applicant seeks -

perhaps some years ago, as in this case - to insert

words by way of a proviso, by way of settlement,
with objectors and says to those who are then

involved in the proceedings, "Look, what we intend

by this is that there will be a part A but we will

still go on, later on at some time, and fix up part

B."

Then, the result of that is that at any time, regardless of the clarity of the words in the rule

including the proviso; a rule which, when you

picked it up, would say, "This organization has

coverage of A but not B". The effect of the

contrary contentions, Your Honour, is that at any

point of time in the future the applicant can

resurrect the proceeding and resurrect part B,

which is said to exist because of the intention of

the tribunal at the time of the proceedings - - -

HIS HONOUR:	Yes, but everybody agrees, as I understand it - when I say "everybody" I mean all the parties in
this case agreed at the time that the Registrar
could consent to part of the application and there
can be no dispute about that. I take it you would
not dispute that proposition?
MR KENZIE:	No, Your Honour, it was not contested.
HIS HONOUR:	So, you start off with an application to change

the rules of the Union. Everybody understands that
there is an intention only to deal with the

situation in New South Wales, Victoria and the ACT,

leaving the rest of Australia to be dealt with at

some later stage. As it turns out a fall of rules

is adopted with a proviso which, in effect, says

that they have got no coverage outside the three

States.

MR KENZIE:	Yes, Your Honour.
HIS HONOUR:	And, in terms, they did not have coverage at that stage because there was no intention at that
stage to deal with those States. But, what was
left on foot was that much of the application which
was going to deal with those outside States and
that has never been determined so far as the BWIU
Ironworkers	31/8/90

. . is concerned; consent had not been granted or

refused under section 139 of the Act to that part

of the application so it remains to be dealt with.

MR KENZIE:  Your Honour, may we put some submissions about

that? We understand the case that has been mounted

against us but what we have to say about it is

this: that approach to the matter places no store

whatsoever in the concept of amendment of an

application under section 139. If an applicant

makes what I have described as a global application

and says, "We want builders labourers everywhere",

and that application is pursued to finality, well,

no issue arises.

But if, during the course of the proceedings

and for whatever purposes or reasons that appear to

the applicant to be relevant the applicant then

asks the Registrar to certify a rule in a form

which is at variance with the application and which

will require subsequent amendment in order to bring

it back into form - the form of the original

application - then what the applicant is doing,

inevitably, is narrowing the application and

amending it.

HIS HONOUR:  I do not see that. I mean, I know the case has

been conducted on the basis that maybe there was
something done here that should not have been done,

but so far as the proviso was concerned it simply

gave effect to the situation as it stood at the

time when what we have called Part A was being

disposed of.

MR KENZIE:	Yes, Your Honour, and that involved - - -
HIS HONOUR:	It just said that, at that stage, the

organization had no coverage for those three

States.

MR KENZIE: Well, Your Honour, with respect it did not

simply say, "You will have coverage of three

States" and it did not say, "At this stage you will

have no coverage in relation to Western

Australia" - - -.

HIS HONOUR:	I understand what you put, but the substance of the matter was as the Deputy President put it in
his reasons, that it was no different than if it had said, "Further, provided that without limiting
the generality of the forgoing the union shall in
New South Wales, Victoria and the Australian
Capital Territory also consist of".
MR KENZIE:	Your Honour, with respect, there is all the

different in the world and that is one of the large

errors which we submit the Deputy President made.

Ironworkers 10 31/8/90

His Honour assumes that this is only a matter of form because words were chosen which were words of

exclusion which were appropriate as far as
objectors were concerned and not words of
inclusion.

But there is all the difference in the world so far as objectors are concerned between a rule

which says, "You can have builders labourers in

States (a), (b) and (c)" full stop, and a rule

which says, "But you cannot have them in the

following States", and, in our respectful

submission, there was nothing interim about that

rule. It was inserted in terms which were not

interim but final and the fact that the applicant

may have been saying to the Deputy Industrial

Registrar, "Look we do not intend it to be final.

We will come back when it suits us and resurrect

the balance", is inconsistent with an insertion of

a proviso, which is in blanket terms and which will

have to be removed from the certified rules by the

applicant if it wants to achieve its end.

HIS HONOUR:  Yes, but the proviso did no more than if they

had	said nothing. Your case would be hopeless if
the	proviso was not in, would it not? You would
not	have a case.

MR KENZIE:  Your Honour, we concede that you can split your

case and if there was no proviso there, then - - -

HIS HONOUR:  So, if there was no proviso there, the BWIU

would not have any coverage in Queensland, South

Australia, Tasmania, Western Australia or the

Northern Territory. Now, in terms they have said,

"Provided nothing in subrule (b) shall render

eligible to join the Union any person employed in

those five places". I mean, it is just a question

of form and substance. Everybody understood that

the question of coverage in those places:

Queensland, South Australia, ·Tasmania, Western

Australia and the Northern Territory, was to be

dealt with at some later stage and that the

application had not been disposed of.

I have heard what you have said, I have read

the material and so far as this part of the case is

concerned, I must say I do not think the point is

arguable, Mr Kenzie.

MR KENZIE:  Your Honour, may we then turn to the FEDFA

aspect of the proceeding where we say that clearly

different considerations apply?

HIS HONOUR:  Yes.

Ironworkers 11 31/8/90

MR KENZIE:	The FEDFA case is different in this respect: that there is evidence that what happened in the
FEDFA case was not only that the matter was
processed extensively before the Commission and processed with objectors on the basis that the
FEDFA was resolved to determine to proceed to the
matter in its entirety and to finality, but the committee of management of the FEDFA in 1987 resolved to amend the rules, that is, amend the rules of the organization downward so that the only
amendment to the rules capable of supporting an
application is an amendment in terms which excludes
the outlying States.
HIS HONOUR:	Yes, but the Deputy President considered the

evidence and at page 18, 19 of his judgment, he

made a critical finding of fact against you. How

is that a matter for prohibition? He said he was

"satisfied that the FEDFA did not decide in

March 1987 to have the applications dealt with in

their entirety by seeking consent to those parts of

the alterations which I dealt with in my decision

in April 1990".

Well, Your Honour, His Honour made a finding of fact but it was a finding of fact which was

based upon a total misunderstanding of the

materials which it was legitimate to look at in

determining whether an application had been
amended, so it is incorrect to categorize it as a

simple finding of fact which might have been made

one way or the other. His Honour found, in his

judgment, that, although the words that were used

in the documents before the Commission indicated that the FEDFA intended to process the matter to finality; although the FEDFA filed with the

Commission a document which was in the form of

amended application, and that was supported by a
new resolution of the FEDFA, which said, "Well we

know we have passed an ealier resolution to amend

our rules in a certain respect, but we now amend

that resolution downwards so that the only rule

that is capable of supporting our position

presently, is an amended rule which does not seek

the entirety of the coverage in the earlier rule,
although all of the documents which were put before
the Commission and the conduct of the FEDFA right

through the proceedings, including that part of the

proceedings which involve all of the objectives,

was consistent only with an intention to deal

finally with the matter".

His Honour made the finding of fact that

Your Honour refers to by resort to the subjective

intention of the person handling the matter and the further subjective intention of some of the persons

who were said to have participated in the passing

Ironworkers 12 31/8/90

of the resolution which supported the amended

application. So it is incorrect to categorize it

as a finding of fact, Your Honour. It was a

finding that was a totally irrelevant finding

because the jurisdiction of the Commission under
section 204, as well as under section 139 under the

Conciliation and Arbitration Act, cannot transcend the rule alterations of the organization which support the alteration.

So if the organization says on day one that we

want a global rule and we make an application based

on that, but on day two and during the course of

the proceedings and in order to resolve objections,

which have been put up to the organization to

settle it on a final basis, the organization says;

"Yes, we do want to settle this on a final basis
and in order to settle it on a final basis, what we

do is we go back to our committee of management and

we now amend the rule downwards and we file an

amended application consistent with that amended

rule", which is what happened here, in our

respectful submission, "then the jurisdiction of

the Commission is narrow and it cannot· transcend

that which the organization itself seeks by
reference to its alteration to its eligibility

rules."

In our respectful submission that is an

entirely different position. Even if Your Honour

is against us in relation to the BWIU there can be

no doubt that the materials - indeed His Honour

accepted, Your Honour, that the entire prosecution

of the proceedings, while the objectors were

there - and they were of course, only the people

who were there in 1987 - - -

HIS HONOUR:	Yes.
MR KENZIE:	- - - forget the people who had come into the industry in the last three years, and the people
who want to object, or who might want to object if
an application was made now, those people, dealt
with the applicant on the basis that it wanted
final resolution on the evidence accepted by
His Honour, and settle with the FEDFA only on that basis, and yet His Honour found - and this is the
finding of fact Your Honour refers to - that none
of that mattered because the Commission was
entitled to have regard to the subjective intention
of the person who had the conduct of the proceeding
on behalf of the FEDFA.

The Commission was further entitled to have

regard to what was described as the subjective

intention of some of the people who might have said

something to the committee of management of the

Ironworkers 13 31/8/90

FEDFA in 1987, and although the resolution was clear on its face, the resolution passed was a resolution that the original resolution be amended

to the extent of inconsistency.

HIS HONOUR: Well, I follow all that but, you see, the

Deputy President was the person who said - he dealt

with this himself, did he not?

MR KENZIE:	Yes, Your Honour.
HIS HONOUR:	And he said he intended to consent to part of the alteration so as to give the FEDFA coverage in
New South Wales, Victoria and ACT.
MR KENZIE:	Yes, Your Honour.
HIS HONOUR:	But he said he did not intend to, nor did he

refuse his consent to the remainder of the

alterations, and he followed that course as a

result of the statement made on 20 February 1987.

MR KENZIE: Yes, Your Honour. But, Your Honour, with great

respect, his intention, in so far as it was an

intention that there be, and there was, some

balance in the proceeding over and above that which

was in the amended application, over and above the

rule, the certified rule of the organization to

provide the foundation for jurisdiction, is

entirely irrelevant, in our respectful submission.

HIS HONOUR:  Why is it irrelevant? We are back to our

illustration of A and B - and the Deputy President

said, "I intended to consent to A, I did not intend

to consent to B", so a form of rule was drafted

which otherwise is covered by the BWIU case and

then you rely on these further facts which emerge.

MR KENZIE: Well, Your Honour, in our respectful submission,

everything that it was feasible to do to amend an application was done by the FEDFA. You could not

do any more.	This is what they did.	They filed a
document which was an amended application to change	the rules. It was a document which contained	grounds; it contained the amendments built in.
They were explained to the Commission in terms on
the transcript on 10 February.

The committee of management of that

organization then went back and changed the rules

in accordance with that amendment. Now, You could

not do any more. With respect, what more could you

do to amend. Now, now only did that happen, but

the Commission then acted on the amended

application.

Ironworkers 14 31/8/90

HIS HONOUR: Well, it.acted on it but the Commission itself

said that it did not intend to consent.

MR KENZIE:  Yes, Your Honour, that is what happened. The

Commission acted on the amended application	and
said, "Yes, but I believe that by acting on	the
amended application I have still got some
jurisdiction left".

HIS HONOUR:  Yes.

MR KENZIE: Well, Your Honour, in our respectful submission,

that is simply not open. There is no rule change which supports any wider jurisdiction because the

applicant got what it came for. There was no

balance left in the original application then. You

could not go back and say, "Well, there's something

left in the original application" notwithstanding

the fact they have come along solemnly and said,

"No, we want to read it down. We've passed our

rules in accordance with that, done all that".

HIS HONOUR:  Can you take me to the transcript where those various stages - - -

MR KENZIE: Yes, Your Honour, I can. The relevant

paragraphs of the affidavit commence, I think, at

paragraph 35.

HIS HONOUR: Is this GMK28?

MR KENZIE:	No, Your Honour, it is paragraph 35 of the affidavit onwards, which - - -
HIS HONOUR:	But is it exhibit GMK28?
MR KENZIE:	No, Your Honour. There are a number of

references. GMK - - -

HIS HONOUR: 35, is it?

MR KENZIE:  No, 17 and 18 is the commencement, Your Honour.

HIS HONOUR:  17 and 18.

MR KENZIE:  And, Your Honour, may we say that - I am sorry,

I have misled Your Honour. GMK18 is the transcript

of 10 February. Paragraph 35 of the - - -

HIS HONOUR: Well, wait until I find it.

MR KENZIE: Yes, Your Honour.

HIS HONOUR:  18?

MR KENZIE: Yes, Your Honour, GMK18.

Ironworkers 15 31/8/90

HIS HONOUR:	Yes.
MR KENZIE: This is 10 February, Your Honour.	I have not

read to Your Honour paragraphs 35 and 36 which deal

with the earlier occasions where there was an

indication - - -

HIS HONOUR:  When you are talking about paragraphs 35 and

36, what are you talking about, with respect?

MR KENZIE:  I am sorry, Your Honour. I have not take

Your Honour to paragraphs 35 and 36 of Mr Keating's

affidavit which contain reference to some earlier

occasions on transcript where it was said by the

applicant that they wanted to deal with the matter

completely and finally. They are referred to in

Deputy President Moore's decision to which I will

come.

HIS HONOUR:	Yes.
MR KENZIE:	Now, on 10 February 1987, GMK18, Mr Wilson

appears; he appears for the FEDFA.	He says at
page 18 in GMK18:

What I might do to commence, if I could hand

up a copy of an amended application for

consent to change the conditions of

eligibility for membership and an amended

application for consent to the description of

industry; I will address myself at different

times to that document.	I will just make
copies available.

He takes the Registrar to the eligibility

document,

you can see certain words underlined, and a

capital A ..... and a capital B •.••• in bold

type. That bold type and those words

underlined are amendments to the document as

originally filed and are words of restriction

or limitation upon that document as originally

filed. Likewise, in respect of the industry

document, A and Bon the first page and

subrules 1 and 2 in bold type in addition to
the words underlined on the first page and

second page, amendments to the original

document or original application as filed, and

are words of limitation to the words appearing

in the application as originally filed.

Then, Your Honour, in the succeeding pages,

Mr Wilson takes the Registrar to a number of

settlements. I will not read them to Your Honour

but they include a number of settlements which are

plainly conditioned on the amended application.

Ironworkers 16 31/8/90

IfYour Honour would see page 21-22, Mr Wilson in

the last passage on the page under Mr Buchanan, who

appears for the Mines and Metals, he says he

confirms:

that discussions took place on 5 February

that agreement has been reached and if the

rules are pressed in the form in which they

are handed up this morning, then neither

objection by my client will be pressed.

And then Mr Wilson then goes on to refer to the

MTIA and indicates to the Registrar that,

the MTIA is presently prepared to withdraw its

objections in consideration of the amended

documents having been put before you, save for

the formality of them actually sighting the

consolidated amendments -

et cetera and then, Your Honour, there are further
amendments that are then dealt with.

Then on 20 February, which is exhibit GMK19, Mr Wilson comes back. This is after all the

objections for 2 have been withdrawn, yes

page 21-22 on the previous date. Mr Wilson comes

back on the 20th with the final two settlements, as

it were. They related to the AWU in the interests

of the FIA and he deals with the AWU one on

page 27, and there were some words of qualification
put in in relation to "riggers". So he added those

words, 27 point 4, "assisting a rigger specified"

et cetera, and:

I am instructed ..... that they will, on the

basis of an agreement .... now withdraw their

objection -

et cetera, and then he comes to the FIA and there

are some further words put in and he hands up the

agreement and he refers to the TWO. A Mr Bookin

appears for the AWU at the bottom of page 28.

other objectors on page 29 and on page 30, the	There are some discussions about the status of	Registrar, having referred to the outstanding
objections as to status, says,

I am wondering whether there is any need to

come back here at all?

Mr Wilson says:

I am not aware of any myself.

Et cetera. Now, I have not read, Your Honour - - -

Ironworkers 17 31/8/90

HIS HONOUR:	What about at page 29?
MR KENZIE:	Yes, I am just about to go back to that,

Your Honour. It is at page 29 point 8, which is

the part that we have highlighted in our affidavit

that I am about to take Your Honour to. It is at

this stage that the Registrar says:

Well how should this matter proceed now? And Mr Wilson says:

This matter, I would propose, proceed in a

similar fashion to the two -

States. So at that stage he says, "Well, I think it
can go on as per the BWIU" and he puts that to the

Registrar and that is the part of the transcript,

Your Honour, that Mr Deputy President Moore says

that he was acting on primarily on 6 April, 1990,

when he says, "Well I am now processing the

application part". So he relies on that statement.

HIS HONOUR:  But that only indicates that there was no

intention at that stage to dispose of the whole

application.

MR KENZIE:  Your Honour, all that indicated was,

notwithstanding the fact that the application had

been amended in quite clear terms, that Mr Wilson

had a view that it was possible to proceed with a

balance. That was a view that he persisted with

from time to time but - - -

HIS HONOUR:  Yes, but the amended application is no

different, is it, to what the situation is in the

BWIU case?

MR KENZIE:  It is different in several respects,

Your Honour. Firstly, there is no doubt that it was an amended application that followed the form

of the Act and, secondly, although it did not

happen on 10 February, it was subsequently

supported by an amendment to the rule which

supported the proceeding before the Commission

because what thereafter happened was that the FEDFA

itself resolved to amend the earlier resolution

which supported the application and they did so

downwards and they said, "We don't to rule in that

wide term, we want to rule in this narrower term"

and that is what they did.

HIS HONOUR: Yes, but the original application was still on

foot before the Registrar, was it not?

MR KENZIE:  No, Your Honour. How could it be, with respect?

There are not then two applications on foot. If an

Ironworkers 18 31/8/90

applicant comes along and says, "I want to amend my

application and here are the particulars in respect

of which it is inconsistent with the original

application", there are not then two applications

on foot. There is one application on foot. It is

the original application as amended.

Your Honour, it could not be any clearer, that

is what they set out to do on 10 February. Now,

the fact that the applicant who does that has a

mistaken view as to the consequences, namely, that

even though all that is done there will be some

outstanding balance, that is in the original -

HIS HONOUR:	Where is the passage in GMK18 where - that is at page 18 - the amended application itself, is
that anywhere?

MR KENZIE:  Yes, it is, Your Honour. The form of

application handed up is GMK17:

Application is hereby made by the Federated

Engine Drivers' and Firemen's Association of

Australasia for consent to the change .....

FROM the following: .....

TO the following:

and the document is headed "Amended application for

consent to the change of". Then, over the page,

Your Honour, the words in B - it is the addition of

these words that constitutes the amendment:

Further provided that -

and then Your Honour will see that they contain

words that are underlined which are the words that

Mr Wilson was directing the Registrar's attention

to on 10 February and he was saying, "These are the

amendments and we want these amendments built into

our application".

HIS HONOUR:  So is the difference between the two cases that there was no amended application in the BWIU case?

MR KENZIE: Well, Your Honour, we submit that the effect of

what the BWIU did was the same, that is, to amend

its application. But the difference is the form,

Your Honour, that there was no document handed up

in the BWIU case which was in this form. There was

a document handed up which was simply headed,

"Amended Constitution" which contained reference to

the changes. So, in other words, Your Honour, what

you had in the BWIU case was simply the equivalent

to the contents of B.

Ironworkers 19 31/8/90

HIS HONOUR:  Mr Kenzie, I have to sit in the Full Court in a

few minutes' time. At the moment I am against you

in relation to the BWIU matter. I would like to

read the evidence carefully in the FEDFA matter

and go through all this material.

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

I could sit during lunch hour.

MR KENZIE:  Well, Your Honour, there is, with respect. We

have to take Your Honour to the evidence in

relation to what the FEDFA did, and that is, the

steps that were taken by the organization following

10 February, and that is when they actually

rea.mended their rule.

HIS HONOUR:  Yes. Well, perhaps we might sit for another

two or three minutes and then I will adjourn until

a quarter past one.

MR KENZIE:  Yes, Your Honour. Could I refer Your Honour to

the statutory declaration relating to the steps

taken, and this appears at GMK20. Your Honour,

GMK20 is a notice to councillors on 17 March 1987,

and His Honour accepted that his - Deputy

President Moore accepted in his judgment that there

accompanied this document when it went to

councillors a document in the form of - the

document being GMK17 - or a document to a very

similar effect.

And that notice, Your Honour, was re urgent

adoption.of a.mended applications consequent upon
the deregistration of the BLF, and there is a
reference to the application to the Registrar in

86. Then there is a reference:

to the settling of a number of objections

filed by other unions in the proceedings and

to enable the rule change to take effect in

NSW, VIC and the ACT now, and to proceed with

amendments to the proposed eligibility and	the other States at a later time, a number of	industry rules as set out in the applications
have been agreed to.

And then it goes on:

Enclosed is a copy of an amended application.

The words underlined are the amendments to the

draft eligibility/ industry rules as adopted

by Council on 4 June 1986.

And he says, "They are required to do this he

thinks."

Ironworkers 20 31/8/90

The only objections which stand in the way of the amended applications being approved are

BLF objections .....

Accordingly, it has been decided to adopt the

amended eligibility/industry rules through the

fast-track method. For this purpose you are

asked to record your vote on the following

proposal:

Motion (1): the amended eligibility rule of the FEDFA (Rule 1 - Name and Constitution)

approved by Federal Council on 4 June 1986, be

varied only in so far as it is inconsistent

with the amended eligibility rule circulated

on 11 March 1987,

(2) the amended industry rule -

ditto -

(3) in all other respects the resolution of

4 June 1986 approving the amended eligibility

in industry rules is affirmed.

So, it was an amendment which took the form,

Your Honour, of preserving the original subject to

inconsistencies and that the evidence was, was

carried. So, they carried an amendment to the

rules consistent with the amended application they

handed up and that is the state of the rules of the

FEDFA, as we speak on the evidence, and it is

against that background that the FEDFA now seeks a

consent to a rule change in relation to States,
other than the Eastern States, and it is in those
circumstances that the objectors, the FIA other

objectors, have said to Deputy President Moore that

there is just no jurisdiction to do that because he

could not be satisfied, in any event, that any of

this was supported by the FEDFA.

HIS HONOUR:  Yes. Do you want to take me to further

material?

MR KENZIE: Well, Your Honour, could I refer Your Honour,

rather than reading it now, to what Mr Wilson said

to the Commission on 2 February 1989, and

Your Honour will find that in exhibit GMK22 and

paragraph 41 of the affidavit. And, Your Honour,

in our respectful submission, when Your Honour

reads that - it is a short extract in the

transcript - Your Honour will see - - -

HIS HONOUR: Paragraph 41, is it?

MR KENZIE: Paragraph 41, yes, Your Honour, and GMK22 and

Your Honour will see when Your Honour reads that

Ironworkers 21 31/8/90

that Mr Wilson appeared on that day and he said to
the Deputy Industrial Registrar - I am sorry,

Your Honour,! have given Your Honour the wrong

references, it is GMK23, I am sorry Your Honour.

He handed up a statutory declaration which was in

the form of GMK22 and on 2 February 1989 Mr Wilson said that, "These matters have come before you for finalization", and they were adjourned for the

purpose of a decision being given. Thereafter,

after the new Act, Deputy President Moore made a

decision but he acted on what Mr Wilson said on

20 February and not on the amended application.

HIS HONOUR:  Yes. Well, I do not want to stop you in any

way because I am quite happy to sit on at a quarter

past one if you want to but I -

MR KENZIE:  Your Honour, in light of the debate, I would ask

Your Honour to do that.

HIS HONOUR:  No problem, there is certainly no problem at

all, it is just a question of having to adjourn

now.

MR KENZIE:	Yes, Your Honour.
HIS HONOUR:	I will adjourn this until 1.15.

AT 10.11 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 1.15 PM:

HIS HONOUR: Yes, Mr Kenzie.

MR KENZIE:  Your Honour, we did refer the Court before the

adjournment to the materials relating

to 22 February, 1989. Has Your Honour had an

opportunity to consider those?

HIS HONOUR:  No.

MR KENZIE: Well, Your Honour, they are to be found in

exhibit GMK23. Your Honour, it is only necessary

to note there that Mr Wilson, and this is in 1989,

two years after the vote in the statutory

declaration that was earlier referred to, but

shortly after the preparation of a subsequent

statutory declaration, appears before the Deputy

Ironworkers 22 31/8/90

Industrial Registrar and refers to the history of

the matter, page 2 of the transcript from 26

October, 1987,and at the foot of the page, the last

clear paragraph, he says:

But as I understand it this has now been

relisted for the purpose of formally

concluding these proceedings and a step in

that regard involves us in filing a statutory

declaration or two statutory declarations

testifying that the various alterations to the

proposed rule change that arose out of the

several agreements reached with the AWU and

various other objectors have been duly passed

by the FEDFA in accordance with its rules and

I now hand a copy of each of the statutory

declarations up for the commission. There is

one in the proceedings 146 and one - and

another in the proceedings 147 of 1988.

Your Honour, the statutory declaration that was

then handed up - I do not trouble Your Honour with the detail - the form of it was slightly different
to an earlier statutory declaration prepared in

1987, one of them amendments to the application and

the other to amendments to the rules. The document

handed up annexed to that statutory declaration was

simply the name and constitution. It was not the

actual application and on that basis, Your Honour,

the matter then was stood over and the new Act was

passed, came into force, and it was against that

background that Deputy President Moore conceded

that he was then dealing, only in part, with the

what was said at one stage in the proceedings by Mr	FEDFA application and he says that he relied on inevitably in doing that His Honour was picking up
the amended application, but only for the purpose
of acting on it to decide what rule ought to be
certified, but otherwise ignoring the amended
application and wrongfully proceeding on the basis
that there was something left before him.

HIS HONOUR: Well can I tell you the difficulty I still see

in respect of this. Powerful - although at first

sight it may seem in your favour that a document called an amended application was handed up, the

finding of fact is that it was not understood by anybody, including the Registrar at the relevant

time as being an amended application.

MR KENZIE: Well Your Honour, I do not know that that was

the finding that was made. The ultimate finding

made by the Deputy President was in GMK31. That is

his decision, Your Honour. But what he does at the end of the day is to decide - at the bottom of page

Ironworkers 23 31/8/90

18 of GMK31 - that is his decision of 2 July, 1990.

He says, at the end of the day:

I am satisfied that the FEDFA did not

decide in March 1987 to have the applications
dealt with in their entirety by seeking
consent to those parts of the alterations

which I dealt with in my decision in April

1990. It follows that a part of each

alteration has yet to be considered and

consent given or refused.

His Honour was there, with respect, making the

error of not paying regard to the fact that there

had been an amended application filed.

HIS HONOUR:  He was well aware of it. I mean he set it out

in his judgment; the fact that it was headed

"amended". It is at page 4 of his judgment - he

sets it out with the following heading, "Amended

Application" and he sets out the early proceedings

and then at page 11 he says:

Having regard only to the history of the

matter outlined so far I have no doubt I have

jurisdiction to deal with the remainder of the

alterations for the reasons I gave in my

decision in the BWIU -

case.

MR KENZIE: That is right.

HIS HONOUR: Well then he refers to the "further facts"

which emerged and he sets out the circular to the

Councillors of the FEDFA.	What. accompanied it, he
said, is not clear.	He refers to the ballot paper,

and then he sets out your submissions - or the

submissions on behalf of the moving parties. He

makes note, about 14 point 8, last sentence in that

paragraph:

There was no suggestion made in the transcript

that the objectors believed their objections

remained on foot in relation to parts of the applications which were not then being dealt with.

This is a reference to, I assume, what took place

on 10 February 1987, when the amended applications

were handed up. And then he refers to Mr Wilson's

evidence and he says at 15:

Having regard to all the material before me it

appears that in early 1987, the FEDFA either:

Ironworkers 31/8/90

(i) decided to have its applications dealt
with to finality .... or

(ii) decided to seek consent to only parts of

the ..... applications.

He says:

The first conclusion is supported by the

manner in which objections were settled,

aspects of the terms upon which the ballot of

the Federal Council was conducted in

March 1987, the amended applications handed to

the Deputy Industrial Registrar in February
1987, the terms of the statutory declarations

of Mr Fitzgerald made in April 1987 and

evidence given by Mr Scott.

And he says:

The second conclusion -

that is that they are only consenting to only parts

of the alterations -

is supported by aspects of the terms upon

which the ballot was conducted in March 1987,

the terms of the resolution passed, the

statement made by Mr Wilson to the Deputy Industrial Registrar on 20 February 1987,

evidence of Mr Wilson and evidence, in

affidavit form, of Mr Cambourn.

And he comes down to the view that there was no

intention by the FEDFA in March 1987 to have the
application dealt with in their entirety by seeking

consent to only parts of it.

MR KENZIE: Yes, Your Honour, well, that is the submission

we made before, that it ls incorrect to simply

categorize that as a finding of fact and to proceed

to deal with the matter on.this basis. The

question, Your Honour, is whether, in determining

whether an application or a proceeding ls before

the Commission as a matter of jurisdiction, it is

possible to have regard, not to what the

organization has done, but to what it now says its

intention was when it does something which is

inconsistent with that intention.

HIS HONOUR:  Yes, but that is only one aspect of it. A

document was handed up in February 1987. That document does not seem to have been acted upon

there and then. It was just handed up in court -

it was March 1987 that it is really acted upon -

surely that is the critical date, and it is at that

stage Mr Wilson had told the Deputy Industrial

Ironworkers 25 31/8/90

Registrar on 20 February 1987 that they were only

proceeding in part.

MR KENZIE:	Yes, on 20 February.
HIS HONOUR:	Yes.
MR KENZIE:	Yes, Your Honour.

HIS HONOUR: Well, if you accept that the FEDFA was not

intending to narrow their original application and

that the Registrar was informed of that and that,

although a document had been handed up earlier

which might indicate the contrary, what is the

error of law of the Deputy President making the

finding which he did?

MR KENZIE: Well, Your Honour, very simply that Your Honour

recites, with respect, part of the facts but that
recital ignores completely the resolution that was

passed by the FEDFA in March 1987 and that

resolution is to amend the rule that is the subject

of the application and to narrow it and the
resolution of the FEDFA is to say that the earlier

amendment to the rule in 1986 stands intact but

only in so far as consistent with the amended

application which we now make.

HIS HONOUR: Well, except there is a finding against you on

that, is there not; that the Deputy President did

not think that that was the intention even at that

stage?

MR KENZIE: Well, Your Honour, with respect, we say that is

by saying, "Look, I know what they passed but I've

a matter that goes to jurisdiction because the

also got this evidence as to what they told me that

they really meant when they passed it." Now, there

is a fundamental error inherent in that, with

respect, and it is not correct to categorize it as

a finding of fact. The issue is whether you are

able to categorize the amendment, or classify an

amendment, to the rules of an organization relating

to the conditions of eligibility or otherwise, not

by virtue of what that amendment says on its face,

but by virtue of what someone says about it.

Now, with respect, it is just fundamentally

wrong to take into account in any way evidence of
what a particular person or even, Your Honour, the

majority of a committee say about what their

intention was at the time that they did something.

HIS HONOUR: Yes, but what the council did, or the

committee, was only evidence as to what had

Ironworkers 26 31/8/90

actually happened before the Deputy Industrial

Registrar.

MR KENZIE:	No, Your Honour, with respect, what the council did is foundational to the jurisdiction of what can
happen thereafter because there is no jurisdiction
in the Commission independent of the rule change that is made by the organization.
HIS HONOUR:	No, I appreciate that but you start off with an

application which is before the Commission.

MR KENZIE:	Yes, Your Honour.
HIS HONOUR:	Now, a document is handed up and the question

is, did that document narrow the application?	On
its face, it would seem that it did but the

Deputy President found as a fact that it did not, and the clear inference must be that the

Deputy Industrial Registrar was also of the same

view; in fact, he had been told on 20 February that

it was not meant to be a circumscription for the

earlier.

MR KENZIE: Well, Your Honour, with respect, if that be

accepted, that must amount to a conclusion that one

can place at nought what the legal effect of what

was done on 17 March was, and to place at nought

the fact that what the organization does is the

foundation of jurisdiction. I mean, it assumes

that the application has a life independent of the

rule changing procedure of the organization and

that regardless of what the organization decides is
to be its eligibility rule, the Commission can say,

"Well, we don't care about that. We once had an

application before us which was in wider terms. An

amended application has been handed up which is now

supported by a subsequent alteration of the rule

and, regardless of whether the jurisdictional basis

of the granting of consent has been affected by

that alteration, the Commission will proceed on the

basis that its jurisdiction is confined by the

earlier application."

HIS HONOUR: Yes, I know, but your problem is that the

Deputy President found as a fact that the FEDFA was

not altering their earlier resolution.	He made
that finding, did he not?

MR KENZIE:  Your Honour, with respect, that must be an error

of law, not fact.

HIS HONOUR:  Why?

MR KENZIE: Well, Your Honour, on its face the resolution

purports to rescind - and may I say, Your Honour,

Ironworkers 27 31/8/90

His Honour did not find that the motion did not

rescind; His Honour found, on page 17, that:

It is not obvious, in any event, that by passing that motion the Council was intending

to rescind the resolution of the Council in

June 1986 which gave rise to the FEDFA

applications.

Now, Your Honour, in so far as His Honour was

saying there that is not apparent that by passing

that motion the council was intending to rescind

entirely that earlier resolution, His Honour would

have been correct even if he had formed that view

firmly but His Honour was not addressing the

question of whether, by passing that subsequent

resolution, the council was affecting the

resolution passed in 1986 to the extent that the

subsequent resolution amended it and amended it

surely did because the resolution, passed in

March 1987, said so.

It said that the earlier resolution survives but only to the extent that it is consistent with

what we now do and His Honour found that what they

were voting on was the rule change - application

for amended constitution - that was put up in

March 1987.

So, Your Honour, His Honour did not find to

the contrary and His Honour would have been at odds

with the documentation if he had. It seems that
what His Honour was there directing his attention

to was the question of whether there was some

attempt to totally rescind and, Your Honour, that

approach would have been consistent perhaps with a

view that the earlier application had and

maintained some life of its own independent of what

the organization decided to do subsequently about

its rules.

Your Honour, if we are wrong about this, may we say, if we are wrong then you have to find the

will of the organization and you have to say that	jurisdiction of the Commission independent of the
there is jurisdiction in the Commission to consent to an amendment of these rules when the
organization has done everything it can to stop
that happening, to say, "No, we don't want that.
We want a different form of rules and this is the
resolution of the council".

HIS HONOUR:	But it is a question what they did intend by and Cambourn that the others do not seem to have
that.  It is fairly obvious that apart from Wilson
really known what was going on.

Ironworkers 28 31/8/90

MR KENZIE:  In our respectful submission the jurisdiction

is to be determined by what the organization did by way of amendment to its rules because if it did not have an amendment to its rules which would support

the intrusion of these rules into the outlying

States, then nothing, regardless of any intention that anyone formed, individually or collectively,

nothing can support the jurisdiction of the

Commission to consent to a rule alteration that

simply does not exist.

To find to the contrary you have to pretend

that resolution is non-existent, but exist it

surely does and it confines the jurisdiction.

HIS HONOUR:  I must say that at the moment it seems to me

that it is a question whether or not the original

application was withdrawn and unless you can make

that finding it does not seem to me that you can

get off the ground.

MR KENZIE:  Well, Your Honour, in our respectful

submission, the original application was not

withdrawn but was amended and necessarily amended

by the passing of a rule which superseded the

earlier resolution supporting the application in

part and the maintenance, the concept that the

earlier application survived untarnished by all of

those developments is simply inconsistent with the

concept that the mechanism proceeds on the basis of

what the Union has done in its rules,	in our
respectful submission.

HIS HONOUR:  Is there anything further you want to say,

Mr Kenzie?

MR KENZIE:  No, Your Honour. They are the submissions we

make in relation to the FEDFA matter.

HIS HONOUR: Well, I am going to refuse an order nisi in the

BWIU matter.	I want an opportunity to examine all
this material.	I will not be able to give a

decision today, but I will give a decision early

next week on it.

MR KENZIE: Yes, Your Honour. May I say, having regard to

what Your Honour has said, there was in the

application for a rule nisi a reference to an
application for a stay. That has obviously been

affected by today's debate.

HIS HONOUR:	Yes.
MR KENZIE:	May I indicate to Your Honour that Your Honour

not being disposed to grant a rule nisi in relation

to the BWIU matter, whether or not Your Honour were

disposed to grant a rule nisi in the FEDFA matter,

Ironworkers 29 31/8/90

the matters are proceeding together, and it would
not seem to us appropriate to ask the Court to
grant a stay in relation to the actual proceeding

of the FEDFA matter. They have not been joined,

but they are proceeding in tandem. However, if

Your Honour were disposed to grant a rule nisi in

relation to the FEDFA matter alone, it would be our contention that Your Honour ought grant a stay, not of the proceedings, but of the determination of
those proceedings by the granting of consent, that
is, a stay that would operate only at the
conclusion of the proceedings to prevent the FEDFA
decision being handed down and to provide the basis

for a certification of the rules. There are a

number of reasons for that, Your Honour. It will

not interfere with the ongoing proceedings which

Your Honour has knowledge of in the affidavit.

It is consistent, Your Honour, with the

approach - and I give Your Honour a reference -

consistent, Your Honour, with the approach taken by

the former Chief Justice in In re Ludeke and
Others; Ex parte Australian Building Construction

Employees' and Builders Labourers' Federation,

62 ALR 58. And if I could give Your Honour a

reference at page 61 - His Honour there indicated -

this was in relation to an application to stay

proceedings - but His Honour was not disposed to

make an application to stay the proceedings even in

a case which had some rather peculiar

characteristics, as I think Your Honour may recall.

But His Honour indicated that things -

would be different if the Commission were able

to ~ake a final declaration under s.4 before
the matter comes on for hearing •.•.. had that

been likely, I should have been disposed to

grant a stay, but only of the making of the

declaration.

HIS HONOUR:	Yes.
MR KENZIE:	And that is the approach that would be

appropriate, in our respectful submission, if

Your Honour were disposed to grant a rule nisi but

only in relation to the FEDFA.

HIS HONOUR: Yes, thank you.

MR KENZIE: If it please the Court.

AT 1.37 PM THE MATTER WAS ADJOURNED SINE DIE

Ironworkers 30 31/8/90