Want v Foley - [2002] FCA 452

FEDERAL COURT OF AUSTRALIA
Want v Foley [2002] FCA 452
INDUSTRIAL LAW – dispute between two branches of a union the structure of which was determined by a process of amalgamation – construction of union rules
Workplace Relations Act 1996 (Cth), s 209
R v The Commonwealth Court of Conciliation and Arbitration Ex Parte Barrett (1945) 70 CLR 141, considered
R v Joske; Ex Parte Shop Distributive and Allied Employees’ Association (1976) 135 CLR 194, considered
Magner v Fowler (1979) 26 ALR 671, considered
Short v F.W. Hercus Pty Ltd (1993) 46 IR 128, referred to
Imlach v Daley (1985) 7 FCR 457, referred to
Cook v Crawford (1982) 43 ALR 83, referred to
MICHAEL ROBERT WANT v LUKE FOLEY & ORS
N 283 of 2001
MADGWICK J
12 APRIL 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 283 of 2001

BETWEEN:

MICHAEL ROBERT WANT
APPLICANT

AND:

LUKE FOLEY AND THE PERSONS REFERRED TO IN SCHEDULE A
RESPONDENTS

JUDGE:

MADGWICK J

DATE OF ORDER:

12 APRIL 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
(a)The respondents and each of them perform and observe the Rules of the Australian Municipal, Administrative, Clerical and Services Union (“the Union”) and treat as null and void the resolutions of the National Executive of the Union made on 7 March 2001, and referred to in the Appendix hereto.
(b)The respondent, Luke Foley is restrained from representing or purporting to represent any employee of TAB Limited (“the TAB”) and from instructing or authorising any employee of the Union to represent or purport to represent any employee of the TAB.
(c)The respondent, Paul Slape within 7 days advise the Registrar of the Australian Industrial Relations Commission (“the AIRC”) that the Notice of the Giving of Authorisation to engage in Industrial Action served on the Registrar on 20 March 2001 has been judicially determined to be null and void, or in the alternative, is withdrawn.
(d)The respondent, Luke Foley within 7 days advise the Registrar of the AIRC that the Notice of Initiation of Bargaining Period dated 8 March 2001 has been judicially determined to be null and void, or in the alternative, is withdrawn.
(e)Liberty to apply within 7 days in respect of the foregoing orders should any of them be thought, in present circumstances, but in the light of the reasons for decision, to be unnecessary.

APPENDIX

Resolution 1
In accordance with Rule 10c, all members currently employed by TAB Limited in New South Wales and attached to the New South Wales Clerical and Administrative Branch who have indicated (in accordance with the letters tabled at this meeting) or who in future indicate their written desire to resign from that Branch be attached to the New South Wales and ACT (Services) Branch.
The Branch Secretary of the New South Wales Clerical and Administrative Branch is directed to furnish forthwith letters of transfer to those members who have indicated or who indicate their written desire to resign from that Branch, in accordance with Rule 31, and shall forward copies of the letters to the Branch Secretary of the New South Wales and ACT (Services) Branch.
In accordance with Rule 10c, any employees of TAB Limited in New South Wales who are not members of the Union who desire in the future to join the Union be attached to the Branch of their choice, viz the New South Wales and ACT (Services) Branch or the New South Wales Clerical and Administrative Branch.
Resolution 2
Notwithstanding the previous resolution, it is the preference of the National Executive that [Union] members at TAB Limited be attached to the NSW Clerical & Administrative Branch.
The National Executive Officers are instructed to seek a meeting with the Ultimo, Granville & Mayfield TAB delegates and urge the delegates and members to remain with the NSW Clerical & Administrative Branch of the Union.
The NSW & ACT Services Branch Secretary is instructed to urge all members seeking to join his Branch to attend a meeting with the NSW Clerical & Services Branch Secretary this Saturday.
The National Executive resolves that any members allocated to the NSW & ACT Services Branch that in future seek to return to the NSW Clerical & Administrative Branch be automatically allocated to that Branch [and] be transferred by the Secretary of the NSW & ACT Services Branch.
SCHEDULE A

1.Alison Peters
2.Len Darnley
3.Julie Bignell
4.Robert Ball
5.Adrian Bennett
6.Judith Bennett
7.Trevor Cordwell
8.Wendy McManus
9.Anne McEwen
10.Kayee Griffin
11.Robyn Glascott
12.Paul Slape
13.Michael O’Sullivan
14.Brendan O’Connor
15.Linda White
16.Greg McLean
17.Clive Meacham
18.Kristyn Thompson
19.Mary-Anne O’Neill
20.Barry Kilby
21.Brian Harris
22.Luke Foley
23.Jim Clemens
24.Michael Spencer
25.Henrietta Moran
26.Paul Burlinson
27.Meredith Hammat
28.Darrell Cochrane
29.Martin Foley
30.Jeff Lapidos
31.Margaret Dale
32.June Kerwin-Bennett
33.Andrea Ballantyne
34.John Gazzola
35.Russell Atwood
36.Greg Day
37.Christopher Dodds
38.Robert Ralph

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 283 of 2001

BETWEEN:

MICHAEL ROBERT WANT
APPLICANT

AND:

LUKE FOLEY AND THE PERSONS REFERRED TO IN SCHEDULE A
RESPONDENTS

JUDGE:

MADGWICK J

DATE:

12 APRIL 2002

PLACE:

SYDNEY

REASONS FOR JUDGMENT
HIS HONOUR:

The applicant, the Secretary of the New South Wales Clerical and Administrative Branch (the “Clerical Branch”) of the Australian Municipal, Administrative, Clerical and Services Union (“the Union”), seeks, by the amended Rule to Show Cause, orders that:
·    The respondents perform and observe the rules of the Union and treat as null and void resolutions of the National Executive of the Union made on the 7 March 2001.
·    In the alternative, that the respondent Paul Slape, National Secretary of the Union, summon a meeting of the National Executive at which each respondent carry a resolution rescinding the earlier resolutions.
·    The respondent Luke Foley, the Secretary of the New South Wales and ACT (Services) Branch (the “Services Branch”) be restrained from representing or purporting to represent any employee of TAB Limited (“the TAB”) and from instructing or authorising any employee of the Union to represent or purport to represent any employee of the TAB.
·    The respondent Paul Slape, forthwith advise the Registrar of the Australian Industrial Relations Commission (“the AIRC”) that the Notice of the Giving of Authorisation to engage in Industrial Action served on the Registrar on 20 March 2001, is null and void, or in the alternative, withdrawn.
·    The respondent, Luke Foley forthwith advise the AIRC that the Notice of Initiation of Bargaining Period dated 8 March 2001 is null and void, or in the alternative, withdrawn.
The Union is a registered organisation of employees under the Workplace Relations Act 1996 (Cth) (“the Act”) and the applicant invokes s 209 of the Act. Section 209 of the Act allows the applicant to apply to the Court to give directions as to the performance and observance of any of the rules of an organisation to persons under an obligation to perform and observe the rules. It is well settled that s 209 gives the Court broad powers to ensure such performance and observance: R v The Commonwealth Court of Conciliation and Arbitration Ex Parte Barrett (1945) 70 CLR 141; R v Joske; Ex Parte Shop Distributive and Allied Employees’ Association (1976) 135 CLR 194 at 212-13; Magner v Fowler (1979) 26 ALR 671.
The respondents were respectively the members of the Union’s National Executive. That body constitutes the committee of management of the Union and has the powers and duties of the National Conference, the supreme governing body of the Union. The respondents are, of course, persons under an obligation to perform and observe the rules of the Union.
Factual background
The Clerical Branch has approximately 12,000 members. By 23 March 2001, this included about 150 members among the 454 employees of the TAB at Ultimo, 210 members out of 282 employees at Granville and 20 out of 32 employees at Mayfield, a suburb of Newcastle.
These proceedings arose out of events surrounding a dispute between employees of the TAB and its management. In late 2000 the TAB had determined to relocate its Ultimo telephone call centre staff to Granville, a suburb some distance away. The TAB was also in the process of introducing new technology into its call centres which would result in a number of the call centre staff becoming redundant. These issues concerned the employees of the TAB, many of whom were members of the Union. They requested that the Union, which was in the process of negotiating a new enterprise agreement with the management of the TAB, assist them to resist or modify the TAB’s plans. Officers of the Clerical Branch (who were also officers of a state-registered union, which was virtually the alter ego of the Branch – see below) made some representations to management. However, disputes arose between the Ultimo delegates and the applicant, the delegates expressing dissatisfaction about the way in which the applicant was dealing with their concerns and the quality of the representation they were getting from the applicant and the officials under his control. The situation deteriorated to the point that on 27 February 2001 the delegates sent a letter to Mr Foley, as well as to other Branch Secretaries of the Union and Mr Slape, setting out their discontent with the applicant and the Clerical Branch.
As a result of the views expressed in the letter, Mr Foley arranged a meeting with the Ultimo delegates on 1 March 2001, at which the delegates stated that they and other members wanted to be accepted as members of the Services Branch or else they would resign from the Union. Following discussions with various individuals in the Union, Mr Foley determined to proceed further with the request of the delegates that they be allowed to join his branch, the Services Branch. On 3 March 2001 Mr Margarison, an organiser employed by the Union in the Clerical Branch, informed Mr Want that a union official employed in the Services Branch and a number of employees of the TAB had distributed leaflets, a pro forma letter of resignation from the Clerical Branch, and an application to join the Services Branch.
On 6 March 2001, the National Secretary and National Executive President convened a meeting between Mr Want and Mr Foley, along with other members of the National Executive to discuss the issue of TAB employees being enrolled as members of the Services Branch. The meeting continued on 7 March 2001. Mr Foley then moved a resolution, seconded by Mr Darnley, President of the Services Branch. A supporter of Mr Want’s position on this issue suggested the motion was contrary to the Union’s rules. The resolution was nevertheless carried. Its terms were:
“In accordance with Rule 10c, all members currently employed by TAB Limited in New South Wales and attached to the New South Wales Clerical and Administrative Branch who have indicated (in accordance with the letters tabled at this meeting) or who in future indicate their written desire to resign from that Branch be attached to the New South Wales and ACT (Services) Branch.
The Branch Secretary of the New South Wales Clerical and Administrative Branch is directed to furnish forthwith letters of transfer to those members who have indicated or who indicate their written desire to resign from that Branch, in accordance with Rule 31, and shall forward copies of the letters to the Branch Secretary of the New South Wales and ACT (Services) Branch.
In accordance with Rule 10c, any employees of TAB Limited in New South Wales who are not members of the Union who desire in the future to join the Union be attached to the Branch of their choice, viz the New South Wales and ACT (Services) Branch or the New South Wales Clerical and Administrative Branch.”
Rule 10(c) provided:
“Disputes between branches as to the attachment of members to branches shall be determined by the National Executive.”
A second resolution, unanimously carried was:
“Notwithstanding the previous resolution, it is the preference of the National Executive that [Union] members at TAB Limited be attached to the NSW Clerical & Administrative Branch.
The National Executive Officers are instructed to seek a meeting with the Ultimo, Granville & Mayfield TAB delegates and urge the delegates and members to remain with the NSW Clerical & Administrative Branch of the Union.
The NSW & ACT Services Branch Secretary is instructed to urge all members seeking to join his Branch to attend a meeting with the NSW Clerical & Services Branch Secretary this Saturday.
The National Executive resolves that any members allocated to the NSW & ACT Services Branch that in future seek to return to the NSW Clerical & Administrative Branch be automatically allocated to that Branch [and] be transferred by the Secretary of the NSW & ACT Services Branch.”
On 8 March 2001, the Branch Executive of the Services Branch resolved to accept applications for membership from persons employed at the TAB. Mr Foley then also purported to institute a bargaining period in accordance with the Act, notice of which was served on the TAB. On 9 March 2001, Mr Want received 161 letters from members of the Union employed by the TAB tendering their resignation from the Clerical Branch and the state-registered FCU (explained below). They did not resign from the Union. The form of the letters was the same as the pro forma letters handed out to TAB employees on 3 March 2001. In 24 cases, those resignations were rescinded before trial. After 22 March 2001, as I understand the evidence, the applicant received 30 resignations from the Union.
Mr Foley also arranged for a stop work meeting of TAB employees at Ultimo on 24 March 2001, which was notified to the TAB by letter from Mr Slape on 20 March 2001. At the stop work meeting a number of resolutions were passed including one of no confidence in Mr Want and the Clerical Branch.
The Rule to Show Cause, which was filed on 22 March 2001, just before the stop work meeting, was heard as to interlocutory matters on 2 and 3 April 2001. On 3 April 2001, I granted the interlocutory relief sought by the applicant. The relevant orders were:
“1.Until the determination of these proceedings or further order of the Court the Respondent, Luke Foley, refrain from:
(a) representing or seeking to represent; and
(b) enrolling or seeking to enrol;
as members of the NSW and ACT (Services) Branch of the [Union] any person employed by TAB Limited unless such person had by 31 March 2001 lodged an application to join the Services Branch and had not withdrawn that application.
…
3.The Respondent, Luke Foley, is within three hours to instruct all employees of the NSW and ACT (Services) Branch of the [Union] not to seek to represent the industrial interests, or seek to enrol as members of the Services Branch any person employed at the TAB Limited except those persons referred to above.”
Amalgamation of unions and the new Rules
The Union was formed on 1 July 1993, when the Federated Clerks Union of Australia (“the FCU”), the Federated Municipal & Shire Council Employees Union (“the MEU”) and the Australian Municipal, Transport, Energy, Water, Ports, Community and Information Service Union (“the ASU”) amalgamated. Prior to the amalgamation the FCU, MEU and the ASU entered into a scheme of amalgamation which included a Memorandum of Understanding (“the MOU”) “in order to set out principles and agreements upon which the proposed amalgamation of the three organisations shall be determined”. Clause 7(a) of the MOU provided that competition between the branches in the amalgamated union should not take place. Clause 10 of the Scheme for Amalgamation provided:
“a.Members shall be attached to a branch of the Union which would traditionally have represented the employee or similar employees had there been no amalgamation.
…
c.Disputes between branches as to the attachment of members to branches shall be determined by the National Executive, which shall have regard to Rule 78.”
Clause 10 became Rule 10 of the Union upon the successful amalgamation.
Rules 6, 7 and 8 of the Union’s rules relevantly provided:
“6 – STRUCTURE
a.Members of the Union shall be attached to one of the following Branches in accordance with Rule 10:
…
iii. New South Wales Clerical and Administrative Branch
…
x. New South Wales and ACT (Services) Branch
7 – NATIONAL CONFERENCE
a.The Supreme Governing body of the Union shall be the National Conference with all powers and authorities as are necessary or convenient for carrying into effect these rules and the purposes of the Union.
…
8 – NATIONAL EXECUTIVE
a.There shall be a National Executive of the Union. Subject to a decision of National Conference rescinding any decision of the National Executive, the National Executive shall have the powers and duties of the National Conference including the capacity to add to, change, amend, vary, repeal and/or delete rules.
…”
As a result of the Scheme of Amalgamation, the Union’s Rules immediately after amalgamation contained Rule 81, among transitional provisions which have now been removed. The former Rule 81 relevantly provided:
“a.Members of the FCU, MEU and or the ASU allocated or assigned to Branches or the Divisions of the aforesaid Unions on the day immediately preceding Amalgamation day shall be attached, on Amalgamation day, to Branches of the Union as follows:
…
vi.Federated Clerks Union of Australia New South Wales Branch, to the New South Wales Clerical and Administrative Branch.
…
xvi.ASU New South Wales to the New South Wales Services Branch.
…
b.In the event of any dispute between Branches as to the attachment of membership of the Union to Branches, then such disputes shall be referred for resolution and final determination by the National Executive.”
Rule 10 has provided, since amalgamation:
“a.Members shall be attached to a branch of the Union which would traditionally have represented the employee or similar employees had there been no amalgamation.
b.Clerical and Administrative staff of the branches may be attached to the branch within their state or territory which has responsibility for clerical and administrative employees. Provided that, unless the National Executive otherwise decides, employees who are eligible for membership of the Union shall be attached to the branch in which they are employed. National Officers and National employees shall be attached to a Branch in the state or territory in which such member resides, by the National Executive.
c.Disputes between branches as to the attachment of members to branches shall be determined by the National Executive.
d.National Conference or National Executive shall not dissolve or reconstruct a Branch without the agreement of the supreme governing body of the branch, carried by resolution with not less than seventy per cent of members of that body voting in favour.
…
h.New branches may not be formed within or across state or territory boundaries without the prior consent of the branch or branches already formed within that state or states or territory or territories.”
Rule 49 enables most rules to be changed by a simple majority of the National Conference or National Executive. However Rule 10 and a small number of other rules are “entrenched” in that they may not be altered except by a 70 per cent vote in favour of the change.
Union coverage of the relevant TAB employees

No dispute of the kinds contemplated by the former Rule 81 or the continuing Rule 10 ever previously arose between the two Branches now at issue. Indeed, before the TAB members’ dissatisfaction with Mr Want, the Services Branch had never asserted that such members should or might appropriately be attached to it.
Traditionally, TAB employees performing clerical and administrative work who belonged to any trade union had been members of the FCU and the NSW registered counterpart of its NSW branch, (“the state-registered FCU”). The TAB employees had been catered for in the Clerical Branch’s predecessor, the NSW Branch of the FCU, by the establishment therein of a “section”, in accordance with the latter’s rules, known as the Totalisator Section. For over 30 years, their conditions of employment had been regulated pursuant to State instruments obtained by the state-registered FCU or to which it had been made a party. As at trial, the only relevant overt dissatisfaction with the Clerical Branch seems to have been at the TAB’s Ultimo premises.
The ASU is a union, the membership and structure of which resulted from a large number of amalgamations during the late 1980s and throughout the 1990s, involving arrangements between state and federally registered bodies. The Services Branch traced ten such bodies which it had “resulted from”, some of them having represented clerical employees, but none of them was shown to have ever had a TAB employee as a member.
After amalgamation, questions arose in the Union as to appropriate branch coverage of the then developing industry of telephone call centres. In early 2000 the Clerical Branch expressed an intention, without challenge, to organise in TAB call centre sites, among particular others. From 1998 the Services Branch likewise sought to organise in telephone call centres both in its traditional areas of coverage and more generally in the newer, independently commenced and privately operated establishments.
There were indications that the disaffected employees would prefer to be in no union than to have Mr Want’s Branch represent them. It is difficult to say to what extent these indications represented a firm resolve rather than a heated response in the midst of a dispute or even, in some cases, a mere bargaining ploy. A considerable number obviously felt badly let down by the Clerical Branch, Mr Want and other officials of that Branch. There was evidence that no organisation other than the Union might have the legal capacity and the will to organise the employees concerned. One might reasonably assume a spectrum of opinion among the employees. At least a small number carried their stated viewpoint through to final action, and I do not discount that most if not all of them and a small number of others might make resignation from the Union their irrevocable position.
Consideration
I agree with counsel who argued and supported Mr Want’s position: plain English determines the matter and, although it is unnecessary to go beyond that, history and context support that conclusion. In a case where there is ambiguity, the Court should inquire into the provenance of the particular rule or rules, to ascertain the meaning: Short v F.W. Hercus Pty Ltd (1993) 46 IR 128.
As Mr Fernon, counsel for Mr Want submitted, the rules, including Rule 10(c), are to be read as a whole. The power given to the National Executive by Rule 10(c) exists to settle disputes between Branches when it may fairly be said that more than one branch might, in the language of Rule 10(a), “have traditionally represented” the employees in question. The rules themselves mandate by Rule 10(a) that the members must be attached to such a branch. The National Executive cannot override Rule 10(a): any decision it takes under Rule 10(c) must still conform with Rule 10(a) in the sense that the successful Branch must be one which “would traditionally have represented the employee or similar employees”.
Mr Nolan, who appeared for those respondents supporting Mr Want, aptly summarised the context or background factual matrix for the interpretation of Rule 10. The MOU indicated, he said, that
“the amalgamation partners replicated the pre-existing union partners - … the [Union] was to be organised on a divisional basis with the divisions largely based upon the previous unions. In the absence of arrangements which governed the respective spheres of industrial influence of the amalgamation partners there was obvious room for internecine demarcation disputes. The MOU and the rules were designed to prevent such disputes from occurring”.
Rule 10(d) prevents the national bodies from dissolving or reconstructing a Branch except with a 70 percent vote in favour by the branch’s supreme governing body. Rule 10(h) prevents the formation of new branches within or across State boundaries without the consent of the existing branches in the relevant State(s). Plainly, the Union opted for great future respect for the branch arrangements and rights existing as at and preceding the point of amalgamation.
While the eligibility and dues payment rules of an organisation will be construed, if the language of the rules, in its context, will bear it, so as to enable employees to belong to an organisation rather than not, there are limits to such an approach. The language of the rules in question, as indicated, must bear it. Dissatisfaction with officials by union members is not a rarity. Organisations are required to have rules that provide for control of them and their branches by their respective members: s 195(1)(b)(iv) of the Act. There is no clear justification for a further canon of interpretation of rules so as to enable a seriously disaffected member or members to cause an organisation’s central governing bodies to disrupt the rights of other members, as expressed in formal and manifestly deliberate arrangements as to branch structures. In any case, here, the rules of the Union do not prevent any TAB employee from belonging to it. The rules do say, in effect, that TAB employees must belong to the Clerical Branch. The rules provide other means of investigating the rights and wrongs of such disaffection and other steps that might be taken in relation to any Union officer not doing his or her job in a tolerable way. In any case, experience would suggest other less formal ways of coping with such situations. Unions are not strangers, for example, to conciliation.
Likewise, in the case of conflicting rules, primacy will often be accorded to those which augment the capacity of the organisation’s central bodies over those of branches, see e.g. Imlach v Daley (1985) 7 FCR 457. This is to aid the best means of direction of the organisation as a whole. But here there is no such conflict within the rules and, indeed, for obvious historical reasons, the rules particularly stress the integrity, indeed near-inviolability, of the branches.
Rule 10(a) and (c) require, in my opinion, that exclusive regard be had to traditional, pre-amalgamation practice as a pre-condition to the exercise of the Executive’s discretion. Whether the Executive can intervene is not left to individual members’ current preferences. That is so, even if, as here, the disaffection that is involved is, as Mr Haylen QC for Mr Foley and other respondents opposed to Mr Want’s position put it, “genuine and heartfelt”. On the other hand, where a bona fide dispute as to traditionally based coverage exists, there would appear to be no reason why those preferences should not be taken into account, along with other matters.
There was nothing in the facts as they could reasonably have appeared to the National Executive to indicate that the precursor of the Services Branch would traditionally have represented the TAB employees, or that the Clerical Branch would not have done so. It cannot reasonably be contended, in the context, that the drafters of the rules could have intended that the word “represented” would not include the Clerical Branch having established a special section for the employees concerned and having cooperated extremely closely with a more or less co-extensively operating State-registered union actively pursuing benefits through the State system. There was no reason to look to the term “similar employees” for guidance. It is obvious that those words were inserted to cover a case of employees other than those whom a Branch (or its precursor) would have represented had there been no amalgamation. However it was uncontested that the relevant TAB employees were actually and traditionally represented by the FCU, the precursor to the Clerical Division. There was, therefore, nothing to bring the matter within Rule 10(c). It was not a dispute “as to the attachment of members” but a dispute about what should be done as to disaffected, but undoubtedly correctly attached, Branch members.
It was argued that the case might fall within Rule 31, which is headed “Transfer” and provides that “Disputes between branches shall be resolved by the National Executive pursuant to Rule 10”. However Rule 31 is concerned entirely with financial aspects existing or arising on a transfer of a member between branches. It assumes a transfer otherwise in accordance with the rules. It does not, by a side wind, create new rights of, or opportunities for, choice of branches in members to the ouster of the Rule 10(a) principle. Rule 31 has no presently relevant application.
The National Executive’s resolutions of 7 March 2001 were therefore null and void.
Discretionary matters
Section 209(3) empowers the Court to refuse to deal with an application under the section unless satisfied that the applicant “has taken all reasonable steps to try to have the matter … resolved within the organisation”. Mr Foley referred the matter to the highest body within the Union that it is practicable to have deal with it. Mr Want put his position. That body was told of legal doubts. The National Executive proceeded nonetheless. There was no more that could reasonably be required of Mr Want. In any case, the construction of the rules on this matter is of some importance within the Union. I decline to refuse to deal with the matter.
In general, it would only be in rare cases that the Court refuses an order: Cook v Crawford (1982) 43 ALR 83 at 114 per Smithers J. In any case, no other discretionary basis for refusing relief was raised.
Disposition
For the foregoing reasons, I make the following orders:
(a)The respondents and each of them perform and observe the Rules of the Australian Municipal, Administrative, Clerical and Services Union (“the Union”) and treat as null and void the resolutions of the National Executive of the Union made on 7 March 2001 and referred to in the Appendix hereto.
(b)The respondent Luke Foley is restrained from representing or purporting to represent any employee of TAB Limited (“the TAB”) and from instructing or authorising any employee of the Union to represent or purport to represent any employee of the TAB.
(c)The respondent Paul Slape within 7 days advise the Registrar of the Australian Industrial Relations Commission (“the AIRC”) that the Notice of the Giving of Authorisation to engage in Industrial Action served on the Registrar on 20 March 2001, has been judicially determined to be null and void or in the alternative, is withdrawn.
(d)The respondent Luke Foley within 7 days advise the Registrar of the AIRC that the Notice of Initiation of Bargaining Period dated 8 March 2001 has been judicially determined to be null and void or, in the alternative, is withdrawn.
(e)Liberty to apply within 7 days in respect of the foregoing orders should any of them be thought, in present circumstances, but in the light of the reasons for decision, to be unnecessary.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.
Associate:
Dated:             12 April 2002
APPENDIX
Resolution 1
In accordance with Rule 10c, all members currently employed by TAB Limited in New South Wales and attached to the New South Wales Clerical and Administrative Branch who have indicated (in accordance with the letters tabled at this meeting) or who in future indicate their written desire to resign from that Branch be attached to the New South Wales and ACT (Services) Branch.
The Branch Secretary of the New South Wales Clerical and Administrative Branch is directed to furnish forthwith letters of transfer to those members who have indicated or who indicate their written desire to resign from that Branch, in accordance with Rule 31, and shall forward copies of the letters to the Branch Secretary of the New South Wales and ACT (Services) Branch.
In accordance with Rule 10c, any employees of TAB Limited in New South Wales who are not members of the Union who desire in the future to join the Union be attached to the Branch of their choice, viz the New South Wales and ACT (Services) Branch or the New South Wales Clerical and Administrative Branch.
Resolution 2
Notwithstanding the previous resolution, it is the preference of the National Executive that [Union] members at TAB Limited be attached to the NSW Clerical & Administrative Branch.
The National Executive Officers are instructed to seek a meeting with the Ultimo, Granville & Mayfield TAB delegates and urge the delegates and members to remain with the NSW Clerical & Administrative Branch of the Union.
The NSW & ACT Services Branch Secretary is instructed to urge all members seeking to join his Branch to attend a meeting with the NSW Clerical & Services Branch Secretary this Saturday.
The National Executive resolves that any members allocated to the NSW & ACT Services Branch that in future seek to return to the NSW Clerical & Administrative Branch be automatically allocated to that Branch [and] be transferred by the Secretary of the NSW & ACT Services Branch.

Counsel for the Applicant: J Fernon

Solicitor for the Applicant: Back Schwartz Vaughan

Counsel for the 1^st, 2^nd, 3^rd, 7^th, 8^th, 9^th, 11^th, 12^th, 14^th, 15^th, 17^th, 18^th, 19^th, 22^nd, 23^rd, 26^th, 27^th, 28^th, 29^th, 30^th, 31^st, 34^th, 35^th, 36^th, 37^th & 38^th Respondents: W Haylen QC

Solicitors for the 1^st, 2^nd, 3^rd, 7^th, 8^th, 9^th, 11^th, 12^th, 14^th, 15^th, 17^th, 18^th, 19^th, 22^nd, 23^rd, 26^th, 27^th, 28^th, 29^th, 30^th, 31^st, 34^th, 35^th, 36^th, 37^th & 38^th Respondents: R L Whyburn & Associates

Counsel for the 4^th, 5^th, 6^th, 10^th, 16^th, 20^th, 21^st, 24^th, 25^th, 32^nd & 33^rd Respondents: J Nolan

Solicitors for the 4^th, 5^th, 6^th, 10^th, 16^th, 20^th, 21^st, 24^th, 25^th, 32^nd & 33^rd Respondents: White Barnes

No appearance for the 13^th Respondent

Date of Hearing: 23 May 2001

Date of Judgment: 12 April 2002

SCHEDULE A

1.   Alison Peters
2.   Len Darnley
3.   Julie Bignell
4.   Robert Ball
5.   Adrian Bennett
6.   Judith Bennett
7.   Trevor Cordwell
8.   Wendy McManus
9.   Anne McEwen
10. Kayee Griffin
11. Robyn Glascott
12. Paul Slape
13. Michael O’Sullivan
14. Brendan O’Connor
15. Linda White
16. Greg McLean
17. Clive Meacham
18. Kristyn Thompson
19. Mary-Anne O’Neill
20. Barry Kilby
21. Brian Harris
22. Luke Foley
23. Jim Clemens
24. Michael Spencer
25. Henrietta Moran
26. Paul Burlinson
27. Meredith Hammat
28. Darrell Cochrane
29. Martin Foley
30. Jeff Lapidos
31. Margaret Dale
32. June Kerwin-Bennett
33. Andrea Ballantyne
34. John Gazzola
35. Russell Atwood
36. Greg Day
37. Christopher Dodds
38. Robert Ralph

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 283 of 2001

BETWEEN:	MICHAEL ROBERT WANT APPLICANT
AND:	LUKE FOLEY AND THE PERSONS REFERRED TO IN SCHEDULE A RESPONDENTS
JUDGE:	MADGWICK J
DATE OF ORDER:	12 APRIL 2002
WHERE MADE:	SYDNEY

JUDGE:	MADGWICK J
DATE:	12 APRIL 2002
PLACE:	SYDNEY

Counsel for the Applicant:		J Fernon
Solicitor for the Applicant:		Back Schwartz Vaughan
Counsel for the 1^st, 2^nd, 3^rd, 7^th, 8^th, 9^th, 11^th, 12^th, 14^th, 15^th, 17^th, 18^th, 19^th, 22^nd, 23^rd, 26^th, 27^th, 28^th, 29^th, 30^th, 31^st, 34^th, 35^th, 36^th, 37^th & 38^th Respondents:		W Haylen QC
Solicitors for the 1^st, 2^nd, 3^rd, 7^th, 8^th, 9^th, 11^th, 12^th, 14^th, 15^th, 17^th, 18^th, 19^th, 22^nd, 23^rd, 26^th, 27^th, 28^th, 29^th, 30^th, 31^st, 34^th, 35^th, 36^th, 37^th & 38^th Respondents:		R L Whyburn & Associates
Counsel for the 4^th, 5^th, 6^th, 10^th, 16^th, 20^th, 21^st, 24^th, 25^th, 32^nd & 33^rd Respondents:		J Nolan
Solicitors for the 4^th, 5^th, 6^th, 10^th, 16^th, 20^th, 21^st, 24^th, 25^th, 32^nd & 33^rd Respondents:		White Barnes
No appearance for the 13^th Respondent
Date of Hearing:	23 May 2001
Date of Judgment:	12 April 2002