FEDERAL COURT OF AUSTRALIA

Regional Express Holdings Ltd v Australian Federation of Air Pilots [2016] FCAFC 147

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

NORTH J:

1    I agree with the orders proposed by Jessup J and with the reasons which he gives for those orders.

Associate:

Dated:    26 October 2016

REASONS FOR JUDGMENT

JESSUP J:

2    This is an appeal, by leave, from the dismissal of an interlocutory application made by the appellant, Regional Express Holdings Pty Ltd, for the summary dismissal of a proceeding brought against it in the Federal Circuit Court of Australia by the respondent, Australian Federation of Air Pilots, an organisation of employees registered as such under the Fair Work (Registered Organisations) Act 2009 (Cth) (“the RO Act”). In that proceeding, the respondent alleged that advice given by the appellant to some employees and prospective employees was in contravention of certain provisions of Pt 3-1 of the Fair Work Act 2009 (Cth) (“the FW Act”). The provisions all fell within item 11 in the table in s 539(2) of the FW Act, which gave standing to sue in respect of such alleged contraventions to an “industrial association”, which the respondent was and is. But s 539(2) was subject to s 540, subs (6) of which relevantly restricted standing to an industrial association which was “entitled to represent the industrial interests” of the person to whom the contravention allegedly related. The appellant contended that the respondent was not entitled to represent the industrial interests of the employees and prospective employees to whom the allegedly contravening advice had been given. It was that contention which was rejected by the Federal Circuit Court in its judgment of 17 February 2016, and which is now reiterated on appeal.

3    In its initiating application in the Federal Circuit Court, the respondent alleged that the appellant provided commercial aviation services. It alleged that the appellant employed pilots to carry on this business, and that it offered some prospective employees places in a nine-month pilot cadet training program. It alleged that, upon completion of this program, most participants in it were offered employment as First Officer, with an expected career progression which involved, (1) after about 30 months, potential entry into the “Pilots in Command Under Supervision”, or “PICUS”, program, then (2) potential entry into a “Command upgrade” course, and then (3) potential appointment to the role of Captain. It alleged that, during the cadet training program, the cadets were required to reside at a facility called the Australian Airline Pilot Academy (“the AAPA”).

4    The respondent alleged that the appellant and itself were bound by the terms of the Regional Express Pilots’ Enterprise Agreement 2011 (“the enterprise agreement”), an enterprise agreement made and approved under Pt 2-4 of the FW Act. It alleged that cl 58.1 of the enterprise agreement required the appellant to provide a pilot with “appropriate accommodation” when absent from his or her base on layover, and that “appropriate accommodation” was defined in cl 3.4 thereof in the following terms:

Appropriate Accommodation means accommodation which is, as a minimum, clean, quiet and free from factors which may reduce adequate rest and must provide a separate room incorporating ensuite bathroom facilities for each Pilot, with air conditioning and or heating as appropriate to the area. Such accommodation will be assessed as per the most recent Dawson’s Hotel Guide Book or other guide as agreed by the Rex PC at not less than a 3 star standard for non-capital cities and 4 star standard for capital cities. An initial assessment period shall apply, as agreed.

The benefit of these provisions of the enterprise agreement was alleged to be a workplace right for the purposes of s 341(1)(a) of the FW Act; and it was alleged that such right was possessed by prospective employees of the appellant pursuant to subs (3) of that section.

5    The respondent alleged that the appellant had taken adverse action in three respects. First, it was alleged as follows:

On about 5 September 2014, the Respondent advised shortlisted applicants for the cadet program (prospective employees) in writing that:

a.    “many” former cadets had made promises in order to be selected for the program, but, once selected, they very quickly “show their true colours”.

b.    some previous cadets, once employed by the respondent, refuse to stay at the AAPA whilst on overnight Layovers and instead insist on staying at the local motel, and as such, are “totally lacking in integrity”.

c.    the respondent will not allow any pilot lacking in integrity to hold a command.

d.    the respondent will not consider any such pilot to be suitable for entry into the PICUS program, which is a pre-requisite to holding a command.

It was alleged that the AAPA was not appropriate accommodation for the purposes of the enterprise agreement, and that the statements referred to above related to existing employees of the appellant who had previously been part of the cadet training program (described as “affected class one”). The statements were alleged to be adverse action within paras (b), (c) and (d) of item 1 in s 342(1) of the FW Act, and to involve also threats to take the actions referred to, as included by subs (2) of that section. It was alleged that the statements were made because the affected class one employees exercised, or proposed to exercise, the workplace right constituted by entitlement to the benefit of the enterprise agreement (s 340(1)(a)(ii) and (iii)) and/or to prevent the exercise of that right (s 340(1)(b)).

6    The respondent then alleged – and this is central to the issues arising in the present appeal – that the affected class one employees were affected by the adverse action alleged (and/or would be affected by the proposed adverse action) and that the respondent was “entitled to represent the industrial interests of affected class one”. It was not alleged that any employee falling within that class was a member of the respondent.

7    Secondly, it was alleged as follows:

On about 5 September 2014, shortlisted applicants for the cadet program (prospective employees) were advised by the respondent in writing:

a.    that their selection into that program was dependent on the provision and content of a hand-written ‘motivation’ letter;

b.    that the motivation letter was to include “solemn promises” to undertake various activities and actions in the event of employment;

c.    that the ‘solemn promises’ should include an undertaking to stay at the AAPA whilst on overnight layovers, and not to insist on the provision of appropriate accommodation in accordance with the workplace right.

It was alleged that some of the “prospective employees” referred to in these statements were offered, and accepted, places in the cadet training program (described as “affected class two”). The statements were alleged to be adverse action as threats to refuse to employ the prospective employees, invoking s 342(2) in combination with para (a) of item 2 in subs (1) of that section. It was alleged that the statements were made to prevent members of affected class two exercising the workplace right constituted by their entitlement to the benefit of the enterprise agreement, once they became employed by the appellant. It was alleged that they were affected by the adverse action alleged, and that the respondent was entitled to represent their industrial interests. It was not alleged that any employee falling within affected class two was a member of the respondent.

8    Thirdly, it was alleged as follows:

On about 5 September 2014, prospective employees, including members of affected class two, were advised by the respondent in writing that:

a.    if ultimately employed by the respondent, they would be expected to honour the ‘solemn promises’ made in the motivation letter described above … including the promise to stay at the AAPA whilst on overnight layovers.

b.    in the event that the undertakings provided for in the motivation letter were not honoured once employment commenced, the respondent “reserve[d] its right to respond accordingly.”

It was alleged that these statements constituted a threat to discriminate in the terms and conditions on which employment was, or was to be, offered to members of affected class two by prohibiting them, but not other pilots employed by the appellant, from relying on the workplace right constituted by an entitlement to the benefit of the enterprise agreement, and by threatening to stall the career progression of any member of affected class two who refused to comply with this prohibition where such other pilots were not subject to any such threat, invoking, in this regard, s 342(2) in combination with para (b) of item 2 in subs (1) of that section.

9    The respondent also alleged that the appellant’s making of the statements referred to above amounted to coercion in contravention of s 343, and involved false representations in contravention of s 345, of the FW Act.

10    As mentioned earlier in these reasons, the persons by whom a proceeding for breach of the provisions of Pt 3-1 of the FW Act upon which the respondent relied in the Federal Circuit Court were set out in the table in s 539(2) of that Act. They were:

(a)    a person affected by the contravention;

(b)    an industrial association;

(c)    an inspector

11    But s 539(2) was subject to s 540, subss (1), (2), (6) and (7) of which provided as follows:

(1)    The following persons may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision, only if the person is affected by the contravention, or will be affected by the proposed contravention:

(a)    an employee;

(b)    an employer;

(c)    an outworker;

(d)    an outworker entity.

(2)    An employee organisation or a registered employee association may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision in relation to an employee, only if:

(a)    the employee is affected by the contravention, or will be affected by the proposed contravention; and

(b)    the organisation or association is entitled to represent the industrial interests of the employee.

….

(6)    An industrial association may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision, only if:

(a)    the industrial association is affected by the contravention, or will be affected by the proposed contravention; or

(b)    if the contravention is in relation to a person:

(i)    the person is affected by the contravention, or will be affected by the proposed contravention; and

(ii)    the industrial association is entitled to represent the industrial interests of the person.

(7)    If an item in column 2 of the table in subsection 539(2) refers to an industrial association then, to avoid doubt, an employee organisation, a registered employee association or an employer organisation may apply for an order, in relation to a contravention or proposed contravention of a civil remedy provision, only if the organisation or association is entitled to apply for the order under subsection (6).

12    The term “industrial association” was, and is, defined in s 12 of the FW Act as follows:

industrial association means:

(a)    an association of employees or independent contractors, or both, or an association of employers, that is registered or recognised as such an association (however described) under a workplace law; or

(b)    an association of employees, or independent contractors, or both (whether formed formally or informally), a purpose of which is the protection and promotion of their interests in matters concerning their employment, or their interests as independent contractors (as the case may be); or

(c)    an association of employers a principal purpose of which is the protection and promotion of their interests in matters concerning employment and/or independent contractors;

and includes:

(d)    a branch of such an association; and

(e)    an organisation; and

(f)    a branch of an organisation.

13    On the allegations made by the respondent, para (a) of s 540 (6) was irrelevant. But the contraventions alleged did relate to persons who were, or would be, affected thereby. So subpara (i) of para (b) was engaged. Then, in order to engage subpara (ii), the respondent had to establish that it was entitled to represent the industrial interests of the persons in question. In its application in the Federal Circuit Court, it alleged that it did. The Judge in that court agreed. On appeal, the appellant contends that his Honour was in error in this respect.

14    The appellant accepts that the respondent is entitled to represent the industrial interests of its members from time to time, but there was no allegation by the respondent that the persons affected by the alleged contraventions were its members. The respondent’s position, upheld by the primary Judge, is that it was and is entitled to represent the industrial interests of persons who were eligible for membership under its rules. On the present appeal, the appellant does not place in issue the correctness of the proposition that the persons who were alleged to have been affected by the contraventions were so eligible. But it contends that a person’s eligibility for membership of the respondent does not sustain the proposition that the respondent is entitled to represent the industrial interests of the person within the meaning of s 540(6)(b)(ii).

15    The phrase “entitled to represent the industrial interests of” is frequently to be found in the FW Act, often as the criterion for some qualifying attribute of an organisation or an association. But, in legislation which is otherwise detailed, prescriptive and loaded with defined terms, it is the subject of no definition. Neither is there anything which gives content to the concept of an organisation or an association having an entitlement to represent the industrial interests of a person. The Explanatory Memorandum for the Bill which became the FW Act in 2009 is of no assistance. It is those omissions which have led to the present litigation.

16    An organisation of employees registered under the Conciliation and Arbitration Act 1904 (Cth) (“the C&A Act’) or the Industrial Relations Act 1988 (Cth) (“the IR Act”) did not act as a mere agent for its members, but was representative of a class of employees or employers defined by its conditions of eligibility for membership. That was established in a line of cases of which the most important were Burwood Cinema Ltd v Australian Theatrical and Amusement Employees’ Association (1925) 35 CLR 528, Metal Trades Employers Association v Amalgamated Engineering Union (1935) 54 CLR 387 and R v Dunlop Rubber Australia Ltd; ex parte Federated Miscellaneous Workers’ Union of Australia (1957) 97 CLR 71. Each of these authorities was concerned with the limits of an organisation’s capacity to generate an industrial dispute by making demands upon employers. In Burwood Cinema, demands which related to members of the organisation, present and future, were, upon being rejected, held to give rise to an industrial dispute, notwithstanding that respondent employers did not then employ any such members or, if they did, notwithstanding that the employees concerned were satisfied with their conditions. In Metal Trades, demands upon employers who did not employ any of the organisation’s members, being demands which related to employees of those employers, then or thereafter to be employed, whether members of the organisation or not, were likewise held to be sufficient, upon being rejected, to give rise to an industrial dispute. In Dunlop Rubber, it was held that it was the eligibility rules of the organisation which marked out the area over which its demands might validly extend.

17    Because the organisation could, first, generate an industrial dispute in relation to the terms and conditions of employment of non-members as well as of members, and, secondly, obtain an award, or a certified agreement, under the C&A Act or the IR Act that would secure those terms and conditions for those non-members, there is an obvious sense in which the organisation was “entitled” to represent the “interests” of them, notwithstanding that it need not, of course, represent them as individuals. Indeed, an organisation was “entitled” to act in this way because it did not need the say-so of employees who fell within its eligibility rules, whether or not members, to do so.

18    The phrase “entitled to represent the industrial interests of …” was not used in the authorities upon which the relevant principle was based. But the principle itself, and its impact on the conduct of industrial relations, was uncontroversial. In the Report of the Committee of Inquiry on Co-ordinated Industrial Organisations (1974), JB Sweeney J said:

Generally speaking, either an organisation or a union is entitled to protect the industrial interests of those groups of employees or employers who are within its conditions of eligibility. Those persons it may enrol as members it may protect.

19    As a result of one of JB Sweeney J’s recommendations, in 1974 the C&A Act was amended to introduce s 142A, which gave the Conciliation and Arbitration Commission (“the C&A Commission”) the power to –

make an order providing that an organization of employees shall have the right to represent, in respect of all or some industrial interests under this Act, a class or group of employees who are eligible for membership of the organization, either generally or subject to such limitations as it may specify, to the exclusion of another organization or organizations ….

20    This provision has been added to and amended several times over the period since. In the IR Act, the power was exercisable by the Industrial Relations Commission (“the IR Commission”) and arose under s 118(3), which provided:

(3)    Without limiting the powers of the Commission in relation to demarcation disputes, the Commission may, for the purpose of preventing or settling a demarcation dispute, but subject to subsection 202(3), make one or more of the following orders:

(a)    an order that an organisation of employees shall have the right, to the exclusion of another organisation or organisations, to represent under this Act the industrial interests of a particular class or group of employees who are eligible for membership of the organisation;

(b)    an order that an organisation of employees that does not have the right to represent under this Act the industrial interests of a particular class or group of employees shall have that right;

(c)    an order that an organisation of employees shall not have the right to represent under this Act the industrial interests of a particular class or group of employees who are eligible for membership of the organisation.

A “demarcation dispute” was defined in the IR Act to include:

(a)    a dispute arising between 2 or more organisations, or within an organisation, as to the rights, status or functions of members of the organisations or organisation in relation to the employment of those members; or

(b)    a dispute arising between employers and employees, or between members of different organisations, as to the demarcation of functions of employees or classes of employees; ….

21    Two matters might be noted about s 118(3). First, the premise upon which s 118(3) was based was that it was an organisation’s conditions of eligibility which gave rise to the right to represent the industrial interests of a particular class or group of employees. Secondly, in para (a) of the subsection, silently but potently, what had been “the right to represent, in respect of all or some industrial interests under this Act, a class or group of employees” became “the right … to represent under this Act the industrial interests of a particular class or group of employees”. Here was the statutory genesis of the notion that an organisation might represent not a class or group of employees, but the industrial interests of a class or group of employees.

22    It was in s 202 of the IR Act that the very phrase “entitled to represent the industrial interests of …” made its first appearance in the legislation. Section 202 allowed an organisation to have rules that permitted it to enter into agreements with State registered unions. Subsections (1), (3), (4) and (6) of s 202 were as follows:

(1)    The rules of an organisation of employees may authorise the organisation to enter into agreements, in the prescribed form, with State registered unions to the effect that members of the State registered union concerned who are ineligible State members are eligible to become members of the organisation under the agreement.

….

(3)    An organisation is not entitled to represent the industrial interests of persons who are only eligible for membership of the organisation under an agreement entered into under rules made under subsection (1).

(4)    Where a person who became a member of an organisation under an agreement entered into under rules made under subsection (1) later becomes eligible for membership of the organisation under its eligibility rules, the organisation is not entitled to represent the industrial interests of the person until a record of the person’s eligibility is entered in the register kept under paragraph 268(1)(a).

….

(6)    In this section:

“ineligible State members”, in relation to an organisation, means the members of a State registered union who, under the eligibility rules of the organisation, are not eligible to be members of the organisation;

“State registered union”, in relation to an organisation, means an industrial union or association registered under a State Act which is composed substantially of persons who, under the eligibility rules of the organisation, are eligible to be members of the organisation;

“State Act” means:

(a)    the Industrial Arbitration Act, 1940 of New South Wales;

(b)    the Industrial Conciliation and Arbitration Act 1961 of Queensland;

(c)    the Industrial Relations Act 1979 of Western Australia; or

(d)    the Industrial Conciliation and Arbitration Act, 1972 of South Australia.

23    Of s 202, the Explanatory Memorandum for the Bill which became the IR Act said:

Clause 202 provides for the conditions under which members of certain unions registered under State laws may become members for limited purposes of the counterpart organisation registered under the Industrial Relations Bill. Such persons will not be able to have their industrial interests represented by the organisation unless and until they become eligible to be members under the organisation’s eligibility rules.

The purposes of this provision is to permit members of a State registered union whose work coverage substantially overlaps with that of a counterpart federally registered union to be members for the purposes of participating in the internal affairs of the federally registered unions, eg, by voting in elections.

There was here, self-evidently, a keen appreciation of the potential for the eligibility rules of a federally registered organisation to open up new areas of industrial coverage, the end-game of which might be the making of an award which would displace established State regulation pursuant to s 109 of The Constitution. It was to avoid that prospect that subs (3) was included in s 202.

24    The limits of s 118 of the IR Act were tested almost immediately. In the facts which led to the decision of the Full Bench of the IR Commission in Federated Ironworkers Association v Comalco Aluminium Ltd (1989) 30 IR 241, the eligibility rules of the organisation in question extended to plant operators at a proposed new manufacturing facility, but not to mechanical and electrical tradesmen. It was desired, by the organisation and the employer concerned, to have all employees covered by the organisation, to the exclusion of other organisations. The outcomes which they sought in the IR Commission included an order under s 118(3)(b) giving the organisation the right to represent the industrial interests of mechanical and electrical tradesmen. But the organisations with conventional coverage of tradesmen objected that, because the claimant organisation did not presently cover tradesmen, there could be no “demarcation dispute” on the subject, with the result that s 118 was unavailable.

25    Rejecting that objection, the Full Bench said (30 IR at 254-255):

The AMWU and ETU submitted, however, that because the FIA does not have constitutional coverage of the [Production Team Members] engaged in technical operations there can be no demarcation dispute as defined in s 4 of the IR Act and no order can be made under s 118 in relation to those employees. Such a dispute, it was submitted, relates to the rights, status or functions of members of the disputing organisations (paragraph (a) of the definition) or between members of organisations (paragraph (b) of the definition) and a demarcation dispute can arise only when all disputing organisations have or may come to have members in the employment the subject of the dispute. This depends, it was submitted, upon all of the disputing organisations having existing coverage of [Production Team Members] employed in technical operations.

And (30 IR at 256):

The structure of s 118 and the alterations that may be made under that section indicate that an order may be made under s 118(3)(b) which will result in the conferring of a right to represent and an alteration may have to be made to the eligibility rules of the organisation to whom the order applies to make effective the right. That would ordinarily, if not always, be an alteration of the eligibility rules to enlarge the representative rights of the organisation concerned. This construction of s 118(3)(b) accords with accepted legal principle that the right of an organisation to represent a class of employee under the IR Act derives from the fact of registration coupled with coverage flowing from the terms of the eligibility rules. If that right to represent is enlarged then it would appear to follow, as an extension of that legal principle, that the eligibility rules have to be correspondingly enlarged.

26    Although the Full Bench, in the Comalco case, upheld the wider scope of s 118 for which the organisation contended, it was, I infer, the possible weaknesses in the section, and the linking of it to the definition of “demarcation dispute”, disclosed in the case that led to further amendments being made by the Industrial Relations Legislation Amendment Act 1990 (Cth). The definition of “demarcation dispute” was made an inclusive one, and the following new para (c) was added to it:

a dispute about the representation under this Act of the industrial interests of employees by an organisation of employees ….

At the same time, s 118 was repealed and replaced by new ss 118 and 118A. Subsection (1) of s 118A replicated, save in one important respect, the substance of what had been subs (3) of s 118 previously. The respect in which there was a change of substance was the dropping of the requirement for the existence of a demarcation dispute: the power under the new s 118A could now be exercised without that complication.

27    In the Explanatory Memorandum for the Bill which became the Act of 1990, it was stated that the additional paragraph in the definition of “demarcation dispute” was inserted “to make it clear that any dispute about the representation under the Act of the industrial interests of employees by an organisation of employees is a demarcation dispute”, adding that it was intended “to apply to a dispute even where an organisation, which does not have coverage under its rules of the work concerned, is seeking or purporting to exercise a right to represent the industrial interests of the employees concerned.” The expression “coverage under its rules” was, I consider, a reference to the scope of the eligibility rule of an organisation.

28    The Act of 1990 also amended the statutory definition of “industrial dispute” to include the words, “(whether or not, in the case of a demarcation dispute involving an organisation or the members of an organisation in that capacity, the dispute extends beyond the limits of any one State)”. That amendment reflected, of course, the view that the Parliament, having created organisations as incidental to a system of conciliation and arbitration for the prevention and settlement of interstate industrial disputes – see Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 – could invest the IR Commission with the power to regulate them whether or not a dispute of that kind existed: R v Ludeke; ex parte Australian Building Construction Employees’ and Builders Labourers’ Federation (1985) 159 CLR 636, 647.

29    By the time of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) (“the WROLA Act”), the form of what then became s 118A(1) of the Workplace Relations Act 1996 (Cth) (“the WR Act”) was settled, and now finds expression in s 133(1) of the RO Act:

(1)    Subject to this Part, Part 4 and subsection 151(6), the FWC may, on the application of an organisation, an employer or the Minister, make the following orders in relation to a demarcation dispute:

(a)    an order that an organisation of employees is to have the right, to the exclusion of another organisation or other organisations, to represent under this Act or the Fair Work Act the industrial interests of a particular class or group of employees who are eligible for membership of the organisation;

(b)    an order that an organisation of employees that does not have the right to represent under this Act or the Fair Work Act the industrial interests of a particular class or group of employees is to have that right;

(c)    an order that an organisation of employees is not to have the right to represent under this Act or the Fair Work Act the industrial interests of a particular class or group of employees who are eligible for membership of the organisation.

30    Section 142A of the C&A Act and ss 118 (later s 118A) and 202 of the IR Act, and the statutory definition of “demarcation dispute”, are of interest because they disclose the legislative birth, and infancy, of the phrase with which we are presently concerned. It is apparent that, when it referred to an organisation having a right to represent the industrial interests of a class or group of employees, the legislature was invoking the principle for which Metal Trades and Dunlop Rubber stood, that is to say, that an organisation had the right to represent the industrial interests of the classes or groups of employees whom it could, under its eligibility rules, enrol as members, whether or not they were in fact members.

31    A grammatical variant of the phrase presently of interest also made its appearance in the IR Act as a result of amendments made by the Industrial Relations Reform Act 1993 (Cth) (“the Reform Act”). Section 170AD, in a new Pt VIA referable to the external affairs power, contained a standing provision in the following terms:

The Commission must not make such an order unless it has received an application for the making of an order under this Division from an employee, or a trade union whose rules entitle it to represent the industrial interests of employees, included in the group to be covered by the order.

Provisions substantially to the same effect, also introduced by the Reform Act, were now to be found in ss 170BD, 170EA, 170FB and 170GB of the IR Act.

32    The IR Act already contained a definition of the term “trade union”, which had previously been taken up only in relation to protection from civil suit for what was described as “boycott conduct” under s 164. The definition read as follows:

(a)    an organisation of employees;

(b)    an association of employees that is registered or recognised as a trade union (however described) under the law of a State or Territory; or

(c)    an association of employees a principal purpose of which is the protection and promotion of the employees’ interests in matters concerning their employment ….

33    In the Bill which became the Reform Act, as introduced and read a first time in the House of Representatives on 28 October 1993, the proposed ss 170AD, 170BD and 170FB would have given standing to an employee and to “a trade union representing employees”; and the proposed s 170GB would have given standing to an employee and to “a trade union representing such employees.” Amendments proposed by the Government on 22 November 1993 changed the relevant terms of these provisions to those ultimately enacted, as set out above. A Supplementary Explanatory Memorandum gave the following as the justification for the amendment to the proposed s 170AD:

The proposed amendment provides for an application, for an order setting minimum wages, to be made to the [Commission] by a trade union whose rules entitle it to represent the industrial interests of employees in the group to be covered by the order. This will clarify the reference in the bill (as introduced) to a trade union “representing” those employees.

The following justification was given for the amendment to the proposed s 170BD:

This clarifies that a union can apply for an “equal remuneration” order only if the union is entitled by its rules to represent the industrial interests of employees to be covered by the order (the bill as introduced referred, more broadly, to a union “representing” those employees).

34    The new provisions in Pt VIA of the IR Act introduced by the Reform Act are of some present interest for a number of reasons. First, they constituted the first use of something very close to the contentious phrase as a condition of standing to commence a proceeding, albeit that the proceedings with which the new Pt VIA was concerned would have been in the IR Commission, rather than in a court. Secondly, by making use of the definition of “trade union”, those provisions gave standing not only to registered organisations but also to unregistered bodies, as to which there was no requirement that they have, and no basis for an assumption that they would necessarily have, “eligibility” rules. Had the question ever arisen, there might, of course, have been a question as to how s 170AD, and similar provisions, would operate in the context of a trade union which was not an organisation. Whatever the answer to that question might have been, I doubt that it would have been found in Metal Trades and Dunlop Rubber. Thirdly, this was the first occasion on which we see a clear legislative contemplation that an organisation, or an association, would have what was now referred to as an “entitlement”, standing apart from any order which the C&A Commission or the IR Commission might have made in that regard. And fourthly, the history of the passage of the relevant Bill through Parliament makes it tolerably clear that a distinction was recognised between representing employees, on the one hand, and representing the industrial interests of employees, on the other hand.

35    Resort to the external affairs power was not the only innovation made by the Reform Act. A new Pt VIB was introduced into the IR Act, under which there was to be a new species of agreement, described as the “enterprise flexibility agreement”. Unlike a certified agreement an enterprise flexibility agreement was not required to be made in prevention or settlement of an interstate industrial dispute. Rather, such an agreement was made when an employer that was a “constitutional corporation” prepared a memorandum that applied in the “enterprise” concerned, and which was about matters pertaining to the relationship between employers and employees (s 170NA). The agreement was implemented upon approval by the IR Commission by reference to stated criteria (s 170NC). Although not a party to such an agreement, an organisation that was bound by a relevant award was entitled to be heard on an approval application (s 170NB(1)). For the purposes of enforcement, an enterprise flexibility agreement was treated in the same way as awards and certified agreements. The relevant provisions of the IR Act relied for their validity on the corporations power, and were upheld as such by the High Court in the Industrial Relations Act Case (1996) 187 CLR 416. The provisions throw no light on the connotation of the phrase of present interest, since it was not used in them, but they should be noted as constituting the first occasion on which the corporations power had been used to sustain the making and approval of agreements regulating the relationship between employers and employees.

36    The Reform Act also enlarged the provisions of the IR Act that applied to the certification of an agreement made in the traditional way as between the parties, or some of the parties, to an interstate industrial dispute. They were now the subject of Div 2 of Pt VIB of the IR Act. By s 170MB(1)(c), on an application to certify an agreement that applied only to a single business, part of a single business or single place of work, an organisation had the right to be heard by the IR Commission if the organisation was “entitled to represent the industrial interests of members of the organisation who are employed, by an employer who is a party to the agreement, to perform work in that business, part of a business or place of work ….”. This provision is of present interest because it required not only that there be members of the organisation who were employed by the relevant employer to perform work in the business (etc), but also that the organisation be entitled to represent the industrial interests of those members. This represents one of a number of instances over the years where the legislation has made a distinction between membership of an organisation as such and the representation of the industrial interests of those who were members. In this case, the significance of the distinction implied a policy that, where an agreement applied only to a single business, part of a single business or single place of work (as was the case under s 170MB), an organisation would have a right to be heard only where it represented the industrial interests of those of its members who were employed therein. Particularly given the constitutional foundation for Div 2 of Pt VIB, this could only have been a reference to the eligibility rules of an organisation, and to the Dunlop Rubber principle.

37    After the amendments made by the WROLA Act in 1996, Div 3 of Pt VIB continued, in a modified form, the regime for the settlement, in whole or in part, of interstate industrial disputes that had been features of the C&A Act and the IR Act. Such a dispute would, in all but the most unusual of cases, have arisen from the making and rejection of demands as to terms and conditions of employment. Most commonly, those demands would have been made by an organisation and, when so made, would have been limited by, and co-extensive with, the organisation’s eligibility rules (conformably with Dunlop Rubber). Those rules would also, necessarily, have provided the outer limits of any agreement which the organisation and any respondent employer might have made in settlement, or part settlement, of the dispute. The legislation did not state it – because it did not need to state it – but the silent premise upon which Div 3 was based was that the agreement could have extended no wider than the area marked out by those rules.

38    Under Div 2 of Pt VIB of the WR Act as amended by the WROLA Act, however, agreements were made not in settlement of industrial disputes but “between employers who are constitutional corporations or the Commonwealth and … organisations of employees; or … employees …” (s 170LH). In the private sector, the validity of these laws depended on the corporations power. This new aspect of the legislated system for the regulation of collective industrial relations involved a radical, though limited, departure from the previous system, premised as it had been upon the conciliation and arbitration power and the Metal Trades/Dunlop Rubber jurisprudence. Hitherto, under what had been s 170MA of the IR Act, it was the parties to an industrial dispute who became the parties to any agreement in settlement, or part settlement, of the dispute. Now, an underlying dispute was not available to provide the parties for an agreement under Div 2 of Pt VIB of the WR Act. Where an agreement was to be made between a constitutional corporation and an organisation, therefore, there arose the need to define the standing which an organisation would have to participate in this way. Other courses might have been followed, but the expedient chosen was based on what had previously been s 170MB(1)(c) of the IR Act. The new s 170LJ(1) provided as follows:

The employer may make the agreement with one or more organisations of employees where, when the agreement is made, each organisation:

(a)    has at least one member employed in the single business or part whose employment will be subject to the agreement; and

(b)    is entitled to represent the industrial interests of the member in relation to work that will be subject to the agreement.

A formula similar to that set out in s 170LJ(1) was used in s 170LK(4), which was concerned with the content of a notice required to be given by the employer to employees with whom it was proposed to make a non-union collective agreement.

39    Section 170LJ(1) of the WR Act is important in the present context because it constituted a point – I think the first point – at which the traditional “entitled to represent the industrial interests of” formula was adopted for the purposes of legislation which was based on the corporations power. In isolation, the use of the formula in such legislation would have made little sense. But, particularly based on the previous s 170MB(1) as it was, it is tolerably clear that para (b) of s 170LJ(1) was intended to be understood as invoking the principle for which Dunlop Rubber stood. Indeed, so much was stated by a Full Bench of the IR Commission in CSR Limited Officers’ Association v CSR Limited (1997) 76 IR 310, 312:

We agree with the Commissioner’s view that s 170LJ(1)(b) was crucial. If the association were not within it, the Commissioner could not have certified the agreements. The answer to the question “Could the association represent the industrial interests of the employees?” is, in our view, to be found by examining the eligibility rules of the association.

This passage is significant not only because it represented the view of a Full Bench on the very question which arises for consideration in the present case, but also because, that question having been brought to light in the way, and at the level, that it was, it may be presumed that, when the legislation was reviewed in detail on later occasions (as it was in 2005 and 2009), the legislature was content with the understanding conveyed by the words of the Full Bench.

40    The WROLA Act also made changes in the area of standing to sue. Traditionally, a civil action alleging a breach of an award lay under s 119 of the C&A Act and s 178 of the IR Act. By s 28(3) of the C&A Act, a certified agreement was deemed to be an award and was, therefore, enforceable as such under s 119. By s 4(1) of the IR Act, an “award” included a certified agreement, and both were enforceable under s 178. The standing provisions in those sections were detailed and specific. An organisation could not sue in relation to an alleged breach which affected only an employee who was not its member.

41    This enforcement regime was not altered, in relation to awards, by the WROLA Act, but certified agreements were removed from the definition of awards. Although certified agreements remained enforceable under s 178, a new standing provision was introduced which related to them. Now, by s 178(5A)(d), those who had standing to sue for a penalty for a breach of a certified agreement included –

an organisation:

(i)    that has at least one member whose employment is subject to the agreement; and

(ii)    that is entitled to represent the industrial interests of the member in relation to work carried on by the member that is subject to the agreement ….

This marked the first appearance, in provisions giving standing to commence a proceeding in a court, of a limitation tied to what was said to be the entitlement of an organisation to represent the industrial interests of the affected employee. It should be noted that this gave standing not only in relation to the member referred to: once the circumstances of that member provided standing to sue, the proceeding might, it seems, have extended to any alleged breach of the agreement. However, s 178(5A)(d), like ss 170LJ(1) and 170LK(4), did not raise for resolution in a concrete setting the issue whether an organisation was entitled to represent the industrial interests of a person who was not a member, since membership of the person concerned was in any event required by subpara (i) of the provision.

42    That brings me to the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (“the Work Choices Act”), which made fundamental changes to the system of industrial relations regulation for which the WR Act provided. The IR Commission no longer had the power to prevent and settle industrial disputes by conciliation and arbitration. Its award-making power was limited to awards which gave effect to the outcome of an “award rationalisation process” (ss 539 and 540) and, seemingly, was referable, in the broad private sector at least, to the corporations power rather than to the conciliation and arbitration power. The IR Commission retained the power to vary awards in limited circumstances, but neither the constitutional nor the statutory basis for the exercise of this power arose from the necessity or desirability of further settling the industrial disputes in prevention or settlement of which the awards were, presumptively, originally made. There were three kinds of industrial agreements that could now be made – employee collective agreements, union collective agreements and union greenfields agreements – and, at least so far as the broad private sector was concerned, each was required to be made by an employer which was a constitutional corporation. There was no longer any provision for the making of an agreement by way of prevention or settlement of an interstate industrial dispute.

43    In what contexts was the phrase “entitled to represent the industrial interests of …” used by the WR Act after the Work Choices amendments? In some respects, the pre-existing usage of the phrase was unaffected by the amendments. Thus, for example, para (c) of the definition of “demarcation dispute” remained unchanged. So too, ss 625(a), 643(3)(b), 643(4)(b)(ii) and 669(b) were no more than the previous ss 170BD(a), 170CE(3)(b), 170CE(4)(b)(ii) and 170GB(b), respectively, as re-numbered in 2005. Also, s 328 was, in effect, the same provision as had previously been s 170LJ(1).

44    In other respects, however, the new provisions introduced in 2005 show that the draftsman had given specific attention to the content of the contentious phrase, in a policy setting in which the conciliation and arbitration power was no longer governing. For the first time in the legislation, the phrase “entitled to represent the industrial interests of …” was qualified by the rider “under its eligibility rules”. Thus, for example, standing to apply for a penalty for a contravention of a civil remedy provision in Pt 8 of the WR Act, which contained the provisions which were relevant to workplace agreements, was given to, amongst others, an organisation which had been requested by an employee who was, or would be, bound by the agreement concerned, but only if the organisation was “entitled, under its eligibility rules, to represent the industrial interests of the employee”: s 405(3)(c). Likewise, standing to sue in respect of an alleged breach of an award, previously the subject of s 178 of the WR Act, was now dealt with by para (d) of item 3 in the table in s 718(1) of that Act, which gave standing to –

an organisation of employees, a member of which is employed by the respondent employer and whose industrial interests the organisation is entitled, under its eligibility rules, to represent in relation to work carried on by the member for the employer;

That provision was subject to subs (2) of s 718, which required the employee in question to have been affected by the alleged breach.

45    After the Work Choices Act, the use of this drafting expedient was ubiquitous in the WR Act. It may not amount to a comprehensive list, but, in addition to the provisions referred to above, I would mention ss 495(7)(b)(iii), 559(6)(b), 592(2)(d)(i), 594(2)(d), 594(3)(d)(i), 605(4)(b), 605(5), 616(4)(c)(iii), 632(4)(c)(iii) and 718(5)(c).

46    Notwithstanding the effective irrelevance of the conciliation and arbitration power, the explicit reference in these provisions to the eligibility rules of the organisation concerned makes unavoidable the conclusion that the draftsman was here invoking the Dunlop Rubber principle, that is, the principle that the entitlement of an organisation to represent the industrial interests of particular employees depends on the eligibility of those employees, in the relevant area of employment, to become members of the organisation.

47    As it happens, this drafting expedient was not employed to define the standing which an organisation, or another industrial association, had to commence a proceeding such as that which came before the primary Judge. Until 1996, the relevant norms of conduct were criminal ones. After the WROLA Act, however, they were civil norms (the subject of Pt XA of the WR Act), and standing to sue was given only to the person against whom the conduct was, or would be, carried out, and to an organisation or association of which the person was a member: see s 298T(2) of the WR Act. After the Work Choices Act, organisations and associations did not have standing at all: see subss (1) and (4) of s 807 of the WR Act at that time. I shall return to the significance of this legislative history, such as it is, below.

48    First, however, it is necessary to consider the provisions of the RO Act and the FW Act themselves, with a view to discovering whether there is anything there which, as a matter of law, entitles an organisation to represent the industrial interests of a non-member on the basis that he or she is eligible for membership.

49    The RO Act is, of course, the re-named Sched 1 to the WR Act, itself the product of a legislative re-arrangement of the provisions of Pt IX of the WR Act in 2002. The presently relevant provisions of the RO Act are the very same provisions which sustained the conclusion that organisations registered under legislation made under the conciliation and arbitration power were entitled to represent the industrial interests of persons who were eligible for membership of them, whether or not they were members. There was nothing, and there remains nothing, in the provisions themselves which directly gives rise to such an entitlement. It is a “standard” sought to be achieved by the RO Act to “ensure that employer and employee organisations registered under [this Act] are representative of and accountable to their members, and are able to operate effectively”: s 5(3)(a). It is a criterion for registration as an organisation under the RO Act that the applicant be “an association for furthering or protecting the interests of its members”: s 19(1)(a)(ii). These provisions imply that an organisation is not only entitled, but obliged, to represent its members, but there is nothing, either here or elsewhere in the RO Act, which suggests that an organisation is entitled to represent persons who are not its members. That is not the question of present concern, of course, but it is also the case that there is nothing in the RO Act which suggests that an organisation is entitled to represent the industrial interests of persons who are not its members.

50    Under the FW Act itself, amongst the “core provisions” of Ch 2 – “Terms and Conditions of Employment” – is s 48(1), which provides that a modern award “covers” an employee, an employer or an organisation “if the award is expressed to cover” him, her or it. By the operation of ss 46 and 47, both the imposition of obligations by, and the entitlement to the benefit of, a modern award are tied, directly or indirectly, to the fact of being covered by it. A modern award must include terms setting out the employees, employers and organisations that are covered by it: s 143(1). By s 163(3), the Fair Work Commission (“the FW Commission”) must not make or vary a modern award, so that an organisation becomes covered by it, unless the organisation is entitled to represent the industrial interests of one or more employers or employees who are or will be covered by the award.

51    The table in s 158(1) sets out by whom applications to make, to vary or to revoke a modern award might be made. An organisation has standing to apply if it is (or, in the case of the making of an award, would be) covered by the award, or if it is entitled to represent the industrial interests of one or more employers or employees that are (or would be) so covered. A like standing arises under paras (b) and (c) of s 160(2) where a variation to a modern award is sought to remove ambiguity or uncertainty or to correct an error. Section 159 deals, amongst other things, with the need to change the name of a “named employer award” in the event of a transfer of business, in which context standing to apply to the FW Commission is given to an organisation that is entitled to represent the industrial interests of an employee in the business being transferred. Whether by direct enactment or indirectly by way of a provision in the award stating that it is covered, an organisation’s standing to participate in the award system in the ways mentioned here depends, at base, on its entitlement to represent the industrial interests of employees who are, or would be, covered by the award in question. That is the foundational requirement. The contemplation is, it seems, that the requirement will be satisfied by some fact or circumstance which, like the proverbial elephant, is readily perceptible, but is not defined or identified in the legislation itself.

52    In some areas, the provisions of the FW Act with respect to enterprise agreements echo those with respect to awards. An instance of this is s 53(1), by which an agreement “covers” an employee or an employer if it is “expressed” to do so. In the case of employee organisations, however, the position is somewhat different. A “greenfields” agreement covers such an organisation if it is made by it: s 53(2)(b). An agreement of that kind may be made as between the intending employer and a “relevant employee organisation”, a term defined by s 12 as “an employee organisation that is entitled to represent the industrial interests of one or more of the employees who will be covered by the agreement, in relation to work to be performed under the agreement”. A requirement for the approval of a greenfields agreement is that “the relevant employee organisations that will be covered by the agreement are (taken as a group) entitled to represent the industrial interests of a majority of the employees who will be covered by the agreement, in relation to work to be performed under the agreement; and … it is in the public interest to approve the agreement”: s 187(5). An agreement other than a greenfields agreement covers an employee organisation if the Commission has “noted in its decision to approve the agreement that the agreement covers the organisation”: s 53(2)(a). That is a reference to s 201(2), under which an organisation which was a bargaining representative for the agreement may notify the FW Commission that it wants the agreement to cover it and, if it does so, the FW Commission must note, in its decision approving the agreement, that the agreement covers the organisation. However, an organisation may not be a bargaining representative for any employee, whether a member or not, unless it is entitled to represent the industrial interests of him or her: s 176(3). Being covered by an agreement gives an organisation the right to apply to the FW Commission for a variation of the agreement to remove an ambiguity or uncertainty (s 217(1)(c)), to deal with a dispute between the employer and an employee about the variation of the agreement to remove an ambiguity or uncertainty (s 217A(2)), and for the termination of the agreement once it has passed its nominal expiry date (s 225(c)). Being covered also has the effect of including the organisation in the range of persons whose views must be taken into account by the FW Commission before terminating an agreement on this latter ground, whether or not it was an applicant for the termination: s 226(b)(i). As in the case of modern awards, entitlement to represent the industrial interests of the employees concerned lies at the foundation of an organisation’s right to participate in the enterprise agreement system under the FW Act, but such an entitlement is not defined in the relevant provisions of that Act; neither does it arise under those provisions.

53    A similar picture emerges with respect to the other main provisions of the FW Act. Under Pt 3-4, which deals with right of entry, for example, by s 481(1) a permit holder may enter premises, and exercise certain rights, for the purpose of investigating a suspected contravention of the FW Act, or a term of a fair work instrument, that relates to, or affects, a member of the organisation, “whose industrial interests the organisation is entitled to represent; and … who performs work on the premises.” By s 482(1)(b), while on the premises, the things which the permit holder may do include interviewing any person who agrees to be interviewed, and “whose industrial interests the permit holder’s organisation is entitled to represent”. Under s 518, the notice of entry which the permit holder is required to give must contain a declaration by him or her that his or her organisation is entitled to represent the industrial interests of a member to whom the suspected contravention relates, or who is affected by the suspected contravention, and must “specify the provision of the organisation’s rules that entitles the organisation to represent the member”. By s 484, a permit holder may enter premises for the purposes of holding discussions with employees who perform work on the premises, “whose industrial interests the permit holder’s organisation is entitled to represent” and who wish to participate in those discussions. Here the relevant notice of entry must contain a declaration by the permit holder that his or her organisation is entitled to represent the industrial interests of an employee who performs work on the premises, and must specify the provision of the organisation’s rules that entitles the organisation to represent the employee: s 518(3). By s 520 of the FW Act, the FW Commission must, on application by an organisation, issue a certificate if it is satisfied that a member of the organisation performs work on particular premises, that “the organisation is entitled to represent the industrial interests of the member”, and that a suspected contravention of a kind referred to in s 481(1) relates to, or affects, the member. Amongst other requirements, the certificate, if issued, must be to the effect stated.

54    There is nothing in the FW Act which gives rise to the entitlement of an organisation to represent the industrial interests of persons who are not its members. Neither is the content of such an entitlement referable to, and well-understood under, the general law (such as may be said, for example, of the relationships of employer and employee and landlord and tenant). The constitutional and statutory realities which gave rise to the legitimate use of this phrase are not relevant under the FW Act. By reference to any conventional process of construction, the argument that an organisation is entitled to represent the industrial interests of persons who are not its members merely because they are eligible for membership could only be regarded as doubtful.

55    But the constructional task confronting the court is not a conventional one. There are two considerations in particular which tilt the scales in favour of the position for which the respondent contends. First, the change in the constitutional basis for the federal statute regulating industrial relations did not happen overnight. Rather, the swing towards the use of the corporations power was a gradual one. It commenced when enterprise flexibility agreements were introduced in the Reform Act, but there the scope for organisations to be heard was tied to their being bound by underlying awards (such awards, of course, having being made in settlement of corresponding industrial disputes) (IR Act, 170NB(1)). Then a significant step was taken by the WROLA Act, with the introduction of collective agreements made between constitutional corporations and either organisations or employees themselves. This ushered in a period during which the conciliation and arbitration power and the corporations power operated in tandem, as it were, as bases for the regulation of collective industrial relations. During this period, the presently contentious phrase occupied a central place in the scheme of Div 2 of Pt VIB of the WR Act, defining, as it did, the right of an organisation to make an agreement with a constitutional corporation. In that context, it was recognised by the Full Bench of the IR Commission that the phrase referred to the eligibility rules of the organisation concerned. The next step was taken when the Work Choices Act commenced the process of phasing out awards made under the conciliation and arbitration power, and eliminated the stream of agreement-making which had been referable to that power.

56    Throughout the whole of this period, as we have seen, the legislature continued to treat it as a given that it was an organisation’s eligibility rules which gave it the entitlement to represent the industrial interests of employees, and intending employees, whether or not they were actual members. This premise applied as much to provisions which depended on the corporations power as it did to provisions which depended on the conciliation and arbitration power. If there were a time, during this period, when the premise ceased to be valid, for my own part I have not been able to pinpoint it. And, if the premise remained valid down to the repeal of the WR Act in 2009, the question must be asked, what was it about the FW Act that altered that situation?

57    One possibility may be that, in the WR Act after the Work Choices amendments, the premise was made explicit by the inclusion of the qualifier “under its eligibility rules” in references to an organisation’s entitlement to represent the industrial interests of employees, whereas the FW Act contains no such qualifier. Had the qualifier been retained in the FW Act, the present controversy would never have arisen. As I understand it, the appellant would wish to be associated with the proposition that the removal of the qualifier amounted, in effect, to a signal of legislative intent that eligibility alone should no longer be regarded as sufficient to generate an entitlement to represent the industrial interests of the person concerned. Another, and in my view the better, way of looking at it, however, would be to regard the qualifier as a limitation upon the circumstances which might, factually, give rise to the entitlement in a particular case: the entitlement could not arise otherwise than under the eligibility rules. Once the qualifier was removed, as it was with the enactment of the FW Act, there was no limitation upon the range of circumstances which might give rise to the entitlement. But the premise that eligibility would always amount to one such circumstance, sufficient of itself to give rise to the entitlement, was not undermined by the removal of the qualifier.

58    Secondly, if there is one thing which is clear from the provisions of the FW Act to which our attention was drawn in argument, it is that an organisation’s presumed entitlement to represent the industrial interests of a person is not limited to a situation in which the person is a member of the organisation. There are just too many instances which bespeak a legislative discrimination between an entitlement of that kind and membership of the relevant organisation to treat the former as assimilated with the latter. Section 176(3) is foremost amongst those instances, lying as it does at the centre of the provisions of the FW Act which regulate collective industrial relations. But the appellant did not propose a connotation of the problematic phrase in the alternative to its assimilation with the condition of membership. Once membership as such is eliminated as the sine qua non of an organisation’s entitlement to represent the industrial interests of an individual, the most obvious qualifying circumstance is that which has been held, over many years, to mark out the limits of an organisation’s legitimate sphere of influence, that is, coverage under its eligibility rules.

59    Returning to the matter to which I adverted in para 47 above (ie the matter of standing to bring the very kind of case that is involved here), it is true, as submitted on behalf of the appellant, that the construction of s 540(6) of the FW Act which attracted itself to the primary Judge involved a substantive change in the law which went unremarked in the Explanatory Memorandum and other relevant parliamentary materials. But that consideration cannot, in my view, prevail in the face of the reality that in 2009 the legislature introduced a standing provision which departed substantially from its predecessor. While the content of the phrase “entitled to represent the industrial interests …”, is undoubtedly problematic, one thing which we cannot do is to ignore this departure. The pattern of s 539 of the FW Act is to consolidate what was previously a miscellany of standing provisions, and to employ the phrase in a setting with which it had not been associated in any previous corresponding provision. Most pointedly, for an organisation to have standing in circumstances where it was not itself affected, it is no longer an express requirement that the individual who was affected be a member of it.

60    For the reasons set out above, I have reached the conclusion that, in the case of an organisation, coverage of a person under its eligibility rules will be sufficient of itself to bring the organisation under the provisions of the FW Act which operate by reference to the formula, “entitled to represent the industrial interests of …”, apropos the person. I accept that this conclusion might be viewed as involving a legal fiction to a degree, but, in the light of the provisions of the legislation, both past and present, I can see no more satisfactory resolution to the constructional issues which this formula presents.

61    So much for organisations. Section 540(6), however, operates by reference to an “industrial association”. An association of employees that is “recognised as such an association (however described) under a workplace law” is an industrial association for the purposes of s 540(6) of the FW Act. A “workplace law” includes “any … law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters)”. We did not receive detailed submissions as to the practical impact of this part of the relevant definition, in which circumstances we would not, in my view, be justified in presuming that a law of the kind referred to would necessarily follow the pattern of the RO Act in requiring an association recognised under it to have rules which specified its conditions of eligibility for membership. An industrial association also includes “an association of employees … (whether formed formally or informally), a purpose of which is the protection and promotion of their interests in matters concerning their employment ….” The possessive pronoun “their” refers, of course, to the members of the association. Again, there is no basis for a presumption that such an association would have eligibility rules – or even rules as such – by reference to which the so-called established meaning of the presently contentious phrase might be applied in a concrete setting.

62    The special meaning which that phrase has come to have over the years related only to registered organisations. I would not hold it to apply to industrial associations, as defined, generally. But it does not follow that the meaning has no role in the context of s 540(6). The respondent is an industrial association because it is an organisation. As such, the special meaning of the phrase applies to it, in the context of this subsection no less than elsewhere. How the subsection operates in the setting of an association which is not an organisation is a matter best left to a case in which the question directly arises.

63    For the above reasons, I would dismiss the appeal.

Associate:

Dated:    26 October 2016

REASONS FOR JUDGMENT

WHITE J:

64    I agree that the appeal should be dismissed.

65    Subject to one qualification, I agree with the reasons of Jessup J and do not wish to add to them.

66    In [54] of his reasons, Jessup J says that “[t]here is nothing in the FW Act which gives rise to the entitlement of an organisation to represent the industrial interests of persons who are not its members”. I agree that there is nothing in the FW Act which is expressly to that effect. However, the expression “the industrial association is entitled to represent the industrial interests of the person” in s 540(6) and its counterparts is to be construed by reference to its context and purpose, as well as by consideration of its text. Part of the context is the legislative history and judicial construction of the expression “entitled to represent the industrial interests” in the predecessor and cognate legislation. That history has been reviewed comprehensively by Jessup J. The review indicates that the expression used in s 540(6) of the FW Act does convey the right to represent the industrial interests of persons who, although not members of the industrial association, are eligible to become members. Understood in this way, s 540(6) does have the meaning found by the Federal Circuit Court.

Associate:

Dated:    26 October 2016