Federal Court of Australia

Kelly v Noonan [2021] FCA 146

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to rule 10.24 of the Federal Court Rules 2011 (hereafter, the “FCRs”), service of:

(a)    the Originating Application; and

(b)    the Pasfield Affidavit,

upon the fifth, sixth, ninth, eleventh, twelfth, fourteenth, fifteenth, nineteenth, twenty-first, twenty-second, twenty-ninth, thirtieth, thirty-second, thirty-fifth and thirty-sixth respondents be taken to have been effected by their being emailed a copy of those documents.

2.    Pursuant to rule 1.39 of the FCRs, the time for service upon the respondents of the Originating Application and the Pasfield Affidavit be abridged to the extent necessary to permit the urgent hearing of the applicant’s claim for interlocutory relief on Thursday, 25 February 2021.

3.    Pursuant to s 164(4) of the Fair Work (Registered Organisations) Act 2009 (Cth), the respondents are directed to refrain from determining, or in any other way resolving or settling—whether by resolution or otherwise—the C & G Dispute at the National Executive Meeting.

4.    For the purposes of these orders:

(a)    the “C & G Dispute” means the dispute that is the subject of the resolution passed by the C & G Division on Thursday, 18 February 2021, and the Notice of Dispute to which that resolution pertained, each of which is reproduced as part of annexure PJP3 to the Pasfield Affidavit;

(b)    the “C & G Division” means the Construction and General Division of the CFMMEU;

(c)    the “CFMMEU” means the Construction, Forestry, Maritime, Mining and Energy Union;

(d)    the “National Executive Meeting” means the meeting of the CFMMEU’s National Executive that is scheduled to take place at 1:00pm AEDT on Friday, 26 February 2021;

(e)    the “Originating Application” means the originating application herein dated 24 February 2021; and

(f)    the “Pasfield Affidavit” means the affidavit of Phillip John Pasfield affirmed herein on 24 February 2021.

5.    The applicant’s application for interlocutory relief is otherwise dismissed.

6.    The matter be adjourned to a case management hearing to take place on a date to be fixed.

7.    In light of s 329(1) of the Fair Work (Registered Organisations) Act 2009 (Cth), there be no order as to costs.

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

REASONS FOR JUDGMENT

SNADEN J:

1    The Construction, Forestry, Maritime, Mining and Energy Union (hereafter, the “Union”) is a large and well-known employee organisation registered as such pursuant to the provisions of the Fair Work (Registered Organisations) Act 2009 (Cth) (hereafter, the “FW(RO) Act”).

2    As with all registered organisations, the Union operates pursuant to rules that are made and enforced under the FW(RO) Act. Those rules (hereafter, the “Union Rules”) provide for the ways in which—and the offices and bodies by which—the functions of the Union are to be discharged. The primary decision-making body within the Union is known as its National Conference, which meets biennially. Between meetings of the Union’s National Conference, the Union is administered by a “National Executive”, which is comprised of various office bearers identified within the Union Rules.

3    As its name suggests, the Union is comprised of a number of divisions, two of which assume present prominence, specifically the Construction and General (hereafter, the “C & G”) division and the Mining and Energy (hereafter the “M & E”) division. Each of those divisions is separately—and, for the most part, autonomously—managed by officers or bodies established for that purpose under the Union’s Rules. Of present relevance, each is administered on a day-to-day basis by a divisional executive, which, much like the National Executive, comprises identified office bearers associated with each particular division.

4    The Union’s members are each allocated to a single division. That process of allocation is, as one might expect, governed by the Union Rules. In recent months, tensions have arisen between various of the Union’s divisions about the “poaching”, or perceived “poaching”, by the C & G division of the members of other divisions. Those tensions have boiled over into litigation in this court: most recently in O’Connor v Setka [2020] FCAFC 195 (Mortimer, Rangiah and White JJ). This present application, rightly or otherwise, is the latest instalment in those ongoing tensions.

5    The applicant is the Secretary of the Union’s M & E division and a member of its divisional executive. The respondents are the members (or, perhaps, the other members) of the Union’s National Executive. The first respondent is the Secretary of the C & G division and currently acts, legitimately or otherwise, as the Union’s Secretary (that is to say, as its effective Acting Secretary, the elected holder of that office having resigned in November of 2020). A majority of the members of the Union’s National Executive are aligned with the C & G division.

6    On Thursday, 18 February 2021, the C & G divisional executive passed a resolution by which it purported to refer for determination by the Union’s National Executive a dispute that was said to have arisen between it and the M & E division. The text of that resolution (hereafter, the “C & G Resolution”)—and the particulars of the dispute to which it pertained—are explored in more detail below. In summary, the C & G division asserted by it that there was a dispute between the two divisions concerning the allocation of members who, under the Union Rules, might be considered eligible for membership of either division. That dispute, it was said, was ripe for arbitration by the Union’s National Executive in accordance with the power conferred upon that body by rule 15(iv)(e) of the Union Rules (to which reference is also made below).

7    On Friday, 19 February 2021, the first respondent—purportedly in his capacity as the Union’s acting Secretary—sent notice to each of the members of the Union’s National Executive of a meeting of that body that was to take place at 1:00pm AEDT on Friday, 26 February 2021. The purpose of that meeting, so the notice explained, was to “…discuss and determine the issues raised by the Dispute Notification circulated by the President of the Construction & General Division yesterday afternoon.”

8    On Monday, 22 February 2021, the applicant emailed the first respondent (to which the other members of the Union’s National Executive were copied). Amongst other things, he requested that the meeting scheduled for Friday, 26 February 2021 be cancelled and that the two divisional secretaries meet to discuss the content of the C & G Resolution. The applicant asserted that the first respondent’s authority to schedule the meeting that was the subject of his notice of Friday, 19 February 2021 was “questionable, to say the least”, in that he had purported to do so as the Union’s “Acting National Secretary” (which is an office unknown to the Union Rules). He also asserted that the National Executive’s power to resolve the dispute of which the C & G division had given notice was constrained by rule 7(viii) of the Union Rules, which expressly covers the determination of disputes between divisions about the allocation of members and, so he contended, did so in a manner inconsistent with what the C & G Resolution proposed.

9    Over the course of subsequent days, the applicant and first respondent exchanged further correspondence, the substance of which needn’t here be recited. It suffices to note that each asserted competing views about the first respondent’s capacity to convene the meeting scheduled for Friday, 26 February 2021 and the capacity of the National Executive to determine the dispute that is the focus of the C & G Resolution (or to do so in the manner that the C & G division contemplated).

10    By an application filed in the early afternoon of Wednesday, 24 February 2021, the applicant moves the court for relief under s 164 of the FW(RO) Act, the object of which is to compel the respondents to observe the requirements of various of the Union Rules. He seeks urgent interlocutory relief to restrain:

(1)    cancel the convening of the meeting of the Union’s National Executive that has been scheduled for Friday, 26 February 2021;

(2)    restrain any consideration or determination at that meeting of the C & G Resolution (or the dispute to which it pertains); and

(3)    restrain the first respondent from assuming, or continuing to assume, the functions of the office of Union Secretary (or Acting Secretary).

11    For the reasons that follow, I am of the view the respondents should be restrained from determining, in whatever manner, the C & G Resolution (or the dispute to which it pertains). The application for urgent interim relief should (and will) otherwise be dismissed.

Service

12    Given its urgency, the court convened a hearing to determine the application for interim relief on Thursday, 25 February 2021.

13    The originating application and the affidavit affirmed by the applicant’s solicitor in support of it (which is referred to in more detail below) were not personally served upon each respondent. Instead, those documents, together with notice of the hearing that took place in the afternoon of Thursday, 25 February 2021, were sent by means of email correspondence.

14    23 of the 38 respondents to the present matter appeared by counsel at that hearing. None of the other 15 respondents appeared. It is likely—although I needn’t determine either way—that most or all of those 15 respondents are members of the Union’s National Executive who are not aligned with the C & G division or the Union’s Maritime division (which is apparently understood broadly to support the C & G Resolution).

15    Regardless, in the time available, it was not practicable to effect service of the application and the supporting affidavit in the way that the Federal Court Rules 2011 (Cth) contemplate. Given that the dispute that is now before the court has been the subject of extensive email correspondence over the last seven days (to which the 15 non-represented respondents were was copied), I consider it appropriate to make orders for substituted service permitting service of those documents by email. It is also appropriate that the time for service of those documents upon all of the respondents be abridged to the extent necessary to permit the urgent hearing that took place on Thursday, 25 February 2021.

16    There will be orders to those effects. References throughout these reasons to the evidence or submissions of the “respondents” should be understood as references to the evidence or submissions of those of the respondents who appeared at the hearing of Thursday, 25 February 2021.

Principles to be applied

17    The applicant’s claim for interim relief is premised upon s 164 of the Act, which provides as follows:

164 Directions for performance of rules

Application for order directing performance of rules

(1)    A member of an organisation may apply to the Federal Court for an order under this section in relation to the organisation.

Note:    For the meaning of order under this section, see subsection (9).

(2)    Before making an order under this section, the Court must give any person against whom the order is sought an opportunity of being heard.

(3)    The Court may refuse to deal with an application for an order under this section unless it is satisfied that the applicant has taken all reasonable steps to try to have the matter that is the subject of the application resolved within the organisation.

Court may make interim orders

(4)    At any time after the making of an application for an order under this section, the Court may make any interim orders that it considers appropriate and, in particular, orders intended to further the resolution within the organisation concerned of the matter that is the subject of the application.

(5)    An order under subsection (4) continues in force, unless expressed to operate for a shorter period or sooner discharged, until the completion of the proceeding concerned.

Definition

(9)    In this section:

order under this section means an order giving directions for the performance or observance of any of the rules of an organisation by any person who is under an obligation to perform or observe those rules.

18    It is not necessary that I should address the requirements of s 164(3). The respondents did not raise it as a basis upon which I might refuse discretionary relief directed to the meeting scheduled for Friday, 26 February 2021. It was raised with respect to the relief directed solely at the first respondent; but for reasons that will become apparent, I needn’t deal with that submission.

19    Inherent in the applicant’s case is a contention that the Union’s National Executive members propose to meet and/or determine an issue in contravention of the Union Rules. That contention is multi-dimensional. First, it is suggested that the meeting scheduled for Friday, 26 February 2021 has not been properly convened. Second, it is suggested that the meeting is set to consider—and, more importantly, to endorse—a proposed resolution of a dispute about the allocation of members amongst or between the two divisions that is inconsistent with the manner in which the Union Rules require that such disputes be determined (or that is otherwise inconsistent with the manner in which the Union Rules contemplate that members should be allocated amongst or between divisions). Third, it is said that the first respondent has been holding (and continues to hold) himself out as the Union’s Acting Secretary when, in truth, he is no such thing. It is to those alleged (and threatened) contraventions of the Union Rules that the applicant seeks to put a stop, including on an urgent interlocutory basis.

20    The parties are more or less aligned as to the principles that the court must apply in considering whether or not to grant interlocutory relief in a case such as this one. Section 164(4) empowers the court to make, on an interim basis, any orders that it considers appropriate. The appropriateness of particular orders will be informed by (but not only by):

(1)    the existence of a serious question as to whether or not the conduct sought to be restrained will be conduct offensive to the Union Rules; and

(2)    whether the balance of convenience—that is to say, the inconvenience to the respondents that injunctive relief might visit, measured against the inconvenience to the applicant if such relief is declined—favours the relief that is sought.

See: Briant v Martin & Ors [2020] FCA 1009, [19]-[22] (Snaden J) and the authorities there referred to.

21    When considering the grant of interim relief, the issue of whether an applicant has established a prima facie case and whether the balance of convenience favours relief are related inquiries. Whether there is a prima facie case is to be considered together with the balance of convenience: Samsung Electronics Co. Ltd v Apple Inc. (2011) 217 FCR 238, 261 [67] (Dowsett, Foster and Yates JJ). In Bullock v FFTSA (1985) 5 FCR 464, Woodward J (with whom Smithers and Sweeney JJ relevantly agreed) stated (at 472):

…an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises “a serious question to be tried”) may still attract interlocutory relief if there is a marked balance of convenience in favour of it.

22    When considering whether to make interim orders under s 164(4) of the FW(RO) Act, the court should have regard to whether, or the extent to which, doing so would assist the “…efficient and effective working of the Union pending the final resolution of the proceedings”: Adlam v Noack (1998) 90 IR 31, 35 (von Doussa J).

Evidence

23    The applicant relies upon two affidavits affirmed by his solicitor, Mr Phillip John Pasfield: one on Wednesday, 24 February 2021 and one on Thursday, 25 February 2021. The first respondent relies upon two affidavits affirmed on Thursday, 25 February 2021 by his solicitor, Mr Declan Vincent Murphy, and a further affidavit affirmed on the same day by a different solicitor, Mr Jack Oscar Oates Faine. All five affidavits were received without objection.

24    Additionally, both sides filed written submissions, for which I record the court’s gratitude.

The Union Rules

25    Several of the Union Rules assume significance presently. As most equivalent instruments do, they stipulate in extreme detail the industries, professions and callings in respect of which membership of the Union is available. Rule 2 of the Union Rules occupies 41 of the 101 pages over which they span. It is divided into 19 subsections, “(A)” through “(S)”, each of which identifies a particular basis upon which membership eligibility arises.

26    Rule 7 is entitled “membership”. For the most part, it sets out how prospective members might make application for membership of the Union. It also contains the following provisions relevant to the present matter:

…

(iv)    A member shall be attached to the Division of the Union covering the industry or employment of the member and shall be in only one such Division. Each member shall be notified of the Division to which such member is attached or any other classification relevant to the Rules of the Union and such Division or classification shall be entered on the record of the Union in relation to that member which record shall be conclusive proof of the Division and/or classification to which that member is assigned.

…

(viii)    (a)    Where a Divisional Secretary or Divisional Branch Secretary is of the view that a person in the Division or Divisional Branch of which she/he is an officer should be attached to another Division or Divisional Branch the Divisional Secretary or Divisional Branch Secretary shall contact the Divisional Secretary or Divisional Branch Secretary of the Division or Divisional Bra11ch to which, in the view formed, the member should be attached, and seek to obtain agreement on the transfer of the said member. Where agreement cannot be reached the matter may be referred to the National Secretary and be determined by the National Executive or an officer designated by the National Executive.

    (b)    Further provided that where a Divisional Secretary or a Divisional Branch Secretary forms the view that a member of another Division or Divisional Branch ought to be a member of the Division or Divisional Branch to which the Divisional Secretary or Divisional Branch Secretary is attached, the Div[i]sional Secretary or Divisional Branch Secretary shall contact the the [sic] Divisional Branch Secretary of the Divisional Branch to which the member is now attached and seek agreement that the member be transferred. Where agreement cannot be reached the matter may be referred to the National Secretary and be determined by the National Executive or an officer designated by the National Executive.

…

    (d)    Any determination by the National Executive or officer designated by the National Executive shall use the principles established in and by sub-rules 42(i) and 42(iii) hereof.

Nothing in these paragraphs shall affect or detract from the provisions of subrule(s) 42(i), (iii) and (xii) and membership of a Division or a Divisional Branch shall be valid notwithstanding an irregularity in, breach of or failure to comply with the procedures in either one or both paragraphs (a) or (b) herein.

…

27    Rule 42(iii) of the Union Rules purports to describe how the allocation of members amongst the Union’s divisions should occur. It relevantly provides as follows:

Subject to any changes made by unanimous decision of the National Executive Committee following amalgamation, there shall be a restructuring of the Divisions on the following basis:

(a)    There shall be created a restructured Mining and Energy Division which shall consist of all members of the union eligible to be members under Rule 2 D and all members, including members eligible under Sub-Rules 2 (A , (B), (C) and (E) employed in the Mining, Exploration and Energy Industries and all members employed in the County of Yancowinna:

(b)    There shall be created a Forestry and Forest, Building Products Manufacturing Division (herein after referred to as the Forestry Division) which shall consist of all members of the union eligible to be members under Rule 2 (C) and all members, including members eligible under Sub-rules 2 (A), (B) and (E) employed in the following sectors of the industry (or occupations within them):

Forest and forest products industry,

Pulp and paper industry,

Timber and building related manufacturing industry including joinery, wall frame/roof trusses, furniture, aluminium windows, glass window manufacturing and any other sectors of manufacturing activity as agreed to between the ATAIU and the Building Unions and FEDF A Divisions of the union.

This sub-rule up until April 3rd 2000 shall be read subject to the agreement entitled CFMEU Forestry Division and CFMEU Construction & General Division Translation Agreement dated September 2nd 1998.

(c)     There will be a Construction and General Division which shall consist of all members of the union employed in or in connection with the Construction industry (including shopfitting) and all other members of the Union not referred to in sub-rules (iii) (a) (b) and (d) herein.

  (d)    deleted

28    Rule 14(iii) of the Union Rules concerns (amongst other things) the calling of meetings of the Union’s National Executive. It provides as follows:

(iii)    Meetings of the National Executive…shall be held at such time and place as shall be decided by the National President and the National Secretary, provided that a majority of the members of the National Executive may demand a meeting of such National Executive which shall be held at such time and place as stipulated by such members of the National Executive. The quorum for any meeting shall be six (6). A majority of the National Officers may demand a meeting of the National Executive Committee which shall be held at such time and place as stipulated by such National Officers. The quorum for any meeting of the National Executive Committee shall be four (4).

29    Rule 15 of the Union Rules is entitled “national executive”. It has a range of functions, chief amongst which (for present purposes) are set out in sub-rule (iv) as follows:

(iv)    The National Executive shall, unless its actions are overturned by the National Conference, have the care, control, superintendence, management and administration in all respects of the affairs, business, national funds and property of the Union and shall have and may exercise no more and no less than all of the powers of the National Conference and, without limiting the generality of the foregoing may:

…

(e)     Settle disputes between Divisions or Branches. Any Division or Branch concerned shall be given reasonable notice of the meeting and an opportunity of being heard before any settlement is effected.

30    Rule 16(vi) of the Union Rules provides as follows:

A National Executive member and National Executive Committee member and National Officer shall hold office until a successor to such person is elected.

31    The duties of the Union’s national office bearers are set out in rule 22 of the Union Rules. Of particular relevance to this matter is sub-rule 4, which provides:

4.    National Assistant Secretaries:

National Assistant Secretaries shall perform all duties assigned to them by National Conference and National Executive. They shall attend all meetings of National Conference and National Executive.

serious questions to be tried

32    As outlined above, the present application for interim relief proceeds essentially in three parts. First, the applicant maintains that the National Executive meeting scheduled for Friday, 26 February 2021 has not been called in accordance with the Union Rules and should not, therefore, proceed. Second, he maintains that the first respondent has falsely held himself out to hold the office of Acting National Secretary or National Assistant Secretary of the Union. Third, the applicant says that the business to be transacted at the 26 February meeting—assuming that it is transacted in the manner that he expects (which is to say, that the National Executive resolves to determine the dispute that is the focus of the C & G Resolution in a way that aligns with how the C & G division apparently wishes it to be determined)—will lead to a situation that is inconsistent with the Union Rules and, therefore, should not be the subject of consideration or resolution.

The calling of the 26 February meeting

33    It is apparent from his 19 February 2021 notice that the second respondent alone determined that the National Executive should meet on Friday, 26 February 2021. At issue presently is whether he had authority under the Union Rules so to determine.

34    There is at least an arguable case—and it appears to be a strong one—that he did not. Rule 14(iii) confers authority to call a meeting of the National Executive upon the Union’s “National President and…National Secretary”. It is not apparent that the Union’s Secretary alone has authority to determine the time or place at which such meetings should occur.

35    Moreover, the first respondent is not (at least not on the evidence before the court presently) the Union’s “National Secretary”. It was not in dispute that the office of Union Secretary is presently unoccupied. Its previous incumbent resigned from that office in November 2020 and the position has not since been filled.

36    Instead, the Union’s National Executive, by a resolution passed on 6 November 2020, purported to “…direct[] the National Assistant Secretary (David Noonan) to perform the duties and responsibilities of the office of National Secretary on an interim basis…”. That direction was, so the resolution recorded, issued pursuant to rule 22(4) of the Union Rules.

37    Two observations bear noting under the light of that resolution. First, rule 22(4) of the Union Rules does not purport to authorise the conferral upon an Assistant Secretary the rights or privileges (or, to use the term employed by the 6 November 2020 resolution, the “responsibilities”) that the Union Rules reserve for the Secretary. It merely provides that Assistant Secretaries must do what the National Conference and National Executive tell them to do. As much is, at the very least, arguably so.

38    Second and in any event, it is at least arguable (and, again, I think strongly so) that the first respondent (Mr Noonan) was not a “National Assistant Secretary” as at 6 November 2020. He was at that point (and still is), instead, the Secretary of the C & G Division, having been elected to that position at the most recent Union election. Prior to that election, he had held the position of National Assistant Secretary since his election to that position in 2014. At the most recent election, the position of “National Assistant Secretary” was not filled. The first respondent submits that he continued to hold that office by reason of rule 16(vi) of the Union Rules but that contention is difficult to reconcile with the spirit, if not the text, of s 145(1) of the FW(RO) Act (which requires that the rules of an organisation must, subject to exceptions, provide for terms of office for officers in the organisation of no longer than 4 years without re-election).

39    Insofar as the National Executive, by its resolution of 6 November 2020, purported to confer upon the first respondent the “duties and responsibilities” that the Rules otherwise confer upon the Union’s Secretary, its power to do so under the Union Rules is questionable. It does not appear to have resided in rule 22(4), to which the resolution expressly referred. It is, then, at least arguable—and probably strongly arguable—that the National Executive was not authorised to confer upon the first respondent the “duties and responsibilities” that it purported to confer upon him by its resolution of 6 November 2020.

40    But for the following observation, then, I would have been satisfied that there exists a prima facie case that the National Executive meeting scheduled for 1:00pm on Friday, 26 February 2021 is not one that meets the description for which r 14(iii) of the Union Rules provides (having been called by the first respondent alone, in circumstances where his capacity to serve in place of the Union’s Secretary seems questionable).

41    The observation in question, however is conclusive (at least insofar as the applicant’s submission rests upon the capacity of the first respondent). Over the course of Thursday, 25 February 2021—and apparently in answer to the applicant’s concerns about the calling of the 26 February Meeting—a majority of the Union’s National Executive demanded that the meeting of 26 February 2021 proceed. The evidence suggests that most—and probably all—of that majority were members of the C & G division or the Union’s Maritime division. The members comprising that majority issued their demand in accordance with the alternative method for calling meetings of the National Executive for which r 14(iii) of the Union Rules provides. The applicant properly conceded as much.

42    The validity of the meeting scheduled for 26 February 2021 turns exclusively, then, upon whether or not it has been called with sufficient notice. The applicant contends that the proposed 26 February 2021 meeting has not been properly called because members of the National Executive (and, more particularly, members of the divisional executive of the M & E division) were not given reasonable notice of it, as rule 15(iv)(e) of the Union Rules required. It was put that the seven days’ notice that was provided was inadequate, particularly because of the divisional conference that the M & E division is scheduled to hold in the first week of March 2021 (and the present preoccupation that members of the M & E divisional executive naturally have with that conference).

43    Although that contention is not inarguable, it is not particularly strong. There was no evidence as to what period of notice might normally be given for meetings of the National Executive. Nonetheless, seven days’ notice of a meeting that is to occur by means of video conferencing technology, and which is set to discuss only a single issue (as the meeting scheduled for 26 February 2021 is) does not strike as obviously unreasonable, no matter to what other considerations the attention of the National Executive members might be directed.

The duties of Mr Noonan

44    For reasons equivalent to those outlined above, I am also satisfied that there is at least a prima facie case that the first respondent has wrongly held himself out as holding the office of Acting National Secretary of the Union and/or the office of National Assistant Secretary (and that he will continue to do so unless restrained).

The business to be transacted on 26 February 2021

45    It is convenient to set out in full the text of the C & G Resolution (emphasis original):

Resolution

1.    The Divisional Executive is satisfied that there exists a dispute between the C&G Division and the M&E Division about the appropriate allocation of members as between the C&G Division and the M&E Division where the registered rules of the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU Rules) could be interpreted to allocate them in connection with the same work to the M&E Division and the C&G Division simultaneously (the Dispute).

2.    The Dispute arises because the CFMMEU Rules, read with Rule 2 of the C&G Rules and Rule 3 of the M&E Rules, create an area of overlap to which division a member should be attached where:

(a)    the member is eligible for membership of the CFMMEU by virtue of Rule 2 Sub-rules (A), (B) or (E) of the CFMMEU Rules, and thereby eligible for membership of the C&G Division under Rule 2 of the C&G Rules; and

(b)    the member is also a person engaged in or in connection with the industries enumerated in Rule 3 of the M&E Rules, and thereby eligible for membership of the M&E Division.

3.    The Divisional Executive resolves to refer the Dispute to the National Executive and to ask the National Executive to exercise power under Rule 15(iv)(e) of the CFMMEU to settle the Dispute.

4.    The Divisional Executive further resolves to ask the National Executive to resolve the Dispute on the basis that where a member of the CFMMEU is simultaneously and in connection with the same employment:

(a)    eligible for membership of the CFMMEU by virtue of Rule 2 Sub-rules (A), (B) or (E), and thereby eligible for membership of the C&G Division in accordance with Rule 2 of the C&G Rules; and

(b)    is also a person engaged in or in connection with the industries enumerated in Rule 3 of the M&E Rules and thereby eligible for membership of the M&E Division; the member is to be allocated to a division in accordance with Rule 7 by reference to the division that services and maintains the award that covers the work performed by the member (or would cover that work but for the application of any enterprise agreement), or otherwise as the National Executive sees fit.

5.    The Divisional Executive authorises the Divisional President to do all such things as may be necessary to refer the dispute to the National Executive and to have the Dispute resolved.

Moved: Darren Greenfield

Seconded: Mick Buchan

Passed unanimously

46    When that resolution was sent to members of the Union’s National Executive on Thursday, 18 February 2021, it was accompanied by a “notice of dispute”. Again, it is convenient to set out in full the terms of that notice (emphasis original):

NOTICE OF DISPUTE

Concise statement of dispute

1.    As described below, there is a dispute between the Construction and General Division (C&G Division) of the CFMMEU and the Mining and Energy Division (M&E Division) of the CFMMEU.

2.    The dispute concerns the appropriate allocation of members as between the C&G Division and the M&E Division where the registered rules of the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU Rules) could be interpreted to allocate them in connection with the same work to the M&E Division and the C&G Division simultaneously. This notice of dispute refers to this as the Dispute.

3.    This Dispute is limited to the matters set out below. It is not exhaustive of all matters that may be in dispute and is not intended to limit or otherwise impair the rights of the C&G Division in relation to any other matter.

4.    By resolution dated 18 February 2021, the C&G Division resolved to notify the National Executive of, and to ask it to resolve, the Dispute.

5.    In accordance with that resolution, the C&G Division hereby notifies the National Executive of the Dispute and asks the National Executive to exercise power under Rule 15(iv)(e) of the CFMMEU to settle the Dispute on the terms set out in Annexure 1 to this notification, or otherwise as the National Executive sees fit.

The Relevant Rules

6.     Rule 2 of the registered rules of the Construction, Forestry, Mining and Energy Union, Construction and General Division and Construction and General Divisional Branches (the C&G Rules) provides:

Every member who is a member of the union by virtue of Rule 2 Sub-rules (A), (B) and (N) of the National Rules shall belong to this Division.

Further, every member who is a member of the Union by virtue of Rule 2 sub-rule (E) of the National Rules, shall also be eligible for membership of this Division.

Further provided that in the State of South Australia, every member who is a member of the Union by virtue of Rule 2(0) shall belong to this Division.

7.    Rule 3 of the registered rules of the Construction, Forestry, Maritime, Mining and Energy Union, Mining and Energy Division and its Northern Mining and NSW Energy District Branch, South Western District Branch, Queensland District Branch, Tasmanian District Branch, Western Australian District Branch, and Victorian District Branch (the M&E Rules) provides:

The Division shall consist of an unlimited number of employees, otherwise eligible for membership of the Union who:

(A)    are engaged in or in connection with the Coal and Shale Industry,

(B)    are engaged in or in connection with the Mining or Exploration Industries,

(C)    are engaged as employees or as employees of contractors, in or in connection with the following industries:

(a)    power generation, co-generation, transmission and distribution;

(b)    oil;

(c)    gas;

(d)    nuclear; and

(e)    chemical production.

(D)    have been elected or appointed as paid officers of the Division or whilst financial members of the Division are elected as representatives of any working class organisation to which the Division is affiliated, or as a working class member of Parliament.

8.    Rule 7 of the CFMMEU Rules provides:

A member shall be attached to the Division of the Union covering the industry or employment of the member and shall be in only one such Division. Each member shall be notified of the Division to which such member is attached or any other classification relevant to the Rules of the Union and such Division or classification shall be entered on the record of the Union in relation to that member which record shall be conclusive proof of the Division and/or classification to which that member is assigned.

9.    Rule 7 makes clear that a member can belong only to one division at any one time. Rule 7 also prescribes the criterion for determining to which division a member shall be attached.

10.    Despite Rule 7, the CFMMEU Rules, read with Rule 2 of the C&G Rules and Rule 3 of the M&E Rules, create an area of overlap to which division a member should be attached where:

(a)    the member is eligible for membership of the CFMMEU by virtue of Rule 2 Sub-rules (A), (B) or (E) of the CFMMEU Rules, and thereby eligible for membership of the C&G Division under Rule 2 of the C&G Rules; and

(b)    the member is also a person engaged in or in connection with the industries enumerated in Rule 3 of the M&E Rules, and thereby eligible for membership of the M&E Division.

Particulars

1.    The members include, for example (such persons being eligible for membership of the CFMMEU under Rule 2 of the CFMMEU Rules):

(a)    a carpenter engaged by a contractor to perform work on a mine site or at a power generation facility; and

(b)    a crane operator or dogman performing work on a mine site or at a power generation facility.

2.    These particulars are by way of example only and are not exhaustive.

11.    The overlap also has a consequence for the application of Rule 42 of the CFMMEU Rules. Rule 42 of the Rules is headed "Transitional Provisions - Original Amalgamation". Rule 42(iii) provides:

(iii)    After Amalgamation

Subject to any changes made by unanimous decision of the National Executive Committee following amalgamation, there shall be a restructuring of the Divisions on the following basis:

(a)    There shall be created a restructured Mining and Energy Division which shall consist of all members of the union eligible to be members under Rule 2 (D) and all members, including members eligible under Sub-Rules 2 (A), (B), (C) and (E) employed in the Mining, Exploration and Energy Industries and all members employed in the County of Yancowinna:

(b)    There shall be created a Forestry and Forest, Building Products Manufacturing Division (herein after referred to as the Forestry Division) which shall consist of all members of the union eligible to be members under Rule 2 (C) and all members, including members eligible under Sub-rules 2 (A), (B) and (E) employed in the following sectors of the industry (or occupations within them):

(i)    Forest and forest products industry,

(ii)    Pulp and paper industry,

(iii)    Timber and building related manufacturing industry including joinery, wall frame/roof trusses, furniture, aluminium windows, glass window manufacturing and any other sectors of manufacturing activity as agreed to between the ATAIU and the Building Unions and FEDFA Divisions of the union.

This sub-rule up until April 3rd 2000 shall be read subject to the agreement entitled CFMEU Forestry Division and CFMEU Construction & General Division Translation Agreement dated September 2nd 1998.

(c)    There will be a Construction and General Division which shall consist of all members of the union employed in or in connection with the Construction industry (including shopfitting) and all other members of the Union not referred to in sub-rules (iii) (a) (b) and (d) herein.

(d)    deleted

(Emphasis added)

12.    Specifically, Rule 42(iii) does not make clear which division a CFMMEU member is to be allocated to where they are eligible for membership of both the M&E Division and the C&G Division by virtue of being, simultaneously and in connection with the same work:

(a)    a member "eligible under Sub-Rules 2 (A), (B), and (E) employed in the Mining, Exploration and Energy Industries", within the meaning of Rule 42(iii)(a); and

(b)     a member eligible for membership of the C&G Division by virtue of being a "member of the union employed in or in connection with the Construction industry", within the meaning of Rule 42(iii)(c).

13.    The overlap is addressed by the practical application of the Rules, as follows:

(a)    subject to some exceptions, members who, in connection with the same employment, perform work in more than one industry are allocated to the division that services and maintains the award that covers the member (or would cover that member but for the application of any other enterprise agreement);

(b)    consistent with (a) above, employees and contractors in the mobile crane industry who are eligible for membership of the CFMMEU are allocated to the C&G Division and are organised by the C&G Division, irrespective of where the crane is dispatched to work; and

(c)    consistent with (a) above, all members who are employed in a classification contained in the Building and Construction General On-site Award 2020 and who are eligible for membership of the CFMMEU are allocated to, and organised by, the C&G Division.

Particulars

1.    As to which division services the relevant awards:

(a)    Building and Construction General On-site Award 2010 - C&G Division.

(b)    Mobile Crane Hire Award 2020 - C&G Division.

(c)    Joinery and Building Trades Award 2020-C&G Division.

(d)    Black Coal Mining Industry Award 2020 -M&E Division.

(e)    Electrical Power Industry Award 2020 -M&E Division.

2.    The list in 1 is representative, but not exhaustive.

14.    The overlap does not arise in South Australia by reason of Rule 4(vii) of the C&G Rules.

The Dispute

15.    On 23 October 2020, the M&E Division lodged with the Fair Work Commission a notice and declaration setting out particulars of proposed alterations to the M&E Rules (the Rule Change Application).

16.    Relevantly, the M&E Division proposed to amend Rule 3 of the M&E Rules. The proposed change included the insertion of a new Rule 3(ii) in the following terms:

(i)    The Division shall consist of an unlimited number of employees persons, otherwise eligible for membership of the Union under CFMMEU federal rules 2(0) and 2(E)(a) who:

(A)    are engaged in or in connection with the Coal and Shale lndustry;.

(B)    are engaged in or in connection with the Mining or Exploration Industries:.

(C)    are engaged as employees or as employees of contractors, in or in connection with the following industries:.

(a)    power generation, co-generation, transmission and distribution;

(b)    oil;

(c)    gas;

(d)    nuclear; and

(e)    chemical production

(D)    are engaged in coal handing and/or coal loading at a port facility:

(ii)    Without limiting the generality of or being limited thereby, the Division shall also comprise of an unlimited number of persons are otherwise eligible for membership of the Union in the following States as a result of under the CFMMEU federal rules specified below:

(a)    Queensland - rule 2(G), rule 2(0) Section Band rule 2(0) Section C:

(b)    New South Wales - rule 2(P)(E) and rule 2(P)(F):

(c)    Western Australia - rule 2(Q)(5).

17.    The M&E Division explained the proposed changes to Rule 3 to the Fair Work Commission in the following terms:

Changes to Rule 3

The changes to rule 3 are largely self-explanatory and seek to provide greater clarity as to which members falls within the coverage of the Division, including an express reference to members who may be within the coverage of the rules of the state counterpart unions that were incorporated into the CFMMEU rules in recent years in accordance with s.158A of the Fair Work (Registered Organisations) Act 2009. The changes are not intended to, and do not, affect the eligibility of persons to become a member of the union.

(Emphasis added)

18.    Implicit in the explanation offered by the M&E Division for the proposed changes is contention that there is a relevant overlap in the M&E Rules and the C&G Rules.

19.    The M&E Division did not notify the C&G Division, or the CFMMEU National Office, of the Rule Change Application.

20.    On 24 November 2020, the Commission wrote to the M&E Division seeking clarification regarding the effect of the proposed alterations to Rule 3 of the M&E Rules in the context of rules of the CFMMEU as a whole.

21.    On 1 December 2020, the M&E Division indicated to the Commission that it wished to press the determination of the remaining alterations set out in the notice of particulars as soon as possible and further advised that it would respond to the matters raised by the Commission with regard to the alterations to rule 3 in due course.

22.    By decision dated 16 December 2020, a Registrar of the Commission published a decision severing the proposed alterations to Rule 3 of the M&E Rules and otherwise approving the changes (the Decision).

23.    In mid-January 2021, the C&G Division, by its own endeavours, became aware of the Rule Change Application and Decision.

24.    On 19 January 2021, the C&G Division contacted the Commission about the Rule Change Application and the Decision. Relevantly, the C&G Division asked for a copy of the material filed by the M&E Division in support of the Rule Change Application. In response, the Commission notified the C&G Division that it had asked the M&E Division to provide the C&G Division with a copy of the notice of particulars and submissions filed in support of the rule changes. The documents were not provided.

25.    On 3 February 2021, the Commission reiterated its request for the M&E Division to provide the notice of particulars and submissions to the C&G Division. The M&E Division stated its intention to provide the documents to the C&G Division but failed to do so.

26.    On about 16 February 2020, the M&E Division withdrew its application to alter Rule 3 of the M&E Rules.

27.    The proposed amendment to Rule 3 of the M&E Rules would have, if approved, operated to:

(a)    expand the class of persons eligible for membership of the Division by reference in Rule 3(i) to CFMMEU federal rules 2(0) and 2(E)(a); and

(b)    expand the class of persons eligible for membership of the Division by introducing proposed Rule 3(ii) without limiting the operation of that rule by reference to the industries described in Rule 3(i).

28.    By reason of the matters in paragraphs 6-14 and 15-27 above, a dispute exists between the C&G Division and the M&E Division because:

(a)    Rule 2 of the C&G Rules and Rule 3 of the M&E Rules have an area of overlap such that members of the CFMMEU are eligible to be a member of both divisions in the circumstances described above;

  (b)    the overlap is reflected in Rule 42, which contemplates that a member of the CFMMEU might be, simultaneously and in connection with the same employment, eligible for membership of the C&G Division and the M&E Division;

(c)    the Rule Change Application, if pressed in relation to the proposed change to Rule 3 of the M&E Rules, would have the effect of displacing the existing application of the CFMMEU Rules;

(d)    the M&E Division did not put the C&G Division on notice of its intention to make the Rule Change Application;

(e)    the M&E Division failed and refused, without explanation, to provide the notice of particulars and submissions to the C&G Division, despite being asked to do so on at least two occasions by the Fair Work Commission;

(f)    the M&E Division initially conveyed to the Commission its intention to press the proposed changes to Rule 3 of the M&E Rules; and

(g)    the M&E Division later withdrew the Rule Change Application insofar as it relates to Rule 3 of the M&E Rules without explanation.

29.    There is an ongoing dispute appropriate for resolution even though the M&E Division has withdrawn the Rule Change Application insofar as it relates to Rule 3. The M&E Division's actions have revealed a disagreement as to the practical operation of Rule 2 of the C&G Rules, Rule 3 of the M&E Rules and rule 42(iii) of the CFMMEU Rules and of the eligibility rules of the respective divisions.

30.    If, and in so far as, the eligibility rules in the C&G Rules and the M&E Rules respectively may not reflect the above practical operation of the Rules, that disjuncture between practice and the divisional rules also calls for resolution.

The resolution of the dispute

31.    Having regard to the matters above, the C&G Division submits that the Dispute should be resolved in a manner that gives effect to, and simply confirms, the existing practical application of the Rules.

32.    The National Executive should resolve, in the terms set out in Annexure 1, that where a member of the CFMMEU is, simultaneously and in connection with the same work, eligible for membership of the C&G Division and the M&E Division the member should be allocated to the division that services the award that covers the member in the relevant employment.

33.    This resolution:

   (a)    is consistent with Rule 7 of the Rules; and

(b)    is consistent with the practical application of Rule 7, read with Rule 2 of the C&G Rules and Rule 3 of the M&E Rules, as detailed in paragraph 9 above;

and

(c)    is consistent with Rule 42(iii)(c), which provides, in part that the C&G Division shall consist of "all other members of the Union not referred to in sub-rules (iii) (a) (b) and (d)" of that Rule.

Schedule 1

Resolution

1.    The National Executive is satisfied that there exists a dispute between the C&G Division and the M&E Division.

2.    The National Executive is satisfied that it is appropriate to resolve the dispute under Rule 15(iv)(e) of the Rules.

2.    The National Executive resolves that where a member of the CFMMEU is simultaneously and in connection with the same employment:

(a)    eligible for membership of the CFMMEU by virtue of Rule 2 Sub-rules (A), (B) or (E), and thereby eligible for membership of the C&G Division in accordance with Rule 2 of the C&G Rules; and

(b)    is also a person engaged in or in connection with the industries enumerated in Rule 3 of the M&E Rules and thereby eligible for membership of the M&E Division;

the member shall be allocated to a division in accordance with Rule 7 by reference to the division that services and maintains the award that covers the work performed by the member (or would cover that work but for the application of any enterprise agreement).

47    The applicant’s case for interim relief proceeds upon the assumption that the members of the Union’s National Executive—a majority of whom are, it will be recalled, aligned with its C & G division—will inevitably resolve as paragraph 4 of the C & G Resolution invites them to: in other words, that they will vote to “resolve the Dispute” on the basis set out in that paragraph. The applicant says that, if that occurs, it will result in a situation in which members are allocated to divisions otherwise than in accordance with the Union Rules.

48    There are, of course, some unknowns inherent in that submission. Whether or not the members of the Union’s National Executive will in fact vote to “resolve the Dispute” in the way that the C & G Resolution urges is one of them. The applicant’s suspicion that they will is just that: a suspicion. For all that anybody can tell, the National Executive might well, at the meeting of Friday, 26 February 2021, be open to persuasion that the dispute ought not to be resolved in the manner that the C & G Resolution proposes (perhaps because that manner is inconsistent with the manner in which the Union Rules contemplate that disputes about the allocation of members between divisions should be resolved).

49    Nonetheless, I proceed upon the assumption that the applicant’s suspicion has at least some foundation in fact (senior counsel for the applicant described it as being founded in the “real world”—a gruff, but not unfair, summation). The correspondence exchanged as between the applicant and the first respondent during the week beginning 22 February 2021 appears to support that assumption. In the course of that exchange, the applicant laid out why it was that the National Executive could not do as the C & G Resolution contemplated and why any dispute about the allocation of members should instead be resolved pursuant to the process for which rule 7(viii) of the Union Rules provides. The first respondent disputed the applicant’s construction of the rules and maintained that the National Executive could resolve the dispute in the manner that the C & G Resolution proposed. The exchange is suggestive of a dominant grouping (here, the C & G division) moving to flex its numerical muscle in the service of its industrial interests, to the detriment of a weaker group (the M & E division).

50    I am satisfied that there is at least an arguable basis for the contention that the applicant advances. Assuming (as I do) that the members of the Union’s National Executive will vote as the C & G Resolution urges them to, the result would be—or would purport to be—the institution of an arrangement or practice binding upon the M & E division that governs the allocation of members amongst the two divisions that is, at least arguably (and, I think, strongly so), inconsistent with the Union Rules. Rule 42(iii)(a), when read together with r 7(iv), seems on its face to contemplate that all members of the Union who are employed in the mining, exploration and energy industries should be allocated to the M & E division. As the rule expressly notes (by its reference to rub-rules 2(A), (B), (C) and (E)), that includes those who perform construction work within those industries that, were it conducted elsewhere, would entitle them to membership of the C & G division. If given effect to, the C & G Resolution would potentially permit the allocation to the C & G Division of construction workers (an admittedly loose term that I employ in the absence of a better one) who perform work in the mining, exploration or energy industries. It would substitute the relatively clear mandate for which rule 42(iii) of the Union Rules provides with a regime that purports to permit allocation of members “by reference to the division that services and maintains the award that covers the work performed by the member” (whatever that fabulously unclear turn of phrase might mean in practice) or even “as the National Executive sees fit”. That is a reality that the Union Rules—particularly rules 7(iv) and 42(iii)—appear to forbid.

51    The respondents contend that rules 7(iv) and 42(iii) of the Union Rules are not as clear as the above suggests. Senior counsel for the respondents noted the reference in rule 7(iv) to Union members being “attached to the Division of the Union covering the industry or employment of the member” (emphasis added). It was said that rule 42(iii)(c)—which defines eligibility for membership of the C & G division—could be read as entitling those who were employed to perform construction work; that is, that the eligibility of those members to be members of the C & G division could arise as a function of their employment, rather than the industry within which they perform their work. Although that contention can’t be entirely discounted, it is likely not a correct construction of rule 42(iii). Both paragraphs (a) and (c) of that sub-rule (which pertain, respectively, to membership of the M & E division and the C & G division) relevantly define divisional eligibility in terms of the industry within which a particular member is employed, not the nature of their employment within that industry. Although eligibility for membership of other divisions might, as rule 7(iv) contemplates, arise as a function of “employment” rather than “industry”, eligibility for membership of the M & E division (at least in the case of those who perform construction work) appears to depend solely upon whether or not they are employed in the mining, exploration or energy industries. Insofar as concerns the C & G division, eligibility depends (relevantly) upon whether a member is “employed in or in connection with the Construction industry”. A member is not eligible for membership of the C & G division if he or she is not so employed (for example, because he or she is employed in the mining industry) and is referred to in either of paragraphs (a) or (b) of sub-rule (iii). At the very least, these questions are ripe for serious debate at trial.

52    I am, then, satisfied that there is a prima facie case that members of the National Executive collectively will (or threaten to) endorse the outcome that the C & G Resolution urges them to endorse and, by doing so, will (or threaten to) conduct themselves in a way (or otherwise purport to authorise a state of affairs) that is contrary the Union Rules.

Balance of convenience

53    In his written outline of submissions in support of the interim relief that he seeks, the applicant made the following observations (references omitted):

56.    The Applicant submits that the balance of convenience and achieving the efficient and effective working of the Union strongly favours granting the interim orders for the following five reasons:

57.    First, Noonan’s claimed position and authority is clearly in contravention of the Rules and allowing it to continue can only raise confusion and uncertainty about the lawfulness of his actions hereafter. There can be no argument that this clear contravention should be enjoined at this interim stage because of the disruptive consequences of allowing it to continue.

58.    Second, to allow the National Executive to meet in the way proposed and pass the proposed resolution has the real potential to lead to acrimony and real friction among members at affected workplaces. If the National Executive meets and passes the proposed resolution, it may fairly be expected that the C&G Division officials will immediately undertake a recruitment campaign. In place of the current calm of the status quo coverage, uncertainty would rule. This uncertainty would not only be prejudicial to the Union but could also adversely impact on employers and other third parties who might unwillingly find themselves caught in the middle of disputation between the Divisions. Judging by the actions of the Victorian Branch of the C&G Division which was the subject of protracted litigation culminating in the Full Court, the campaign is likely to include action against employers to negotiate agreements with them. It would invariably lead to further litigation.

59.    Third, the examples which the Notice gives at paragraph 13 are not real. The types of workers to which it refers have been allocated to appropriate Divisions without dispute for many years. The Notice does not point to or cite a single actual case where that has not happened. There is no good reason for that situation to be changed while the issues in contention in the proceeding are resolved.

60.    The recent conduct of the Victorian Branch of the C&G Division in relation to members of the Manufacturing Division, provides a clear example of the modus operandi which might be expected. The protracted litigation which followed the Victorian events, also provides a stark example of the difficulties in trying to undo the harm.

61.    Finally, if allowed to proceed, the National Executive resolution has the obvious potential to seriously injure the Mining Division by fracturing and diminishing its membership in the period until trial, and to do so in a way that may not be able to be easily redressed or redressed at all.

54    Insofar as concerns the holding of the meeting scheduled for Friday, 26 February 2021, the prejudice that will be visited upon the applicant (and the M & E division more generally) is a function of the business that is set to be transacted, rather than the holding of the meeting itself. There is no obvious prejudice to anybody in the meeting itself proceeding (if there might be some utility in its doing so). I do not consider that the balance of convenience favours interim relief to stop the meeting from going ahead. Whether or not it should consider the C & G Resolution is another matter.

55    The applicant suggests that the business to be transacted at the proposed 26 February meeting is the latest weapon in the C & G division’s quest to poach members from other divisions (or is otherwise a mechanism calculated to fracture or diminish the membership of the M & E division). Whether that is so can be left to others to contemplate. I am satisfied regardless that the balance of convenience favours the granting of the interim relief that the applicant seeks, at least insofar as it is directed to the 26 February 2021 meeting and the potential endorsement at it of the C & G Resolution.

56    Evidence was put before the court concerning public statements that have been made recently by prominent members of the M & E division about the prospect of that division disaffiliating from the Union. That possibility is set to be a topic of discussion—and, potentially, resolution—at the M & E division’s divisional conference, which is set to take place next week (from 1 March 2021). The court heard submissions from both sides about the process that would ensue in the event that the M & E division’s members resolved, at that conference, to disaffiliate from the Union. Amendments made relatively recently to the FW(RO) Act permit divisions within organisations to withdraw from registered organisations that were formed from processes of amalgamation. It is not controversial that the Union is such an organisation and that the M & E division is the modern incarnation of at least one of the organisations that amalgamated to form it.

57    Withdrawal from an amalgamated organisation requires the withdrawing group to file an application with the Fair Work Commission under div 2 of part 3 of the FW(RO) Act. Amongst other things, such applications must be accompanied by proposed eligibility rules. Sections 95A(4), (5) and (6) of the FW(RO) Act provide as follows:

95A Proposed names and rules

…

(4)    The eligibility rules of the new organisation:

(a)    must, as far as practical, reflect the application of the eligibility rules of the amalgamated organisation in relation to the constituent part immediately before the application was made; and

(b)    must not have the effect of making a class of individuals eligible for membership of the new organisation if that class would not have been eligible for membership of the constituent part immediately before the application was made.

(5)    The eligibility rules of the amalgamated organisation as proposed to be altered must, as far as practical, avoid an overlap with the eligibility rules of the new organisation.

(6)    Whether eligibility rules have the effect required by subsections (4) and (5) may be determined by examining the organisational and administrative arrangements for the amalgamated organisation before the application was made.

…

58    By whom the examination contemplated by s 95A(6) is to be conducted is unclear. Nonetheless, it is plain enough that a withdrawal from amalgamation requires that a new set of eligibility rules for the disaffiliating body be drawn up and that they reflect, as much as possible, the existing rules that govern the eligibility of members to join that part of the amalgamated organisation. Both sides accept that any dispute as to whether or not the eligibility rules so proposed meet that requirement is one that can be brought before (and be resolved) by the Fair Work Commission.

59    The applicant submits that the purpose of the C & G Resolution—or of the inevitable settlement at the 26 February meeting of the dispute to which it relates—is to give the C & G division an ability to “poach” members currently allocated to the M & E division. There are no actual members to whom the dispute relates; it is, instead, a conceptual debate about the extent to which members who perform construction work at mining (or similar) sites are eligible to join the C & G division. The applicant is concerned that, once the C & G resolution is passed (or the dispute to which it relates is resolved by the National Executive in the manner that the C & G Resolution contemplates), officials of the C & G division will “be on mine sites on Saturday morning” signing up members historically aligned with the M & E division.

60    To allay those fears, senior counsel for respondents offered, on instruction, an undertaking to the court that, no matter what the outcome of the 26 February meeting, there would be no “poaching” of M & E division members. That, of course, was a very difficult undertaking to define with precision and, for reasons that are well understood, no serious attempt was made to that end. It was not an offer that found favour with the applicant, who, it is fair to say, did not appear to take it very seriously.

61    Whatever might be the strategic industrial imperative to which the C & G Resolution (and the proposed resolution of the dispute to which it pertains) is directed—and I pause to note that there was at least some evidence of legitimate concern arising from a recently abandoned attempt by the M & E division to change its eligibility rules—I consider that it has a real prospect of visiting genuine prejudice upon the M & E division (or its members). Whether it is designed to or not, the C & G Resolution has the potential to cause real confusion—and, potentially, genuine disputation and disruption—concerning the eligibility limits of each division. That scope for uncertainty might well influence, potentially adversely (for those who favour disaffiliation), the deliberations of the upcoming M & E divisional conference. It might serve as a future source of disputation insofar as concerns any future application made under div 2 of part 3 of the FW(RO) Act. In that sense, the respondent’s offer to undertake that there would be no “poaching” of M & E division members rings somewhat hollow. Even were it to refrain from actively signing existing M & E division members into the C & G division, there remains prejudice to the M & E division in the form of the potential diminution of its claim to future members.

62    Of course, that is a knife that cuts both ways. The C & G division is entitled to protect its interests in the face of the M & E division’s potential withdrawal from the Union. It has a legitimate interest (subject to its compliance with the Union Rules) in seeking to ensure that its slice of the membership pie is as large as possible. That interest can be protected by way of submission to the Fair Work Commission if or when an application under div 2 of part 3 of the FW(RO) Act is made.

63    On balance, I am satisfied that the inconvenience to the C & G division of interim relief at this juncture is outweighed by the inconvenience to the M & E division of the 26 February 2021 meeting proceeding to determine the C & G Resolution (or the dispute to which it pertains). The balance of convenience inclines, albeit not strongly, in favour of interim relief to restrain the “determination” (or resolution, howsoever described) of the C & G Resolution (or the dispute to which it pertains). Were the prima facie case that is advanced in respect of the C & G Resolution not as strong as I perceive it to be, I might well have come to a different conclusion about the appropriateness of interim relief directed at it.

64    Insofar as concerns the first respondent, I am not persuaded that the balance of convenience warrants an interim direction that he cease to hold himself out as the Union’s Acting National Secretary or National Assistant Secretary. Whether he should so cease is a matter that can be left for determination at the trial. Although there is, as I have concluded, a prima facie case—and probably a strong prima facie case—that the first respondent is not authorised to act as he appears to have acted (and appears likely to continue to act), the case for interim relief in respect of that conduct is hypothetical. Other than purporting to convene the meeting of 26 February 2021 (which was, in any event, regularised by the subsequent majority demand that it take place—see above, [41]), there is no other conduct in which the first respondent has purportedly engaged (in the capacity that he has assumed, rightly or otherwise) about which the applicant has occasion to complain. Instead, the applicant seeks interim relief on the basis that the first respondent might do something in the future in that capacity in respect of which he (the applicant) might have such an occasion to complain. As a general rule, discretionary relief such as that which is sought presently ought not to be granted on the basis of such hypothetical scenarios.

65    That being so, I do not consider it necessary to examine whether the first respondent, having purported to act as the Union’s Acting Secretary (and having, apparently, been recognised as such—including by members of the M & E division—for some time), might attract the operation of s 319(2) of the FW(RO) Act. I take the view that the balance of convenience does not incline in favour of interim relief.

Conclusion

66    Insofar as concerns the holding of the 26 February meeting, I am satisfied that there is a prima facie case that it has been improperly called (for want of adequate notice) but I consider that that case is weak. I also do not consider that the balance of convenience inclines in favour of interim relief to stop the meeting from proceeding (assuming that there might be some utility in its proceeding, notwithstanding what is said below). No such relief will be granted.

67    Insofar as concerns the C & G Resolution, I am satisfied that there is a prima facie case—I think a strong one—that, assuming (as I do) that the members of the Union’s National Executive will vote as the C & G Resolution urges them to, the result would be—or would purport to be—the institution of an arrangement or practice, ostensibly binding upon the M & E division, that governs the allocation of members amongst the two divisions, and that does so in a way that is inconsistent with the Union Rules. Although finely poised, I also am of the view that the balance of convenience favours the granting of interim relief to restrain that eventuality. That is particularly so in light of the relatively strong prima facie case that is raised in that respect.

68    Insofar as concerns the conduct of the first respondent, I am satisfied that there is a prima facie case that he has wrongly held himself out as the Union’s Acting Secretary. Nonetheless, there is no particular conduct on his part that warrants urgent interim relief at this juncture. The applicant’s complaints are, instead, hypothetical. That being so, the balance of convenience does not favour a grant of interim relief and none will be granted.

69    The court will make orders consistent with the reasoning above. The respondents will, by direction, be restrained from determining or resolving the C & G Resolution (or the dispute to which it relates) at the meeting of Friday, 26 February 2021. In all likelihood, that will result in the meeting not going ahead (but that can be left to the respondents to determine). The applicant’s application for interim relief will otherwise be dismissed.

70    I record the court’s gratitude to the parties (and to the respondents, in particular) for the skill and speed with which they were able to frame their evidence and submissions, and for their courtesy in appearing before the court on the very short amount of notice that they were given.

Associate:

Dated:    26 February 2021

SCHEDULE OF PARTIES