Federal Court of Australia

Menon, in the matter of an election for offices of the Manufacturing Division of the Construction, Forestry, Maritime, Mining and Energy Union (No 3) [2021] FCA 1263

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    This proceeding concerned the election for certain offices in the Manufacturing Division of the Construction, Forestry, Maritime, Mining and Energy Union (the Union) in election E2020/114, which concluded in July 2021. Part 3 of Chapter 7 of the Fair Work (Registered Organisations) Act 2009 (Cth) (RO Act) confers on this court jurisdiction to conduct an inquiry into claimed irregularities in relation to such an election. Upon the application of the applicant, Mr Menon, Collier J ordered that an inquiry be conducted into alleged irregularities in respect of the election, and subsequently pursuant to s 201 of the RO Act, ordered that the inquiry be conducted before me commencing 16 August 2021: [2021] FCA 620. Mr Menon alleged two categories of irregularity occurred in relation to the election for eight offices, the nature of which I will outline below. The court’s task at the inquiry was to inquire into and determine the question whether an irregularity had happened in relation to the election. As these reasons will show, I have determined that question in the negative.

Election for offices in the Manufacturing Division of the Union

2    The election was conducted by the Australian Electoral Commission pursuant to s 182 of the RO Act. The person within the Commission conducting the election is referred to in s 191(1) of the RO Act as the “returning officer”. An officer or employee of the Union, which is a registered organisation for the purposes of the RO Act, is required to comply with a request of the returning officer to make available a register of members: s 191(2). Under s 193(1), in conducting an election, a returning officer must comply with the rules of the organisation or branch, subject to the provisos that the returning officer –

(b)    may, in spite of anything in the rules of the organisation or branch, take such action, and give such directions, as the electoral official considers necessary:

(i)    to ensure that no irregularities occur in or in relation to the election; or

(ii)    to remedy any procedural defects that appear to the electoral official to exist in the rules; or

(iii)    to ensure the security of ballot papers and envelopes that are for use, or used, in the election.

3    There are two issues that were pressed by the applicant in the course of the inquiry. First, the returning officer acted upon a certified list of financial members of the Manufacturing Division as at 4 March 2021 that was supplied by the Division, and it was alleged that there were some 83 financial members of the Manufacturing Division, namely timber workers resident in northern New South Wales, who were incorrectly excluded from that list and who were thereby excluded from voting. Second, in the course of conducting the elections, the returning officer disallowed the nominations of six candidates for election to eight offices and representative positions in the Manufacturing Division, and the validity of their rejection was challenged by the applicant. These candidates included three members of the Union who were northern New South Wales-based timber workers whom the applicant claimed were attached to and were financial members of the NSW District of the Manufacturing Division, and a further three persons whom the applicant claimed were attached to and were financial members of the Victorian District of the Manufacturing Division.

The conduct of the inquiry

4    Mr Menon was represented at the inquiry by Mr Friend QC and Mr Clift. Mr Menon is a member of the Manufacturing Division of the Union and is attached to the Queensland Northern Territory Western Australian District (QNTWAD) of the Division where he currently holds the office of Secretary. Mr Menon and others stood for election under a ticket styled “Members First”.

5    Sixteen interested persons were given leave to appear at the inquiry. The first to fifteenth interested persons are officers of the Manufacturing Division who were associated with an opposing ticket styled “Union Strong”, and were represented by Mr Borenstein QC and Mr Bakri.

6    The sixteenth interested person, the Australian Electoral Commission, was represented by Mr Schulte, and took a position at the inquiry that was consistent with the principles referred to in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35-36.

7    Having regard to COVID-19 restrictions in place in Victoria and New South Wales, the court conducted the inquiry online via Microsoft Teams, with counsel appearing and witnesses giving evidence from remote locations. The hearing of the inquiry proceeded very efficiently, and this was due to the efforts of court staff, and to the high level of assistance and co-operation from all counsel and their instructing solicitors.

8    Evidence at the hearing of the inquiry was given by affidavit. In addition, a number of deponents were cross-examined. No objections to evidence required rulings. Instead, counsel for the parties agreed on parts of affidavits that were not read, and parts of the evidence that were received for limited purposes.

9    Section 205(3) of the RO Act provides that the procedure of the court upon an inquiry is, subject to the Act and the Rules of court, within the discretion of the court. The court is not bound to act in a formal manner, and is not bound by any rules of evidence. The court may inform itself on any matter in such manner as it considers just. Although the court is not bound by the rules of evidence, the determination of whether an irregularity has happened must be on the balance of probabilities: s 206(2). It necessarily follows that an inquiry under s 201 of the RO Act is not a licence to determine a matter in the absence of probative material, and that the principles relating to findings on the balance of probabilities, and the requirement that there be actual persuasion, apply: see Re Communication Workers’ Union of Australia Postal and Telecommunications Branch, New South Wales (1996) 67 IR 246 at 275 (Moore J) and the cases cited therein. To the extent that onus of proof is relevant, the applicant bears the onus: Re Nimmo; Application for an Inquiry Relating to an Election for an Office in the Australian Education Union (NT Branch) [2011] FCA 38; 192 FCR 111 at [28] (Reeves J); Re Kelly; Application for an Inquiry in Relation to an Election for the Office in the New South Wales Local Government Clerical, Administrative, Energy, Airlines & Utilities Branch of the Australian Municipal, Administrative, Clerical and Services Union (No 2) [2011] FCA 490 at [15] (Flick J).

10    The task of the court upon an inquiry into an election for office is set out in s 206 of the RO Act –

206    Action by Federal Court

 (1)    At an inquiry, the Federal Court must inquire into and determine the question whether an irregularity has happened in relation to the election, and such further questions concerning the conduct and results of the election as the Court considers necessary.

(2)    For the purposes of subsection (1), the Court must determine whether an irregularity has happened on the balance of probabilities.

(3)    In the course of conducting an inquiry, the Court may make such orders (including an order for the recounting of votes) as the Court considers necessary.

(4)    If the Court finds that an irregularity has happened, the Court may, subject to subsection (5), make one or more of the following orders

(a)    an order declaring the election, or any step in relation to the election, to be void;

(b)    an order declaring a person purporting to have been elected not to have been elected, and declaring another person to have been elected;

(c)    an order directing the Commissioner to make arrangements

(i)    in the case of an uncompleted election—for a step in relation to the election (including the calling for nominations) to be taken again and for the uncompleted steps in the election to be taken; or

(ii)    in the case of a completed election—for a step in relation to the election (including the calling for nominations) to be taken again or a new election to be held;

(d)    an order (including an order modifying the operation of the rules of the organisation to the extent necessary to enable a new election to be held, a step in relation to an election to be taken again or an uncompleted step in an election to be taken) incidental or supplementary to, or consequential on, any other order under this section.

(5)    The Court must not declare an election, or any step taken in relation to an election, to be void, or declare that a person was not elected, unless the Court is of the opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have happened or may happen, the result of the election may have been affected, or may be affected, by irregularities.

(6)    Without limiting the power of the Court to terminate a proceeding before it, the Court may, at any time after it begins an inquiry into an election, terminate the inquiry or the inquiry to the extent that it relates to specified matters.

11    The main points that arise from s 206 are as follows. First, the questions to be determined include whether there was an irregularity, which is a defined term –

irregularity, in relation to an election or ballot, includes:

(a)    a breach of the rules of an organisation or branch of an organisation; and

(b)    an act or omission by means of which:

(i)    the full and free recording of votes by all persons entitled to record votes and by no other persons; or

(ii)    a correct ascertainment or declaration of the results of the voting;

is, or is attempted to be, prevented or hindered; and

(c)    a contravention of section 190.

12    By its terms, s 206(1) authorises an inquiry that is not confined to specific irregularities which have been raised by the applicant in his originating application, because the inquiry may extend to such further questions concerning the conduct and results of the election as the court considers necessary. This is consistent with the interpretation of provisions relating to the conduct of inquiries under previous legislation: Re Elections for Offices in Australasian Meat Industry Employees Union (1963) 5 FLR 260 at 265 (Dunphy J); Re Australian Postal and Telecommunications Union (NSW), Ex parte Wilson (1979) 28 ALR 330 at 333 (Sheppard J); Re Amalgamated Metals Foundry and Shipwrights Union, Ex parte Adamson (1984) 4 FCR 319 at 343 (Gray J); Rule v Australian Workers’ Union (1985) 9 FCR 280 at 296-297 (Wilcox J).

13    Second, the powers of the court under s 206(4) to make one or more of the orders set out therein are discretionary. The discretion is to be exercised in a way that seems most beneficial to the registered organisation and its members, bearing in mind any relevant statutory objects: Re Australian Journalists’ Association; Ex parte Nicholson (1990) 27 FCR 75 at 83 (Wilcox J).

14    Third, s 206(5), which is important, precludes the court from declaring an election, or any step taken in relation to an election, to be void, or declaring that a person was not elected, unless the court is of the opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have happened or may happen, the result of the election may have been affected, or may be affected, by irregularities.

15    Fourth, s 206(6) empowers the court to terminate an inquiry in whole or in part at any time after its initiation. On 27 July 2021, the court exercised this power in relation to the election of the Divisional Secretary, Mr O’Connor: [2021] FCA 859. Further, at the conclusion of the hearing the court terminated the inquiry to the extent that it related to the nomination of five persons whose circumstances were not pursued at the hearing.

16    The parties submitted that argument on the question of any relief or remedy should be deferred until after the court had made findings as to whether there were any irregularities, and I will adopt that course.

The issues arising at the inquiry

17    The two main issues that arose at the inquiry are conveniently considered at a factual level under the following topics –

The northern New South Wales timber workers

(1)    The first topic concerns 83 members of the Union to whom I will refer as the northern New South Wales timber workers. I will explain in more detail how the issues relating to those timber workers arise, but for present purposes the issues may be identified as being: (1) whether 83 persons were incorrectly excluded from the list of financial members submitted to the returning officer; and (2) whether the nominations of three candidates for election to an office and representative positions in the Manufacturing Division were incorrectly disallowed. The three candidates whose nominations were disallowed were Messrs Ian McHugh, Phillip Wilson, and Greg Wimble.

The Victorian-based nominees

(2)    The second topic concerns the disallowance of the nomination of three persons based in Victoria who sought nomination for offices of the Manufacturing Division. Those persons are Ms Kylie Brown, Mr Benjamin Smart, and Mr Adam Tester. The circumstances of those persons are common to the extent that they had, at different points in time, purported to resign from the Manufacturing Division of the Union, and had become members of the Construction and General Division. Prior to the elections, they had sought to return to the Manufacturing Division, and questions arise as to their eligibility for nomination.

18    In relation to all the areas of inquiry it will be necessary to give some attention to the rules of the Union, to which I will refer as the National Rules, the rules of the Manufacturing Division, to which I will refer as the Manufacturing Rules, and to the decision of the Full Court in O’Connor v Setka [2020] FCAFC 195.

Some features of the National Rules and the Manufacturing Rules

19    The Union has some structural complexity, being the product of the amalgamation of a number of unions over many years. The history of amalgamations was referred to by the Full Court in O’Connor v Setka at [14]-[22] and [41]-[70], upon which the parties accepted I may act, and for that purpose the reasons of the Full Court were received into evidence: cf, Evidence Act 1995 (Cth), s 91. It will be necessary to refer to some of that history in more detail later in these reasons. The National Rules establish four industry-based Divisions according to which the Union is divided –

(1)    the Construction and General Division;

(2)    the Manufacturing Division;

(3)    the Mining and Energy Division; and

(4)    the Maritime Union of Australia Division.

20    National Rule 27(ii) provides that each Division has autonomy to decide matters that do not directly affect the members of another Division –

Each Division shall have autonomy to decide matters which do not directly affect the members of another Division without any interference by any other body within the Union, including but not limited to:

(a)    The industrial interests of its members.

(b)    The election of officers within the Division.

(c)    Matters arising from the Objects of the Division.

(d)    Structure of the Division.

21    National Rule 27(iii) provides that each Division shall have autonomy in relation to its funds and property. In this respect, it is to be noted that s 154A of the RO Act provides that the rules of an organisation may provide for the autonomy of a branch in matters affecting members of the branch only, and s 154B provides that the rules of an organisation may provide for a fund of the branch that is to be managed and controlled under the rules of the branch. Under s 154B(2), the branch fund may consist of (inter alia) the amounts of entrance fees, subscriptions, fines, fees or levies received by the branch, less so much of the amounts as is payable by the branch to the organisation. The term “branch” is not defined in the RO Act, and in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218; 228 IR 195 at [67] Jessup J left open the question whether a Division of the Union, as then constituted, was a “branch” for the purposes of the RO Act. (Note that an appeal to the Full Court was allowed, and a subsequent appeal to the High Court dismissed: BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCAFC 132; 219 FCR 245; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; 253 CLR 243.) National Rule 5 defines “branch” as a branch of the Union that covers a geographic area, whereas “Division” is separately defined to mean a Division of the Union established, as far as practicable, on industry or occupational lines.

22    National Rule 27(iv) requires that each Division have its own rules, according to which the Manufacturing Division has the Manufacturing Rules.

23    National Rules 27(vii) and (viii) allow for a Division to allocate responsibility to another Divisional Branch of another Division the Union –

(vii)    Any Division may, in accordance with their rules, allocate any Branch of the Union or any other Divisional Branch of any Division of the Union the responsibility for a Divisional Branch or part of a Divisional Branch where it is, in the opinion of the Division not appropriate or economic to establish and/or maintain a separate Divisional Branch in that area.

(viii)    Where any Division allocates any of its Divisional Branches to a Divisional Branch of another Division, the latter Divisional branch shall pay capitation fees to and be represented by the first mentioned Division on the basis of the number of members so allocated.

24    Under National Rule 7(iv), a member is attached to the Division covering the relevant industry or employment of the member –

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.

25    The term “Rules of the Union”, which is employed in the above Rule, is defined by the National Rules as follows –

“RULES OF THE UNION” means all of the Rules of the Union as read and construed in totality while “NATIONAL RULES” shall refer to these rules, “BRANCH RULES” shall refer to the Rules of any Branch of the Union established under the Rules of the Union, “DIVISIONAL RULES” shall refer to the Rules of any Division established in accordance with the Rules of the union, and “DIVISIONAL BRANCH RULES” or “DIVISIONAL DISTRICT BRANCH RULES “shall refer to the rules of Divisional Branches, being a branch of a Division, established in accordance with the Rules of the union.

26    National Rule 26 makes provision for the binding nature of all the Rules of the Union –

These National Rules and all the rules of the Union, and all alterations, additions or rescissions thereof or thereto, shall apply to and be binding on all Divisions, Branches, and Divisional Branches in all sections of the Union and all members who now, or who may hereafter, belong to the Union until they are made or become null and void according to the law.

27    In O’Connor v Setka, the Full Court held at [126]-[127] that National Rule 26 requires all Divisions and all members to comply with all Rules which may be applicable to them from time to time, which involves reading all the Rules as a whole. Manufacturing Rule 35 makes provision for the imposition of sanctions for any breach of the Rules, such as fines, removal from office, and suspension and expulsion from membership of the Union. Furthermore, the Rules of the Union are enforceable by proceedings brought under s 164 of the RO Act, of which O’Connor v Setka was an instance.

28    Manufacturing Rule 2 provides for the attachment of members of the Union to the Manufacturing Division in the following terms –

2 - ELIGIBILITY FOR DIVISION

Every member who is a member of the union by virtue of Rule 2 Sub-Rule (C), (F) and (R) of the National Rules shall belong to this Division.

29    Sub-Rules 2(C), (F) and (R) of the National Rules that are referred to above provide for different categories of eligibility, and are artefacts of the amalgamation of different unions over many years. One of the unions that was amalgamated was the Federated Furnishing Trade Society of Australasia (FFTS), which occurred in March 1993. The type of work that was undertaken by the members of the FFTS is reflected in National Rule 2(F), which maintains a reference to “awards of the Society” in the last line –

(F)     Without limiting the generality of any other sub-rule or paragraph or being limited thereby an unlimited number of persons who are employed in, or competent to be employed in or in connection with the following industries or trades are eligible to be members of the Union:

Piano and piano-player makers and tuners, organ-makers, and makers of gramophones and all other musical instruments, cabinet-makers, wood-carvers, billiard table makers and fitters, clock-case makers, coffin-makers, 3-ply veneer workers, chair and couch makers, or other articles of sitting accommodation, sewing machines, upholsterers, carpet and linoleum planners and all floor covering layers, outdoor hands, measuring, fixing, soft furnishings, blind cutting, making, painting, fixing, french-polishers, enamellers, spraying machine operators, makers of wireless instrument cases or cabinets, woodturners, mantel-piece makers, overmantel-makers, mattress-makers, wire-weavers, picture-frame makers, bedding-makers, quiltmakers (including eiderdown), venetian and wireblind makers, bamboo pith and cane and wicker workers, packers of crockery and furniture mantlepieces, pictures, carpets, drapery, plate and sheet glass in warehouses, shops, factories or stores, glass bevellers, glass benders, glass worker (excepting those on spectacles, lenses or frames and employees in firms where such employees are engaged on work connected with the manufacture or repair of scientific, precision or other instruments such as binoculars, microscopes, military, aircraft and naval instruments), glass lampshade workers, safety glass workers, toy makers and/or toy repairers in establishments where the chief product or products or one of the chief products manufactured in such establishments is otherwise provided for herein; cutters, silverers, glaziers, glass polishing, cutting, painting, cementing, leadlight glaziers and cutters, and all woodworking or other machinists, and operators of other mechanical devices preparing material for above employees; millwright's baby carriage makers, upholstresses, new and second-hand carpet, drapery, table and lampshade hands; flock-workers, rag-pickers and fumigators; timber stackers, yardmen, and labourers, and all other employees working in new and secondhand furniture factories, piano factories, organ factories, mantel-piece factories, billiard-table factories, overmantel factories, bedding-factories, mattress factories, venetian and wire-blind factories, picture-frame factories, plate-glass factories, luxfer glazing factories, bamboo pith cane; Reed-tex, Hytex, and wicker-work factories, sewing machine factories, flock factories, window background workers, display article workers, refrigerator workers, incubator workers, together with such other persons, whether employees engaged in the industries or not, as have been appointed officers of the Union and admitted as members thereof, provided that a branch may issue a clearance to any member whom it may be considered should not retain his membership on the ground that he is working in an industry not governed by any awards of the Society.

30    Upon amalgamation with the FFTS in March 1993 there was initially a union-based Division of the Union known as “the FFTS Union Division”: see O’Connor v Setka at [21]. Later, in February 2002 it was resolved that the FFTS Union Division be integrated into the Forestry Division of the Union, to be known as the Forestry, Furnishing, Building Products and Manufacturing Division, which became known as the FFPD Division: see O’Connor v Setka at [55]-[57]. As the Full Court in O’Connor v Setka further recounts and summarises at [58]-[63], a new Rule 42D of the National Rules was introduced to give effect to the restructuring of the Divisions proposed by the resolution referred to above. Rule 42D, which is set out in full at [58] of the Full Court’s reasons, provided (inter alia) for the continued operation of the Victorian and Queensland Divisional Branches of the FFTS Division, within the restructured Division, for a period of up to four years expiring on 26 March 2005. Subsequently, in March 2018 when the Maritime Union of Australia and the Textile, Clothing and Footwear Union of Australia were amalgamated with the Union, the name of the FFPD Division was changed to the Manufacturing Division: O’Connor v Setka at [65].

31    Another category of work for which persons are eligible for membership of the Union, and who attach to the Manufacturing Division, is timber workers falling within National Rule 2(C) –

(C)    Without limiting the generality of the foregoing and without being limited thereby the following are eligible to be members of the Union:

(i)    All persons who are employed or are usually employed in any position on or in or in connection with (a) saws and wood working machines; (b) handling and treating timber and articles manufactured therefrom; (c) sawmills, timber yards, box and case factories, saw makers shops, joiners workshops, car and waggon shops, coach builders workshops, coopers workshops, furniture factories wooden sporting goods factories and veneer and plywood factories; (d) the preparing of woodwork for joiners, carpenters, builders, implement makers, coachbuilders, car and waggon builders, furniture factories, box and case factories, wooden sporting goods factories, veneer and plywood factories and coopers shops; (e) falling splitting and hewing timber.

Provided that millwrights, blacksmiths and maintenance engineers employed as such elsewhere than in bush sawmills, and fitters and/or turners, other than wood turners, shall not be eligible for membership unless covered by the provisions of paragraph (ii) hereof.

In these Rules, the words “wood and/or timber” without in any way limiting the ordinary meaning of the words, shall also be deemed to include any artificial or laminated or manufactured material now in existence or hereafter coming into existence from whatever materials made or constructed or manufactured, which is or can or may be used in the place of wood or timber, and which can be handled and/or treated and/or machined and/or worked in a similar way and with similar machines and/or tools, as in the case of wood or timber …

32    In 1990, the Australian Timber Workers Union amalgamated with the Pulp and Paper Workers’ Federation of Australia to become the Australian Timber and Allied Industries Union (ATAIU). In September 1991, the ATAIU amalgamated with the Building Workers’ Industrial Union of Australia, which in turn amalgamated in February 1992 with the United Mineworkers Federation of Australia to form the Construction, Forestry and Mining Employees Union. Subsequent amalgamations included the amalgamation in 1994 with the Builders’ Labourers’ Federation: see the account in O’Connor v Setka at [15].

33    National Rule 7 contains provisions concerning the manner in which a person may become a member of the Union, the allocation of members to a Division, and for the resolution of disagreements concerning the Division, Branch and Divisional Branch to which a member should appropriately be attached. The following account of National Rule 7 draws substantially upon the Full Court’s consideration of it in O’Connor v Setka at [32]-[36].

34    National Rule 7(i) provides for applications for membership of the Union, not for applications for membership of a Division –

(i)    A candidate for membership of the Union may make application to the National Secretary, the Division covering the occupation or industry in which the person is employed, the Branch covering the area in which the person is employed or resides, or the Divisional Branch covering the industry or occupation in which the person is employed, usually employed or desirous of being employed and the area in which the person resides or is employed, and such application shall be made and dealt with in the manner and subject to the conditions … required by the rules of the Division. Any application shall be forwarded to the office in the appropriate division which under the rules of that division deals with such applications. The decision to accept or reject that application shall be made in accordance with the Rules of that division by that office. Provided that where a person makes application to any officer of the Union that application shall be a valid application for membership of the Union and the Union shall, treat the member as a member of the Division to which the officer is attached, until transferred in accordance with the rules.

(Emphasis added)

35    National Rule 7(iv) provides for the allocation of members to a Division –

(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.

(Emphasis added)

36    National Rule 7(v)(a) concerns the validity of an application for membership of the Union –

(a)    Notwithstanding anything elsewhere contained in the Rules of the Union no application for membership of the union shall be void or irregular only for the reason that the form of application is not fully completed or completed at all, or that some other form of application is used, or any other procedure under the Rules has not been complied with provided that the person intended to, and did in fact, in some way or other, apply for membership and the Union treated the person as a member. A member may be transferred to another Division, Branch or Divisional Branch without loss of continuity of membership. Without limiting the generality of the foregoing, a person who, at the time of application for membership was not eligible to be or become a member, shall be and become a member as soon as the person is eligible to be and become a member or earlier if by any Act, law or other Rule the membership is otherwise validated provided that the person performs an act which evidences an intention to be or become a member. For all purposes the payment of union dues in whole or in part shall be taken to be, without limiting the generality of the foregoing, a method by which a person intended to, and did in fact, in some way or other, apply for membership and/or evidences an intention to be or become a member.

37    National Rule 7(v)(b) is intended to ensure that no question of invalidity will arise by reason of a member having been attached to an incorrect Division, Branch or Divisional Branch –

(b)    Without affecting or detracting from the requirements of sub-rules 42(iii) and 42(xii) and without limiting the rights of a member or a Division, Divisional Branch or authorised officer thereof, to seek or obtain a transfer of Division or Divisional Branch in accordance with the rules, no membership of the union and no membership or attachment to a Division, Branch or Divisional Branch of the Union shall be invalidated, void or otherwise treated as irregular on account of the member being attached to a Division, Branch or Divisional Branch which, in accordance with the Rules, may not be the correct Division, Branch or Divisional Branch provided that the member was eligible for membership of the Union and the member was aware of the Division, Branch or Divisional Branch to which the member was attached. …

38    Relevantly, National Rule 7(v)(b) continues –

… Every member of the Union who, on the records of the Union, is financial and is, on those records, attached to a Division, Branch or Divisional Branch shall be treated for all purposes as a financial member thereof and shall be entitled to all rights and required to comply with all obligations which attach thereto until transferred in accordance with the Rules.

39    National Rule 7(viii) provides two means by which a member may be transferred from one Division or Divisional Branch to another. The first is available when the Divisional Secretary or Divisional Branch Secretary considers that the member should belong to another Division or Divisional Branch: National Rule 7(viii)(a). The second is available when a Divisional Secretary or Divisional Branch Secretary considers that a member attached to another Division or Divisional Branch should more appropriately be attached to their Division or Divisional Branch: National Rule 7(viii)(b). The second of these Sub-Rules provides –

(viii)    …

(b)     … 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 Divisional Secretary or Divisional Branch Secretary shall contact the … 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.

In this connection, the Full Court observed that “National Rule 7(viii)(b) contemplates a process of consultation in the first instance followed, if necessary, by reference to the National Secretary for determination by the National Executive or by an officer designated by the National Executive”: at [36].

40    National Rule 8(iv) provides for the Union to reach agreement with another organisation for the granting of automatic membership of the Union –

(iv) (a)    Notwithstanding anything contained in Rules 7 and 8 of these National Rules or any Divisional Rules to the contrary, the Union may reach agreement with any organisation of employees, trade union, industrial union or organisation, whether incorporated or otherwise or whether registered under a law of the Commonwealth, State or Territory or unregistered (herein referred to as an “association”), which agreement may provide for automatic membership of this Union for members of any such association and may provide for the receipt and holding of moneys jointly or in common by the aforementioned association and this Union and conversely the automatic membership of members of this Union in such an association.

(b)    The Union may, by agreement or unilaterally, grant to any class of members, who are members of another association of a kind referred to in paragraph (a) hereof, membership and waive the requirement to pay an entrance fee and/or contributions in whole or in part.

…

41    The above Rule is relevant context to a service agreement to which I will later refer, entered into between the Queensland Northern Territory Divisional Branch (QNTDB) of the Construction and General Division, and the Construction, Forestry, Maritime, Mining and Energy Union, Industrial Union of Employees, Queensland, which is a state-based union registered under the Industrial Relations Act 2016 (Qld), with a separate legal identity, and to which I will refer as the Queensland State Union.

42    I referred at [34] above to National Rule 7(i), which concerns membership of the Union. That Rule requires that applications for membership of the Union be forwarded to the office of the appropriate Division, and the decision to accept or reject the application is to be made in accordance with the rules of that Division by that office. Manufacturing Rule 5 relates to membership of the Manufacturing Division, and provides (inter alia) –

5 - MEMBERSHIP

(i)     A candidate for membership of the Division may make application to the Divisional Secretary or the District Secretary covering the area in which the candidate resides or is employed and such application shall be made and dealt with in the manner and subject to the conditions including conditions as to any probationary period required by the Manufacturing Division Rules.

…

43    Manufacturing Rule 5(iii) provides for referral of an application by the Secretary of the relevant District for consideration by the Divisional Executive –

(iii)    An application for membership of the Division may be referred by the Secretary of the relevant District to the Divisional Executive for consideration or decision. Where in any case the admission to membership of any person applying is rejected such person shall have the right to appeal to the Divisional Conference the decision of which shall be final.

The Divisional Conference shall decide the appeal at a meeting specially conducted for that purpose and the appellant shall have the right to attend the meeting and state a case on the appeal.

44    National Rule 7(iii)(b) provides separately for an appeal to the National Executive of the Union by a person whose admission to membership is rejected.

45    Under Manufacturing Rule 4, a “District” is synonymous with a “Divisional Branch” which is the corresponding term employed in the National Rules, and this is also reflected in the definition of “District” in the National Rules. In these reasons, I similarly use the terms synonymously. Subject to some immaterial exceptions, the Manufacturing Rules require all members to be attached to a District covering the locality in which they reside. In this respect, Manufacturing Rule 5(iv) provides –

(iv)    All members shall be deemed to be attached to the District covering the locality in which the member resides, except:

(a)    where the member is eligible for membership of the Division pursuant to Sub Rule 2(C) of National Rule 2 Constitution to the PPW District; and

(b)    members in the TCF Sector who reside in Queensland, who shall be deemed to be attached to the NSW District.

46    The Districts are identified in Manufacturing Rule 18, and include the “NSW District”, the “Victorian District”, and the “Queensland Northern Territory Western Australian District” defined earlier as QNTWAD. Manufacturing Rule 18 i (a) provides for the NSW District –

(a)    the NSW District which shall consist of:

1.    all members resident in that [sic] State of NSW and the Australian Capital Territory other than those persons who are eligible for membership of the PPW District as provided for in (f) of this Sub Rule; and

2.    all members of the TCF Sector resident in the State of Queensland;

Neither the PPW District nor the TCF Sector, referred to in the above Rule, is material to this inquiry.

47    Manufacturing Rule 18 i (e) provides for the QNTWAD –

(e)    the Queensland Northern Territory Western Australian District consisting of all members resident in the States of Queensland, Western Australia and the Territory of the Northern Territory other than those persons who are eligible for membership of the PPW Branch pursuant to (f) of this Sub Rule and other than those persons who are eligible for membership of the TCF Sector resident in the State of Queensland;

48    The Manufacturing Rules also provide for District Management Committees, District Officers, District Executives, Divisional Officers, a Divisional Executive, and a Divisional Conference, and for elections to offices of the Division.

49    National Rule 11 provides for the resignation from membership of the Union (not Divisions of the Union) –

11 – RESIGNATION OF MEMBERS

(1)    A member may resign from membership of the Union by a written notice addressed and delivered to the Divisional Branch Secretary or other officer of the Divisional Branch authorised to receive such correspondence.

(2)    The notice of resignation will take effect where that member,

(a)    ceases to be eligible to become a member of the Union:

(i)    on the day on which the notice is received by the Union; or

(ii)    on the day specified in the notice, which is a day not earlier than the day when the member ceases to be eligible to be a member;

whichever is later; or

(b)    in any other case:

(i)    at the end of 2 weeks after the notice is received by the Union; or

   (ii)    on the day specified in the notice;

whichever is later.

(3)    All contributions and or levies due in relation to the period before the members resignation took effect are to be paid. Where the member fails to do so the Union may prosecute such member in the appropriate court for the recovery of that amount.

(4)    A notice delivered to the person mentioned in sub-rule (1) shall be taken to have been received by the Union when it was delivered.

(5)    A notice of resignation that has been received by the Union is not invalid because it was not addressed and delivered in accordance with sub-rule (1).

(6)    A resignation from membership of the union is valid even if it is not effected in accordance with this rule if the member is informed in writing by or on behalf of the union that the resignation has been accepted.

50    The above Rule substantially corresponds to the terms of s 174 of the RO Act relating to resignation from membership of a registered organisation.

51    National Rule 5 provides for a definition of “financial member” –

“FINANCIAL MEMBER” shall mean any member who has paid all subscriptions, fines, levies and dues in accordance with the Rules of the Union.

That term is deployed in, among other Rules, National Rule 7(v)(b), set out at [38] above, and National Rule 17 concerning the election of delegates to Divisional Conferences.

52    Manufacturing Rule 4 defines “financial member” and “member” as follows –

“FINANCIAL MEMBER” shall mean any member of the Manufacturing Division who has paid all subscriptions, fines, levies and dues in accordance with Rule 6 of the Manufacturing Division Rules.

“MEMBER” shall mean a member of the Manufacturing Division and membership shall have a corresponding meaning.

53    National Rule 8(i) provides that “entrance fees and contributions payable … for membership or continuous membership of the Union shall be in accordance with the Rules of the Division to which, in accordance with the Rules of the Union, the person or member is to be or is assigned”. Manufacturing Rule 14 A (i) provides that the Divisional Office shall collect all entrance fees, contributions, levies and fines and all other monies relating to membership.

54    Entrance fees and contributions for the Manufacturing Division are the subject of Manufacturing Rule 6. The relevant features of Manufacturing Rule 6 are that: Sub-Rule 6(iii) provides that the Divisional Executive may waive entrance fees and contributions; Sub-Rule 6(iv) provides that if payment is not made within three months of becoming payable, the defaulting member is deemed to be unfinancial; Sub-Rule 6(vii) provides that contributions are to be paid to the Divisional Secretary or an authorised agent of the Division; and Sub-Rule 6(v), which is important, relevantly provides that an unfinancial member will not be eligible to receive any benefits or exercise any membership rights –

6 - ENTRANCE FEES AND CONTRIBUTIONS

(i)     Applicants for membership of the Division shall pay on application an entrance fee in accordance with these rules. Such entrance fee if applicable shall not exceed $300.00. The payment of the entrance fee shall not be a condition precedent to any person being constituted a member under these rules.

(ii)     The contribution payable by each member shall be fixed by the Divisional Executive subject to the processes provided for in Rule 14.

(iii)     The Divisional Executive may if, in its opinion it is desirable or necessary for financial or any other reason that the aforesaid entrance fees or contributions should be altered, waived or suspended, make such decision as it deems desirable or necessary, and the altered, waived or suspended entrance fee and/or contribution payable shall be applicable to the member(s), group or class of members concerned.

(iv)     Members must pay any entrance fee, contribution, levy and fine imposed in accordance with these rules, subject to any decisions made by the Divisional Executive in accordance with Rule 6 (iii) or Rule 28. A member will be deemed to be unfinancial if any such payment is not made within three months of becoming payable in accordance with these rules.

(v)     An unfinancial member will not be eligible to receive any benefits, participate in any deliberations, propose or second any new applicant member for admission, or exercise any authority or any membership rights.

(vi)     A member shall be deemed to be financial immediately upon payment of all arrears outstanding.

(vii)     Contributions shall be paid to and collected by the Divisional Secretary, or an authorised agent of the Division.

(viii)     The Divisional Executive may fix a special or different rate of contribution and/or entrance fee for any class of members within the Division.

Any decision made by the Divisional Executive in accordance with this rule must not discriminate between members on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

(ix)     A member shall, when applying for membership be informed of the financial obligations arising from membership and the circumstances, and the manner, in which a member may resign from the organisation and shall be informed of such in writing.

55    In addition to Manufacturing Rule 6(v), National Rule 8(ii) makes provision for the consequences of non-payment of fees, contributions, levies or fines –

(ii)    Any member who has failed to pay the entrance fees, or contributions, levies and fines imposed in accordance with the rules of the union on or before the date specified in such rules, shall be deemed to be unfinancial, and shall not be eligible to receive any benefits, participate in any deliberations, propose or second any new applicant for admission or exercise any authority or any membership rights, provided that the rules may provide that some members or some class or classes of members may vote in a ballot and/or may differentiate between classes of members as to the amount of any contribution and/or entrance fee.

56    Pursuant to Manufacturing Rule 8(i), the supreme governing body of the Manufacturing Division is the Divisional Conference, which is required to meet every two years. The Divisional Conference includes delegates from each District, the number of whom is determined on a pro rata basis based upon membership of the District and the aggregate income received by the Division in relation to members of the District. National Rule 17(ii) provides that the election of District (ie Divisional Branch) delegates shall be by direct ballot of the financial members and in accordance with the Rules of the relevant Division –

(ii)    The method of electing Divisional Branch delegates to Divisional Conference shall be in accordance with the Rules of the Division every four (4) years in conjunction with the Divisional Branch elections. Such election shall be by direct ballot of the financial members of each Divisional Branch.

57    Under Manufacturing Rule 8(iv), representatives of the District other than ex officio representatives are elected by secret postal ballot every four years in accordance with the provisions of Manufacturing Rule 32. In relation to the method of nomination and election, Manufacturing Rule 8(viii) provides –

(viii)    The method of calling nominations and the election of District delegates to Divisional Conference shall be under the provisions of Rule 32 of these Rules.

58    Manufacturing Rule 32 concerns elections, and provides (inter alia) –

32 - ELECTIONS

(a) (i)     Any member of the Division who is financial as provided for in Rule 6, at the time of nominations and has three years financial membership, may nominate for the following positions:

Divisional Secretary

Divisional President

Divisional Senior Assistant Secretary

Divisional Assistant Secretary

…

(b)    …

(iii) (A)    The scale of financial membership of the District necessary for members to nominate for the following positions is as follows:

District Secretary (other than the NSW District Secretary) – 3 years financial membership

NSW District Secretary – 2 years financial membership District President – 1 year financial membership

District President – 1 year financial membership

District Vice President - 1 year financial membership

District Assistant Secretary/ies other than Victoria District TCF Assistant Secretary (if any) - 1 year financial membership

Victoria District TCF Assistant Secretary – 1 year financial membership of the TCF Sector

Victoria District TCF Full Time Officer – 1 year financial membership of the TCF Sector

District Management Committee Members – 1 year financial membership

PPW Sub Branch Secretary - 1 year financial membership

PPW Sub Branch Senior Vice President - 1 year financial membership

PPW Sub Branch Junior Vice President -1 year financial membership

PPW Sub Branch Committee of Management Members -1 year financial membership

District Organiser - 1 year financial membership

…

(iv)     The term of office for the above positions shall be four years and such term shall commence from the 2nd of January following the election.

(c)       (i)     Nominations for the above positions, shall be called by the Divisional Returning Officer by notification on the union website on 11 August 2020 and each four years thereafter following that date.

(ii)     Nominations shall open on 18 August 2020 and each four years thereafter following that date, other than in respect of the position of ordinary TCF Sector Council member. Any member desiring to nominate for the above positions shall apply either personally or in writing to the Divisional Returning Officer for a nomination form. Such forms shall be signed by the candidate and:

(A)     if nominating for any of the positions listed in paragraph (a)(i) of this rule – signed by at least ten financial members of the Manufacturing Division;

(B)    if nominating for the position listed in paragraph (a)(ii) of this rule – signed by at least ten financial members of the TCF Sector;

(C)     if nominating for the position of District Secretary – signed by at least ten financial members of that District;

(D)     if nominating for any other position listed above – signed by at least five financial members of the Manufacturing Division;

and forwarded by certified post to the Divisional Returning Officer or handed personally at the Divisional Office or, in the case of an election conducted by the Australian Electoral Commission at the office nominated by it and a receipt thereupon obtained.

(iii)     Nominations shall be closed at noon on 1 September 2020 and each four years thereafter following that date, other than in respect of the position of ordinary TCF Sector Council member. Nominations must be received by the Divisional Returning Officer by that time on the date to be eligible.

(iv)     A member having nominated for any office in accordance with these Rules may withdraw the nomination by notifying the returning officer in writing of an intention to do so at any time up to 14 days after the closing of nominations. The returning officer on receipt of a notification from a member wishing to withdraw a nomination shall immediately take the appropriate steps to withdraw the members name from the ballot papers prior to their distribution.

(v)     Candidates may include with their nomination form, a statement not exceeding 200 words and in respect of District Management Committee member 50 words, containing only the candidate's personal history and only the candidate's policy statement.

(vi)     The Divisional Returning Officer shall examine all nominations to ensure that they are in order and if any nominations are found to be defective, the Divisional Returning Officer, before rejecting the nominations, shall notify the person concerned of the defect and where practicable to do so give them the opportunity of remedying the defect within a period of not less than seven days after being so notified.

…

(xiii)     For the purpose of the election the books of the Division shall be deemed to have closed as at 1 August in the year of the election. Only members who are shown in the records at the office of the Division as having paid all contributions, levies and fines prior to 1 August shall be entitled to vote. Provided that any member who at any time prior to the closing of the ballot satisfies the Divisional Returning Officer that they have paid all contributions, levies and fines prior to the 1 August in the year of the election shall be entitled to receive a ballot paper and the Divisional Returning Officer shall send by post, a ballot paper in accordance with sub-rule (c)(xii)(a) of this rule. Provided that for the purpose of the position of ordinary TCF Sector Council member, a reference to 1 August in this Sub Rule does not apply.

…

59    In the present case, the conduct of the election by the Australian Electoral Commission was delayed as a result of Covid-19 restrictions. The powers under s 193(1)(b) of the RO Act (see [2] above) were exercised to override the provisions of the Manufacturing Rules and resulted in an alternate timetable being set. No issue was raised as to the validity of the exercise of these powers under the RO Act, or as to the new timetable, which commenced with a close of the roll on 4 March 2021. The Australian Electoral Commission, by one of its returning officers, gave notice that nominations were to be made at any time from 22 March 2021, and that they were required to reach the returning officer by email not later than noon on 6 April 2021. The timetable initially provided for a voting period between 18 May 2021 and 16 June 2021, but this was later varied, and voting for contested positions opened on 9 June 2021 and closed on 7 July 2021.

60    The Manufacturing Rules are expressed to be binding upon all members belonging to the Division –

17 - RULES BINDING ON MEMBERS AND DISTRICTS

These Divisional Rules, and all alterations, additions or rescissions thereof or thereto, shall apply to and be binding on all Districts of this Division and on all members who now, or who may hereafter, belong to the Division until they are made or become null and void according to law.

O’Connor v Setka [2020] FCAFC 195

61    Before coming to the circumstances in more detail, and to the parties’ submissions, I will summarise the Full Court’s decision in O’Connor v Setka¸ because it was a central element of the submissions of counsel for the applicant.

62    Mr O’Connor brought a proceeding under s 164 of the RO Act against 30 respondents associated with the Construction and General Division, including Mr Setka, seeking, inter alia, directions that they comply with the rules of the Union together with declaratory and other ancillary relief. The foundation for the relief sought was an allegation that the Construction and General Division had encouraged members who were attached to the Manufacturing Division (because they fell within the occupations described in National Rule 2(F)) to resign their membership of that Division and to join the Construction and General Division. Mr O’Connor’s case was that this activity was in breach of the National Rules.

63    At [11], the Full Court identified the principal issue on appeal as being “whether members of the Union in Victoria in the occupations described in Rule 2(F) of its Rules are, in accordance with the Rules, properly allocated to the Manufacturing Division”. That issue arose because the respondents to the appeal had submitted that upon a proper construction of the National Rules, each of the relevant members correctly belonged to the Construction and General Division, relying on National Rule 42(iii)(c) in the form set out in the Full Court’s reasons at [68] –

(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.

64    At [13], the Full Court stated that Mr O’Connor’s application under s 164 of the RO Act required a construction of the Rules, taking into account the circumstances in which they were made. The Court also stated that the application for the declaration that Mr O’Connor sought went somewhat further, as it involved the Court making findings which did not turn solely on the proper construction of the Rules of the Union.

65    The primary judge in O’Connor v Setka [2020] FCA 441 at [128]-[129] held that National Rule 42(iii)(c) was to be construed as meaning that all members of the Union not employed in or in connection with the construction industry who are eligible to be members of the Union under National Rule 2(F) properly belong to the Manufacturing Division. This construction qualified the eligibility criteria in National Rule 2(F).

66    The Full Court allowed the appeal. After conducting a detailed analysis of the Rules of the Union, including by reference to many amendments to the Rules over the years, the Full Court held that the recruitment of Union members attached to the Manufacturing Division by members of the Construction and General Division was not in accordance with the Rules of the Union. The material elements of the Full Court’s reasoning were as follows –

(a)    The Union has a Divisional structure which is industry-based, and under which every member is attached to one Division and only one Division: [83], [85].

(b)    In this context, Manufacturing Rule 2 (set out at [28] above), which provides for eligibility for membership of the Manufacturing Division, was binding on all members of the Union: [129].

(c)    The Rules of the Union provide for the allocation of members to the appropriate industry-based Divisions. The Rules do not give members of the Union a choice as to which Division they are to be attached. Instead, the Rules provide for members to be attached to the Division “covering the industry or employment of the member”: [83], [87].

(d)    National Rule 7 provides for the allocation of members to Divisions, National Rule 7(iv) providing that a member shall be attached to the Division covering the industry or employment of the member and shall be in only one such Division: [85]

(e)    The Division of the Union to which a member is attached is to be entered on the record of the Union in relation to that member and that record constitutes conclusive proof of the Division to which the member is assigned (National Rule 7(iv)): [85].

(f)    The Rules accommodate disputes concerning the allocation of members, and make provision for the resolution of disagreements: [86].

(g)    Although the National Rules contemplate that a member may seek a “transfer” from one Division to another (National Rule 7(v)(b)), they do not confer any right upon a member of the Union to transfer. In particular, there is no provision in the Rules for a member, while remaining a member of the Union, to resign his or her membership of a Division and to make application to join another Division: [88].

(h)    To the contrary, National Rule 7(v)(b) provides that every member of the Union who is, on the records of the Union, financial and who is on those records attached to a Division, Branch or Divisional Branch shall be treated for all purposes as a financial member thereof and “shall be entitled to all rights and required to comply with all obligations which attach thereto until transferred in accordance with Rules” (emphasis added): [88].

(i)    National Rule 7(viii) (set out at [39] above) provides the principal means by which a member may be transferred from one Division to another. From the perspective of the individual member, this transfer may be involuntary: [89].

(j)    For the reasons given by the Full Court, the Rules do not provide for the resignation of a member from a Division while that person remains a member of the Union, from which it followed that there should not be any encouragement of members to do so. Instead, if it is thought that a member of one Division should be allocated to another Division, then the procedures for transfer from one Division to another in National Rule 7(viii) should be invoked: [93].

(k)    National Rule 42, upon which the respondents to the appeal had relied as a qualification on the eligibility criteria in National Rule 2(F), was a transitional provision directed to amalgamations that had occurred in the past, and to the transition from union-based divisions to industry-based divisions that had occurred. That restructuring had taken place through the resolution in February 2002 and the insertion of Rule 42D to which I referred at [30] above: [94]-[103].

(l)    For the above reasons, the Rules of the Union relating to the transfer of members between Divisions were not being observed in relation to the over 200 Union members in Victoria who were encouraged to resign from the Manufacturing Division in order to join the Construction and General Division: [105].

67    In consequence of its reasons, the Full Court made the following declaration –

[T]he Court declares that, under the Rules of the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU), the persons eligible for membership pursuant to Rule 2(F) are, until alteration of the Rules or a contrary decision by the National Executive (in either case, in accordance with the Rules), attached to the Manufacturing Division and not to the Construction and General Division.

68    Counsel for the applicant submitted that the declaration of the Full Court was clear on its terms, it had immediate operation, and it has the effect of attaching all members of the Union eligible under Rule 2(F) to the Manufacturing Division. Counsel submitted that recourse could not be had to extrinsic material, such as the Full Court’s reasons, as an aid to the interpretation of the declaration.

69    In Gordon v Gonda [1955] 1 WLR 885, a dispute arose about the effect of an order of a court in earlier proceedings which declared that an interest in shares was held on trust, when the earlier proceedings had concerned partnership property. Evershed MR at 890 described this as an unexpected form of order when regard was had to the pleadings in the action. Evershed MR at 892-893 then framed and addressed the issue as follows –

The question is: When regard is had to the pleadings and to the history which I have stated and to the fact that the pleadings were read in this order and the evidence was referred to, does the declaration in the order assume some different aspect? Is what I have called its prima facie meaning thereby altered? I cannot think that it is. I cannot myself think that the fact that one is entitled to look at the pleadings and entitled to have regard to the circumstances that I have mentioned can in any way qualify the plain meaning of the words which follow.

70    Hodson LJ agreed with Evershed MR, as did Romer LJ, who at 897 added –

It is only if the order is open to some other construction, that it is ambiguous in its terms, that it appears to me to admit of the argument which Mr. Shelley addressed to us, that in the circumstances which existed, namely, the pleadings in the action and the acceptance by the judge of the view that there was a partnership and in view also of the general law which is applicable as between partners, the judge cannot have intended to hold that the defendant was a trustee of the shares which were allotted to him. In my opinion there is no such ambiguity as to render that argument permissible, because this order, as I have already said, proceeds (and, in my opinion, proceeds only) upon the footing of a trusteeship.

71    The Court of Appeal in Gordon v Gonda did examine the pleadings, and in turn the reasons for making the declaration, but held that the declaration was clear, and was not to be qualified as a result of recourse to the circumstances in which it was made.

72    Gordon v Gonda was cited more than 55 years later by the Privy Council in Sans Souci Ltd v VRL Services Ltd [2012] UKPC 6 on appeal from the Jamaican Court of Appeal. The issue in Sans Souci was the proper construction of an order of a court that allowed an appeal from an award of some arbitrators, and remitted the matter to determine the issue of damages only. The issue was whether the question of damages generally was remitted, or only the disputed question that the court had upheld on appeal. On appeal to the Privy Council, the appellant submitted that in the absence of any ambiguity in the language of the order, it should not be construed by reference to the reasons for making it. In giving the opinion of the Board, Lord Sumption, stated –

13.    In the opinion of the Board, this approach to the construction of a judicial order is mistaken. It is of course correct that the scope of a remission depends on the construction of the order to remit. But implicit in the Proprietor’s argument is the suggestion that the process of construing the order is to be carried out in two discrete stages, the first of which is concerned only with the meaning of the words, and the second with the resolution of any “ambiguities” which may emerge from the first. The Court’s reasons, so it is said, are relevant only at the second stage, and then only if an “ambiguity” has been found. The Board is unable to accept these propositions, because the construction of a judicial order, like that of any other legal instrument, is a single coherent process. It depends on what the language of the order would convey, in the circumstances in which the Court made it, so far as these circumstances were before the Court and patent to the parties. The reasons for making the order which are given by the Court in its judgment are an overt and authoritative statement of the circumstances which it regarded as relevant. They are therefore always admissible to construe the order. In particular, the interpretation of an order may be critically affected by knowing what the Court considered to be the issue which its order was supposed to resolve.

14.    It is generally unhelpful to look for an “ambiguity”, if by that is meant an expression capable of more than one meaning simply as a matter of language. True linguistic ambiguities are comparatively rare. The real issue is whether the meaning of the language is open to question. There are many reasons why it may be open to question, which are not limited to cases of ambiguity.

15.    As with any judicial order which seeks to encapsulate in the terse language of a forensic draftsman the outcome of what may be a complex discussion, the meaning of the order of the Court of Appeal in this case is open to question if one does not know the background. The order refers generally to “the issue of damages” because if the arbitrators were to decide that there were “unrecoverable expenses”, they would not simply deduct them from the amount which they had awarded. They would have to deduct them from the undiscounted gross management fees, and then discount the net figure for early receipt. But the reference in the order to “the issue of damages”, although necessary, begged the question “Which issue of damages?” The order does not itself answer it. Only extrinsic evidence can do that. …

16.    Of course, it does not follow from the fact that a judgment is admissible to construe an order, that it will necessarily be of much assistance. There is a world of difference between using a Court’s reasons to interpret the language of its order, and using it to contradict that language. The point may be illustrated by the decision of the Court of Appeal in England in Gordon v. Gonda [1955] 1 WLR 885, where an attempt was made to contradict what the Court regarded as the inescapable meaning of an order, by arguing that the circumstances described in the judgment could not have justified an order which meant what it clearly said. Therefore, it was said, the judge must have meant something else. The answer to this was that any inconsistency between the circumstances of the case or the reasoning of the Court and the resultant order was properly a matter for appeal. A very similar argument was rejected by the Board for the same reason in Winston Gibson v Public Service Commission [2011] UKPC 24. Decisions such as these (and there are others) are not authority for the proposition that a Court’s reasons are inadmissible to construe its order. They only show that the answer depends on the construction of the order and that the reasons given in the Judgment may or may not make any difference to that.

73    I am alive to the possibility that Lord Sumption’s statements of principle in relation to the construction of court orders might have been influenced by the English principles applicable to the construction of contracts, stated in authorities such as Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 at 912-913 (Lord Hoffmann), Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251 at [8] (Lord Bingham of Cornhill) and [39] (Lord Hoffmann), and Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900 at [14] (Lord Clarke of Stone-Cum-Ebony). See also the later cases of Arnold v Britton [2015] 1 AC 1619 at [15]-[17] (Lord Neuberger of Abbotsbury), and Wood v Capita Insurance Services Ltd [2017] AC 1173 at [10]-[13] (Lord Hodge). The English authorities arguably take a broader view than the Australian authorities of when recourse may be had to circumstances outside the terms of the contract where the terms of the contract are otherwise unambiguous: cf, Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; 240 CLR 45 at [39] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). However, it is notable that at [14] of San Souci Lord Sumption stated that the real issue is whether the meaning of the language is open to question, which is allied to the idea of constructional choice: cf, Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; 256 CLR 104 at [49] (French CJ, Nettle and Gordon JJ).

74    Gordon v Gonda was also cited in the principal authority relied on by counsel for the applicant, being the decision of the Full Court in Repatriation Commission v Nation (1995) 57 FCR 25. That case concerned an order made in an earlier stage of the dispute that “the matter” be remitted to the Administrative Appeals Tribunal. One question was what was actually remitted to the Tribunal by the order. In addressing this issue, at 33-34 Beaumont J (Black CJ and Jenkinson J agreeing) stated –

The rule in England is that when a judgment is clear as to its terms, not even the pleadings nor the history of the action may be utilised to construe the judgment contrary to its clear meaning (see Halsbury’s Laws of England, (4th ed, 1979), Vol 26, p273). Where, however, the judgment or order is ambiguous, it may be permissible to resort to extrinsic material, including the reasons for judgment, to resolve the ambiguity (see Gordon v Gonda [1955] 2 All ER 762 at 765, 768) [also reported at [1955] 1 WLR 885].

A similar approach has been taken in this country. If, as in the case of a “speaking” order (see, eg, ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 262) its true meaning is “immediately plain”, the terms of the order will speak for themselves. If this is not the case, the true meaning may be ascertained according to ordinary rules of construction (see Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 per Windeyer J at 503; McNair Anderson Associates Pty Ltd v Hinch [1985] VR 309 at 311-312; cf. Kwikspan Purlin System Pty Ltd v Commissioner of Taxation (Cth) (1986) 86 ATC 4,602 at 4,605; Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230 at 232; Sharpe v Goodhew (unreported, Federal Court, Drummond J, 11 December 1992), at pp 10-12; Australian Securities Commission v Skase, (unreported, Federal Court, Drummond J, 13 January 1993) at pp 16-17. Under the ordinary rules of construction, evidence of surrounding circumstances is admissible to assist in the interpretation of an instrument if the language is ambiguous or susceptible of more than one meaning, but not admissible to contradict the language of the instrument when it has “a plain meaning” (see Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 per Mason J at 352).

75    In the above passage, Beaumont J adopted for the purposes of construction of court orders the “true rule” stated by Mason J in Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 352 that evidence of surrounding circumstances may not be used to contradict the language of an instrument that has a plain meaning. However, at least where there is a constructional choice, it is permissible to have recourse to circumstances and things external to the contract to identify the commercial purpose or objects to be secured by a contract as an aid to construction: Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd at [49] (French CJ, Nettle and Gordon JJ). The question whether regard may be had to such circumstances or things in order to identify the existence of a constructional choice did not arise in Mount Bruce Mining. Different principles are engaged in relation to the construction of a statute. There, regard is to be had to the context and purpose of a statutory provision at the first stage of construing the text of a provision: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ).

76    In Yates Property Corporation v Boland (1998) 89 FCR 78, in the context of an application to vary final court orders so as to resolve an ambiguity, Drummond J, with whom Sundberg J and Finkelstein J agreed, stated at 78-79 that it was quite unrealistic to attempt to understand a court order in isolation from the context of the reasons for it being made –

It is impermissible, in my view, as well as being quite unrealistic, to attempt to read, that is, to understand, an order in isolation from the context of the reasons for it being made. The Full Court of the Supreme Court of Queensland, in Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230 held that, in interpreting an order of a court framed in unambiguous language, regard should still be had to the reasons given by the Court for making the order because they form part of a context in which the order was made. The case for referring to the reasons for an order where there is any suggestion that the order may be expressed in unclear terms is a fortiori.

77    Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629; 129 FCR 558 was another case where application was made to the court for supplementary orders to resolve an ambiguity in a declaration of the court that had been entered. At [54], Allsop J (sitting in original jurisdiction) stated that there was force in what Drummond J said in the above passage, but added that –

Nevertheless, it is plain that parties should not have to examine the entrails of a long proceeding to understand their rights and obligations (including potential liability for contempt). Ambiguity can be resolved by a construction summons.

78    In Lim v Comcare [2019] FCAFC 104; 165 ALD 217 at [40], the Full Court (McKerracher, Markovic and Snaden JJ) referred to the passage from the reasons of Beaumont J in Repatriation Commission v Nation set out above, and stated that it was likely that regard could be had to the reasons to which an order was intended to give effect, whether or not the orders were ambiguous. In support, the Full Court cited with evident approval the passage from the reasons of Drummond J in Yates Property Corporation v Boland referred to above, and the following passage from the reasons of Santow JA in Athens v Randwick City Council (2005) 64 NSWLR 58 (Athens) at [129] –

To pose the question as simply, can ambiguity in court orders be resolved by reference to their external context, obscures the point of what an order sets out to do. The purpose of a court order is, ordinarily, to give effect to a judgment. The judgment is not some kind of penumbral context surrounding the order. Rather the judgment is the source of the order. A court order derives from its originating judgment, as a transfer of land derives from the underlying contract. The order must therefore conform to the judgment, with only such latitude as the judgment allows. Likewise the transfer must conform to the contract. To speak therefore of the originating judgment as providing context for resolving ambiguity understates the primacy of that judgment as a source of the interpretation of the order.

79    In Athens, the presiding judge, Hodgson JA, gave separate reasons with which Santow JA agreed subject to his Honour’s “additional observations”, of which the above passage was part. Tobias JA agreed with Hodgson JA and also with the additional observations of Santow JA. Hodgson JA was of the view that regard could be had to the reasons for judgment and other surrounding circumstances as an aid to the interpretation of orders where those orders were made for reasons given in a judgment. His Honour observed this to be so at least where the language of an order is ambiguous or susceptible to more than one meaning. In answer to the question of what on its true construction an order required, his Honour said at [28]-[29] –

[28]      The first question may arise quite separately from the second question in proceedings other than proceedings alleging contempt. There is no doubt that, in addressing the first question, one can consider context in the case of consent orders, in much the same way as one can consider context in construing a contract: see Kirkpatrick (at 573 [38]–[45]) and cases there cited. In my opinion, it is also plain that, in the case of orders made for reasons given in a judgment, one can have regard to the judgment and to other surrounding circumstances, including the pleadings.

[29]      In a note on this question, it is stated that “in the case of real ambiguity extrinsic material such as the reasons for judgment may be considered” (Justice P W Young, “Construing court orders” (1998) 72 Australian Law Journal 117). However, in my opinion the ability to advert to other material is at least as wide as is stated in Repatriation Commission v Nation (1995) 57 FCR 25 at 34, namely that “evidence of surrounding circumstances is admissible to assist in [construction] of an instrument if the language is ambiguous or susceptible of more than one meaning, but not admissible to contradict the language of the instrument when it has a ‘plain meaning’ ”; and cf Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230 at 232, 233–234. However, in having regard to surrounding circumstances, it is in my opinion relevant to keep in mind that orders are generally framed with a view to their being self-contained and self-explanatory.

80    In Lim v Comcare the court held at [42] that there was an ambiguity in the orders under consideration that permitted regard to be had to the reasons for which they were made. The approach of the Full Court of this court in Yates Property Corporation v Boland and of Santow JA in Athens by which there does not need to be ambiguity in orders before reference may be made to the reasons for judgment as an aid to interpretation, has been followed by the Victorian Court of Appeal: Slea Pty Ltd v Connective Services Pty Ltd [2018] VSCA 180 at [30]-[31] (Ferguson CJ, Whelan and McLeish JJA).

81    For the reasons that follow, it is unnecessary in this case to reconcile the apparent differences in the statements of principle in the appellate authorities concerning the circumstances in which recourse may be had to reasons for judgment in construing declarations of a court, and whether ambiguity is a prerequisite.

82    The declaration made by the Full Court in O’Connor v Setka is binding upon the parties to that proceeding in personam by force of the Full Court’s orders. In this statutory inquiry, there is no identity of parties with those in O’Connor v Setka, and therefore no question of issue estoppel arises. Counsel for the applicant did not develop any submission that the Full Court’s declaration operated in rem: see Spencer Bower and Handley, Res Judicata (4th edition) at Chapter 10. Nonetheless, by operation of the rules of precedent the Full Court’s decision in O’Connor v Setka is binding upon me, because it decided a question of law, namely the question of interpretation of the Rules of the Union that is reflected in the Full Court’s declaration. In examining binding authority, only some sort of wilful blindness would deprive a lower court reference to the reasons for decision of the appellate court for the purposes of determining what question was decided. That is particularly so here where the Rules of the Union are so extensive and complex, and where so many interlocking questions of construction arise.

83    Moreover, I do not accept the submissions of counsel for the applicant that the meaning of the Full Court’s declaration is clear on its terms. Without recourse to context, it is quite unclear. To say that under the Rules of the Union members of the Union within National Rule 2(F) “are attached” to the Manufacturing Division is not a plain statement without reference to the issues that were before the Full Court, and the reasons for their disposition. At the very least, recourse is required to the relevant Rules of the Union which are referred to in the declaration. That in turn invites attention to the Full Court’s reasons which examined the proper construction of those Rules. In addition, identification of the issues on which the parties joined is required so as to inform the object of the declaration, and therefore its meaning. The use of this context as an aid to identifying what was decided by O’Connor v Setka is a modest incursion into material that is extrinsic to the declaration itself for the purpose of construing the text of the declaration, which otherwise would be of uncertain scope.

84    The reasons of the Full Court in O’Connor v Setka disclose that the parties to that proceeding joined issue on a question of construction, which was whether the eligibility criteria in National Rule 2(F) was to be read subject to National Rule 42 with the consequence that not all members of the Union who engaged National Rule 2(F) were attached to the Manufacturing Division. The Full Court upheld the submissions of the appellant on that question, which is reflected in the declaration. The Full Court did not address some of the consequential orders sought by the appellant, including orders that the respondents transfer memberships back to the Manufacturing Division, and pay over to the Manufacturing Division contributions collected by the Construction and General Division since August 2019 from those members. Those questions invite attention to the court’s powers under s 164A of the RO Act, and were remitted to the primary judge for further consideration.

The eligibility of northern New South Wales timber workers

85    Mr Menon is currently employed by the Building Employees’ Redundancy Trust, in a position that he recently took up. Previously, he was employed by the QNTDB, being the Queensland Northern Territory Divisional Branch of the Construction and General Division of the Union, as an organiser, and held the role of South East Co-ordinator. In addition to being employed by the Union, Mr Menon was a member of the Union, and was attached to the Manufacturing Division in the QNTWAD, being the Queensland Northern Territory and Western Australian District, of which he was President at the relevant times. Mr Menon gave evidence that, notwithstanding that he had ceased to be employed by the Union, he retains an office with the Union, namely Secretary of the QNTWAD of the Manufacturing Division, which is an honorary position.

86    Mr Menon stated that prior to his employment by the QNTDB of the Construction and General Division, he worked for the FFPD, being the Forestry, Furnishing, Building Products and Manufacturing Division of the Union, in respect of its NSW District between 1995 and 2013. The majority of his time was split between the towns of Tumut, Tumbarumba, and Wagga in the south west slopes region, which is where he grew up. He then moved to the north coast and had responsibility for an area between Newcastle and the Queensland border. Mr Menon took a voluntary redundancy in mid-2013, and later accepted a position with the QNTDB of the Construction and General Division in 2014.

87    In his employed role as South East Co-ordinator of the QNTDB of the Construction and General Division, Mr Menon oversaw the work of four organisers, who reported directly to him. Mr Menon claimed that his responsibilities as an organiser extended beyond Queensland to Port Macquarie in New South Wales, although he stated that this additional responsibility outside Queensland was limited to timber workers. Mr Menon gave evidence that he was employed by the QNTDB to operate, predominantly, in the area of the former FFPD, which became the Manufacturing Division.

88    Mr Menon produced a copy of a document titled “Administration Agreement” to which the parties referred as the 1998 Agreement. That agreement was expressed to have been made between three named parties –

(1)    Construction, Forestry, Mining and Energy Union – Construction and General Division, Queensland Construction Workers’ Divisional Branch;

(2)    Construction, Forestry, Mining and Energy Union – FFTS Union Division; and

(3)    Construction, Forestry, Mining and Energy Union – FFTS Union Division, Queensland Divisional Branch.

89    As indicated at [29]-[30] above, FFTS refers to the former Federated Furnishing Trade Society of Australasia, which had amalgamated with an earlier emanation of the Union in March 1993 and which resulted in a separate Division known as the “FFTS Union Division”. The 1998 Agreement was signed by Mr Wallace Trohear, described as the State Secretary, CFMEU Construction and General, Queensland Construction Workers’ Divisional Branch; Mr Lou Kyriacou, who was described as Divisional Secretary, CFMEU FFTS Union Division, and Mr Greg Williams, who was described as the Honorary Divisional Branch Secretary, CFMEU FFTS Union Division, Queensland Divisional Branch. The 1998 Agreement provided as follows –

The parties to this Agreement being divisional branches or State divisional branches of the CFMEU.

The intention of this agreement is to reflect the status in Queensland branch where the Construction, Forestry, Mining and Energy Union, Industrial Union of Employees Queensland, shall operate with no divisions in future (by operating a combined administration of the FFTS Union Division, Queensland Divisional Branch and the Queensland Construction Workers’ Divisional Branch of the Construction and General Division).

This Agreement is reached as a consequence of the integration in Queensland of State Registered Divisional Branches of the Union as from the 1st April, 1988. The FFTSQ Union Division is desirous of services and facilities being provided to its members who work in the Furnishing and related industries.

The CFMEU C & G agrees that in return for FFTSQ dues contributions the CFMEU C & G will provide organising, staff, secretarial services and pay all costs associated with servicing the FFTSQ members, including administration costs, affiliation fees, organising and travel costs as from the 1st April 1998.

The CFMEUQ accepts no liabilities which were accrued by the FFTSQ prior to the 1st April, 1988. However, agrees to accept liabilities from the 1st April, 1998, regarding the rental lease on the photocopying machine and laser printer and the on-going costs on the lease on the premises at St Pauls Terrace, Brisbane.

The CFMEUQ also agrees to provide the FFTS Union Division with an annual set of accounts which are audible [sic] and are prepared by the CFMEU C & G Auditor.

90    In early 2017, the 83 timber workers were employed in the timber industry at various locations in northern New South Wales. I find that many were approached by Mr Menon, or others associated with him, and following discussions they severed their connections with the NSW District, including by tendering what purported to be written resignations. Most of the written resignations were pro forma type-written letters addressed to the State Secretary “CFMEU – FFPD NSW” with individual details completed by hand, and which relevantly stated –

I [name] hereby resign my membership effective immediately to [sic] the NSW Branch of the CFMEU FFPD.

91    The reference to “FFPD” can be understood as a reference to the Forestry, Furnishing, Building Products and Manufacturing Division of the Union, before its name changed in March 2018 to the Manufacturing Division, and the “NSW Branch” can be understood as a reference to the NSW District.

92    At about the time the resignations were submitted, Mr Craig Smith, who was then the District Secretary of the NSW District of the Manufacturing Division of the Union, spoke to a number of delegates at workplaces in northern New South Wales who informed him that Mr Menon had encouraged the members at their workplace to resign from the FFPD and to join the Construction Division in the Queensland Branch. Mr Menon gave evidence that he enrolled the timber workers who worked in New South Wales into the “Queensland Northern Territory West Australian FFPD”, thereby recruiting them to that District of what became the Manufacturing Division. He denied recruiting the workers to the Construction and General Division, and stated that the workers were treated as members of the Manufacturing Division. Mr Menon stated that a list of members of the Manufacturing Division was kept and maintained by the QNTDB and included members of the Manufacturing Division who lived in northern New South Wales who were serviced by the QNTDB. Mr Menon produced some computer-generated extracts from the membership records of the QNTDB for 82 members of the Union. The records identified members’ addresses as being within New South Wales, and that the members were –

(1)    timber workers by reason of the code “TW”;

(2)    members of the Manufacturing Division by the code “FT”; and

(3)    interstate members by the regional code “09”.

93    Mr Menon was not challenged in cross-examination on this evidence. At the time Mr Menon recruited the timber workers he was, as I mentioned above, employed in Queensland as an organiser by the QNTDB of the Construction and General Division, and was also the President of the QNTWAD of the Manufacturing Division. In recruiting the timber workers, Mr Menon had them sign applications which were in the form of admission cards which bore the name and logo of the QNTDB of the Construction and General Division of the Union and bore the letters “CFMEU and “QLD/NT”. I find that the admission cards that were signed in 2017 were originally part of a document given to the timber workers by Mr Menon or those assisting him that was in the nature of a brochure that had on its front page a stylised logo bearing the words “CFMEU QLD/NT” and “CONSTRUCTION UNION”. I also find that, as Mr Menon stated in evidence, only the application form was kept by the QNTDB in its records, and the balance of the document discarded. There was in evidence a number of admission cards signed by the northern New South Wales timber workers that bore the following features –

(1)    On the front face of the card in large stylised type were the letters “CFMEU”.

(2)    Below the middle on the front face was the following –

I, the undersigned, make application to become a member of, and abide by the rules of the: -

Construction, Forestry, Mining and Energy Union /

Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland

(3)    On one side of the card in the top left hand corner was the logo bearing the letters “CFMEU and “QLD/NT”, and at the foot are the words, “The abovementioned was admitted as a member of the Union”.

94    One of the timber workers, Mr Wimble, produced in evidence a card issued 21 February 2020 identifying him as a delegate of the Union and which was headed –

CFMEU

QLD/NT

95    The card also bore a logo in the same form as that on the admissions cards, bearing the words, “CFMEU and “QLD/NT”. The card identified the organiser as Paul Taylor, and the employer as Boral Timber.

96    Upon the timber workers ceasing their association with the NSW District of the Manufacturing Division and commencing their association with the Union in Queensland, they no longer paid any membership dues through the NSW District, and no longer paid any dues, at least directly, to the Secretary of the Manufacturing Division.

97    On 13 June 2017, Mr O’Connor, who was at the time the National Secretary of the Union, and who remains Secretary of the Manufacturing Division, wrote to Mr Menon. Mr O’Connor referred to complaints that had been made alleging that Mr Menon had induced members of the CFMEU FFPD to resign their membership of the Union, and to re-join the Union by becoming members of the QNTDB of the Construction and General Division, and directing that Mr Menon cease that activity immediately. Mr Menon responded by letter dated 15 June 2017 asserting that he had been denied natural justice, asserting that Mr O’Connor had failed to particularise the allegations, and making a generalised denial of the matters alleged. In turn, Mr O’Connor responded by letter dated 16 June 2017 in which he clarified that his earlier letter of 13 June 2017 was written by him in his capacity as Divisional Secretary of the FFPD of the Union, and confirmed the direction that he had given Mr Menon was in that capacity. Mr O’Connor also gave Mr Menon a further opportunity to make a detailed response to the matters raised, failing which he stated that he would refer the matter to the FFPD Executive. Mr Menon responded on 20 June 2017, maintaining that he had not been given particulars, stating that there had been predetermination and a denial of natural justice, and asserting that he was unable to respond fully to the allegations. Notwithstanding these matters, in his letter Mr Menon rejected the complaint that he had induced members of the FFPD to resign their membership of the Union and to re-join by becoming members of the QNTDB of the Construction and General Division.

98    Separately, on 13 June 2017 Mr O’Connor wrote a circular letter to members at timber mills in northern New South Wales stating that the only branch under the Rules of the Union to which they could be assigned was the FFPD, NSW District, and that any representations to the contrary were not consistent with the Union’s rules.

99    Mr O’Connor also wrote to Mr Dave Noonan, the National Secretary of the Construction and General Division, by letter dated 7 June 2017. That letter was passed on to the QNTDB for comment. Mr Ravbar, the Divisional Branch Secretary of the QNTDB, responded to Mr Noonan by letter dated 14 June 2017, and provided a copy of the letter to Mr O’Connor. The gravamen of Mr Ravbar’s response was to question the quality of the organising arrangements that the Manufacturing Division had in place for various workplaces of the timber workers in northern New South Wales, and to assert that the QNTDB was acting in the interests of Union members, and inviting further discussion in the context of merger discussions that were referred to in the letter. Mr O’Connor agreed in cross-examination that he took no further steps after the receipt of this correspondence and allowed the QNTDB to continue representing those northern New South Wales timber worker members of the Union who wanted the QNTDB to represent them.

100    As for the operation of the 1998 Agreement, Mr O’Connor stated in cross-examination that timber workers were never eligible to be members in the FFTS Union Division, and that he did not believe that the 1998 Agreement applied to members of the Manufacturing Division more broadly. However, Mr O’Connor was taken to the roll of members that showed that there were 79 timber workers who were resident in Queensland and whom he had not excluded from the certified list of financial members that he had given to the returning officer. Mr O’Connor accepted in cross-examination that as a matter of practice Queensland-based timber workers joined the QNTDB, and that in a practical sense there was nowhere else for them to go. Mr O’Connor stated that the Manufacturing Division had a District in Queensland, but that it was serviced by the construction branch (which I took to mean a reference to the QNTDB of the Construction and General Division), which also collected their fees. Mr O’Connor stated that he had considered the northern New South Wales timber workers to be different, because he believed that they had been recruited to the construction branch, and never placed in the Manufacturing Division. He also accepted in cross-examination that it looked like that assumption had been incorrect. I accept Mr O’Connor’s evidence that he believed that the northern New South Wales timber workers had been recruited to the Construction and General Division. Mr O’Connor gave his evidence in a direct, straight-forward manner, and his evidence in that regard was consistent with contemporaneous statements, namely the terms of his letter that he wrote to Mr Menon dated 13 June 2017 where he referred to Mr Menon inducing members of the “CFMEU FFPD” resigning their membership of the Union and re-joining by becoming members of the “Queensland and Northern Territory Construction and General Division”.

101    In November 2019, the QNTDB of the Construction and General Division changed its administrative arrangements. The Union in the guise of the QNTDB entered into an undated service agreement with the Queensland State Union, to which I referred at [41] above. There are a few drafting issues with the service agreement which I will put aside for present purposes. Under the terms of the service agreement, the QNTDB agreed not to collect fees from persons having dual membership, and the Queensland State Union agreed to provide personnel and various services to the QNTDB that were specified in clause 4.1 of the service agreement to a level and standard that ensures (inter alia) that the QNTDB meets its obligations “to its Dual Members”. The service agreement makes further provision in clauses 5.2 and 5.4 for the Queensland State Union to provide additional facilities and services to the QNTDB upon subsequent agreement by them. Further, the QNTDB appointed the Queensland State Union as its agent for various purposes that were said to be specified in Schedule 3 of the agreement, which was blank in the copy that was tendered. The definitions in the service agreement provide that a “Dual Member” is a person who was a member of the CFMMEU (ie, the Union) attached to the QNTDB and who was also a member of the Queensland State Union attached to its Construction and General Division. The service agreement provides in its recitals that “Dual Members” do not include “FFTS Members”. The recitals also provide that “The Dual Members, NT Members and FFTS Members pay subscription fees to the CFMMEU (via the QNTDB)”. “FFTS Members” is defined as “members of the CFMEUQ [that is, the Queensland State Union] who are eligible for membership under rule A7(Section A)(e) of the Part A Rules”. These Rules were not in evidence.

102    Mr Menon stated in evidence that as part of the arrangements under the service agreement, in April 2020 the Queensland State Union commenced collecting membership contributions on behalf of the QNTDB from members living in northern New South Wales. For his part, Mr Menon denied that he was ever employed by the Queensland State Union and gave evidence that he remained an employee of the federal Union.

103    Mr O’Connor stated in evidence that prior to seeing an affidavit of Mr Menon dated 23 April 2021 in another proceeding, he had no knowledge of the service agreement, and stated that to his knowledge it was never brought to the attention of the Manufacturing Division, and that if it had, then as Divisional Secretary he would have been aware of it. Mr O’Connor was not challenged on this evidence in cross-examination, and I accept it.

104    On 15 February 2021, Mr O’Connor, on behalf of the Manufacturing Division, wrote to Mr  Ravbar, the Divisional Branch Secretary of the QNTDB of the Construction and General Division, requesting a list of members of the Manufacturing Division that were on his membership database for the purpose of providing a certified list of members to the Australian Electoral Commission. Mr O’Connor gave evidence that he made this request based on his understanding that in accordance with the 1998 Agreement the QNTDB would have records of Manufacturing Division members, but also that it was his view that only persons who were eligible as members of the former FFTS Union Division would fall within this category.

105    On 3 March 2021, the Australian Electoral Commission wrote to Mr O’Connor in relation to the elections. Amongst other things, the Commission requested certified listings of financial members of the Manufacturing Division. The letter stated –

The Roll of Voters for the above election will be those members of the branch [sic] financial as at 04/03/2021.

As the Returning Officer, I request you supply the following listing(s) of members of the CFMMEU – Manufacturing Division by the dates that are specified:

106    Underneath this request was a timetable setting out dates by which the initial listing was to be provided, together with updates. In relation to the initial listing, Mr O’Connor was requested to supply electronically in the form of an Excel file by 5 March 2021 –

Name and member information (identified below), of every member who was financial at 04/03/2021 in accordance with the rules of the Organisation.

(Emphasis added)

107    The member information that was requested included an electorate code for each member that identified the relevant District.

108    On 4 March 2021, and after Mr O’Connor had followed up his initial request, Mr Ravbar provided to Mr O’Connor a list of members of the Manufacturing Division from the records of the QNTDB. The list relevantly included New South Wales-based timber workers, together with other timber workers who were resident in Queensland.

109    On 5 March 2021, Mr O’Connor caused the list of members of each District of the Manufacturing Division to be uploaded to the Australian Electoral Commission portal. In that list were 9,289 members of the Division, of whom 1,663 were in the NSW District. Mr O’Connor excluded the 83 northern New South Wales timber workers, stating in his affidavit evidence that he took the view that they were not financial, because –

20.    … to be a financial member of the Manufacturing Division, a person must have paid all contributions, in the amounts determined by the Divisional Executive, to the Divisional Secretary or an authorised agent of the Manufacturing Division.

21.    Following receipt of the Queensland list, an examination of the records of the NSW District of the Manufacturing Division and the Manufacturing Division was caused to be undertaken and there was no evidence of any payment by any of the 83 NSW residents to either the abovementioned bodies during at least the previous 24 months.

22.    As a result of the above, I formed the view that I could not certify that the 83 NSW residents were financial members of the MD, and therefore they were removed from the list of members which I caused to be provided to the AEC.

110    There was one exception, being a timber worker whose address was recorded in the QNTDB spreadsheet as being in New South Wales, and who was included in the roll of voters, but no point was made about this. The correctness of Mr O’Connor’s decision to exclude the 83 timber workers from the list of financial members supplied to the Australian Electoral Commission was explored in cross-examination, but it was not part of the applicant’s case that Mr O’Connor did not act bona fides.

111    The fact that the northern New South Wales timber workers were excluded from the roll of voters had two consequences: (1) the workers did not vote in the elections for the Manufacturing Division; and (2) three workers who remain the subject of this inquiry and who nominated for positions had their nominations for election rejected by the Australian Electoral Commission. The three nominees, and the grounds for their rejection were as follows.

Ian McHugh

112    Mr Ian “Bones” McHugh purported to resign his membership of the NSW District of the FFPD by a pro forma letter addressed to the New South Wales State Secretary dated 2 February 2017. After Mr McHugh purported to resign from the NSW District of the FFPD, he signed an admission card for the QNTDB of the Construction and General Division, of the type to which I referred at [93] above, and he was later issued with a membership card. Mr McHugh gave evidence, which I accept, that he thought that he would still be a member of the Manufacturing Division (then the FFPD), and that he still didn’t understand “the difference between the two unions” and that he “thought it was the same”. After March 2017, Mr McHugh paid membership fees to the Queensland office of the Construction and General Division. As with the other timber workers, an extract from the membership records of the QNTDB of the Union showed that Mr McHugh was a member of the Manufacturing Division and that his address was within New South Wales. On about 31 March 2021, and as a result of an approach from Mr Menon, Mr McHugh was nominated for the office of NSW District President of the Manufacturing Division.

Greg Wimble

113    Mr Greg Wimble also purported to resign his membership of the NSW District of the FFPD in 2017, and did so by completing his details in a pro forma letter to the State Secretary dated 20 February 2017. Like Mr McHugh, Mr Wimble also completed an admission card for the QNTDB of the Construction and General Division which Mr Menon had given to him and which was in the form described at [93] above. In Mr Wimble’s case, the admission card was dated 20 February 2017, and stated that he had been recruited by “Bluey”. Mr Wimble gave evidence, which I accept, that he believed that the QNTDB of the Construction and General Division serviced the Queensland District of the FFPD, and that he thought that by completing the admission card he was to join the Queensland District of the Manufacturing Division (then, the FFPD). I infer that from 2017, Mr Wimble commenced paying his membership dues to the QNTDB. An extract from the membership records of the QNTDB of the Union showed that Mr Wimble was a member of the Manufacturing Division, and that his address was within New South Wales. At the suggestion of Mr Menon and another organiser employed by the QNTDB, on 31 March 2017 Mr Wimble was nominated for the office of NSW District Delegate to the Divisional Conference. Mr Wimble gave evidence that he did so “to support Bluey”.

Phillip Wilson

114    Mr Phillip Wilson did not give evidence in the inquiry, and the evidence about his circumstances is more limited than the evidence in relation to Mr McHugh and Mr Wimble. Mr Wilson completed an admission card for membership of the QNTDB of the Construction and General Division dated 28 March 2017 in the same form as that described at [93] above. He gave his address as a post office box number in New South Wales, and described his trade as a saw doctor. An extract from the membership records of the QNTDB of the Union showed that Mr Wilson was a member of the Manufacturing Division, and that his address was within New South Wales. As with Mr Wimble, Mr Wilson was nominated for election to the office of NSW District Delegate to the Divisional Conference. In his nomination form, which was dated 31 March 2021, he gave a New South Wales street address.

The rejection of the nominations

115    The circumstances of the rejection of the nominations of Messrs McHugh, Wimble, and Wilson are similar. They each received an initial letter from a returning officer within the Australian Electoral Commission rejecting their nominations for election on the grounds that they did not appear to have financial membership of the NSW District, and nor did the persons who nominated them. Solicitors acting for the three nominees then made representations by separate letters to the Australian Electoral Commission, asserting the validity of the nominations. Subsequently, by separate letters from the Australian Electoral Commission dated 11 May 2021, Messrs McHugh, Wimble, and Wilson were advised that the returning officer was not satisfied that they were members of the NSW District.

Northern New South Wales timber workers – the parties’ submissions

The submissions of counsel for the applicant

116    Counsel for the applicant framed a number of issues in relation to the northern New South Wales timber workers who were excluded from voting in the elections, and in relation to the three members whose nominations for office or representative positions associated with the NSW District were disallowed. In essence, those issues distilled into three questions, being whether the northern New South Wales timber workers were  –

(a)    attached to the Manufacturing Division;

(b)    attached to the NSW District; and

(c)    financial members.

117    An important element of the submissions of counsel for the applicant was the Full Court’s decision in O’Connor v Setka, and the declaration that was made by the Full Court. Counsel for the applicant submitted that the effect of the Full Court’s declaration was that every member eligible for membership of the Union under National Rule 2(F) was attached to the Manufacturing Division. Counsel submitted that it followed that members who were eligible under National Rule 2(C), which included timber workers, were also attached to the Manufacturing Division. Counsel submitted that the arrangements involving the payment of fees to the QNTDB of the Construction and General Division, and the servicing of members by that Branch, including through the Queensland State Union, did not alter the fact that the members were attached to the Manufacturing Division, which was determined by the Rules of the Union.

118    Counsel for the applicant submitted that the northern New South Wales timber workers were financial members of the Manufacturing Division. Counsel relied on the 1998 Agreement, to which I referred at [88]-[89] above, as having the effect that the QNTDB was authorised to collect fees for the Manufacturing Division, and that this continued beyond April 2020, when the Queensland State Union undertook activities on its behalf under the administrative arrangements entered into under the service agreement to which I referred at [101]. Counsel submitted that these arrangements were authorised by National Rule 27(vii) (see [23] above) and that Mr O’Connor’s request for a list of members of the Manufacturing Division from the QNTDB database was consistent with this position. Against that background, counsel submitted that the northern New South Wales timber workers were to be treated as financial members of the Manufacturing Division, and that this was as a result of the operation of National Rules 7(v)(a) and (b) and 8(iv) which are set out at [36]-[38] and [40] above. Counsel further submitted that there was nonetheless an acceptance by the Manufacturing Division that the QNTDB of the Construction and General Division was authorised to represent and collect fees from timber workers. That was as a result of informal arrangements made between the various organs of the Union and was to be inferred from the correspondence in 2017, to which I referred at [97]-[99] above, which matter was not further pursued by Mr O’Connor. Counsel submitted that the existence of these informal arrangements was also supported by the fact that Mr O’Connor certified 79 Queensland-based timber workers as financial members of the Manufacturing Division (see [100] above).

119    Counsel for the applicant also submitted that the northern New South Wales timber workers were attached to the NSW District of the Manufacturing Division. In support of this submission counsel relied on Manufacturing Rule 5(iv) to which I referred at [45] above. Counsel submitted that because each of the northern New South Wales timber workers lived in New South Wales, as well as attaching to the Manufacturing Division, they were also allocated to the NSW District under the relevant Rules.

120    In relation to the rejection of the nominations for office of Messrs McHugh, Wimble, and Wilson, counsel for the applicant submitted that each was eligible for nomination, and that the rejection was in breach of the Manufacturing Rules. It was submitted that there was in consequence an irregularity because not all eligible candidates who had nominated appeared on the ballot.

121    It was submitted that in the case of each of the nominations of Messrs McHugh, Wimble, and Wilson, the same questions arise as those in relation to the northern New South Wales timber workers generally, that is, whether they were financial members of the Manufacturing Division in the NSW District. The same questions also arise in relation to the qualifications of the persons who nominated them.

The submissions of counsel for the first to fifteenth interested persons

122    Counsel for the first to fifteenth interested persons did not dispute that the 83 northern New South Wales timber workers were members of the Union. However, it was disputed that they were financial members of the NSW District of the Manufacturing Division. Counsel submitted that the 1998 Agreement, upon which counsel for the applicant relied, authorised only the collection of dues from members of the former FFTS Union Division in Queensland in return for servicing those members of the Union. The FFTS members fell within the eligibility criteria in National Rule 2(F), whereas the timber workers fell within National Rule 2(C). It was submitted that upon the FFTS Union Division becoming part of the Manufacturing Division, the authorisation effected by the 1998 Agreement was not thereby enlarged to members of the Manufacturing Division outside the eligibility criteria in National Rule 2(F).

123    In addition, counsel relied on the new arrangements brought about by the service agreement entered into with the Queensland State Union to which I referred at [101] above. Counsel submitted that this was a substantial and significant change to the arrangements made under the 1998 Agreement for the payment of dues, which was made without notice to, and without the knowledge of the Manufacturing Division. It was submitted that payments made to the Queensland State Union were not authorised under Manufacturing Rule 6(vii), and were therefore not made in discharge of the liability of members to pay contributions to the Manufacturing Division.

124    As to the submissions of counsel for the applicant that the Manufacturing Division had allowed a practice to develop such that the 1998 Agreement was not confined to FFTS members eligible under National Rule 2(F), counsel submitted that this amounted to a new argument. Counsel submitted that the circumstances around the new argument had not been addressed in evidence adduced on behalf of the applicant, nor had notice been given, and further submitted that the first to fifteenth interested persons had been denied an opportunity to investigate the facts alleged, and to adduce evidence. In those circumstances, it was submitted that the court should not entertain the argument.

125    By way of substantive response, counsel for the first to fifteenth interested persons submitted that the assumption that a worker given the classification of timber worker was necessarily outside the furnishing trades occupations, was unfounded. Counsel submitted that there was a lack of surrounding evidence from the officials from the Queensland Construction Branch, but that it was apparent from the terms of National Rule 2(F) that a number of jobs described therein might well be described as timber workers.

126    Further, counsel submitted that there was no evidence of any express agreement with the Manufacturing Division to expand the scope of the 1998 Agreement, nor of any variation or expansion of the 1998 agreement by mutual conduct or practice, and that the only evidence was of unilateral conduct by the QNTDB acting outside the scope of the terms of the 1998 Agreement. Counsel submitted that if the Queensland-based timber workers were not of a kind covered by National Rule 2(F) and they were being serviced by the QNTDB under the 1998 Agreement, then this was in breach of that agreement, and that their inclusion in the roll for the election may have constituted a different irregularity. Counsel submitted that in any event none of this provided any proper basis for finding that the northern New South Wales timber workers were able to be serviced under the 1998 Agreement. Counsel submitted that for these reasons the QNTDB had no authority under Manufacturing Rule 6(vii) to collect membership contributions from Manufacturing Division members resident in New South Wales, and further, that National Rule 7(v)(b) (see [37]-[38] above) did not have the effect that financial membership of the Manufacturing Division was effected by financial membership of the QNTDB. Rather, the provision deemed the validity of the allocation to an incorrect branch until the member was transferred to another branch in accordance with the Rules.

Northern New South Wales timber workers – consideration

127    I will consider in turn the eligibility of the northern New South Wales timber workers to vote in the Divisional elections, and then the validity of the nominations for election of Messrs McHugh, Wimble and Wilson. In doing so, it will be necessary to consider the operation of various of the National Rules and the Manufacturing Rules. To the extent that it is necessary to construe those Rules, the principles are not controversial, and they were addressed by the Full Court in O’Connor v Setka at [76]-[78]. A sensible and practical approach to the construction of the Rules is to be taken rather than a narrow or pedantic or technical approach: see, Amalgamated Society of Engineers v Smith (1913) 16 CLR 537 at 559 (Isaacs J). Allowance must be made for the fact that there are infelicities in the Rules that are the likely product of lay drafting, and the amalgamation of a number of unions over the years, which have resulted in compromises that are evident from the terms and structure of the Rules. A sensible and practical approach to construction will take account of this context and history. Nonetheless, the Rules are to be interpreted objectively, and in accordance with the ordinary rules that apply to the construction of written documents: R v Isaac; ex parte Transport Workers’ Union of Australia (1985) 159 CLR 323 at 340 (Wilson J), cited in O’Connor v Setka at [77]. These ordinary rules include at least the linguistic canons of construction such as the canon that a document is to be read as a whole.

128    The Union is a body corporate by operation of s 27(a) of the RO Act, but its Divisions, its Branches, and its Districts do not have their own legal identity: see, Williams v Hursey (1959) 103 CLR 30 at 54-55 (Fullagar J, Dixon CJ and Kitto J agreeing), 89-90 (Taylor J), 130 (Menzies J); Re McJannet; ex parte Minister for Employment, Training and Industrial Relations (Qld) (1995) 184 CLR 620 at 640-641 (Brennan CJ, Deane and Dawson JJ), 663 (Toohey, McHugh and Gummow JJ). The National Rules provide for the organisation of the Union by Divisions, and are the source of the authority of the Divisions to make further rules regulating the affairs of the Union.

129    There was no dispute that the northern New South Wales timber workers were members of the Union. Under the eligibility criteria in National Rule 2(C) they were correctly to be attached to the Manufacturing Division of the Union, and because they resided within New South Wales, they were deemed to be attached to the NSW District by operation of Manufacturing Rule 5(iv). This was not a matter of choice. Further, the Manufacturing Rules did not authorise its Queensland Northern Territory Western Australian District to consist of members residing outside those States and the Territory.

130    The demarcation of the Manufacturing Division into Districts has the purposes identified in Manufacturing Rule 18(i), namely for the organisation of the members of the Division and the provision of services to those members. Manufacturing Rule 37(1) makes provision for the election of shop stewards in workplaces, who must advise the District Secretary or the organiser of the relevant workplace of their appointment. Manufacturing Rule 37 also concerns the duties of shop stewards. Shop stewards are required, as far as possible, to assist in the resolution of any complaints or disputes at the workplace, and if unsuccessful, to refer any such matters to the District Secretary or organiser. The shop stewards are also required to report any breach or suspected breach of an agreement or award and all occupational health and safety incidents to the relevant District Secretary or organiser. Where no alternative arrangements have been determined by the Union, the shop stewards are to collect monies due to the Union by members in the workplace, and to pay those monies to the District Secretary within 14 days. Manufacturing Rule 21(i) provides that in the event of any industrial dispute taking place in any District, the officers of the District are, in the first instance, to try by conciliation to settle the dispute. Manufacturing Rule 35(A)(c) provides that it is a duty of members to attend the meetings of the District as often as possible, and to assist the officers to the best of the members’ ability. The Districts are not only geographical in nature, but include the PPW District to which I referred at [46] above. Manufacturing Rule 8 provides for the Divisional Conference to consist of delegations from each District. As I have mentioned, the size of the delegation depends in part on the aggregate income received by the Division in relation to members of that District (see [56] above). Manufacturing Rule 30 contains detailed provisions for District governance, and provides for District Management Committees, a District Executive, and District Officers. Manufacturing Rule 32(b)(iii)(A) provides a scale of the necessary financial membership of the District in order to qualify for nomination for District offices. There would be the possibility of significant disruption of the intended organisation and operation of the Manufacturing Division as provided for by its Rules if its members did not engage in the activities of membership within the District to which they are deemed to be attached under Manufacturing Rule 5(iv) (see [45] above).

131    At the times relevant to this inquiry, the Manufacturing Division of the Union in Queensland was serviced by the Construction and General Division. As I have mentioned, Mr O’Connor’s evidence was that there was a practice that timber workers who were resident in Queensland joined the QNTDB of the Construction and General Division because in a practical sense there was nowhere else for them to go. The 1998 Agreement, which provided for the provision of services to the FFTS Union Division in Queensland was consistent with the practice that was described by Mr O’Connor to the extent that it related to members of the furnishing trades. However, whatever express or implied administrative arrangements existed between the QNTDB of the Construction and General Division, and the Manufacturing Division, those arrangements did not extend to servicing members who, by the Manufacturing Rules, were deemed to be attached to the NSW District. Nor did those arrangements extend to receiving subscriptions or other like payments from any New South Wales-based members on behalf of the Secretary of the Manufacturing Division. As a result of correspondence that was sent to him by Mr O’Connor, Mr Menon should have been in no doubt that the recruitment of northern New South Wales timber workers to the QNTDB was opposed by the Manufacturing Division. Having said that, it was also the case that following Mr O’Connor’s correspondence in 2017 with the National Secretary of the Construction and General Division, Mr Noonan, Mr O’Connor did not pursue the matter further at the national level of the Union.

132    The focus of the terms of the purported resignations, set out at [90] above, was resignation from the NSW District. However, I do not consider that the resignations of the 83 timber workers in that form were effective as resignations from the NSW District of the Manufacturing Division. In relation to geographic Districts, the District to which a member of the Manufacturing Division attaches is determined by the member’s place of residence, and is not a matter of choice. National Rules 7(viii)(a) and (b) (see [39] above) provide procedures for transfer of members between Districts based on agreement between the Districts’ Secretaries. A separate transfer procedure is provided for in National Rule 10, specifically addressing circumstances where a member works within the area covered by another District. That procedure requires the production of a written clearance in order for the transfer to be effective, and in any event, was not invoked. The purported resignations from the NSW District did not engage these provisions, and were therefore ineffective.

133    There was some merit in the submission by counsel for the first the fifteenth interested persons at the hearing, that by their written resignations, the timber workers resigned from their membership of the Union and subsequently re-joined the Union in the Construction and General Division. However, given the terms of the resignations, which as I have said focused upon resignation from the District, I am not inclined towards the view that the 83 members resigned from membership of the Union. That the members were recorded on the records of the Union as being attached to the Manufacturing Division, which is developed at [138] below, does not support the proposition put. Moreover, the National Rules provide for membership of the Union to operate through membership of a single Division. That the Manufacturing Division organises its affairs by Districts, and deems members’ attachment to Districts by reference to their place of residence, is separate to and removed from membership of the Union. Later in these reasons I will consider the terms of the resignations of the three Victorian residents, Ms Brown, Mr Smart, and Mr Tester, who were ruled ineligible for nomination, where the question of resignation from the Union arises more forcefully.

134    However, I accept the submissions advanced on behalf of the first to fifteenth interested persons that none of the 83 northern New South Wales timber workers paid any contributions to the Manufacturing Division after 2017, and that any contributions that they did pay were paid to the QNTDB of the Construction and General Division, and more recently to the Queensland State Union, neither of which was authorised by the Manufacturing Division to receive contributions on its behalf. It follows that, subject to the applicant’s argument advanced in relation to the operation of National Rule 7(v)(b) which I will address below, the 83 timber workers were deemed by Manufacturing Rule 6(iv) to be unfinancial, and in any event were not financial members of the Manufacturing Division.

135    National Rule 7(v) is set out at [36]-[38] above. Counsel for the applicant relied on National Rule 7(v)(b) as validating the contributions made by the 83 timber workers, “to the extent that any validation is necessary”. However, counsel did not rely upon National Rule 7(v)(b) in isolation, or as a primary basis on which the 83 timber workers were to be regarded as financial members attached to the Manufacturing Division. Counsel for the applicant premised their reliance on National Rule 7(v)(b) upon there being valid administrative arrangements, permitted by National Rule 27(vii), under which the QNTDB of the Construction and General Division was alleged to be authorised by the Manufacturing Division to service the northern New South Wales timber workers, and to collect membership contributions. I have rejected those premises. However, for completeness, I will consider whether independently of that rejection, National Rule 7(v)(b) was effective to render the 83 timber workers financial for the purposes of exercising rights under the Manufacturing Rules.

136    The construction of National Rule 7(v)(b) is not straight-forward. Its purpose, evident from its text, is to ensure for the benefit of the Union’s members that disagreements within the Union about the assignment of members, and the incorrect allocation of members to Divisions, Branches or Districts, do not invalidate the members’ membership of the Union or their allocation to some part of it. The Rule contemplates that in the event of an incorrect allocation, members might be transferred between Divisions, Branches, and Districts in accordance with the Rules, which were the subject of the Full Court’s consideration in O’Connor v Setka.

137    The relevant part of National Rule 7(v)(b) is engaged if a member of the Union is: (1) on the records of the Union, financial; and (2) on those records, attached to a Division, Branch or District within a Division. In that case, the member is to be treated as a financial member “thereof”.

138    The term “records of the Union” is not defined by the National Rules. National Rule 12 indicates that the records include at least those records required to be kept by the RO Act and the Regulations thereunder. Under those provisions, the records of the Union that are required to be maintained include a register of members with details such as the members’ addresses (s 230), and financial records (s 237, ss 252-254). In this case, the records of the Union include the computer generated extracts from the membership records of the QNTDB that Mr Menon produced and to which I referred at [92] above. In respect of attachment to a Division, the records of the QNTDB record that the northern New South Wales timber workers were members of the Manufacturing Division. However, I am unable to conclude that the 83 timber workers were, on the records of the Union and for the purposes of National Rule 7(v)(b), financial members of the Manufacturing Division.

139    The National Rules do not contain a freestanding provision for determining whether a member is financial. Rather, it follows from the definition of “financial member” in National Rule 5 as being any member who has paid their contributions in accordance with the Rules of the Union, and from National Rule 8(i) which provides that contributions are payable in accordance with the rules of the Division to which the member is assigned, that to be financial for the purpose of National Rule 7(v)(b) is to be financial in accordance with the rules of the Division to which the member is assigned.

140    The records of the Union include the records held by the Manufacturing Division and its NSW District to which Mr O’Connor referred in his affidavit evidence as showing that there had been no payments to the Manufacturing Division by the 83 timber workers for at least the previous 24 months. The computer-generated records of the QNTDB that were produced used codes, some of which were explained, but there does not appear to be any code that specifically records any member as being financial in accordance with the Rules of the Manufacturing Division. Nor is it open to interpret the data in the QNTDB records as giving rise to an implied representation that the northern New South Wales timber workers were financial in accordance with the Manufacturing Rules. That is because, as I have found, the QNTDB of the Construction and General Division was not authorised to charge, or to receive contributions from the 83 northern New South Wales timber workers on behalf of the Manufacturing Division. Further, there are no records in evidence before the court that identify what contributions were fixed by the Divisional Executive of the Manufacturing Division as being payable by the 83 timber workers, and there are no records that evidence any such sums as having being paid by those workers to the Manufacturing Division. The evidence of Mr O’Connor, the Secretary of the Division, was to the contrary. In my judgment, the records of the Union do not show that the 83 timber workers were financial. Accordingly, National Rule 7(v)(b) was not engaged such as to require the 83 timber workers be treated as financial members of the Manufacturing Division.

141    For the above reasons, I am not persuaded that there was any irregularity in the exclusion of the 83 northern New South Wales timber workers from the roll of voters, and I am not persuaded that there was any irregularity in the rejection by the relevant returning officer of the nominations of Messrs McHugh, Wimble, or Wilson. That is because I am not persuaded that they were financial members of the Manufacturing Division for the purposes of the Manufacturing Division Rules. Because they were not financial members of the Division, they were ineligible for election as NSW District delegates: see Manufacturing Rule 6(v).

The Victorian-based nominees

142    The second topic that was the subject of the inquiry was the determinations by the relevant returning officer that three Victorian-based nominees for election were ineligible, namely: (1) Ms Kylie Brown; (2) Mr Benjamin Smart; and (3) Mr Adam Tester. The circumstances of each are as follows.

Kylie Brown

143    Ms Kylie Brown joined the Union in 2013 and was a member of the Manufacturing Division and its predecessor, the FFPD. In 2016, Ms Brown accepted a job as an organiser with the FFPD.

144    In August 2019, Ms Brown met with officers of the Construction and General Division of the Union as a result of which she was offered employment as an organiser in the Construction and General Division, working in the “off-site sector”. Thereafter, Ms Brown resigned her employment as an organiser in the Manufacturing Division and on 3 September 2019 commenced employment as an organiser in the Victoria-Tasmania Divisional Branch of the Construction and General Division. Ms Brown also purported to resign her membership of the Manufacturing Division by a written resignation dated 5 September 2019 which relevantly stated –

RESIGNATION

CFMEU – Manufacturing Division

If you are a member of another state or division, please contact them directly

Date:    5.9.19

Membership No:……………………….

Re: Membership Resignation

I ……KYLIE BROWN…….

Wish to resign from the CFMEU Manufacturing Division as I am

   Not Working in the Trade            

   Retired                                       

   Unemployed                               

   Other                                          

Signature: [Signed]

Please sign and return to:

 Mail:    CFMEU Manufacturing

    Membership Department

    L3, 540 Elizabeth Street

    Melbourne, VIC 3000

Email:    [redacted]@cfmeu.org

145    Ms Brown stated that on 5 September 2019 she applied for and was granted membership of the Construction and General Division, and then paid contributions to that Division. Mr O’Connor’s uncontested evidence was that the records of the Manufacturing Division showed that Ms Brown did not pay any membership dues to the Manufacturing Division between 11 September 2020 and 31 March 2021.

146    Ms Brown gave evidence that although she was employed as an organiser by the Construction and General Division, she attended sites to give representation to members of the Union who were eligible under National Rule 2(F), that is, members of the furnishing trades who were allocated to the Manufacturing Division. Soon after Ms Brown commenced her employment with the Construction and General Division, she started to recruit Union members who were with the Manufacturing Division, including some with whom she had contact and previously represented when she was employed as an organiser by the Manufacturing Division. Ms Brown gave evidence that following the Full Court’s decision on 11 November 2020 in O’Connor v Setka, she received a letter from the executive of the Construction and General Division stating that she was not to recruit any members of the Manufacturing Division or encourage them to go across to the Construction and General Division. In cross-examination, Ms Brown gave evidence that she also organised members of the Construction and General Division, which involved making regular visits to construction sites which were a mix of small and large sites, but predominantly large construction sites

147    In about February or March 2021, Ms Brown spoke with Mr Menon about the prospect that she might run for election in the Manufacturing Division as part of a ticket. Mr Menon told Ms Brown that she would need to be a financial member of the Manufacturing Division in order to run.

148    On 21 March 2021, Ms Brown applied online for membership of the Manufacturing Division. Ms Brown stated in her affidavit that she “paid the six months fees in advance”, and produced a receipt dated 21 March 2021 which stated –

Receipt for 6 months membership

paid upfront. The Sum of $561.00

149    In her application, Ms Brown nominated her employer as “Cfmeu (Onsite)”. On 26 March 2021, the Divisional Executive of the Manufacturing Division resolved to reject Ms Brown’s application for membership, and by letter of the same day Mr O’Connor advised Ms Brown of the rejection of her application, and that the membership dues would be refunded, which occurred a few days later. In his letter, Mr O’Connor pointed to Ms Brown’s employment as an organiser by the Victoria-Tasmania Divisional Branch of the Construction and General Division, and stated that her occupation was not within the eligibility rules for the Manufacturing Division.

150    On 2 April 2021, Ms Brown made a second online application to join the Manufacturing Division, stating that her employer was “Cfmeu”. On this occasion, Ms Brown effected an online payment of $53. Mr O’Connor wrote to Ms Brown by letter dated 6 April 2021 advising that her second application for membership was rejected because it disclosed no change of circumstances, and was covered by the resolution to reject her first application. Shortly afterwards, the online payment that Ms Brown had made was refunded.

151    Ms Brown did not seek to invoke Manufacturing Rule 5(iii) (see [43] above) by appealing the rejection of her applications for membership.

152    On 6 April 2021, Ms Brown was nominated for two positions within the Manufacturing Division: (1) Divisional Senior Assistant Secretary; and (2) District Secretary for Victoria. It appears that these offices are held by the one person, and they are currently held by Mr Leo Skourdoumbis.

153    On 13 April 2021, one of the returning officers wrote two letters to Ms Brown stating that her nominations were defective. The letters respectively stated that her nomination for the office of Divisional Senior Assistant Secretary did not comply with Manufacturing Rule 32(a)(i), and that her nomination for the office of District Secretary did not comply with Manufacturing Rule 32(b)(iii)(A) (see [58] above). Each letter stated that following a check of the relevant records of the CFMMEU, it appeared to the returning officer that –

(1)    Ms Brown’s nominations were defective because they did not comply with the Manufacturing Rule identified;

(2)    Ms Brown had not paid membership contributions due to the Division for the period of 11 September 2019 to 31 March 2021, thereby failing to meet the requirements of continuous financial membership in Manufacturing Rules 32(a)(i) and 32(b)(iii)(A); and

(3)    Ms Brown resigned her membership of the Manufacturing Division on 5 September 2019.

The letter in respect of her nomination for Divisional Senior Assistant Secretary further noted that –

4.    In March 2021 you made another application for membership, which was after the cut-off date for the roll of voters. This was rejected as were and that you continue to be employed as an organiser by the Victoria-Tasmania Divisional Branch of the Construction and General Division of the CFMMEU. This made you ineligible to be a member of the Manufacturing Division.

5.    That the Manufacturing Division do not have any record of membership of your 11 nominators as members of that Manufacturing Division and therefore may not be eligible to nominate.

154    The returning officer stated that she was required to give Ms Brown an opportunity to remedy the defect within a period of not less than seven days, and gave Ms Brown until 10.00 am on 20 April 2021. In response, solicitors acting for Ms Brown wrote to the returning officer on 19 April 2021 contesting the basis on which the nominations were disputed. By separate letters dated 12 May 2021, one of the returning officers rejected Ms Brown’s nominations for election. Her nomination for the office of Divisional Senior Assistant Secretary was rejected because materials supporting her contention that she was a financial member of the Manufacturing Division at the time of nomination had not been received. Similarly, her nomination for the office of District Secretary was rejected because materials supporting her contention that she was a member of the Manufacturing Division at the time of nomination. Ultimately, the slight difference in language of the two rejections was immaterial.

155    Throughout this period, Ms Brown continued to make financial contributions to the Construction and General Division through automatic payroll deductions. As to her reasons for doing so, in her affidavit Ms Brown stated that following the Full Court’s decision in O’Connor v Setka –

I continued to pay my membership fees to the Vic C&G as I did not think the order would affect me because I had assumed that whatever division you worked for was the one you were a member of.

156    As to Ms Brown’s reasons for continuing to make financial contributions to the Construction and General Division after she had taken steps to apply for membership of the Manufacturing Division, in her affidavit she stated –

I wanted to make sure that I was a financial member of the CFMMEU and was worried there might be a dispute, so I continued to have payroll deductions taken out by VIC C&G.

157    The submissions of counsel in relation to the eligibility of Ms Brown for nomination for election to offices of the Manufacturing Division were extensive, and out of deference to counsel, I will summarise the main points. However, in the result, it will not be necessary for me to resolve every disputed submission that was advanced.

Kylie Brown – submissions on behalf of the applicant

158    Counsel for the applicant submitted that the returning officer’s rejections raised two questions relevant to whether an irregularity had occurred. First, was Ms Brown a financial member at the time of nominations? And second, was she attached to the Manufacturing Division at the time of nominations? Counsel submitted that both those questions should be answered affirmatively.

159    Counsel for the applicant submitted that Ms Brown was a financial member of the Union at the time of nominations. Counsel submitted that Ms Brown had paid fees to the Construction and General Division because she was unaware of the change to her attachment. This submission was made on the premise that the effect of the Full Court’s decision in O’Connor v Setka was that Ms Brown was attached to the Manufacturing Division rather than the Construction and General Division, which was the subject of the second question posed by counsel for the applicant. Counsel relied on National Rule 7(v) to which I referred earlier, submitting that in these circumstances Ms Brown was “to be treated for all purposes as a financial member” of the Union.

160    As to the second question, counsel for the applicant relied on National Rule 2(F), which is set out in full at [29] above, submitting that Ms Brown fell within the eligibility criteria contained in the following extracts from National Rule 2(F) –

Without limiting the generality of any other sub-rule or paragraph or being limited thereby an unlimited number of persons who are employed in, or competent to be employed in or in connection with the following industries or trades are eligible to be members of the Union:

… together with such other persons, whether employees engaged in the industries or not, as have been appointed officers of the Union and admitted as members thereof, provided that a branch may issue a clearance to any member whom it may be considered should not retain his membership on the ground that he is working in an industry not governed by any awards of the Society.

(Emphasis added)

161    Counsel for the applicant submitted that given that Ms Brown organised workers in National Rule 2(F) roles, she was employed in connection with those industries or trades and, as an organiser, she satisfied the description of an “appointed officer of the Union”. To support this submission, counsel cited the decision of Gray J in Ransley v Australian Public Service Association (1985) 12 IR 55 at 65-66, and ss 6 and 9 of the RO Act which define, respectively, “officer” and “office”. The next step in the submissions was that the effect of the Full Court’s declaration in O’Connor v Setka, which is extracted at [67] above, was that Ms Brown was attached to the Manufacturing Division, regardless of to what Division she was actually assigned before that declaration. Counsel also submitted, to put it in a different way, that Ms Brown’s attachment to the Manufacturing Division was incompatible with attachment to any other Division of the Union, and that she must be taken to have impliedly surrendered, by operation of law, her membership of the Construction and General Division, citing Re Cholosznecki; Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union [2006] FCA 452; 151 IR 218 at [29]-[34] and [48] (Gray J) (Cholosznecki).

162    Counsel for the applicant submitted further, and in any event, that the failure of the Manufacturing Division to accept payment from Ms Brown in circumstances where she was attached to the Division as a result of the Full Court’s declaration in O’Connor v Setka, was also an irregularity. Counsel relied on the decision of Keely J in An Application by Howard, Laurence Francis for an inquiry into an election in the Slaters, Tilers and Roofing Industry Union of Victoria (1983) 72 FLR 411 (Re Slaters). In that case, Mr Howard had sought to maintain his financial status as a member of the Slaters, Tiling and Roofing Industry Union of Victoria, but had failed to do so because the secretary refused to accept his subscriptions. In that case, Keely J held that Mr Howard was not to be treated as being unfinancial in such circumstances and did not accept a construction of the relevant rules which resulted “in a member being deemed to be unfinancial where … he has offered his union dues to the secretary at the union office and the secretary has refused to accept the payment”: at 416.

163    Counsel for the applicant also addressed the requirements in Manufacturing Rule 32, set out under [58] above, as to the length of financial membership required for valid nomination. Manufacturing Rule 32(a)(i) requires a member of the Division to have had, at the time of nomination, three years financial membership in order to nominate for the position of Divisional Senior Assistant Secretary. Manufacturing Rule 32(b)(iii)(A) provides for a scale of financial membership for eligibility for nomination to District offices, and in the case of District Secretary (other than NSW District Secretary) requires three years financial membership. Counsel submitted that the relevant Rules did not require three years continuous financial membership up to the time of nomination. Counsel submitted that if continuous financial membership was required, then the Rules would have said so, and pointed to the express reference to continuous membership in Manufacturing Rule 28(x) –

28 – UNEMPLOYED MEMBERS

…

(x)    Continuous membership for the purpose of this Rule, and wherever encountered in these Rules, means continuous membership without any break in the continuity of membership from the last date of acceptance into the Division.

164    It is convenient to note here that Manufacturing Rule 28(x) is a cul de sac, because there is no other reference to “continuous membership” in the Manufacturing Rules. The term “continuous membership” is, however, employed in National Rule 8(i), which is set out at [53] above. There is another reference to “continuous membership” in National Rule 17(iv)(f), but that Rule does not apply to the Manufacturing Division.

Kylie Brown – submissions on behalf of the first to fifteenth interested persons

165    Counsel for the first to fifteenth interested persons submitted that National Rule 7(v)(b) did not have the effect for which counsel for the applicant contended in relation to Ms Brown. Counsel submitted that the purpose of National Rule 7(v) is to validate the incorrect allocation of a member to a part of the Union. Counsel submitted that it proceeded on the premise of financial membership in that other part of the Union, and on that condition deems a member to be validly in the wrong Division, Branch, or District until transferred to the correct Division, Branch, or District in accordance with the Rules. Counsel submitted that the Rule does not assist Ms Brown. In particular, it was submitted that National Rule 7(v)(b) does not have the effect that the payment of contributions by Ms Brown to the Construction and General Division rendered her a financial member of the Manufacturing Division.

166    As to the question of Ms Brown’s eligibility for membership of the Manufacturing Division, counsel for the first to fifteenth interested persons submitted that Ms Brown’s recruitment and organisation of members of the Manufacturing Division while employed as an organiser by the Construction and General Division was outside the Rules of the Union and, in particular, was inconsistent with the autonomy of the Divisions established by National Rule 27(ii)(a) (see [20] above) to decide matters affecting the industrial interests of their members without interference by any other body within the Union. Counsel submitted that the applicant could not rely upon Ms Brown’s deliberate, contravening conduct to claim attachment to the Manufacturing Division, to which she had no other connection.

167    Counsel further submitted that in any event the construction of National Rule 2(F) advanced on behalf of the applicant was incorrect. To the extent that the applicant had submitted that Ms Brown’s employment was “in connection with” the industries or trades described in National Rule 2(F), counsel submitted that this construction was contrary to authority. Counsel relied on the decision of the Full Court of the Commonwealth Industrial Court in Rounsevell v Mitchell (1968) 11 FLR 414 at 430, which had rejected a similar submission, holding that a person employed on the staff of an organisation to handle industrial matters arising in respect of union members was not employed in connection with the industries or callings of the members.

168    As to the phrase in National Rule 2(F), “together with such other persons, whether employees engaged in the industries or not, as have been appointed officers of the Union and admitted as members thereof…”, on which counsel for the applicant relied, counsel for the first to fifteenth interested persons submitted that the phrase must be construed in context, including its history. Counsel submitted that National Rule 2(F) was introduced into the Rules of the Union when the FFTS amalgamated with the CFMEU, and it was a verbatim transfer of the eligibility rule of the FFTS into National Rule 2(F). Having regard to this history, it was submitted that properly construed in context, the reference in National Rule 2(F) to “Officers of the Union” is a reference to the officers of the FFTS Union or its successors within the Union, now the Manufacturing Division. Counsel submitted that this construction was also supported by the reference to “the Society” in the last line of National Rule 2(F). Counsel submitted that to construe National Rule 2(F) as rendering eligible persons employed by other Divisions of the Union would lead to capricious and absurd results.

169    Counsel also submitted that Ms Brown’s employment made her eligible to join the Construction and General Division. National Rule 2(A)(A) describes the industries, occupations, callings, vocations and industrial pursuits of persons that attract attachment to the Construction and General Division, and include –

…together with such other persons whether employees in the industry or not as have been appointed officers of the Union …

170    Counsel submitted that Ms Brown fell within these eligibility criteria, and that she has been a member of the Construction and General Division since 5 September 2019.

171    Counsel submitted that the applicant’s reliance on the declaration by the Full Court in O’Connor v Setka to support Ms Brown’s eligibility was misplaced. It was submitted that the declaration of the Full Court had to be read in its context. Counsel submitted that the effect of the declaration was not that every member eligible for membership of the Union under National Rule 2(F) was immediately attached to the Manufacturing Division. Rather, counsel submitted, the declaration made by the Full Court determined the controversy as to which Division had coverage of members of the Union falling within National Rule 2(F), and did not determine further issues such as whether any members in the Construction and General Division should be transferred to the Manufacturing Division, which was remitted to the primary judge: see, O’Connor v Setka at [138]-[139]. Counsel further submitted that the construction of the declaration advanced on behalf of the applicant would sit uncomfortably with National Rule 7(v)(b) which validates the allocation of a member to the wrong part of the Union.

172    Counsel for the first to fifteenth interested persons submitted that in any event, the Full Court’s declaration in O’Connor v Setka has no relevance to Ms Brown, as she was not a party to that proceeding, and because the controversy before the Full Court was whether the Construction and General Division was entitled to cover workers engaged in the occupations of cabinet maker, glazier or floor laying under National Rule 2(F).

173    As to the applicant’s submission that Ms Brown was a financial member of the Manufacturing Division because she had tendered the relevant membership contributions, counsel for the first to fifteenth interested persons submitted that the only payments that were made by Ms Brown to the Manufacturing Division were payments in respect of fresh membership applications which had been rejected on the ground that Ms Brown was not eligible to join the Manufacturing Division. For this reason it was submitted that Re Slaters was distinguishable because, in contrast to the situation of Mr Howard in Re Slaters, Ms Brown was not a member of the Manufacturing Division, and nor was she eligible to become one.

174    Counsel submitted further that Ms Brown was ineligible for nomination as a candidate for election to office in the Manufacturing Division because she did not have three years continuous membership of the Manufacturing Division or its Victorian District as required by Manufacturing Rule 32(a)(i). Counsel submitted that an examination of Manufacturing Rule 32 shows that the requirements for periods of financial membership for nomination to the various offices has been graded according to the seniority and significance of the offices in question. It was submitted that the grading is a reflection of the evident purpose of the Rule, which is to limit eligibility for holding significant offices in the governance structure of the organisation to members who have, in effect, served a qualifying period in the Division or District at the time of nomination. Counsel submitted that the only sensible and rational reading of the Rule having regard to its evident purpose, is that the requirement is for three years continuous financial membership at the time of nomination.

Kylie Brown – analysis

175    The question in issue is the qualification of Ms Brown for nomination for election to office in the Manufacturing Division. That issue arises across both the nomination for the office of Divisional Senior Assistant Secretary and the office of Victorian District Secretary. That is to be determined principally by reference to the terms of Manufacturing Rule 32 which affects the rights of members of the Manufacturing Division. The qualifications that are required in order to be nominated under Manufacturing Rule 32 include that the person be a member of the Division who is financial. Although National Rule 7(i) (see [34] above) provides for membership of the Union, the Manufacturing Rules make extensive references to membership of the Division, and the terms “member” and “membership” are defined by reference to membership of the Division (see [52] above).

176    The concept of membership of the Manufacturing Division should be given a practical operation consistently with the principles of construction to which I referred at [127] above. On this approach, membership is concerned with membership of the Union coupled with attachment to the Manufacturing Division in the sense of allocation to the Division in accordance with the Rules of the Union, as discussed by the Full Court in O’Connor v Setka. Membership is not achieved merely by eligibility to be admitted for membership of the Union within the Division, or eligibility to be transferred to the Division, on the basis of objective attachment to the Division under Manufacturing Rule 2 and National Rules 2(C), (F), and (R). To that extent, I do not accept the submissions of counsel for the applicant that attachment to the Manufacturing Division is achieved only by engaging the eligibility criteria in National Rule 2(F).

177    The members of the Manufacturing Division include at least those members of the Union who: (1) have been accepted as members of the Manufacturing Division under Manufacturing Rule 5; (2) have been transferred to the Manufacturing Division under the procedures set out in National Rule 7(viii); (3) made an application to an officer of the Union who is attached to the Manufacturing Division, until transferred in accordance with the Rules (see the proviso to National Rule 7(i)); and otherwise (4) are financial and who on the records of the Union are attached to the Manufacturing Division, in which case the record is “conclusive proof” of the Division to which a member is assigned, and under the Rules of the Union the member is to be treated for all purposes as a financial member thereof (see National Rules 7(iv) and 7(v)(b) set out at [24] and [38] above).

178    At the time she joined the Union, Ms Brown was working in a pulp and paper mill, and no question of her eligibility at that time to become a member of the Union, attached to the FFPD, arises. I find that at least until 5 September 2019, Ms Brown remained a member of the Union who was attached to the Manufacturing Division, which is supported by the records of the Manufacturing Division that were referred to in evidence.

179    Applying the decision of the Full Court in O’Connor v Setka, which I summarised at [66] above, it was not in accordance with the Rules of the Union for Ms Brown, while remaining a member of the Union, to resign her membership of the Manufacturing Division and to join the Construction and General Division. Nor was it in accordance with the Rules of the Union for the officials of the Construction and General Division to treat Ms Brown as a member of the Construction and General Division while she remained attached to the Manufacturing Division. The Rules of the Union provided for a process for the transfer of members between Divisions which was not adopted in the case of Ms Brown, in that there is no evidence of consultation or agreement between the Divisional Secretaries as contemplated by National Rule 7(viii).

180    The decision of the Full Court in O’Connor v Setka that it was not in accordance with the Rules of the Union for a member to resign from a Division, or for transfers of members between Divisions to occur without going through the processes such as those in National Rule 7(viii), was subject to an important qualification, namely that it was not open to a member to do so, “while that person remains a member of the Union”: see O’Connor v Setka at [88] and [93].

181    I find that by her resignation notice dated 5 September 2019, to which I referred at [144] above, Ms Brown resigned from the Union. I make that finding for the following reasons –

(1)    The capacity in which Ms Brown was a member of the Union at the time of her resignation was as a member attached to the Manufacturing Division.

(2)    The Manufacturing Rules made no provision for resignation from the Manufacturing Division, or the Union. Where, relevantly, the Manufacturing Rules accommodate resignation, they refer to resignation from the organisation: see Manufacturing Rules 6(ix), 37(5)(a).

(3)    Only the National Rules provide for resignation, and in doing so, they provide for resignation from the Union.

(4)    Resignation from the Union is effected by giving written notice to the Division. National Rule 11(1), to which I referred at [49] above, provides that a member may resign from membership of the Union by a written notice addressed and delivered to the District Secretary or other office of the District authorised to receive such correspondence.

(5)    On its text, the written resignation that Ms Brown submitted is reasonably to be construed as a resignation from the Union. That construction is informed by its subject line, being “Membership Resignation”, the centrality of the references to the Union, and the bold emphasis added to references to the “CFMEU”. Curiously, the resignation form appeared to bear the logo of the Victoria-Tasmania Branch of the Construction and General Division, though the court was not addressed on the origin of the form or the significance of the logo. The written resignation remains to be evaluated objectively, in accordance with its text.

(6)    The contrary view, namely that the completed form was only in furtherance of a purported resignation from the Division, is not to be preferred when the Manufacturing Division Rules made no allowance for a resignation of that type.

182    In the above circumstances, where there was an express resignation of Union membership, it is unnecessary to consider a further possibility, which is that by operation of the principle of implied surrender, there was by operation of law a cessation of Ms Brown’s membership of the Union when she attempted to join the Union as a member of the Construction and General Division: see, Cholosznecki at [49]-[52].

183    Upon resigning, Ms Brown then re-joined the Union, and was accepted as a member of the Construction and General Division. That inference arises from Ms Brown’s direct evidence that she was a member of the Construction and General Division, and that she paid and continued to pay membership contributions to that Division by payroll deduction. I infer from Ms Brown’s evidence of payroll deductions that the records of the Construction and General Division recorded Ms Brown as being attached to that Division at the time of her applications for membership of the Manufacturing Division, and at the time of her nominations for office in the Manufacturing Division. Those records were, under the Rules of the Union, conclusive proof of the Division to which Ms Brown was assigned, and by operation of National Rule 7(v)(b) Ms Brown was to be treated for all purposes as a financial member of the Construction and General Division until transferred in accordance with the Rules.

184    Therefore, at the time of Ms Brown’s nominations for election to offices in the Manufacturing Division she was not a member of the Manufacturing Division. Ms Brown’s applications for membership of the Union in the Manufacturing Division had not been accepted, she had not been transferred to the Manufacturing Division in accordance with the National Rules, and otherwise on the records of the Union she was not attached to the Manufacturing Division. It follows that the related question whether Ms Brown was a financial member of the Manufacturing Division is also resolved adversely to the applicant. The membership contributions that Ms Brown paid at the time of her applications for membership were refunded by the Division because her applications were rejected. There was no suggestion that the rejections were not in good faith. On the contrary, the rejections appear to have been well-founded. The present case therefore bears no relevant similarities to the circumstances considered in Re Slaters on which counsel for the applicant relied.

185    Counsel for the applicant relied on the decision of Gray J in Cholosznecki to support a submission that upon attempting to acquire membership of the Manufacturing Division, Ms Brown’s membership of the Union through the Construction and General Division was automatically vacated: see Cholosznecki at [51]. I do not find it necessary to address that submission, which involves some difficult concepts that would, as Gray J recognised in Cholosznecki at [49] and [50], have to be subject to any express provisions of the Rules of the Union, which in this case include at least National Rule 7(v)(b) to which I have referred, and possibly the entire matrix of the Rules of the Union. I observe that in Cholosznecki, rule 5.1.4 of the union rules in issue provided that upon resignation from a division, a member was deemed to have resigned from the union. Other questions arise, including what is to happen if an attempt to re-join a union is, as was the case here, unsuccessful. Is the former membership revived by operation of law? None of these complex issues was developed in argument, and it is undesirable that they be explored when they are unnecessary for my decision. Assuming, contrary to my finding, that upon attempting to re-join the Union through the Manufacturing Division that Ms Brown ceased to be a member of the Union attached to the Construction and General Division, on no view did she succeed in re-joining the Union as a member of the Manufacturing Division.

186    On the above analysis, it is also unnecessary for me to decide whether Ms Brown was, under the eligibility rules of the Union, entitled to be attached to the Construction and General Division, or to the Manufacturing Division, or to some other Division, or was even entitled to membership of the Union. These questions were not addressed in sufficient detail for me to offer any final view. It was submitted that questions arise as to the construction of the word “Union” in the phrase “officers of the Union” and other like expressions in National Rule 2(E)(a) (which is picked up by the Construction and General Division Rules), and National Rules 2(C)(iii), 2(F) and 2(R)(m) (which are picked up by the Manufacturing Rules). There was much merit in the submission that “Union” in National Rules 2(C)(iii), 2(F) and 2(R)(m) should be construed as referring to the Manufacturing Division, being the relevant Division of the Union which picks up the eligibility criteria. The main reason why this construction has merit is that there are corresponding provisions relating to officers of the Union in other eligibility criteria that are picked up by the Rules of other Divisions, including National Rules 2(E), 2(D), 2(S)(a)(v), 2(S)(b)(v), and 2(S)(c)(iii). It would lead to anomalous, if not absurd results, if these provisions were not construed as applying to officers of the relevant Divisions, which is a construction that is available having regard to the history of amalgamations and the way the Rules came to be formed. Further, additional questions may arise as to whether Ms Brown, as an employed organiser of the Construction and General Division, was appointed to any office of the Union. The word “office” is defined by National Rule 5 as “having the same meaning as defined by s 9 of the RO Act”, and I am of the tentative view that “officer” in the Rules should have a corresponding meaning. I was not taken in argument to the numerous components of s 9 of the RO Act, or the evidence with a view to identifying whether or not Ms Brown was the holder of any office in relation to the Union.

Mr Smart and Mr Tester – internal communications in relation to arrears

187    Before turning to the evidence concerning Mr Smart and Mr Tester, I will address the evidence of internal communications within the Manufacturing Division on 25 March 2021 relating to how the arrears of members who sought to return to the Manufacturing Division after purporting to join the Construction and General Division should be treated. The communications occurred in conversations between the Divisional Secretary, Mr O’Connor, Mr Steven Abboushi, and Mr Leo Skourdoumbis, each of whom gave evidence. Since 9 July 2021, Mr Abboushi has held the office of Victorian District Assistant Secretary of the Manufacturing Division of the Union, prior to which he was employed as a Senior Organiser in the Victorian District. Mr Abboushi stated that at the time of the relevant conversations he was the main official who assisted the membership department with queries from members. Mr Skourdoumbis is and was at the relevant time the Senior Divisional Assistant Secretary and the Secretary of the Victorian District of the Manufacturing Division.

188    Each of Mr O’Connor, Mr Abboushi and Mr Skourdoumbis gave evidence of a conversation that they had in late March 2021 in which they agreed that members seeking to return to the Victorian District of the Manufacturing Division would be required to pay fees for the upcoming term, and that outstanding fees would not be waived and would remain on the system. Mr O’Connor stated, and I accept his evidence, that the reason for this approach was that it was proposed that the Manufacturing Division would seek to recover the arrears payable by these members from the Construction and General Division. In this regard, it is to be noted that one of the orders sought by Mr O’Connor in the notice of appeal in O’Connor v Setka was that the respondents to that appeal remit contributions collected from any Manufacturing Division members since August 2019. I accept that this was the substance of the conversation. That finding is supported by the evidence of surrounding circumstances, including the evidence of the office manager, Ms Maria Kaplanis, who deposed to a conversation with Mr Abboushi on 25 March 2021 between approximately 3:00 pm and 3:30 pm in which she was informed of the discussion between Mr Abboushi, Mr O’Connor, and Mr Skourdoumbis. Ms Kaplanis gave evidence that, on instruction from Mr Abboushi, she then sent an email to the membership officers of the Manufacturing Division, copied to Mr O’Connor, Mr Abboushi, and Mr  Skourdoumbis, in which she stated –

I have had a discussion with Steve in relation to ex-members who may want to recommence their membership or join.

These members may be from the poached members list or members who have not paid for a period of time.

Can you please accept the members application/rejoin, charge them only this term and DO NOT wipe any outstanding fees that they may owe.

Also please advise both Steve and Leo and cc me into the email about any members that fall into this category.

Information to be provided please:

•    Name of member

•    Previous employer

•    Existing employer

Any issues with the above, please let me know.

189    Mr Skourdoumbis accepted in cross-examination that the contents of the above email were an accurate reflection of what had been decided.

Benjamin Smart

190    Mr Benjamin Smart is a self-employed floor covering installer and floor layer. Mr Smart first joined the Union in about 2000, and was at that time attached to the FFTS Union Division. In 2009, Mr Smart left Australia for England, returning in 2010, when he re-joined the Union and became attached to the FFPD Division. In 2014, Mr Smart returned to England before returning to Melbourne again in 2017 where he recommenced work as a floor layer, re-joined the Union, and was attached to the FFPD.

191    On 24 September 2019, Mr Smart submitted a written resignation to the Manufacturing Division, which was in substantially the same form as the resignation submitted by Ms Brown. The text of Mr Smart’s resignation was as follows –

CFMEU – Manufacturing Division

If you are a member of another state or division, please contact them directly

Date:    24.9.19

Membership No:…S04695

Re: Membership Resignation

I ……Benjamin Smart…….

Wish to resign from the CFMEU Manufacturing Division as I am

   Not Working in the Trade            

   Retired                                       

   Unemployed                               

   Other                                         

Signature: [Signed]

Mail:    CFMEU Manufacturing

     Membership Department

     L3, 540 Elizabeth Street

     Melbourne, VIC 3000

Email:    [redacted]@cfmeu.org

192    Mr Smart gave evidence that he thereupon joined the Construction and General Division, paying contributions to that Division until 15 October 2020, and remaining financial until 31 March 2021, because contributions were paid six months in advance. Mr Smart’s resignation was one of a number of resignations from the Manufacturing Division at about that time, and was brought about as a result of conversations between him and Ms Brown.

193    Mr Smart stated in his affidavit that as a consequence of becoming aware of the Full Court’s decision in O’Connor v Setka, he thought that he would have to “re-join” the Manufacturing Division. In cross-examination, Mr Smart stated that he was trying to work for another shop which was affiliated with the Manufacturing Division, which I understood to mean a shop that had an enterprise agreement supported by the Manufacturing Division, and he stated that for that reason he had to sign up with the Manufacturing Division. However, he also maintained that his understanding of the decision in O’Connor v Setka was that he was not entitled to remain with the Construction and General Division, and it is also clear that Mr Smart was intending to stand for election as part of the ticket that Mr Menon was seeking to organise.

194    Mr Smart requested his wife, Ms Emma Smart, to contact the Manufacturing Division about “re-registering” and to inquire as to his arrears since leaving the Manufacturing Division. Mr Smart stated that his wife later told him that Mr Abboushi of the Manufacturing Division told her that his arrears had been waived, and that he was only required to pay a “joining fee” of $495, which was paid on 25 March 2021. Mr Smart stated that following that payment, and the waiver of the arrears by Mr Abboushi, he believed that he was a financial member.

Evidence of Emma Smart

195    Ms Smart stated in her affidavit that she telephoned the office of the Manufacturing Division and spoke to a lady about Mr Smart’s registration. The lady to whom Ms Smart spoke was Ms Thuy Bui, who gave evidence about the conversations, which I find occurred on 25 March 2021. Ms Smart was told that her husband’s account was in arrears, and that from 30 October 2018 to the day of the telephone call Mr Smart owed about $1,454.30. Ms Smart stated in her affidavit that she asked Ms Bui if the amount owed could be waived, and Ms Bui responded by stating that she did not have the ability to do so, and that it was “in Steve’s discretion”, referring to a person whom Ms Smart subsequently ascertained was Mr Abboushi. Ms Bui provided Ms Smart with Mr Abboushi’s telephone number. When pressed in cross-examination about her recollection of the words used in this conversation, Ms Smart stated –

I clearly remember her saying I would need to speak to Steve to have the arrears [waived], removed, not paid, my - - -

… which is why I spoke to Steve.

196    Ms Smart then telephoned Mr Abboushi. Ms Smart stated in her affidavit that she recalled that Mr Abboushi was on his mobile telephone and that he was driving. Ms Smart recalled Mr Abboushi stating, “Ben did the wrong thing by resigning”, “floor layers are really lucky”, and “we had people stay back on board”. Ms Smart said that she told Mr Abboushi that he should save those comments for her husband, and that she just wanted to get the money sorted.

197    Ms Smart stated in her affidavit that at first Mr Abboushi told her that Mr Smart might have to pay the money that he owed. Ms Smart then stated that she told Mr Abboushi that she wanted to have the $1,454.30 waived, and that it was unrealistic to expect a member to pay that amount of money during the pandemic. Ms Smart stated that Mr Abboushi responded by stating he did not expect Mr Smart to pay the $1,454.30, and told her that he had decided that Mr Smart did not have to pay the sum of $1,454.30, but only the sum of $495 going forward. Save for the comments referred to in the previous paragraph, Ms Smart did not set out her conversation with Mr Abboushi in her affidavit in direct speech. She stated the she was on the telephone to Mr Abboushi for about 15 minutes all up.

198    In cross-examination, it was put to Ms Smart that what Mr Abboushi had said was that Mr Smart could re-join without first paying the arrears –

Q:    I suggest to you that Steve said you could re-join without first repaying the arrears, and you would only have to pay the $495 for the current term. I suggest to you that’s what he said to you?

A:    He certainly cut the conversation by saying I wouldn’t have to pay the [1454.30] – by which, I was relieved.

199    Ms Smart stated that after she spoke to Mr Abboushi, she contacted the office of the Manufacturing Division again, and spoke to the lady to whom she had spoken earlier (who was Ms Bui). Ms Smart stated that she told Ms Bui that she had spoken to Mr Abboushi who had said that Mr Smart did not have to pay all the money owed. Ms Smart stated that she then paid the sum of $495 over the telephone by credit card, that she was told that Mr Smart was now “all paid up”, that she was given a receipt number, and was told that Mr Smart should expect to receive his union card or registration number in the post.

200    In cross-examination, it was put to Ms Smart that she was not told that Mr Smart was “all paid up” in the sense of having paid arrears –

Q;    Now, I suggest to you that the woman did not tell you, after you paid the 495, that Ben was all paid up in the sense of having paid up his arrears. That’s correct, isn’t it?

A:    She – I paid the 495, and that’s all I had to pay, correct.

Q:    And that you were all paid up for that?

A:    I was all paid up for Ben’s account.

Q:    Well, she didn’t - - -?

A:    Which is why my text message – I don’t know what she said. But in my text message to Ben, I explained where we were at, and I think I say 495, receipt number.

Q:    Correct. And you say, paid to 30 September?

A:    Yes.

Q:    And that’s correct, because that’s what you were paying. You were paying from April to September?

A:    Yes.

201    Ms Smart produced some screen shots of text messages that she exchanged with Mr Smart that support her evidence that she was told that the amount outstanding was $1,454.30, and that a “re-join fee” was $495. The text messages do not expressly record any representation that the Manufacturing Division agreed to waive the sum of $1,454.30. Ms Smart also produced a page from a diary which contained miscellaneous handwritten notes. The notes support Ms Smart’s evidence that she was told that “$1,454.30 + 495” was outstanding. It was not submitted that any part of the notes recorded a representation that the arrears would be waived.

Evidence of Thuy Bui

202    Ms Bui has been employed as a membership officer by the Manufacturing Division of the Union since 2018, prior to which she was employed as a membership officer by the Textile Clothing and Footwear Union before its amalgamation with the Union.

203    Ms Bui confirmed that she had two telephone conversations with Ms Smart. In relation to the first conversation, Ms Bui confirmed that she told Ms Smart that Mr Smart had arrears owing. However, she denied that she said that it was in Mr Abboushi’s “discretion” to waive the arrears that were owing.

204    Ms Bui stated that about an hour after her first conversation with Ms Smart she received two text messages from Mr Abboushi, which she produced, and which stated –

Ben Smart wife will call now to pay $495

Don’t wipe the arrears

205    Ms Bui disputed the accuracy of Ms Smart’s account of their second telephone conversation. Ms Bui’s account in her affidavit was as follows –

Emma told me that she “would like to pay”. I responded to this by saying words to the effect: Steve has told me that you need to pay $495. I did not tell her that [Mr] Smart did not have to pay all the money owed. Also, I did not tell her that [Mr] Smart “was all paid up”.

206    Ms Bui recorded in the Division’s membership records the following, which she produced –

Steve agreed for mbr to pay for the new term 1/4/21 to 30/9/21, keep the arrears (C&G will have to pay) - TB.

207    Ms Bui stated that she inserted the reference “C&G will have to pay” because at the time she was aware that there was a case in the court about these members and in that case the Manufacturing Division was claiming that the Construction and General Division should pay to the Manufacturing Division the contributions which had not been paid by Manufacturing Division members who had been poached by the Construction and General Division.

208    The membership record is time-stamped at 11:00, and I find that Ms Bui’s conversations with Ms Smart occurred in the morning. Ms Bui confirmed by an internal email sent on the afternoon of 25 March 2021 at 3:52 pm that Ms Smart had paid $495. In relation to both Mr Smart and Mr Tester, to whom I will refer later in these reasons, Ms Bui stated in the email –

This morning 2 Floor Layer ex-members (C&G poached) below contacted us to re-join. Steve already spoke to them and advise me to charge them the term of 1/04/2021 to 30/09/2021 & keep their arrears for future reference.

209    Ms Bui was cross-examined about what she told Ms Smart in relation to the arrears –

Q:    And did you tell her that she only had to pay four hundred – or that her husband had to pay $495?

A:    I think – yes. I said to her she – she had to [pay] 495, yes

Q:    Did you tell her that if she paid $495 her husband would still be unfinancial? Let me put it another way, Ms Bui. Did you tell her that the arrears would stay on the books if she only paid the $495?

A:    No, I didn’t say that.

Evidence of Steven Abboushi

210    In relation to the evidence of Ms Smart, Mr Abboushi stated that he could not recall a conversation with Ms Smart on 25 March 2021. However, in view of other evidence, he accepted that he had spoken to Ms Smart. As to what he said, although he could not recall speaking to Ms Smart, he asserted the following in his affidavit –

… However, I am sure that in neither of my conversations with Tester or any other members did I agree to waive any arrears of contributions and that is because of the matters in paragraphs 27-29 above. I am sure that if I had made a decision contrary to the above non-waiver policy I would definitely have remembered it.

211    The matters in “27-29 above” to which Mr Abboushi referred were his conversation with Ms Kaplanis, and Ms Kaplanis’s email of 25 March 2021, to which I referred at [188] above.

212    In cross-examination, Mr Abboushi confirmed that he had no recollection of the telephone conversation with Ms Smart, and the following exchange occurred –

Q:    All you can say is what you think might have happened based upon what you think – what you now know?

A:    That’s right.

Nomination of Benjamin Smart for election

213    Mr Smart’s endeavours to renew his financial association with the Manufacturing Division coincided with his nomination for election. Mr Smart sought to run for election as part of the “Members First” ticket with which Mr Menon and Ms Brown were involved, and on 1 April 2021, Mr Smart was nominated for the office of Divisional Assistant Secretary. Mr Smart’s nomination was signed by Mr Menon as one of the nominators.

214    On 13 April 2021, one of the returning officers wrote to Mr Smart stating that his nomination was defective because it did not comply with the requirements of Manufacturing Rule 32(a)(i), stating –

1.    You have not paid membership contributions due to the Division for the period of 1 April 2019 to 31 March 2021.

2.    Therefore, you do not satisfy the requirement in rule 32(a)(i) of having continuous financial membership of the Division during the last 3 years.

3.    Further that on 24/09/2019 you resigned [from] the membership of the Division

4.    That you have not made a further application for membership since your resignation, instead you made a payment on 25 March 2021 for the period of 1 April 2021 to 30 September 2021.

5.    Your resignation and failure to make a further application for membership in accordance with the rules is evidence that you are not a member of the Division.

215    Solicitors acting on behalf of Mr Smart responded to the returning officer by letter dated 20 April 2021, disputing that his nomination was defective, including by submitting that the three years financial membership required by Manufacturing Rule 32(a)(i) did not have to be continuous.

216    Subsequently, on 11 May 2021, one of the returning officers wrote to Mr Smart stating that his nomination for election to the office of Divisional Assistant Secretary had been rejected because he had not provided the returning officer with information that satisfied her that he was eligible to stand for office.

Benjamin Smart – analysis

217    Before analysing the legal consequences of the dealings between Mr Smart and the Manufacturing Division, and whether he was a financial members at the time of his nomination for election, it is necessary to make some findings of fact.

218    First, I find that by his resignation dated 24 September 2019, Mr Smart resigned from the Union. My reasons for that finding are substantially the same as those which I identified at [181] in relation to the resignation of Ms Brown. It is likely that Mr Smart then re-joined the Union by applying for, and then being accepted as a member of the Construction and General Division. The resignation aside, all the evidence points to Mr Smart being eligible for attachment to the Manufacturing Division by operation of Manufacturing Rule 2, and National Rule 2(F). However, on the assumption that he was accepted as, and became a financial member of the Construction and General Division, then it would appear that the effect of National Rule 7(v)(b) would have been to validate his membership of the Construction and General Division subject to any agreement or determination under National Rule 7(viii) to transfer Mr Smart to the Manufacturing Division, and subject to any order that the court might make exercising powers under s 164A of the RO Act to rectify the breaches of the Rules of the Union that the Full Court in O’Connor v Setka found that the respondents to that appeal had committed.

219    Second, I find that the conversations that Ms Smart had with Ms Bui and Mr Abboushi occurred on the morning of 25 March 2021. That finding is supported by the content of the internal email sent by Ms Bui to which I referred at [208] above, which referred to the two members contacting her in the morning. In relation to Mr Tester, it is also supported by Ms Bui’s direct evidence of her recollection that the conversation occurred in the morning.

220    There was no direct evidence as to when on 25 March 2021 the discussion between Mr O’Connor, Mr Abboushi, and Mr Skourdoumbis took place concerning the policy that would be adopted on arrears owing by members who had purported to join the Construction and General Division. Neither Mr O’Connor nor Mr Skourdoumbis identified a precise day on which the discussion took place, and while Mr Abboushi stated that the discussion took place on 25 March 2021, he did not state at what time. No witness was cross-examined about the time at which the discussion took place. I do not make any finding about when on 25 March 2021 that discussion took place. There is circumstantial evidence pulling in different directions. The evidence of Ms Kaplanis, who received a telephone call from Mr Abboushi between 3:00 pm and 3:30 pm reporting on his discussions with Mr O’Connor and Mr Skourdoumbis, suggests that the discussion occurred in the afternoon, and after Mr Abboushi’s conversations with Ms Smart and Mr Tester. On the other hand, the representations that were made to Ms Smart and Mr Tester by Mr Abboushi that they were required to pay only the $495 for the upcoming six month period is broadly consistent with the outcome of the discussion recorded in Ms Kaplanis’s email. On this state of the evidence and in the absence of cross-examination on the topic, I do not have an affirmative state of satisfaction as to when on 25 March 2021 the discussion between Mr O’Connor, Mr Abboushi, and Mr Skourdoumbis took place.

221    Third, in relation to Ms Smart’s conversation with Mr Abboushi, I accept that there was likely to be scope for different perceptions about what was said. Mr Abboushi does not recall the conversation. Nonetheless, I find that it is unlikely that Mr Abboushi intended to convey to Ms Smart that the arrears would be waived. That is because in all the circumstances, it is unlikely that Mr Abboushi would have stated that the Division had agreed to waive the arrears without first speaking to Mr O’Connor, and if he had already spoken to Mr O’Connor, then it is unlikely that he stated to Ms Smart that the Division would waive the arrears contrary to the outcome of the discussion that he had with Mr O’Connor and Mr Skourdoumbis. Mr Abboushi’s text to Ms Bui stating, “Don’t wipe the arrears”, is also inconsistent with a statement that the Division would waive the arrears. I do not accept Ms Smart’s affidavit evidence that Ms Bui referred to a waiver of fees as being within the discretion of Mr Abboushi. Having observed both Ms Smart and Ms Bui give evidence, I prefer Ms Bui’s denial that she spoke those words. For these reasons, I am not persuaded to find that Mr Abboushi stated to Ms Smart that the arrears of membership contributions would be waived. It is more likely that what was conveyed was that Mr Smart would be permitted to “re-join” the Manufacturing Division without paying the arrears, but not that the arrears would be waived.

222    It is next necessary to construe Manufacturing Rule 32. As I mentioned, Mr Smart was nominated for the position of Divisional Assistant Secretary. Manufacturing Rule 32(a)(i), set out under [58] above, provided for a qualifying period of financial membership of three years. Counsel for the applicant submitted that there did not need to be three continuous years, and to require that the three years be continuous was to read words into the provision. Counsel for the applicant also relied on the reference to “continuous membership” in Manufacturing Rule 28(x), set out at [163] above, and submitted that had the makers of the Rules intended that three years financial membership was to be continuous, the Rules would have said so.

223    I have concluded that while it is possible that Manufacturing Rule 32(a)(i) might have been clearer on this point, the better view is that the Rule requires that three years financial membership be continuous up until the time of nomination. That is the more natural reading of the Rule and is more consistent with the evident purpose of the Rule, and is also preferable when regard is had to some of the features of the Manufacturing Rules identified at [130] above. I do not consider that it would be a natural reading of the Rule to allow it to be engaged by a period of three years financial membership at any time in the past, or to permit the aggregation of separate periods of membership so as to make up a combined period of three years. The purpose of rules of this nature was referred to by Spicer CJ in Cameron v Australian Workers’ Union (1959) 2 FLR 45 at 59, noting that the rule under consideration there was more explicit –

Provisions of this type are not uncommon and are designed to ensure that those who undertake the tasks of administration of the organization have more than a fleeting interest and experience of its character and objectives. They also provide some assurance to the ordinary member who may have little knowledge of those for whom he votes that the candidates at least have the qualification of continuous association with the organization over a period of years.

224    Likewise, Smithers J in Leveridge v Shop Distributive and Allied Employees’ Association (1977) 17 ALR 145 stated at 156 –

It is clear from the authorities that provisions of the kind under discussion are not uncommon in registered organizations. They are based on considerations going to the stability of the organization, and the desirability of persons in office being acquainted with the rules, with the industry and with the practical administration of a union as a registered organization.

225    Not much turns on the reference to “continuous membership” in Manufacturing Rule 28(x), which is aberrant, as it has no operation within the Rules, and is obviously an artefact of bygone drafting.

Benjamin Smart – conclusions

226    It follows that Mr Smart was not eligible for nomination for the position of Divisional Assistant Secretary. He did not have three years financial membership of the Manufacturing Division at the time he was nominated, irrespective of his financial status. Moreover, I find that in circumstances where Mr Smart had resigned from the Union on 24 September 2019, and had likely re-joined the Union through the Construction and General Division, that he was not at the time of his nomination attached to the Manufacturing Division. That is because there is no evidence of any transfer process having taken place under National Rule 7(viii), or otherwise. And for the reasons I have given at [68]-[84] above, the declaration made by the Full Court in O’Connor v Setka was not an order that by its own force attached Mr Smart to the Manufacturing Division at a time when he was a financial member of the Construction and General Division. In the event that I am wrong in this analysis, and Mr Smart had enjoyed a continuous period of membership of the Manufacturing Division at the time of his nomination, then I further find that he was not financial because of arrears he owed to the Manufacturing Division. For the reasons I have given, I am not persuaded that the Manufacturing Division waived his arrears.

Adam Tester

227    Mr Adam Tester is a carpet layer/floor layer who joined the Union in 2009, and was initially attached to the FFPD.

228    On 4 September 2019, Mr Tester submitted a written resignation to the Manufacturing Division, which was in a similar form to the resignations submitted by Ms Brown and Mr Smart. The text of Mr Tester’s resignation was as follows –

CFMEU – Manufacturing Division

RESIGNATION

If you are a member of another state or division of the union,

please contact them directly

Date:    4/9/19

Membership No:…15229

Re: Membership Resignation

I ……ADAM TESTER…….

Wish to resign from the CFMEU Manufacturing Division, as I am

    Not Working in the Trade                    

    Retired                                               

    Unemployed                                        

    Other                                                  

Please sign and return to:

MAIL:

  CFMEU – Manufacturing

  Membership Department

  Level 1, 165 Bouverie Street

  Carlton Vic 3053

Email:

[redacted]@cfmeumd.org

Signature: [Signed]

229    Mr Tester stated that in September 2019 he joined the Construction and General Division of the Union after he had been contacted by Kylie Brown.

230    Mr Tester stated that he became aware of the Full Court’s decision in O’Connor v Setka in 2020. In about March or April 2021 he spoke with Kylie Brown who invited him to stand for election for an office in the Victorian District of the Manufacturing Division. Mr Tester stated that shortly after his discussion with Ms Brown, he contacted the office of the Manufacturing Division and spoke to Ms Bui. Mr Tester stated that Ms Bui told him that he owed arrears, and that he would have to pay in order to become financial. Mr Tester stated that Ms Bui told him to call Mr Abboushi, which he then did, and spoke to him in a short conversation on about 25 March 2021. Mr Tester’s account of that conversation was –

I told him that I wanted to join back up to the Manufacturing Division and that the office had told me that I owed arrears. He started laughing and said something about me ‘coming crawling back’ but told me that he would need to speak to someone to see if I had to pay all my arrears. …

231    Mr Tester stated that Mr Abboushi called him back about an hour later –

… confirming that he ‘spoke to the guys up top’ and that they were going to waive the arrears. This meant that I would only need to pay the re-joining fee of $495.

232    Mr Tester stated that he then called Ms Bui and asked her to send him the invoice for payment. Mr Tester produced an email from Ms Bui sent at 2:06 pm on 25 March 2021 and a “member statement” addressed to Mr Tester which showed an opening balance of zero, and a charge for subscription fees to 30 September 2021 in the sum of $495 including GST. The covering email from Ms Bui stated –

As per our phone conversation, please see attached the member statement for the period of 1/04/2021 to 30/09/2021 as Steve Abboushi instructed.

233    On 1 April 2021, Mr Tester paid the sum of $495 to the Manufacturing Division.

234    On 6 April 2021, Mr Tester was nominated for election to the office of member of the Victorian District Committee of Management, and to the representative position of Victorian Delegate to the Divisional Conference.

235    On 13 April 2021, one of the returning officers wrote to Mr Tester stating that his nomination for the office of District Management Committee Member was defective because it did not comply with the requirements of Manufacturing Rule 32(b)(iii)(A). The letter stated –

The relevant facts presented to me are:

1.    You have not paid the membership contributions due to the Division for the period between 1 October 2019 and 31 March 2021.

2.    That you are not therefore, a financial member of the Division pursuant to rule 6.

The records showed that you owed $990.00 when nominations closed on 6/04/2021, thus making you an unfinancial member.

Rule 32 (c) (vi) requires that I give you the opportunity of remedying the defect within a period of not less than seven days, where practicable.

236    On 20 April 2021, Mr Tester wrote to the returning officer in response to the letter of 13 April 2021. Having observed Mr Tester give his evidence, it is obvious that his letter of 20 April 2021 was drafted for him by someone else. In his response, Mr Tester made the following points. First, he stated that he had understood from conversations with officials of the Manufacturing Division that “any purported arrears of membership contributions” were waived. Second, Mr Tester stated that he had continued, since the decision of the Full Court in O’Connor v Setka, to pay fees to the Construction and General Division claiming that he had not been aware until recently of the Full Court’s order. Mr Tester claimed that National Rule 7(v)(b) operated so that at the time of his nomination he was a financial member. Third, Mr Tester stated that to avoid any doubt he had paid the “purported arrears”. Fourth, he stated that he had held a period of one year’s financial membership of the District “at any point of time” and that consequently his nomination was not defective.

237    On 20 April 2021, the same returning officer separately wrote to Mr Tester stating that his nomination for the representative position of District Delegate to Divisional Conference was defective because it did not comply with the requirements of Manufacturing Rules 6(iv) and (v), which relevantly deem members who have not made required payments within three months to be unfinancial, and prevent unfinancial members from exercising membership rights (extracted at [54] above). The letter stated (inter alia) –

Following a check of the CFMMEU - Manufacturing Division - Victorian District’s records, it appears to me that your nomination is defective because it does not comply with the requirements of the above rule:

1.     You have not paid membership contributions due to the Division since 1 October 2019 up to 31 March 2121, therefore making you an unfinancial member pursuant to the above Rule 6.

Rule 32 (c) (vi) requires that I give you the opportunity of remedying the defect within a period of not less than seven days, where practicable.

238    On 20 April 2021, Mr Tester paid the sum of $1,000 in cash to the Manufacturing Division, the receipt of which the Division acknowledged by email sent to Mr Tester at 8:25 am. Later in the day at 1:41 pm, Ms Kaplanis, the Division Manager, sent an email to Mr Tester, stating –

We refer to the payments you have recently made to the Manufacturing Division office on 6th and 20th April 2021, on account of membership contributions.

We have been informed by the Construction and General Branch in Victoria that at these times, you were enrolled as a member of the Construction and General Division, in that Branch.

Under the rules of the Union, a member cannot be in two divisions of the Union at the same time.

Therefore, we cannot accept your payment of contributions on account of membership in the Manufacturing Division.

Please advise your bank account details for the return of those payments.

239    On 27 April 2021, Ms Kaplanis sent by registered post a cheque to Mr Tester in the sum of $1,495 which was banked on 10 June 2021.

240    On 12 May 2021, one of the returning officers wrote to Mr Tester stating that his nominations had been rejected because he had not provided the returning officer with information that satisfied her that he was eligible to stand for office.

Evidence of Thuy Bui

241    Ms Bui agreed that she spoke to Mr Tester on 25 March 2021, and stated that the conversation occurred in the morning. She stated that she brought up Mr Tester’s membership record and told him that the records indicated that he was in arrears, and that he needed to speak to the relevant organiser, who was Mr Abboushi, about his debt, and gave him Mr Abboushi’s number and suggested that he call him. She denied saying to Mr Tester that he owed arrears that he would have to pay to become financial for the rest of the dues period. After this first conversation with Mr Tester, Ms Bui sent Mr Abboushi an email that foreshadowed that Mr Tester would call him –

Adam is going to call you re re-joining. He owed $990.00 before [he] resigned on 6/03/2020. Now he wants to re-join, I told him to contact you for advice about his debt.

242    Ms Bui stated that shortly after sending the above email Mr Abboushi called her, and told her that if Mr Tester wished to re-join the Division, that she should bill him for the new term but that she should keep the arrears on the system. Ms Bui recorded the substance of this instruction in the electronic records that were maintained by the Division.

243    Ms Bui then had her second conversation with Mr Tester. Ms Bui’s affidavit evidence of that conversation was –

During our conversation I told Tester that to re-join he needed to pay dues for the new term and that I would send him an invoice for this amount. I didn’t say anything during this conversation about the arrears nor did Tester. Tester did not offer to pay the arrears. It is not correct that Tester asked me to send him “the invoice as discussed with Steve”.

244    Ms Bui stated that she then updated the electronic records of the Division, making the following entry which is timestamped at “11:00”, and which she produced –

Steve advised that billing mbr for the new term 1/4/21 to 30/09/21, keep the arrears (C&G will have to pay) - TB

Evidence of Steven Abboushi

245    Mr Abboushi stated in his affidavit that he could not recall the conversations with Mr Tester on 25 March 2021, but by reference to other evidence accepted that he had done so. He asserted, however, that he was sure that he would not have agreed to waive membership contributions –

However, I am sure that in neither of my conversations with Tester or any other members did I agree to waive any arrears of contributions and that is because of the matters in paragraphs 27-29 above. I am sure that if I had made a decision contrary to the above non-waiver policy I would definitely have remembered it.

As I stated earlier, the matters in “27-29 above” to which Mr Abboushi referred were his conversation with Ms Kaplanis, and Ms Kaplanis’s email of 25 March 2021, to which I referred at [188] above.

Evidence of Leo Skourdoumbis

246    Mr Skourdoumbis denied that the Manufacturing Division had ever waived arrears of any membership fees owed by Mr Tester. He stated that the Divisional Executive had not passed a resolution to that effect.

Adam Tester – analysis

247    I find that Mr Tester resigned from the Union on 4 September 2019. I make this finding for substantially the same reasons as the corresponding findings that Ms Brown and Mr Smart resigned their membership of the Union.

248    I find that Mr Tester then re-joined the Union in the Construction and General Division. This finding is supported by Mr Tester’s direct evidence that he did so, together with the hearsay statements in Ms Kaplanis’s email to Mr Tester of 20 April 2021 to which I referred at [238] above, the substance of which was that the Manufacturing Division was informed by the Construction and General Branch in Victoria that Mr Tester was a member of the Construction and General Division. Although this statement was hearsay, I give it weight as I am not bound by the rules of evidence, and because the representations within it were not the subject of any dispute on the evidence, and are consistent with Mr Tester’s own evidence.

Adam Tester – conclusions

249    I find that at the time of Mr Tester’s nomination to the office of member of the Victorian District Committee of Management, and to the representative position of Victorian Delegate to the Divisional Conference, Mr Tester was ineligible for nomination. In respect of both positions that was because he was not a member of the Manufacturing Division. In respect of the position of member of the Victorian District Committee of Management, he was also ineligible for the more specific reason that he did not at the time of nomination have one year financial membership.

Results of the inquiry

250    For all the reasons set out above, I am not persuaded on the balance of probabilities that there were any relevant irregularities in the election. I have rejected the applicant’s claims that there was an irregularity by the exclusion of the 83 northern New South Wales timber workers from the certified list of financial members that was supplied to the returning officer by Mr O’Connor, that there was an irregularity by the rejections of the nominations of Messrs McHugh, Wimble and Wilson, and that there was an irregularity by the rejections of the nominations of Ms Brown, Mr Smart and Mr Tester. Accordingly, I have determined that an irregularity did not happen in relation to the election. I do not consider the determination of any further question concerning the conduct and results of the election necessary.

251    I will hear submissions from the parties as to the orders, if any, which should now be made.

Associate:

Dated:    18 October 2021