DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Australian Rail, Tram and Bus Industry Union
v
Transport Workers’ Union & ors
(C2020/2250)

Transport Workers’ Union
v
Australian Rail, Tram and Bus Industry Union & ors
(C2020/2257)

Appeals by RTBU and TWU against decision [[2020] FWC 1489] of Deputy President Saunders at Newcastle on 19 March 2020 in matter number D2019/1 – application to vary eligibility rules – application granted in part – no appealable error – appeals dismissed.

[1] The Australian Rail, Tram and Bus Industry Union (RTBU) and the Transport Workers’ Union of Australia (TWU) have each brought an appeal under s.604 of the Fair Work Act 2009 (Cth) (FW Act) against a decision of Deputy President Saunders made on 19 March 2020 1 concerning an application by the RTBU to alter its eligibility rules under s.158 of the Fair Work (Registered Organisations) Act 2009 (Cth) (RO Act). The proposed variations to rule 4 sought to extend the coverage of the RTBU’s eligibility rules to bus drivers employed by private operators and engaged in work that was previously undertaken by the state of New South Wales. The RTBU’s application was opposed by the TWU.

[2] The Deputy President decided to consent to the RTBU’s application insofar as it applied to proposed sub-rules 4(4)(ii), (iii) and (vi), which concerned employees of the State Transit Authority (STA) and its successors, as well as two private entities. He did not consent to proposed sub-rules 4(4)(i), (iv) and (v), which concerned other private entities, for reasons substantially connected to his view that the rules were poorly drafted and ‘missed their mark’ by not capturing the group employees sought to be covered, and therefore lacked utility.

[3] The RTBU’s appeal challenges the Deputy President’s decision not to consent to these proposed new rules. Its appeal also challenges the Deputy President’s characterisation of the significance of sub-rule 4(4)(ii), which the RTBU says amounted to a constructive or partial rejection of its application in relation to that proposed rule.

[4] The TWU’s appeal challenges the Deputy President’s decision to consent to the proposed new rule 4(4)(ii).

[5] An appeal under s.604 of the FW Act is an appeal by way of rehearing, however the Commission’s powers on appeal are exercisable only if there is error on the part of the primary decision maker. There is no right to appeal and an appeal may be made only with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is in the public interest to do so. Permission may otherwise be granted on discretionary grounds.  

Background

[6] The background to the RTBU’s application under s.158 is usefully set out in the Decision. We briefly summarise it.

[7] Public bus services in New South Wales are conducted by the STA, which is part of the Transport Service of New South Wales. In recent times, various public bus services in New South Wales have been privatised. In 2016, the state government privatised the operation of bus services in the Newcastle area, referred to as ‘region 5’. This was followed in 2018 by the privatisation of bus services in inner western Sydney, known as ‘region 6’. And in 2019, the government announced plans to privatise bus services in three more areas, regions 7, 8 and 9.

[8] The privatisation of bus services has proceeded on the basis of a ‘franchising’ model, whereby private operators tender for a contract to operate bus services in the particular region for a certain period of time. The successful tenders become the operators of the service. They utilise buses and depots owned by the government pursuant to commercial leases. The bus drivers previously employed by the state on the relevant bus services in the affected area take up employment with the new operator. These employees have been referred to in this matter as ‘legacy drivers’. Employees subsequently engaged by the private operator to drive buses in connection with these bus services in the relevant areas are known as ‘new drivers’.

[9] The RTBU has traditionally represented public sector bus drivers, whereas the TWU has represented bus drivers in the private sector. As a consequence of the privatisation of public bus services in New South Wales, some bus drivers have become ineligible to be members of the RTBU. The purpose of the RTBU’s rule variation is to extend the coverage of its rules to include those employees employed by entities operating a public bus service that was previously operated by the New South Wales government.

[10] The RTBU’s application under s.158 sought to insert a new sub-rule 4(4) as follows:

‘4 – ELIGIBILITY FOR MEMBERSHIP

…

(4) Without in any way limiting or being limited by the provisions of sub rules (1), (2) and (3) inclusive, the following persons shall be eligible for membership of Union:

(i) All employees of the Transport Service of New South Wales and any successor, assignee or transmittee, whether direct or indirect, of the business and/or the roles, functions or responsibilities (or any part thereof) the Transport Service of New South Wales where such employees are employed in the provision of bus services by the State Transit Authority of New South Wales and its public subsidiary corporations; and

(ii) All employees of the State Transit Authority of New South Wales and any successor, assignee or transmittee, whether direct or indirect, of the business and/or the roles, functions or responsibilities (or any part thereof) of the State Transit Authority of New South Wales; and

(iii) All employees of Keolis Downer Hunter Pty Ltd and any successor, assignee or transmittee, whether direct or indirect of the business (or any part thereof) of Keolis Downer Hunter Pty Ltd where such employees are employed in or in connection with the provision of bus services in the area identified as Outer Metropolitan Bus Contract Region 5 – Newcastle otherwise known as State Transit Region 5 Newcastle; and

(iv) All employees of Transit Systems Pty Ltd and any successor, assignee or transmittee, whether direct or indirect of the business (or any part thereof) of Transit Systems Pty Ltd where such employees are employed in or in connection with the provision of bus services in the area identified as Sydney Metropolitan Bus Service Contract 6 otherwise known as State Transit Region 6; and

(v) All employees of Transit Systems West Pty Ltd and any successor, assignee or transmittee, whether direct or indirect of the business (or any part thereof) of Transit Systems West Pty Ltd where such employees are employed in or in connection with the provision of bus services in the area identified as Sydney Metropolitan Bus Service Contract 6 otherwise known as State Transit Region 6; and

(vi) All employees of Transit Systems West Services Pty Ltd and any successor, assignee or transmittee, whether direct or indirect of the business (or any part thereof) of Transit Systems West Services Pty Ltd where such employees are employed in or in connection with the provision of bus services in the area identified as Sydney Metropolitan Bus Service Contract 6 otherwise known as State Transit Region 6.’

[11] We make some brief observations about the various entities referred to in these rules.

[12] The ‘Transport Service of New South Wales’, referred to in sub-rule 4(4)(i), is a group of persons who are employed by the Government of New South Wales to enable bodies such as the STA to exercise their functions (see ss 68B and 68C of the Transport Act Administration Act 1998 (NSW) (Transport Act)). The ‘State Transit Authority’, referred to in sub-rules 4(4)(i) and (ii), is an authority established by s.20 of the Transport Act, which represents the Crown in right of state. Its objectives include to operate efficient, safe and reliable bus services. Section 47A of the Constitution Act 1902 (NSW) precludes the STA from employing staff. All persons who work for the STA are deemed to be employed by the New South Wales government (s.68C of the Transport Act).

[13] Keolis Downer Hunter Pty Ltd, referred to in sub-rule 4(4)(iii), is a private operator of bus services previously operated by the state of New South Wales in ‘region 5’. The Deputy President consented to this sub-rule and it is not the subject of either appeal.

[14] Transit Systems Pty Ltd (Transit Systems), which is the subject of sub-rule 4(4)(iv), is a holding company of a group of companies in the ‘Transit Group’, including those referred to in the following sub-rules. The Deputy President found at [130] that this company does not employ any bus drivers or other employees who provide bus services in the region referred to in sub-rule (iv), region 6. This finding is not challenged.

[15] Transit Systems West Pty Ltd, referred to in sub-rule 4(4)(v), is the operator of bus services in region 6, that is, the entity that is contracted by the state of New South Wales to provide bus services in that region. However, as discussed below, it does not employ any bus drivers and has never done so.

[16] Transit Systems West Services Pty Ltd, which is referred to in sub-rule 4(4)(vi), is the employer of ‘legacy drivers’ in region 6. The Deputy President consented to this sub-rule and it is not the subject of either appeal.

[17] The employer of new drivers in region 6 is Transit (New South Wales) Services Pty Ltd. This entity is not referred to in any of the sub-rules.

Legislative framework

[18] Section 158 of the RO Act governs a proposed alteration to the eligibility rules of an organisation registered under the RO Act, such as the RTBU. Section 158 provides:

‘158 Change of name or alteration of eligibility rules of organisation

(1) A change in the name of an organisation, or an alteration of the eligibility rules of an organisation, does not take effect unless:

(a) in the case of a change in the name of the organisation – the FWC consents to the change under this section; or

(b) in the case of an alteration of the eligibility rules of the organisation:

(i) the FWC consents to the alteration under this section; or

(ii) the General Manager consents to the alteration under section 158A.

(2) The FWC may consent to a change or alteration in whole or part, but must not consent unless the FWC is satisfied that the change or alteration has been made under the rules of the organisation.

(3) The FWC must not consent to a change in the name of an organisation unless the FWC is satisfied that the proposed new name of the organisation:

(a) this is not the same as the name of another organisation; and

(b) is not so similar to the name of another organisation as to be likely to cause confusion.

(4) The FWC must not consent to an alteration of the eligibility rules of an organisation if, in relation to persons who would be eligible for membership because of the alteration, there is, in the opinion of the FWC, another organisation:

(a) to which those persons could more conveniently belong; and

(b) that would more effectively represent those members.

(5) However, subsection (4) does not apply if the FWC accepts an undertaking from the organisation seeking the alteration that the FWC considers appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of that organisation and the eligibility rules of the other organisation.

(6) The FWC may refuse to consent to an alteration of the eligibility rules of an organisation if satisfied that the alteration would contravene an agreement or understanding to which the organisation is a party and that deals with the organisation’s right to represent under this Act and the Fair Work Act the industrial interests of a particular class or group of persons.

(7) The FWC may also refuse to consent to an alteration of the eligibility rules of an organisation if it:

(a) is satisfied that the alteration would change the effect of any order made by the FWC under section 133 about the right of the organisation to represent under this Act and the Fair Work Act the industrial interests of a particular class or group of employees; and

(b) considers that such a change would give rise to a serious risk of a demarcation dispute which would prevent, obstruct or restrict the performance of work in an industry, or harm the business of an employer.

(8) Subsections (6) and (7) do not limit the grounds on which the FWC may refuse to consent to an alteration of the eligibility rules of an organisation.

(9) Where the FWC consents, under subsection (1) to a change or alteration, the change or alteration takes effect on:

(a) where a date is specified in the consent – that date; or

(b) in any other case – the day of the consent.

(10) This section does not apply to a change in the name, or an alteration of the eligibility rules, of an organisation that is:

(a) determined by the FWC under subsection 163(7); or

(b) proposed to be made for the purposes of an amalgamation under Part 2 of Chapter 3 or Division 4 of Part 7 of Chapter 11; or

(c) proposed to be made for the purposes of a withdrawal from amalgamation under Part 3 of Chapter 3.’

[19] Pursuant to Regulation 124 of the Fair Work (Registered Organisations) Regulations 2009 (RO Regulations), the TWU objected to the RTBU’s application to alter its eligibility rules.

[20] Each union’s appeal variously contends that the Deputy President erred in his consideration of the RTBU’s application, and in his application of s.158 of the RO Act. The RTBU says that the Deputy President’s errors affected his decision to withhold consent to the proposed sub-rules 4(4)(i), (iv), (v) and also, through his characterisation of the effect of the rule, his decision to consent to sub-rule (4)(4)(ii) in a limited way. The RTBU contends that, had the Deputy President correctly applied s.158, he should have consented to the proposed new sub-rules 4(4)(i), (iv) and (v), and consented to sub-rule 4(4)(ii) without the limitation connoted by his interpretation of it. In short, the RTBU contends that the Deputy President erred in various respects, and because of his errors, did not go far enough in consenting to the changes sought by the union.

[21] The TWU, conversely, contends that the Deputy President correctly decided not to consent to proposed sub-rules 4(4)(i), (iv) and (v), but erred in consenting to proposed sub-rule 4(4)(ii). In the latter respect, the TWU says that consent ought to have been refused. We deal first with the RTBU’s appeal.

The RTBU appeal

[22] The RTBU’s notice of appeal advanced four grounds of appeal. The first concerns the Deputy President’s refusal to consent to sub-rule 4(4)(i). The second concerns the Deputy President’s refusal to consent to sub-rules 4(4)(iv) and (v). The third and fourth grounds of appeal relate to the Deputy President’s decision to consent to sub-rule 4(4)(ii) on what the union said was a limited basis.

[23] The RTBU contended that a common error underpinned the Deputy President’s decision to refuse the relevant sub-rules, and to consent to sub-rule 4(4)(ii) on a limited basis, namely an unduly narrow construction of the text of each sub-rule. The RTBU said that the Deputy President clearly understood the RTBU’s intention in seeking to amend its rules but concluded that the proposed rules as drafted ‘missed their mark’. The RTBU submitted that this conclusion was based on a narrow and technical interpretation that had been advanced by the TWU.

[24] The principles that apply to the interpretation of union rules were summarised by the Full Bench of the Commission in AMWU v Resmed Ltd (Resmed) 2 and were referred to by the Deputy President at [25]. We do not recite them, save to note that it is well established that union eligibility rules should generally be construed liberally rather than narrowly or technically.3 Nevertheless, the essential task remains to construe the words of the rules objectively.4 The meaning of rules is not to be ascertained by reference to the subjective intention of its drafters. Rules must be capable of being understood and applied by employees, employers and union officials, not just by a party or parties to a proceeding.

Appeal ground 1: proposed sub-rule 4(4)(i)

[25] The RTBU’s first ground of appeal concerns the Deputy President’s refusal to consent to proposed sub-rule 4(4)(i). This proposed sub-rule, it will be recalled, read as follows:

‘(i) All employees of the Transport Service of New South Wales and any successor, assignee or transmittee, whether direct or indirect, of the business and/or the roles, functions or responsibilities (or any part thereof) [of] the Transport Service of New South Wales where such employees are employed in the provision of bus services by the State Transit Authority of New South Wales and its public subsidiary corporations;’

[26] The Deputy President refused consent to the proposed sub-rule because he considered that it had no utility, as there were no relevant persons employed by the STA or public subsidiary corporations, and the notion of a successor, assignee or transmittee of the Transport Service was a nonsensical concept.

[27] The Deputy President’s consideration of proposed sub-rule 4(4)(i) is found from [87] to [93] of the Decision. He commenced by interpreting the text of the sub-rule. He noted that the final three lines made clear that the sub-rule was to apply to persons who ‘are employed in the provision of bus services by the State Transit Authority of New South Wales and its public subsidiary corporations’, emphasising the instrumental preposition ‘by’. He observed that, when public bus services in New South Wales are privatised, they cease to be provided by the STA or any public subsidiary corporation, because they are then provided by the successful tenderer.

[28] As to the meaning of ‘employees of the Transport Service of New South Wales’, the Deputy President noted at [92] that the Transport Service is not a legal entity, but a group of persons employed by the state government to enable bodies such as the STA to exercise their functions. Moreover, the STA itself did not strictly speaking employ any employees; under the Transport Act, if a person is referred to as an employee of the Authority, this is to be read as a reference to a person employed in the Transport Service to enable the Authority to exercise its functions (s.68Q(10) of the Transport Act). The Deputy President concluded that the expression ‘employees of the Transport Service of New South Wales’ means persons employed in the Transport Service by the Government of New South Wales to enable bodies such as the STA to exercise their functions.

[29] At [93] the Deputy President considered the words ‘any successor, assignee or transmittee, whether direct or indirect, of the business and/or the roles, functions or responsibilities (or any part thereof) [of] the Transport Service of New South Wales’. He concluded that the Transport Service does not have a business, or any functions, responsibilities or roles, and that it was the relevant statutory authorities, such as the STA, that have functions, responsibilities, roles and businesses. The Deputy President therefore concluded that a ‘successor, assignee or transmittee … of the business and/or the roles, functions or responsibilities (or any part thereof) of the Transport Service’ was, as the TWU had contended, a nonsensical concept and did not capture the employees whom the RTBU had sought to be able to enrol as members.

[30] The RTBU had urged the Deputy President to adopt a purposive and generous interpretation of sub-clause 4(4)(i), pursuant to which the reference to ‘any successor, assignee or transmittee of the Transport Service of New South Wales’ would extend to any successor, assignee or transmittee of the STA. The Deputy President rejected this interpretation at [88]. Before us in the appeal, the RTBU contended that the Deputy President erred in doing so, and therefore failed to take into account a relevant consideration.

[31] The RTBU acknowledged that the sub-rule was poorly drafted but contended that its purpose and meaning were nonetheless clear. It said that on its proper construction, the sub-rule would permit the union to enrol as members any persons employed by an entity that has been awarded a contract to provide public bus services in one or more regions in New South Wales, including new drivers of such an entity.

[32] The RTBU’s interpretation of the sub-rule emphasised the final words, ‘employed in the provision of bus services by the State Transit Authority of New South Wales and its public subsidiary corporations’. It submitted that if these words are read as appearing after the words ‘New South Wales’ in the first line of the sub-rule, the desired effect is textually achieved. The RTBU contended that, while less ‘literal’, this was nevertheless an available interpretation, one which would give the rule work to do, consistent with its evident purpose.

[33] The RTBU accepted that this interpretation was one that could only be ascertained after a search for meaning to give effect to the purpose. It says however that it is legitimate to ‘strive’ to give meaning to eligibility rules. That meaning in this case is that the rule would apply to an entity that employs drivers of publicly operated buses in respect of bus regions where previously the bus services were operated by the STA. In other words, it would capture both legacy drivers and new drivers. It submitted that the alternative, literal interpretation gives the sub-rule no work to do.

[34] We reject the RTBU’s interpretation of sub-rule 4(4)(i). It requires the disassembly and reconstruction of the rule. The end of the sub-provision would need to be transported to its beginning, with the result that the reference to ‘successors, assignees, and transmittees’ becomes referable both to the Transport Service of New South Wales and to the STA. If the clause were to be fundamentally reconstructed in this way, it could indeed carry the meaning contended for by the RTBU. But this amounts to saying that if the clause said something else, it would mean something else. The sub-clause simply does not say what the RTBU wants it to say. The rule refers to employees of the Transport Service of New South Wales, and its successors etc., where those employees are employed in the provision of bus services by the STA. It does not refer to successors, assignees or transmittees of the STA.

[35] The RBTU contended that the Deputy President was correct in determining that the purpose of the application it made under s.158 of the RO Act was ‘to alter coverage to explicitly include those employed to operate a public bus service that was previously operated by the New South Wales Government’, so as to cover both legacy drivers and new drivers. It says that the new rules fell to be interpreted in a manner that was mindful of that objectively ascertainable purpose.

[36] We accept that the RTBU was concerned to amend its rules to cover any employees of private entities that succeed the state government in the provision of bus services to the public. And it is the case that union rules, even proposed new union rules, should be construed liberally, with due regard to purpose, bearing in mind that rules are likely to have been drafted by officials ‘more familiar with the practical affairs of industry than with the niceties or subtle nuances of language.’ 5 However, it is not enough for the RTBU to present its intention to the Commission. An applicant is required by the RO Act and the RO Regulations to present to the Commission the text of the proposed rule change that was approved by the union executive. The Commission must then consider whether to consent to the alteration of the eligibility rules, within the framework of s.158. It is the proposed eligibility rule that requires the consent of the Commission, not the concept or purpose or objective that lies behind the proposed rule, even though these matters are relevant to the interpretation.

[37] The RTBU contended that, in ascertaining the meaning of union eligibility rules, it is legitimate to strive, and even strain, to identify an interpretation that gives effect to a rule’s apparent purpose. We are not convinced that it is appropriate to ‘strain’ the language, at least not in the context of an application for consent to be given to proposed new eligibility rules, where the Commission retains a discretion as to whether to give its consent. We do not suggest that proposed new rules must necessarily meet any higher standard of drafting clarity. However, s.158 does not require the Commission to consent to a new rule upon reaching a state of satisfaction as to the existence of certain matters. Rather, the Commission may consent to proposed new rules, provided certain conditions are met. Where the Commission is required to strain in order to understand those rules, a member might reasonably wonder whether the strained interpretation was understood by others: by the members of the union executive when it approved the proposed changes to the rules; by any objector in the proceedings; and by any person or entity which saw the notice in the government Gazette and considered objecting, made inquiries about the proposed rule change, saw the text, and did not object. A member might reasonably reflect upon whether a proposed rule, if consented to by the Commission, might through any misalignment between purpose and plain meaning sow confusion and uncertainty for the future. In our view it would be open to the Commission to consider such matters in the exercise of its discretion under s.158 of the RO Act.

[38] In any case, in our opinion the RTBU’s interpretation goes beyond straining the language. It rewrites the provision. Its interpretation is simply not supported by the language.

[39] The RTBU further contended that it was difficult to reconcile the Deputy President’s finding at [90] that the rule was inutile because the employees it covers (‘employees of the State Transit Authority’) are already captured by the eligibility rule, with his consideration at [92] as to why the STA ‘cannot employ any employees’. But this takes the Deputy President’s latter remarks out of context. As the Deputy President explained, the STA cannot, under New South Wales law, employ any employees; they must be employed by the government of New South Wales. If a person is referred to as an employee of the Authority, then by operation of law this is to be ‘read as a reference to a person employed in the Transport Service to enable the [State Transit] Authority … to exercise its functions’. 6 Clearly what the Deputy President meant was that any employees referred to as employees of the STA, but by law employed by the government of New South Wales, are already eligible to be members of the RTBU.

[40] The RTBU submitted that the Deputy President’s conclusion at [93] that the Transport Service of New South Wales has no business, roles, functions or responsibilities which can be transmitted was highly legalistic and was at odds with the fact that the Transport Service was engaged in the business of employing bus drivers. The RTBU said that this also sat uncomfortably with the Deputy President’s correct conclusion that the expression ‘employees of the Transport Service of NSW’ would be read to mean persons employed in the Transport Service by the Government of NSW to enable bodies such as the STA to exercise their functions.

[41] We reject these contentions. The Deputy President concluded that the Transport Service of New South Wales was not a legal entity and that it did not have a business that could be the subject of succession, transmission or assignment. We do not consider these to be the expression of a ‘legalistic’ interpretation. We agree with the Deputy President that the notion, contemplated by the sub-rule, that there could be a successor, assignee or transmittee of the Transport Service of New South Wales, is nonsensical.

[42] It is not clear to us why the drafters of this rule and others sought to give effect to their intention by framing the rule by reference to successors, assignees and transmittees of a business or part of a business. These are concepts that formed part of the legislative framework prior to the commencement of the FW Act. The rule might simply have been crafted by reference to the work that it sought to cover, namely the driving of buses on services previously operated by the state government; or by reference to funding, such as anyone driving a bus on a service that is paid for directly or indirectly by the government. In this connection, we note that there is nothing to prevent the RTBU from lodging a further application to amend its rules.

[43] We reject the first ground of appeal.

Appeal ground 2: proposed sub-rule 4(4)(iv) and (v)

[44] The RTBU’s second ground of appeal concerns the Deputy President’s refusal to consent to proposed sub-rules 4(4)(iv) and (v). We reproduce those proposed sub-rules for convenience:

‘(iv) All employees of Transit Systems Pty Ltd and any successor, assignee or transmittee, whether direct or indirect of the business (or any part thereof) of Transit Systems Pty Ltd where such employees are employed in or in connection with the provision of bus services in the area identified in the Sydney Metropolitan Bus Service Contract 6 otherwise known as State Transit Region 6; and

(v) All employees of Transit Systems West Pty Ltd and any successor, assignee or transmittee, whether direct or indirect of the business (or any part thereof) of Transit Systems West Pty Ltd where such employees are employed in or in connection with the provision of bus services in the area identified in the Sydney Metropolitan Bus Service Contract 6 otherwise known as State Transit Region 6.’

[45] The proposed sub-rules are in identical terms, save that the first refers to Transit Systems Pty Ltd, and the second to Transit Systems West Pty Ltd. Neither entity employs any relevant employees.

[46] The RTBU contended that the Deputy President erred in his construction of sub-rule 4(4)(iv) and (v) and that as a result of these errors, he failed to take into account a relevant consideration, namely that the rule would permit the RTBU to enrol and represent new drivers.

Rule 4(4)(iv)

[47] Transit Systems Pty Ltd is a holding company. It does not employ drivers and does not operate bus services. The RTBU submitted to the Deputy President that the proposed sub-rule should be given a wider meaning, such that it would extend coverage to employees of any related entity by which the Transit Systems group provides bus services. At [132], the Deputy President rejected this submission. The RTBU contended that he was wrong to do so.

[48] The RTBU submitted that the primary purpose of sub-rule 4(4)(iv) was to capture the entity that the Deputy President held (at [130]) to be the holding company of the group that operated bus services in region 6. As it transpired, that company did not itself employ drivers, nor was it the entity within the group that was the operator with the contractual obligation to employ drivers.

[49] The RTBU says that the sub-rule should nevertheless be interpreted so as to give effect to its obvious underlying or broader purpose, which was to make the particular corporate structure used by the operator irrelevant, and instead focus on the substantive question of whether the workers are driving buses in region 6. It submitted that the Deputy President proceeded from the technically correct factual basis that the holding company was not itself an employer of drivers, but that this approach gave the provision no work to do. It said that the clear intent of the rule was to capture those employed in or in connection with bus services in region 6, if not by the holding company directly, then by another entity in the group, and that this interpretation should have been preferred. The RTBU said that the Deputy President erred in failing to apply a liberal and purposive approach to interpretation and in not giving the rule this wider meaning.

[50] We consider that the Deputy President’s rejection of the RTBU’s interpretation of proposed sub-rule 4(4)(iv) was plainly correct. The sub-rule simply does not say that it applies to other entities. It refers only to ‘employees of Transit Systems Pty Ltd’. We agree with the Deputy President that the RTBU’s ‘interpretation’ would do violence to the language used in proposed sub-rule 4(4)(iv), even having regard to the liberal and purposive approach to interpretation.

Sub-rule 4(4)(v)

[51] Transit Systems West Pty Ltd is the operator contracted to the New South Wales government for the provision of bus services in region 6. The contract between Transit Systems West Pty Ltd and the government required the company to employ bus drivers for this purpose. For reasons that remain unexplained, it does not in fact do so, and has never done so. The question then arose before the Deputy President as to whether the entities that actually employ drivers could be regarded as successors, transmittees or assignees of part of the business of Transit Systems West Pty Ltd, and also whether Transit Systems West Pty Ltd might yet become an employer of relevant employees, and therefore give the proposed sub-rule utility.

[52] The Deputy President’s consideration of proposed sub-rule 4(4)(v) is found at [145] to [154]. He concluded that, as a matter of construction, the reference to ‘any successor, assignee or transmittee, whether direct or indirect of the business (or any part thereof)’ encompassed the legal test set out in PP Consultants Pty Ltd v FSU 7 (PP Consultants) and Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd8 (Gribbles), rather than a broader test for transmission of business that requires only a substantially ‘similar identity’, which the RTBU had said conventionally applies in the public sector, relying on Re AIRC; Ex parte Australian Transport Officers Federation9 (ATOF). The Deputy President concluded that there had been no succession, assignment or transmission of any part of the business of Transit Systems West Pty Ltd to the entities actually employing drivers. He therefore concluded that the proposed sub-rule 4(4)(v) did not expand the RTBU’s coverage to new drivers and had no utility. The Deputy President refused consent to the proposed sub-rule on this basis.

[53] The RTBU submitted that the concept of succession as it is reflected in the proposed rule, should not have been confined to the High Court case law on the provisions of the legislation that preceded the FW Act, but ought to have been construed in line with the evident intention, which was to capture situations where employees ‘change shirts’ but are, despite the legal arrangements as to their employment having changed, fundamentally performing the same work. On this basis, the rule could have caught employees of the actual employer, who are, in practical terms, successors to the state of New South Wales, in whatever guise, in respect of the bus routes in the relevant areas. Such an interpretation, said the RTBU, is much more likely to have been intended, rather than one that would have eligibility determined by the particular corporate structure used by the person conducting the business to engage employees. The RTBU said that an interpretative focus on ‘business activity’ would avoid a situation, such as has arisen here, where the scope of a union’s legitimate sphere of influence is limited by form rather than substance.

[54] We reject this contention. The RTBU decided to draft its proposed rule by reference to an expression that derives from previous legislation. The concept of an industrial instrument applying to a ‘successor, assignee or transmittee’ of a business or part of a business was a feature of federal industrial relations legislation for generations, and continues to be used in enterprise agreements, union rules, and other texts in the industrial domain. It cannot be accepted that the RTBU’s use of this language connoted a general, lay meaning. In any event, the point remains that the text is to be construed objectively. Any reasonable person with a knowledge of Australian industrial relations would read these words as being referable to their legal meaning. Moreover, as we have said, the RTBU could have used general language to describe the persons it wished to cover. Instead of referring to ‘all employees of Transit Systems West Pty Ltd and any successor, assignee or transmittee, whether direct or indirect of the business (or any part thereof) of Transit Systems West Pty Ltd’, it could have cast the new rule by reference to work or funding or some other concept, but instead it used the language of transmission of business.

[55] The RTBU said that, even if the words ‘successor, assignee, or transmittee’ etc. carry their legal meaning, it should be the legal meaning of the ‘public sector test’ set out in ATOF, that is, what is required is a ‘substantial common identity’ between the activities of the transmitting business and the successor entities, focusing on the role, function or responsibility. The RTBU said that the Deputy President had accepted that Transit Systems West Pty Ltd ’s business was ‘the provision of public bus services in region 6 pursuant to a contract with the New South Wales Government’; he found that this company was obliged to employ bus drivers under its contract with the government; and that there ‘must be’ arrangements in place between it and the entities which actually employ the new and legacy drivers (at [149]), and clearly these entities are part of the same group. The RTBU submitted that, applying the ATOF test, and based on the Deputy President’s factual findings, a part of the business of the STA (the engagement of drivers, if not directly, then indirectly) was transferred to the operator, Transit Systems West Pty Ltd (pursuant to the contract which states it is to be the employer of drivers), and Transit Systems West Pty Ltd in turn assigned or transmitted that part of the business to the two related entities that employ drivers.

[56] In our view, it is doubtful that ATOF can be considered to have survived PP Consultants and Gribbles. Even if it did survive, and applying this broader test, it has simply not been established that there has been any succession, transfer or assignment from Transit Systems West Pty Ltd to either of the employing entities. The ‘ATOF’ contention would be in aid of a proposition that the employing entities were indirect successors to the state of New South Wales. It would not further an argument that the succession passed through Transit Systems West Pty Ltd. We do not see any basis upon which the Deputy President could have concluded, employing the ATOF test, that proposed sub-rule 4(4)(v) could apply to employees of the two employing entities as successors of part of the business of Transit Systems West. There is no indication that Transit Systems West Pty Ltd ever took over any business from the state, or even that any work at some point passed through Transit Systems West Pty Ltd to an employing entity. Any ‘succession’ of work by a private entity from the government has bypassed Transit Systems West Pty Ltd.

[57] The RTBU further contended that the Deputy President’s finding that the rule could have no utility was not consistent with his conclusion, at [148]-[150], that Transit Systems West Pty Ltd was contractually required to be the employer of the drivers. It said that, even if it was not in fact the employer of drivers at the time of the application, it was clearly contemplated that it could become such an employer, and that the sub-rule therefore had potential utility and could have been approved.

[58] However, the Deputy President found that there was no basis in the evidence to conclude that Transit Systems West Pty Ltd would employ drivers. Other entities were and had been the employers of drivers. There was no suggestion that this was a contentious point as between the government of New South Wales and the company. Even if one accepts that there might be a possibility of the company employing drivers in the future, the possibility is only theoretical. Without more, this would be a fragile basis on which to conclude that the rule had utility. It can be contrasted with the realistic possibility, by reason of the government’s announced intentions, that there may be successors to the STA in regions 7, 8 and 9, discussed further below. In our view, it was plainly open to the Deputy President to reach the conclusion that the rule was inutile.

[59] The Deputy President’s decision to refuse consent to proposed sub-rule 4(4)(v) is not affected by error. We reject the second ground of appeal.

Appeal grounds 3 and 4: proposed sub-rule 4(4)(ii)

[60] The RTBU’s proposed sub-rule 4(4)(ii) sought to expand the coverage of the union to include the following:

‘(ii) All employees of the State Transit Authority of New South Wales and any successor, assignee or transmittee, whether direct or indirect, of the business and/or the roles, functions or responsibilities (or any part thereof) of the State Transit Authority of New South Wales.’

[61] The Deputy President determined at [115] that the STA’s roles, functions and responsibilities relevantly included ‘operating an efficient, safe and reliable bus service’, that in respect of region 5 and 6, ‘there has plainly been a succession etc of that role, function and responsibility from the STA to the private sector operators’, and that the rule if approved ‘would extend the [union’s] existing coverage’ to said successors. The Deputy President found that the proposed sub-rule had utility, as it would provide coverage to those employed by private entities carrying out the function of providing bus services previously carried out by the STA.

[62] Of concern to the RTBU however is the statement with which paragraph [115] concludes, namely that the question of whether such employees would in fact fall within the relevant scope of the sub-rule ‘would depend on the corporate structure used in any privatisation and the arrangements entered into by the NSW Government with private operators in those regions.’ The RTBU contended that this statement in effect limited the consent to new sub-rule 4(4)(2) and that the limitation was affected by error.

[63] The RTBU also challenges the Deputy President’s observations at [158], under the heading ‘New Drivers’, where he stated:

‘[158] As to rule 4(4)(ii), which extends beyond the transmission of a business to any successor etc, whether direct or indirect, of the roles, functions or responsibilities (or any part thereof), one of the roles, functions or responsibilities of Transit Services is the employment of the New Drivers in region 6. However, it was not a role, function or responsibility of the STA to employ bus drivers or any other employees; as stated above, it was prevented from doing so. Accordingly, there has been no transmission etc of the employment of the New Drivers in region 6 from the STA to Transit Services. Further, there is no suggestion in the evidence that Transit Services is now undertaking, or required to undertake, any of the roles, functions or responsibilities of the STA in region 6 prior to privatisation. It follows that Transit Services is not the successor etc of any of the roles, functions or responsibilities (or any part thereof) in region 6, with the result that the employer of the New Drivers is not caught by any of the proposed rule amendments.’

[64] The Deputy President concluded that rule 4(4)(ii) had utility because, as he explained at [160], he considered it possible that, subject to an appropriate corporate structure, the rule might cover new drivers in subsequently franchised regions.

[65] The RTBU submitted that these passages in the Decision focused on corporate structure, and the contractual relations between the STA and private operators. It contended that such an interpretation of the sub-rule was unlikely to have been intended, and that, as coverage rules, their concern is with the identity of employees. The RTBU contended that a ‘more comfortable interpretation’ of sub-rule 4(4)(ii) is that the engagement of bus drivers is part of the STA’s role, and that this part of its role has, indirectly and in part, been transmitted to the entities employing the new and legacy drivers, such that these employees are caught by sub-rule 4(4)(ii). The RTBU said that this interpretation insulates the rules and the coverage of the union from ‘corporate manoeuvring’ over which it and the relevant employees have no control.

[66] The RTBU submitted that because of his interpretation of the new sub-rule 4(4)(ii), and the narrow effect it confers on the rule, the Deputy President in effect only granted consent to the rule in part. It argued that the Deputy President proceeded on an incorrect interpretation and therefore failed to take a relevant consideration into account in the exercise of his discretion, such that the discretion miscarried.

[67] We reject these contentions. At [253], the Deputy President consented to the application in respect of the proposed sub-rule 4(4)(ii) without any limitation. In the course of his reasons, the Deputy President expressed a view about the effect of this rule. He considered that the rule would have utility. This clearly weighed in favour of a decision to consent to the proposed rule. The Deputy President also expressed a view about the extent of this utility. The RTBU disagrees with this view and says that it is erroneous. We are not convinced that this is so. But it is not necessary for us to form a concluded view on this question.

[68] The fact is that the RTBU’s application for consent to sub-rule 4(4)(ii) was granted in the terms in which it was sought. Indeed, there is no discretion in the Commission to redraft or amend the proposed sub-rules; had there been such a power, the long and winding road that has led to this appeal might have been avoided. Consent is granted to a rule. A rule is comprised of text. Consent is not granted to an intention or an interpretation. Moreover, the Deputy President’s views about the scope of the new rule are not binding on other members of the Commission. They are not binding on a court. They do not determine the manner in which the rules will be applied or operate in the future. Contrary to the RTBU’s further contentions, they most certainly do not purport to be a declaration as to the legal effect of the rule.

[69] In these circumstances, there is simply no utility in granting permission to appeal in respect of this ground of appeal.

Conclusion in relation to the RTBU’s appeal

[70] We are not persuaded that it is in the public interest to grant the RTBU permission to appeal in respect of grounds 3 and 4. Nor are we persuaded there is any discretionary basis upon which permission should be granted. For the reasons we have explained there is no utility in a grant of permission. We consider that permission to appeal should be granted in respect of grounds 1 and 2 because they raise issues of wider application in relation to the interpretation of proposed eligibility rules. However, the appeal grounds do not disclose appealable error. Accordingly, the appeal must be dismissed.

The TWU appeal

[71] The TWU submits that the Deputy President erred in consenting to proposed sub-rule 4(4)(ii). It advances five grounds of appeal. The first is a general contention that the Deputy President erred in consenting to the sub-rule. It was not elaborated upon in submissions and we regard it as a chapeau or umbrella ground. It is grounds 2 to 5 that particularise the alleged errors. We consider these below.

Grounds 2, 3 and 4

[72] Common to grounds 2, 3 and 4 is a contention that the Deputy President erred in granting consent to sub-rule 4(4)(ii) by failing to undertake the statutory task required by s.158 of the RO Act. The TWU contended that the Deputy President did not apply s.158(4) or the residual discretion by reference to the correct group of employees. It said that this task required the Commission to correctly identify the employees who would become eligible for membership because of the alteration, and that this involved a comparison of the existing coverage of the organisation compared to the coverage it would have if the rules alteration is approved. That is, the task required an interpretation of the pre-existing eligibility rules and the proposed alteration. 10 The TWU contended that the Deputy President did not correctly identify the group of persons who would become eligible for membership because of the alteration in sub-rule 4(4)(ii), and that the discretion under s.158 miscarried.

[73] The TWU distilled its appeal grounds 2, 3 and 4 into three principal contentions concerning the manner in which the Deputy President was said to have misapplied s.158(4) and the residual discretion.

[74] First, the TWU submitted that the Deputy President applied s.158(4), and exercised his residual discretion, by reference to a group that was constituted by or at least included new drivers in region 6, even though the Deputy President had correctly found that those drivers were not persons who would become eligible for membership because of the alteration for the purpose of s.158(4). The TWU said that in assessing the ‘more conveniently belong and more effectively represent’ considerations, the Deputy President made findings about and relied upon the number of new drivers in region 6 who had joined the RTBU (at [176]-[178] and [178]); the fact that the new employees in region 6 work at a place where the majority of bus drivers were already members of the RTBU (at [182]); and by reference to findings as to the nature of the work undertaken by new drivers in region 6 (at [191]).

[75] The TWU further submitted that, in the course of considering the various discretionary matters that were raised in respect of s.158, the Deputy President relied upon findings in relation to the level of discontent, conflict and disputation among the new drivers in region 6 (at [236], [238] and [240]); the extent of competition between the TWU and the RTBU for membership in region 6 (at [237]); and the preferences of new drivers working within region 6 (at [244]). The TWU said that the Deputy President thereby applied s.158(4) and his residual discretion by reference to a group of employees that included the new drivers in region 6, whereas in fact these drivers were not persons who would become eligible for membership because of the alteration. It contends that the Deputy President thereby failed properly to conduct the statutory task required by s.158.

[76] We reject this first contention. The various passages of the Decision referred to by the TWU do not reflect a departure by the Deputy President from his conclusion that new drivers in region 6 would not become eligible for membership because of the proposed alteration. The references to RTBU membership at paragraphs [176]-[178] simply reflect findings as to membership. Part of the background to the present matter is that the RTBU asserts coverage in areas that are disputed by the TWU. Mr Barden, National Assistant Secretary of the RTBU, gave evidence about his union’s membership, and the Deputy President accepted it. This does not connote to us a necessary acceptance on the part of the Deputy President of the underlying premise that the union has coverage of the work performed by those members.

[77] Further, the above references, as well as the references to new eligible members at [182] and [191], and the passages at [236] to [244], must be read in the context of the Decision as a whole. In particular, they must be read in the light of the Deputy President’s earlier statement at [172] as to the two categories of persons who would be eligible for membership ‘if the drafting of the proposed new rules gave effect to the RTBU’s stated intention’, as well as the Deputy President’s statement at [173] that, despite his finding that the RTBU’s drafting of the proposed rule did not capture new drivers, he would consider the comparative exercise required by s.158(4) based on both of the proposed categories of new members, so as to reduce the prospect of multiple appeals. We do not consider that the passages referred to by the TWU are suggestive of any confusion on the part of the Deputy President about the persons who would be eligible for membership because of the proposed rule alternation. We see no error in the Deputy President considering the persons who, on the RTBU’s interpretation of its own proposed rule change, would become eligible for membership.

[78] In addition, as the Deputy President said at [4], and as the RTBU emphasised in its reply submissions, the RTBU’s purpose in seeking a variation to its rules was to cover not only ‘legacy drivers’, but also other persons employed by a private bus operator to operate a public bus service, whether that might be in region 6 or any other region in New South Wales. Although the state government’s announcement of the privatisation of regions 7, 8 and 9 may not have been known at the time of drafting the sub-rules, those rules were formulated in contemplation of the potential for further privatisations. The RTBU put its case to the Deputy President on the basis that the new rules were directed both at region 6 and more broadly at future privatisations.

[79] At [172], the Deputy President defined ‘new drivers’ as those employed by a private bus operator in the provision of a public bus service who were not employed by the public sector before privation. He refers here to privatisation generally, not just to the privatisation in respect of region 6. There was no error in the Deputy President then considering whether the TWU was another organisation to which new drivers could more conveniently belong, and which could more effectively represent new drivers, as he had defined them. He did this by analysing the evidence presented to him, which naturally focussed on regions 5 and 6, as these were regions where a privatisation had already been effectuated. This led the Deputy President to his conclusions at [181]-[194]. There was no suggestion that in future privatisations new drivers would have different characteristics to those in regions 5 and 6. There is nothing surprising about the Deputy President’s findings in respect of new drivers in region 6 informing him as to the position of possible future new drivers in other regions.

[80] The second contention advanced by the TWU in connection with appeal grounds 2, 3 and 4 was that the Deputy President failed to determine the outer limits of the potential coverage of rule 4(4)(ii), and that for this reason he failed to apply s.158(4), and exercise the residual discretion, by reference to the correct group of employees.

[81] The Deputy President’s conclusion in relation to the operation of sub-rule 4(4)(ii), at the end of [115], was as follows:

‘Accordingly, I am satisfied that proposed rule 4(4)(ii), if approved, would extend the RTBU’s existing coverage to successors etc of the STA’s role, function and responsibility to provide bus services in regions following privatisation. Whether employers of the relevant employees would fall within the scope of the proposed rule in a particular region would depend on the corporate structure used in any privatisation and the arrangements entered into by the New South Wales Government with private operators in those regions.’

[82] The TWU said that the Deputy President construed sub-rule 4(4)(ii) as extending to successors of the roles, functions or responsibility ‘to provide bus services’ in other regions following privatisation, and therefore he appeared to have regarded the sub-rule as being limited to employees performing work in relation to bus services previously operated by the New South Wales Government. In fact, said the TWU, sub-rule 4(4)(ii) is not limited to persons who are employed in relation to bus services previously operated by the New South Wales government, but extends beyond these confines in two respects.

[83] First, the TWU said that the sub-rule could extend to any employee of an entity which is a successor to the operations of the STA, including employees of private operators who take over bus operations from the STA in regions 7, 8 or 9, even where those employees work in the new operator’s existing private bus operations.

[84] Secondly, the TWU contended that the roles, functions and responsibilities of the STA extend beyond bus services and include ferry operations in Newcastle and ‘any business, whether or not related to the operation of its bus or ferry services’ (ss.22 and 24(1)(a) of the Transport Act). The TWU said that sub-rule 4(4)(ii) would, as drafted, permit the RTBU to cover all employees of a successor, assignee or transmittee of any business, role, function or responsibility of the STA.

[85] We see no substance in the TWU’s contention that the Deputy President erred by failing to delineate the outer limits of the scope of the rule. The requirement that the Commission consider the persons who would become eligible for membership does not require absolute certainty as to the ‘outer limits’ of the reach of the proposed rule. The eligibility rules of many unions contain references to successors and transmittees of business, which derive from the transmission of business provisions in the legislation that preceded the FW Act. It is unrealistic to expect the Commission to examine in detail future hypothetical situations in which these provisions might be engaged. The Deputy President observed that whether a particular employer of relevant employees would fall within the rule would depend on the circumstances, including the arrangements entered into by the New South Wales Government with private operators in those regions. We agree.

[86] More generally, and leaving transmission of business to one side, it cannot be expected that the Commission could conclusively identify the entire cohort of employees who may fall within the scope of the rule, or even necessarily the precise dimensions of the relevant genus that the rules reflect. The Commission must consider who would be eligible for membership pursuant to the new rule, and whether there is another organisation to which those persons could more conveniently belong, and which could more effectively represent those persons etc. Section 158(4) makes clear that this will turn on the ‘opinion’ of the Commission, rather than a state of satisfaction. Further, this process occurs in the context of the proposed rule changes having been adverted to by notice in the government Gazette, affording objectors an opportunity to intervene. This is suggestive of a process whereby the Commission will be responsive to objections that are placed before it, and, perhaps, will otherwise draw on its experience to form an opinion. Section 158(4) does not require the Commission to make a free-standing and conclusive determination as to the final scope of the rule. 11

[87] The Commission’s deliberations under s.158(4), and the residual discretion, are informed by the scope of any objection raised. The Deputy President considered the TWU’s objections in the context of his consideration of s.158(4) and was not persuaded by them. It does not appear to us that the concerns now raised by the TWU about the outer limits of the rule were raised before the Deputy President. The TWU does not contend that it raised this issue before the Deputy President and that he failed to deal with it or take it into account. It was therefore not something that the Deputy President was required to determine.

[88] Whilst it is not necessary for us to address the two respects in which the TWU contended that rule 4(4)(ii) reaches limits undetected by the Deputy President, we make some brief observations.

[89] First, we doubt that persons employed by successors to the STA but who are engaged in work in pre-existing private operations could be described as employees of a successor to the Authority, so as to fall within rule 4(4)(ii). As with the other rules where the language of transmission of business is used, we consider that it was objectively intended to import concepts from the predecessor legislation, where the notion of ‘successor, assignee or transferee’ was linked to the relevant business or part of a business. Under the Workplace Relations Act 1996, and the Conciliation and Arbitration Act 1904, there was no stipulation about the extent to which an ‘inherited’ industrial instrument would apply to the broader operations of a purchaser of, or successor to, a business or a part of a business. Nevertheless, in Shaw v United Felt Hats Pty Ltd, 12 the High Court considered a case where a purchaser had acquired two mills at different sites that undertook the same work, but were covered by different awards, one of which prescribed a higher rate of pay. In dismissing a claim that the purchaser of the two mills had to pay all employees at both mills the higher rate of pay, the Court held that the prima facie position was that, ‘as some covenants run with land, so the obligation runs, as it were, with the business.’13 That is, an award would follow the relevant business or part of the business only and would not apply to other parts of the acquirer’s business. It seems to us that this reasoning is applicable to the hypothetical situation raised by the TWU and would ‘insulate’ the private operator’s pre-existing private business from the effect of the rule.

[90] Secondly, although rule 4(4)(ii) does not state that it is limited to bus operations, we consider that there is a compelling argument that it would be read down to cover the rail, tram and bus industry. Rule 4 must be read in the context of the RTBU’s rules as a whole, including rule 5, which concerns the union’s objects. These include to ‘maximise the amount of labour employed within the rail, tram and bus industry’, and to take all necessary steps to secure satisfactory working conditions in relation to ‘employment in the rail, tram, and bus industry’.

[91] The third contention of the TWU was that because the Deputy President found that proposed rule 4(4)(ii) did not extend coverage to the primary group of employees that the RTBU had sought to cover, it was not possible to apply s.158(4) or the residual discretion in relation to sub-rule 4(4)(ii). The TWU submitted that no existing employees would become eligible for membership as a result of consent being granted to sub-rule 4(4)(ii), and it was unknown whether there ever would be any employees covered by the sub-rule in the future, as the circumstances or working arrangements of those employees were unknown. The TWU said that although the New South Wales government had announced an intention to privatise bus operations in regions 7, 8 and 9 in the future, at the time of the hearing no tender process had commenced, it was not known what form any tender would take or the manner in which any bus operations would be conducted following privatisation, and clearly the successful tenderer was not known.

[92] The TWU accepted that the ‘conveniently belong’ test does not refer to individuals but to the genus of persons who might belong to that association and the convenience of whose potential membership of an existing organisation is controversial. The test is not to be applied in a manner limited to the actual members of the applicant organisation. However, the TWU argued that it must be possible to identify the genus or class and that the Deputy President did not do this. Therefore, it said, he could not apply s.158(4) or the residual discretion; whether such employees would ever exist, and the nature or circumstances of the class, could only be speculation.

[93] We reject the TWU’s third contention. Section 158(4) necessarily requires the Commission to look into the future and consider if, in relation to persons who would be eligible for membership because of the alteration, there is in the opinion of the Commission some other organisation to which those persons could more conveniently belong. There is no requirement that the relevant persons must become eligible for membership of the applicant union immediately upon the new rule taking effect. The analysis is one that inherently pertains to the future. There is nothing unusual about an application to alter an eligibility rule that is anticipatory of a particular event or circumstance. There is nothing in the RO Act that suggests that persons who might become eligible for membership cannot become so eligible upon the happening of a particular event, such as a privatisation or a transfer of business. If the relevant event seems unlikely or purely hypothetical, this might be a discretionary reason to refuse consent to the propose new rule. But that is not the case here. The government has announced an intention to privatise bus services in regions 7, 8 and 9, and bus services in other regions have already been privatised. Again, we contrast this position with circumstances of Transit Systems West Pty Ltd, referred to earlier in the RTBU appeal, where the company was supposed to employ bus drivers but did not do so, and does not do so, and though it is possible that it might employ bus drivers in the future, there is nothing to suggest that this theoretical possibility will eventuate. The prospect of that company becoming an employer of bus drivers now is merely speculative. The prospects of further privatisations in the bus sector in New South Wales is much more likely. The government’s announcement makes this so.

[94] We agree with the TWU’s contention that it must be possible to identify the relevant class of employees in order for the Commission to carry out its functions in the manner required by s.158. But for the reasons above, the Deputy President identified the class or genus of employees to which sub-rule 4(4)(ii) relates. The class was clear, even if the future composition of the class was not.

[95] We reject grounds 2, 3 and 4 in the notice of appeal.

Ground 5

[96] From s.158(8) it is apparent that the Commission retains a residual discretion to refuse consent to the alteration of the eligibility rules of an organisation, leaving aside the particular matters in relation to which the Commission must be satisfied under s.158.

[97] The TWU’s fifth ground of appeal contended that the Deputy President failed to appreciate that s.158 requires that the Commission exercise its discretion by reference to the group of employees who will become eligible for membership of the applicant union if consent is granted to the alteration to the rules, having regard to the objects of the RO Act. The TWU said that on the Deputy President’s findings, there were no actual employees who became eligible to be members of the RTBU as a result of sub-rule 4(4)(ii), and there was no basis to identify whether there will in the future be any such employees, or the nature of any such employees. The TWU said that these factors militated against the exercise of the discretion to consent to sub-rule 4(4)(ii) and the Deputy President erred by not taking these relevant considerations into account.

[98] In our view, these arguments simply re-put the contentions we have rejected above. For the reasons given earlier, there was, and is a class of persons that is covered by sub-rule 4(4)(ii). The fact that it is a future class of persons does not matter. The class of future employees was not limited to employees in region 6. Moreover, the Deputy President was plainly aware and took into account that there were no employees who would immediately become eligible for membership of the RTBU upon consent to the rule being granted.

[99] Finally, although it was not directly raised as a ground of appeal, we have considered whether the very use by the RTBU in sub-rule 4(4)(ii) of terminology associated with superseded legislation creates an element of uncertainty that might have constituted a relevant consideration for the purposes of the exercise of the residual discretion. We have concluded that it was not. As we have said, many union rules use the formulation of words that is found in sub-rule 4(4)(ii). We consider them to be sufficiently certain to establish a class of employees who would be eligible for membership of the union.

Conclusion in relation to the TWU’s appeal

[100] We consider that it is in the public interest that permission to appeal should be granted because the TWU’s appeal raises issues of wider application in relation to the interpretation of proposed new eligibility rules. However, the appeal grounds do not disclose appealable error. Accordingly, the appeal must be dismissed.

[101] We make a final observation. The RO Act does not allow the Commission to redraft or allow an amendment to the proposed rules. This is no doubt a consequence of the requirement that the proposed rules have been approved by the union’s executive. A facility to accommodate amendment, with endorsement or ratification by the union executive, and perhaps even further notification in the Gazette, would certainly be useful. Nevertheless, as the Deputy President pointed out, the RTBU is free to pursue a further alternation or alterations of its eligibility rules as it sees fit.

Orders

[102] In C2020/2250 we order as follows:

(1) Permission to appeal is granted in respect of grounds 1 and 2 of the notice of appeal.

(2) Permission to appeal is otherwise refused.

(3) The appeal is dismissed.

[103] In C2020/2257 we order as follows:

(1) Permission to appeal is granted.

(2) The appeal is dismissed.

DEPUTY PRESIDENT

Appearances:

I. Taylor SC with L. Saunders of counsel for the RTBU
M. Gibian SC with G. Webb for the TWU

Hearing details:

2020
Melbourne, by telephone
19 May

Printed by authority of the Commonwealth Government Printer

<PR720309>

 1   [2020] FWC 1489

 2   [2014] FWCFB 3501 at [34]

 3   See also R v Cohen; Ex parte Motor Accidents Insurance Board (1979) 141 CLR 577 at 587

 4   R v Williams; Ex parte Australian, Building, Construction Employees’ and Builders Labourers’ Federation (1982) 153 CLR 402 at 408; Resmed, at [34].

 5   R v Aird, Ex Parte AWU (1973) 129 CLR 654, at 659, per Barwick CJ

 6   See s.68Q(10) of the Transport Act.

 7   (2000) 201 CLR 648

 8   (2005) 222 CLR 194

 9   (1990) 171 CLR 216

 10   See Re Australian Workers’ Union; Ex parte Construction, Forestry, Mining and Energy Union (2002) 120 FCR 527 at [44]

 11   R v Coldham, ex parte AWU (1982) 153 CLR 415 at 419

 12   [1927] 39 CLR 533

 13   Ibid at 536