| [2016] FWCFB 2262 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
VICE PRESIDENT HATCHER |
|
Appeal against decision of General Manager at Melbourne on 15 January 2016 in matter number R2016/1.
Introduction and factual background
[1] The Construction, Forestry, Mining and Energy Union (CFMEU) has lodged an appeal, for which permission to appeal is required, against a decision of the General Manager of the Commission made on 15 January 2016 to authorise two employees of the Commission to inspect the CFMEU’s membership records pursuant to s.235(1) of the Fair Work (Registered Organisations) Act 2009 (RO Act). Section 235 of the RO Act provides:
235 General Manager may authorise access to certain records
(1) A person (the authorised person) authorised by the General Manager may inspect, and make copies of, or take extracts from, the records kept by an organisation under sections 230 and 231 (the records) at such times as the General Manager specifies.
(2) An organisation must cause its records to be available, at all relevant times, for the purposes of subsection (1) to the authorised person.
Note: This subsection is a civil penalty provision (see section 305).
(3) Without limiting the ways in which an organisation can comply with subsection (2), it complies if it makes the records available to the authorised person in a form agreed to by the authorised person.
Note: For example, the authorised person could agree to the organisation providing him or her with a hard copy or with a floppy disk, or to transmitting a copy of the register (or the relevant part) to a specified email address.
[2] The authorisation granted by the General Manager concerned the records which the CFMEU, as a registered organisation, is required to keep under s.230(1)(a) of the RO Act, which provides:
(1) An organisation must keep the following records:
(a) a register of its members, showing the name and postal address of each member and showing whether the member became a member under an agreement entered into under rules made under subsection 151(1) ...
[3] The authorisation arose out of the following circumstances. On 5 January 2016 Mr Damien Cravino, an inspector employed in the Office of the Fair Work Building Industry Inspectorate (FWBII), wrote to the General Manager requesting, pursuant to s.348 of the RO Act, the issue of certificates in relation to two named individuals confirming their membership as at 28 March 2015. Section 348 of the RO Act provides:
348 Certificate as to membership of organisation
A certificate of the General Manager stating that a specified person was at a specified time a member or officer of a specified organisation or a specified branch of a specified organisation is, in all courts and proceedings, evidence that the facts are as stated.
[4] The purpose of the request was stated in Mr Cravino’s letter to be: “The certificate is sought for the purposes of carrying out an investigation in relation to conduct engaged in by building industry participants that may be contrary to a designated building law”.
[5] Telephone contact was made by Mr James Hall, a staff member in the Commission’s Regulatory Compliance Branch with the CFMEU in relation to the FWBII’s request. This prompted the CFMEU to send by email a letter to Mr Hall dated 7 January 2016 which stated, among other things, the following:
“…
2. Before we are able to consider allowing you to inspect, make copies of or take extracts from records made and retained by the CFMEU under ss.230-231, please provide to us by written return a copy of the instrument from the General Manager conferring authority on you to be an ‘authorised person’ for the purposes of s.235.
3. Further, the CFMEU has concerns that the conferral of authority on you under s.235 has been done for an improper and/or impermissible purpose.
4. We would appreciate you particularising the purpose of your proposed exercise of power under s.235
...”
[6] The Director of the Commission’s Regulatory Compliance Branch, Mr Chris Enright, replied to the CFMEU’s letter the same day. His letter enclosed a copy of “the instrument authorising Mr James Hall and Ms Carolyn Moloney to inspect, and make copies of or take extracts from the register of members of the CFMEU”. The letter further advised that this authority remained in force until 5.00pm on 14 January 2016, that in exercise of that authority Mr Hall and Ms Moloney intended to attend the CFMEU’s office in Sydney, and that “The reason underlying the proposed exercise of this authority stems from a request made by the Office of the Fair Work Building Industry Inspectorate for a certificate or certificates to be issued pursuant to s.348 of the Act”. The letter ended by requesting that the CFMEU confirm whether it intended to comply with the authorisation.
[7] The CFMEU replied in a letter sent by email and dated 11 January 2016. The letter stated:
“... Having regard to the matters detailed in the correspondence, the CFMEU does not consider that the purported exercise of power under s.235 of the Act is proper or permissible. To that effect, we note that:
- the power under s.235 is designed to facilitate the inspection of records under ss.230-231 of the Act to ensure compliance by registered organisations with those sections, not to facilitate prosecutions by the FWBII against the CFMEU or its members;
- you have not clarified that the two named people scheduled to attend the CFMEU offices fall within the provisions of section 343A(3) of the Act.
In the circumstances, what is proposed is an impermissible exercise of the power under s.235 of the Act.”
[8] Further information was then sought by the Regulatory Compliance Branch from the FWBII concerning its investigation in an email dated 13 January 2016. The email relevantly stated:
“...In order for the Fair Work Commission to be satisfied of the purpose behind the request to issue the certificates pursuant to s.348 of the Act, could you please provide some further information regarding the investigation being conducted into the two persons referred to in your correspondence. More specifically, could you please give a brief indication of the relevant provisions and legislation involved in the investigation into those two individuals.
Unfortunately, it appears that it will not be possible to issue the certificates by 14 January 2016 as per your request.
However we will treat this matter as a priority and endeavour to fulfil your request or advise you otherwise as soon as possible.”
[9] The FWBII’s reply dated 14 January 2016 relevantly stated:
“As indicated in my 5 January 2016 correspondence, FWBC is seeking the requested certificates because it is conducting an investigation in relation to conduct engaged in by certain building industry participants that may be contrary to a designated building law. Specifically, an investigation into suspected contraventions of the Fair Work Act 2009 (FW Act).
As a result of its investigation to date, FWBC has identified:
Certificates confirming whether [first named individual] and [second named individual] are members of the CFMEU are directly relevant to the FWBC’s investigation, including, but not limited to, any potential liability for contraventions of the FW Act. ...”
[10] On 15 January 2016 the General Manager replied to the CFMEU’s letter of 11 January 2016. Since the contents of this letter, and the attached authorisation, constitute in effect the decision under appeal, we set them out in full. The letter, omitting formal parts, read as follows:
“I refer to your letter of 11 January 2016 to Mr Chris Enright regarding the above. As Mr Enright is currently on leave, this matter has been referred to me for response.
The authorisation of Mr Enright dated 7 January 2016 lapsed at 5pm on 14 January 2016. In Mr Enright's absence, I have issued a new authority pursuant to s.235(1) of the Fair Work (Registered Organisations) Act 2009 (RO Act), authorising Mr Hall and Ms Moloney to inspect and make copies of, or take extracts from, the register of members of the Construction, Forestry, Mining and Energy Union (CFMEU). A copy of this authorisation is attached.
The purpose of this authorisation is to establish whether or not two particular individuals were members of the CFMEU at certain times, so as to respond to a request from Fair Work Building and Construction (FWBC) for s.348 certificates in relation to the individuals. The FWBC has requested s.348 certificates for the purposes of an investigation it is undertaking into suspected contraventions of certain provisions of the Fair Work Act 2009 (Fair Work Act). I consider my authorisation for these purposes to be a proper exercise of my discretion under s.235(1).
I do not accept the view that the power under s.235(1) is limited to authorising inspection of records for the purpose of ensuring compliance with ss.230 and 231 of the RO Act. The General Manager (or delegate) has a broad discretion under s.235(1) as to whether or not to authorise persons to inspect the records kept by an organisation under ss.230 and 231.
This was confirmed by Moore DP in Australian Federation of Air Pilots v Hamilton Island Enterprises Pty Ltd (No 2) (1989) 32 IR 46. In this case the Australian Federation of Air Pilots appealed the Industrial Registrar's issue of an authority under then s.268(10) of the Industrial Relations Act 1988 (IR Act). Section 268(10) of the IR Act was in essentially identical terms to s.235(1) of the Fair Work Act. Moore DP held [at 49] that:
The Registrar has historically and continues to determine who may or who may not inspect the register of members ... The Registrar is invested with a discretionary power to authorise or to refuse to authorise the inspection of that register. Like any discretionary power given by statute, if there are no express limits placed on the exercise of the discretion it must be treated as limited by the scope and object of the statute conferring power and cannot be exercised with a view to achieving objects outside the purpose for which the discretion is conferred.
Moore DP went on to note that the operation of the IR Act was dependent in a number of respects upon knowledge of who constitutes the membership of a registered organisation and held [at 51] that:
The Registrar is given a power to authorise inspection so that others can exercise powers or pursue rights given by or derived from the IR Act.
In this case, I have authorised inspection of the CFMEU's membership register to enable me to determine whether s.348 certificates can be issued to FWBC. FWBC informs me that whether or not the two individuals are members of the CFMEU is directly relevant to its investigation, including in relation to any potential liability for contraventions of the Fair Work Act. I consider authorising inspection so that FWBC can exercise powers or carry out functions under the legislative framework that the RO Act forms part of, is a proper exercise of my powers under s.235(1).
In relation to your query as to how Mr Hall and Ms Moloney “fall within the provisions of s.343A(3)” of the RO Act, I note that pursuant to the attached authorisation, Mr Hall and Ms Moloney are ‘authorised persons’ within the meaning of s.235(1) of the RO Act. Their authority to inspect, and make copies of, the CFMEU's records stems from s.235(1), not s.343A(3) of the RO Act. Section 343A(3) provides that the General Manager may delegate functions or powers under certain provisions of the RO Act (including the power under s.235(1) to authorise persons to inspect an organisation's records) to specified classes of staff of the Fair Work Commission.
Please be advised that Mr Hall and Ms Moloney will attend at the offices of the CFMEU at Level 9, 215-217 Clarence Street, Sydney on Friday 29 January 2016 at 10am, or such earlier date and time as may be agreed, to inspect and make copies of, or take extracts, from the CFMEU's records.
I note that failure to cause the records to be available at all relevant times is a breach of s.235(2) of the RO Act, which is a civil penalty provision.
If you wish to arrange an earlier date for inspection of the records, please contact Mr James Hall, Senior Advisor, Regulatory Compliance Branch on (02) 9308 1975.”
[11] The authorisation attached to the above letter, omitting formal parts, stated:
“I, BERNADETTE O’NEILL, General Manager of the Fair Work Commission, pursuant to section 235(1) of the Fair Work (Registered Organisations) Act 2009 (RO Act) authorise James Hall and Carolyn Moloney of the Fair Work Commission to inspect and make copies of or take extracts from the records kept by the Construction, Forestry, Mining and Energy Union under sections 230 and 231 of the RO Act.
This authority is to be exercised between 10am and 5pm on 29 January 2016.”
[12] The CFMEU’s notice of appeal sought a stay of the authorisation pending the hearing and determination of the appeal. A stay was granted on 28 January 2016. 1
Submissions
[13] The CFMEU made the following submissions about the proper construction of s.235 of the RO Act:
[14] In relation to s.348, the CFMEU submitted again that the power to issue a certificate under that section could only be utilised for the purposes of the RO Act, not for the purpose of an investigation under another Act. Further, it submitted that the text of s.348 disclosed that the proper purpose of the issue of a certificate under the section was the facilitation of proof in an extant court proceeding, not for the purpose of investigating whether there was sufficient evidence for court proceedings to be initiated.
[15] Having regard to these matters, the CFMEU submitted that the General Manager’s decision to authorise inspection of the CFMEU’s membership records was not a valid exercise of the power conferred by s.235 because it was for the purpose of facilitating the issue of a certificate under s.348 to assist the FWBII’s investigation concerning alleged contraventions of an Act other than the RO Act. Provision of assistance for such an investigation was not a purpose or object of the RO Act. Further, the CFMEU submitted that none of the suspected contraventions being investigated by the FWBII required proof of membership of a registered organisation. Permission to appeal should be granted because the issues raised by the appeal were novel and had potential general application to registered organisations.
[16] The Director of the FWBII (Director) appeared through counsel in the appeal and contended that he had the right to make submissions in the matter under s.72 of the BI Act and was in any event entitled to be heard since he had a direct interest in the matter. The Director submitted that the short answer to the appeal was that the grant of the authorisation under s.235 by the General Manager was for the purpose of determining whether a certificate should be issued under s.348, which was patently a legitimate purpose for the exercise of the discretion under s.235. The General Manager had not yet made any decision to grant a certificate under s.348, and so any arguments concerning the circumstances in which the power in s.348 could be exercised were matters for another day and should not be entertained in the current appeal. Permission to appeal should be refused for this reason.
[17] The Director’s longer answer to the appeal, in the event that the alleged ultimate purpose of the grant of a certificate under s.348 properly arose for consideration, was that there was nothing in the subject matter, scope or purpose of the RO Act which would exclude the General Manager from considering compliance actions or investigations against registered organisations and their members in determining whether to grant an authorisation under s.235. There were five reasons why the Director submitted this was the case:
(1) Section 348, insofar as it allowed the issue of a certificate as proof of membership “in all courts and proceedings”, suggested that use of the provision was not limited by reference to the narrow range of court proceedings contemplated by the RO Act.
(2) Court proceedings under the RO Act would generally involve registered organisations, their members, and/or the General Manager, all of whom would either have knowledge of membership or other legal mechanisms for access to the relevant information.
(3) Compliance and enforcement actions under industrial relations legislation had been recognised as directly relevant to the exercise of the power conferred by the legislative predecessors of s.235. The segregation of the scheme for regulation of registered organisations from the general industrial relations regime upon the enactment of the FW Act and the RO Act should not be understood as changing the effect of the provision.
(4) Section 657(2) of the FW Act gave the General Manager wide powers to inspect a registered organisation’s membership register for the purpose of performing a function conferred on her by a law of the Commonwealth (which would include s.348 of the RO Act). In the light of this unencumbered alternative power, there is no identifiable purpose in limiting the scope of s.235(1).
(5) There is no apparent policy reason why the legislation would allow the issue of a certificate proving membership only for the RO Act and not for the FW Act.
[18] In response to the CFMEU’s submissions, the Director submitted that there was no useful distinction to be made between an investigation and compliance or enforcement by way of an instituted court proceeding, and also submitted that the CFMEU was not in a position to assert what use might be made by the FWBII of a certificate for the purpose of its investigations.
Consideration
Right of the Director to make submissions
[19] We consider that the Director has a right to make submissions, for two reasons. First, an entitlement arises under s.72 of the BI Act, which provides as follows:
Director may make submissions in FWC proceedings
The Director may, by giving written notice to the General Manager of the FWC, make a submission in a matter before the FWC that arises under the FW Act or the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 and involves:
(a) a building industry participant; or
(b) building work.
[20] The appeal was lodged pursuant to s.604 of the FW Act, so it is a “matter before the FWC that arises under the FW Act”. The appellant is a “building industry participant” as defined in s.4 of the BI Act (being a “building association” as defined in the same section). The Director gave written notice to the General Manager that he intended to make submissions in this appeal on 27 January 2016. The requirements of s.72 having been satisfied, we consider that the provision thereby confers upon the Director the right to make submissions.
[21] Second, because the decision under appeal was made as a consequence of the Director’s request for a certificate under s.348 to assist in the exercise of the FWBII’s statutory investigatory functions, any decision made in this appeal will necessarily affect the FWBII’s interests. Accordingly we consider that in those circumstances the Director has a legitimate expectation that he would be heard in the appeal.
Permission to appeal
[22] We consider that the CFMEU’s appeal is reasonably arguable and raises issues which are both novel and are likely to have general and ongoing implications for other registered organisations and other matters involving the CFMEU. In the latter respect, we note that the Director’s oral submissions referred to this appeal being, in effect, a test of whether the FWBII could use the s.348 certificate mechanism to assist it in its investigations and preparation of cases or whether it would be required to use other avenues in order to prove union membership. For these reasons we consider it appropriate to grant permission to appeal.
Merits of the appeal
[23] We have earlier set out the correspondence leading up to and including the General Manager’s correspondence of 15 January 2016 in which she explained her reasons for deciding to grant an authorisation under s.235 for the inspection of the CFMEU’s membership records. It is clear from that correspondence that the General Manager’s purpose in granting the authorisation was to accede to the FWBII’s request for a certificate under s.348 should the two named individuals turn out to have been members of the CFMEU at the relevant date. There is no suggestion in that correspondence that, upon the inspection of the CFMEU’s membership register having occurred, the General Manager intended there to be any separate discretionary decision-making process concerning whether a certificate should be issued under s.348 in which the CFMEU would have a right to be heard.
[24] For that reason the Director’s “short answer” to the appeal, although superficially attractive, does not provide a proper basis for the disposition of the appeal. It is based upon a factual mischaracterisation of the basis upon which the authorisation under s.235 was granted. This is not a case of any dichotomy between the direct and ultimate purpose of the grant of the authorisation; here they are one and the same, being to provide the FWBII with a certificate under s.348 if the two named individuals were members of the CFMEU at the relevant time. Therefore the validity of the General Manager’s decision to authorise inspection of the CFMEU’s membership register must be assessed by reference to her intention to act upon the FWBII’s request for a s.348 certificate.
[25] There was no dispute between the parties in the appeal that the discretionary power in s.235, although expressed in unrestricted terms, was not to be construed as entirely unconfined as to the manner or circumstances in which it could be exercised, but was rather limited by the legislative objects and purpose. The relevant principle in this respect was stated by the Federal Court Full Court in Bowling v General Motors - Holden’s Pty Ltd 2 as follows:
“If the scope of the permission be not circumscribed by context or circumstances it enables the doing, or abstaining from doing, at discretion, of the thing so authorized. But the discretion must be exercised bona fide, having regard to the policy and purpose of the statute conferring the authority and the duties of the officer to whom it was given: it may not be exercised for the promotion of some end foreign to that policy and purpose or those duties.”
[26] The CFMEU’s case on appeal rested essentially on two propositions. The first was that the legislative policy and purpose in pursuance of which the discretion in s.235 was to be exercised were those identifiable in the RO Act alone, so that any exercise of the power based upon the policy and purpose of the separate FW Act (such as to aid enforcement of statutory obligations established by the FW Act) was invalid. The second was that, insofar as the power in s.235 was exercised for the purpose of issuing a certificate under s.348 in order to assist the FWBII in conducting its investigation, that was an invalid action because a certificate could not validly be issued for a mere investigatory purpose. The Director rejected both propositions.
[27] In relation to the first proposition, it is necessary to analyse the legislative history of s.235 and its predecessor provisions in the context of the industrial statutes in which they appeared. As will become apparent, the critical feature of that history was that, until 2009, s.235 and its predecessor provisions were contained in the general statute governing industrial relations at the federal level.
[28] The history up until 1988 was discussed in a decision of the Australian Industrial Relations Commission (Moore DP, as he then was) in Australian Federation of Air Pilots v Hamilton Island Enterprises Pty Ltd (No 2). 3 That history up until the enactment of the Industrial Relations Act 1988 (IR Act) as described in that decision may be summarised as follows:
[29] Moore DP drew the following conclusion from this history:
“Two things emerge from this history. The first is that the express requirement to provide the Registrar with copies of the register of members coupled with a right to inspect was introduced into the Act when the Act was amended, for the first time, to provide for secret ballots of members and that significant amendments to those requirements have been made in conjunction with amendments concerning secret ballots of members. The second is that to varying degrees the inspection of the register of members or copies of it has been the subject of authorisation by the Registrar and has thereby been limited.” 4
[30] In the IR Act as first enacted, s.268 relevantly provided as follows:
268 Records to be kept and lodged by organisations
(1) An organisation shall keep, under this section, the following records:
(a) a register of its members, showing the name and postal address of each member and showing whether the member became a member under an agreement entered into under rules made under subsection 202 (1);
(b) a list of the offices in the organisation and each branch of the organisation;
(c) a list of the names, postal addresses and occupations of the persons holding the offices;
(d) such other records as are prescribed.
...
(10) A person authorised by a Registrar may inspect, and make copies of, or take extracts from, the register of members of an organisation, or a part of the register, at such times as the Registrar specifies.
(11) An organisation shall cause its register of members, or each part of the register, to be available, at all relevant times, for the purposes of subsection (10), at the office or premises where the register or part is kept, to a person authorised by the Registrar under that subsection.
(12) Where:
(a) a member of an organisation requests a Registrar to give a direction under this subsection; and
(b) the Registrar is satisfied:
(i) that the member has been refused access to the register of members, or a part of the register of members, of the organisation at the office or premises where the register or part is kept; or
(ii) that there are other grounds for giving a direction under this subsection;
the Registrar may direct the organisation to deliver to the Registrar, before a specified day, a copy of the register certified by statutory declaration by the secretary or other prescribed officer of the organisation to be, as at a day specified in the certificate that is not more than 28 days before the firstmentioned day, a correct statement of the information contained in the register, for the member to inspect at a specified registry.
[31] AFAP v Hamilton Island Enterprises 5 concerned an appeal from a decision of the then Industrial Registrar to authorise access to the AFAP’s membership register under s.268(10) of the IR Act. The facts in the matter were summarised in the decision as follows6:
“On 27 September 1989 the Industrial Registrar authorised under s.268 of the Industrial Relations Act 1988 (IR Act) a Mr K. Siebel to inspect and copy the register of members of the Australian Federation of Air Pilots (AFAP) which is a registered organisation of employees. The AFAP has appealed against the decision to grant the authority and on 6 October I stayed the decision and the operation of the authorisation pending the hearing of this appeal.
The authorisation was given as a result of a request contained in a letter sent to the Registrar on 11 September 1989 by Hopgood and Ganim who are a firm of solicitors in Queensland acting for Hamilton Island Enterprises Pty Ltd (the company). The company had commenced proceedings against the AFAP and certain of its officers in the Supreme Court of Queensland seeking damages and other relief. The letter stated that the authority was sought so that the company could identify the members of the AFAP as it proposed to add some or all of the members as defendants to those proceedings. During the hearing of this appeal the AFAP indicated that if it became necessary it would seek to show that the request was, in fact, being made for another purpose, viz. to enable publication of the names of the members of the AFAP. In view of the conclusion I have reached, I am able to proceed (as the Registrar did) on the basis that the request was made for the reasons set out in the letter of 11 September. The allegation made by the AFAP in these proceedings remains untested.
After the request was made there was further communication, both by phone and in writing, between the office of the Industrial Registrar and the solicitors for the company. On 18 September the Registrar issued an authority to Mr Siebel who was a solicitor with a firm which was the Melbourne agent of Hopgood and Ganim. The authority lapsed on 26 September. On 18 September Mr Siebel sought to inspect the register but was refused access. On 27 September Hopgood and Ganim wrote to the Registrar seeking a further authority and in that letter adverted to the fact that they had been advised by the solicitors for the AFAP on 19 September that it had lodged a notice of appeal against the decision to issue the first authority.
The Registrar, after receiving the letter of 27 September, issued another authority on that day. It lapsed on 26 October.”
[32] It was elsewhere stated in the decision that the court proceedings referred to in the above factual summary were “civil proceedings directed to obtaining damages and other relief based on actions in tort”. 7 That is, they were not proceedings arising under any provision of the IR Act.
[33] Deputy President Moore determined that the authorisation granted by the Industrial Registrar was for a purpose extraneous to the IR Act and therefore beyond power. The Deputy President stated (underlining added):
“The Registrar has historically and continues to determine who may or who may not inspect the register of members. The Registrar is defined to include Deputy Industrial Registrars. The Registrar is invested with a discretionary power to authorise or to refuse to authorise the inspection of that register. Like any discretionary power given by statute, if there are no express limits placed on the exercise of the discretion it must be treated as limited by the scope and object of the statute conferring power and cannot be exercised with a view to achieving objects outside the purpose for which the discretion is conferred.
Other Commonwealth statutes empower persons to inspect or authorise or permit inspection of documents and in each instance it is a matter of construction to determine the express or implied purpose of providing a power to inspect or authorise inspection and the limits on the exercise of that power.
The company referred to the provisions of s.257 of the Australian Companies Code which permits any person, on payment of a fee, to inspect the register of members of a company. That such a provision exists is really irrelevant to the question I am considering and, in any event, it appears (at least historically) the purpose of permitting such inspection was to allow potential shareholders the opportunity to ascertain with whom they might be committing themselves financially.
The operation of the IR Act is dependent in a number of respects upon a knowledge of who constitutes the membership of a registered organisation whether of employees or employers. Such knowledge may be necessary to determine respondency to an award (s.149(f)), and is necessary to conduct ballots of members for elections (s.210), ballots for amalgamations (s.243) and ballots concerning industrial disputes (s.135). It is also necessary to permit certificates to be issued establishing membership (s.291) which in turn may be relevant in proceedings for the enforcement of awards (s.178) or for giving effect to preference provisions in an award (s.122). The membership of organisations of employees will shortly be relevant to the review of the registration of organisations with membership of less than 1000 employees under s.193. These are at least some of the instances to be found in the IR Act where it may be necessary for an officer of the Australian Industrial Registry authorised by the Registrar or some other person authorised by the Registrar to ascertain whether a particular person or company is a member of an organisation or to ascertain who constitutes the membership of the whole or part of an organisation.
In each instance the purpose of inspecting and copying the register of members relates obviously and directly to the operation of the IR Act. That Act has abandoned the scheme of the C & A Act which required, subject to certain provisos which varied over time (see s.153 of the C & A Act 1904 at the time of its repeal), the organisation to lodge a copy of the register of members and alterations to it with the Registrar. When copies of the register were filed it was obviously open to the Registrar to refer to those copies, or permit others to refer to those copies, for the various purposes I have set out. Inspection might be required of the original register maintained by the organisation for the purpose of checking the accuracy of the copies of the register which had been lodged or in circumstances where the Registrar had waived the obligation to file a copy of the register. Now that the register is maintained solely by the organisation the need to permit inspection of the original register is obvious.
The Registrar clearly has power to authorise inspection for the various purposes I have just discussed. Does the power to authorise inspection permit the Registrar to give an authority for the purpose relied upon by the company? I think not. The Registrar issued the authority at the request of Hopgood and Ganim and the reason they advanced for inspection did not relate to any of the purposes of the IR Act I have already referred to nor did the reason relate to achieving any other object of the IR Act. The inspection was sought for a purpose extraneous to the objects of the Act and related to the joinder of parties in civil proceedings directed to obtaining damages and other relief based on actions in tort.
It might, however, be said that adding certain individuals as parties to the proceedings in the Supreme Court of Queensland may have, in some unspecified way, indirectly contributed to the settlement of the industrial dispute which, as is commonly known, has been dealt with by the Commission during this year. The company argued the appeal on the basis that the Registrar could authorise inspection for any purpose and made no submission to the effect that inspection and copying of the register might indirectly assist in settling the dispute. The relationship between those proceedings and the settlement of the dispute is, at best, remote. Whatever the connection, however, the Registrar is not charged with the statutory responsibility of preventing or settling disputes and I do not see how the authorisation could be justified on that basis.
The power to permit inspection is not exercisable by the Registrar as a means of settling a dispute as the settlement of disputes is a statutory responsibility residing in the Commission. I should add that there is no indication that the Registrar acted on that basis and neither party suggested he did. As I earlier said the Registrar acted on a request made by a firm of solicitors. He did so with the section under which he was acting providing no guide as to the circumstances in which he could authorise inspection and without the nature of that power having been considered in any reported decision of a Registrar, the Commission or any other tribunal or Court. The Registrar is given a power to authorise inspection so that others can exercise powers or pursue rights given by or derived from the IR Act. The inspection may relate to the exercise of a power such as a member of Commission, in settling a dispute, requiring a ballot to be conducted under s.135 or the inspection may relate to the pursuit of a right such as seeking the benefit of an award where liability of the employer can only be ascertained by reference to membership of an organisation (see s.149(f)). There are also circumstances where the inspection may relate to some other power the Registrar has such as issuing certificates under s.291. The authorisation in this case was for none of those purposes.
I conclude that the Registrar had no power to authorise the inspection sought by the company.” 8
[34] The principle enunciated in the above decision, having regard in particular to the underlined passages, was that the power to authorise inspection could validly be utilised to facilitate the exercise of any powers and rights conferred by the IR Act. Unlike the RO Act, the IR Act contained the entire scheme of federal legislation concerning industrial relations, so that inspection could be authorised for any purpose of that scheme. It may also be noted that, in the above passage, Moore DP specifically adverted to the possibility of the authorisation power being issued in relation to the issue of certificates under s.291. As discussed later, s.291 of the IR Act was the predecessor of the current s.348 of the RO Act.
[35] It may be interpolated at this point that an approach similar to that of Moore DP was adopted in the decision of the Supreme Court of Western Australia Full Court in Kierath (Minister for Labour Relations) v Western Australian Builders’ Labourers’, Painters’ and Plasterers’ Union. 9 That matter concerned s.63(7) of the Industrial Relations Act 1979 (WA) which, like the federal provision, required the register of members of organisations registered under that Act to be made available for inspection by such persons authorised by the Registrar of the Western Australian Industrial Relations Commission. Authorisation had been granted by the Registrar for Mr Kierath, who was a State Government Minister, to access the membership register of the relevant organisation in order to send the members certain information. The organisation sought judicial review of the authorisation from the Supreme Court and obtained relief from a single justice of the Court. The Minister appealed to the Full Court.
[36] The Full Court identified the critical question in the matter as being the purpose for which the power in s.63(7) was conferred. 10 In this respect the Full Court said:
“The trial Judge adopted a narrow construction of s63(7), holding that the Registrar is only entitled to authorise a person to inspect the register of members if the inspection is required for the purpose of facilitating, directly, the operation of the Act. In so doing his Honour relied on dicta in Australian Federation of Air Pilots v Hamilton Island Enterprises Pty Ltd (No 2) (1989) 32 IR 46. In that case the respondent had sued the union for damages in the Supreme Court. Section 268(10) of the Conciliation and Arbitration Act 1904 (C’th) provided that a person authorised by the Registrar could inspect and make copies from the register of members of a union. The respondent applied, successfully, to the Registrar for authorisation to inspect the register of members so as to identify members of the union, some of whom it proposed to join as defendants in the damages claim. The Union appealed to the Australian Industrial Relations Commission, raising virtually identical questions to those posed in the preliminary issues in this case. The authorisation was quashed. Moore DP referred to a number of instances in which the operation of the Commonwealth Act was dependent on knowledge of who constitutes the membership of a registered organisation. Most of the items mentioned are present also in the Act. The Deputy President noted that inspection for any of those reasons would “relate obviously and directly to the operation of” the Commonwealth Act. He then said, at 50-51:
“The Registrar clearly has power to authorise inspection for the purposes I have just discussed. Does the power to authorise inspection permit the Registrar to give an authority for the purpose relied on by [the respondent]? I think not. The Registrar issued the authority at the request of [the respondent] and the reason [it] advanced for inspection did not relate to any of the purposes of the [C’th Act] I have already referred to nor did the reason relate to achieving any other object of the [C’th Act].”
The Deputy President went on to note that Supreme Court proceedings arose out of an industrial dispute that had been before the Commission and that the proceedings may have contributed indirectly to settlement of the dispute. However, he said that the relationship between those proceedings and the dispute was, at best, remote. Whatever the connection, the Registrar was not charged with the statutory responsibility of preventing or settling disputes and the authorisation could not be justified on that basis.
Counsel for the respondent pointed to the close similarity between the provisions of the Commonwealth Act considered in AFAP (supra) (which had been enacted in 1951) and the provisions of the Act which had been introduced, initially, in 1952. In fact the relevant provisions of the 1952 Act ran parallel to the provisions of the Commonwealth Act: see Hansard, 26 August 1952 p525-26. Counsel for the respondent submitted that the provisions of the Act should be given the same interpretation as that afforded to the Commonwealth provisions in AFAP (supra). We think there is considerable force in this submission.” 11
[37] The Full Court then analysed in detail the mainly administrative role of the Registrar and contrasted it with the wide jurisdiction and authority of members of the Western Australian Industrial Relations Commission, 12 and concluded as follows:
“All of these functions are relatively routine and do not speak in terms of the exercise of discretionary powers. This is not to say that there are no discretions vested in the Registrar. In addition to directions from the Commission under s93(8) and (9) there is an independent power conferred on the Registrar (among others) by ss83 and 84A to institute proceedings. However, this is a discretion which is inevitably subject to review because it relates only to the institution of proceedings that are to be determined by another body with a duty to act judicially.
We are attracted to the narrower construction of the section which commended itself to his Honour. It seems to us that this is more in line with the legislative history, suggesting as it does that the inspection power was related to the conduct of secret ballots. The fact that inspection could run counter to the confidential nature of the information contained in the register also suggests the narrower line. We think this construction also accords with the limited nature of the role which the Act confers on the Registrar. If the broader interpretation is adopted it would place the Registrar in a position of having to make a value judgment on the purpose of the application. The Registrar would be obliged to carry out an investigation as to whether the purpose for which the inspection was required is one that would “promote goodwill in industry’ or would “prevent or resolve conflict in relation to an industrial matter”. Given the very limited nature of the discretions conferred on the Registrar elsewhere in the Act and the absence of a right of appeal against or review of such a determination we doubt that Parliament would have intended to bestow a wide ranging power of this nature.
While the appellant has responsibilities as a Minister of the Crown the primary responsibility for settling disputes and minimising industrial conflict lies with the Industrial Relations Commission. From there, it flows down to employers, employees and their respective industrial organisations. The realities of the Westminster system of government are such that the Minister has a pivotal role in setting and implementing industrial relations policy. In that regard it is quite understandable that a Minister might wish to disseminate information about proposed changes to industrial policy as widely as possible. It is also quite understandable that the Minister might wish to communicate the information directly to the members of an industrial organisation. But this does not reflect a purpose of facilitating, directly, the operation of the Act. It is not connected with the operation of the secret ballot provisions of the Act. Nor does it impact on any of the other areas in which knowledge of who constitutes the membership of an organisation is necessary to determine a question involved in the operation of the Act.
Conclusion
In our opinion the trial Judge was correct in deciding that, as a matter of statutory interpretation, the Registrar is only entitled to authorise a person to inspect the register of members under s63(7) if inspection is required for the purpose of facilitating, directly, the operation of the Act. His Honour framed the preliminary issues in terms of the pleading. Broadly, he enunciated the first issue as whether the second respondent had power to authorise the appellant to inspect the first respondent’s register for the purposes stated. In our view the trial Judge’s decision on the first preliminary issue should be upheld.” (underlining added)
[38] Returning to the legislative history, s.268 of the IR Act remained relevantly unchanged after that Act metamorphosed into the Workplace Relations Act 1996 (WR Act) as a result of the amendments effected by the Workplace Relations and Other Legislation Amendment Act 1996.
[39] In 2002 the Workplace Relations Amendment (Registration and Accountability of Organisations) Act 2002 removed those provisions of the WR Act concerned with the regulation of industrial organisations from the body of the WR Act and placed them in a restructured form in a new schedule to the WR Act, Schedule 1B - Registration and Accountability of Organisations. The requirement for organisations to keep records formerly contained in s.268(1) was now found in section 230(1) of Schedule 1B. The power to authorise access to these records was now contained in s.235(1) of Schedule 1B, which provided:
(1) A person (the authorised person) authorised by a Registrar may inspect, and make copies of, or take extracts from, the records kept by an organisation under sections 230 and 231 (the records ) at such times as the Registrar specifies.
[40] Section 268(11) became, in effect, s.235(2) of Schedule 1B, and s.268(12) became s.236.
[41] It can be seen that s.235(1) was, in substance and effect, no different from the former s.268(10). There is no reason to think that, by placing these provisions in a schedule to the WR Act, the legislature intended to change their effect by narrowing their scope. The revised explanatory memorandum for the Workplace Relations Amendment (Registration and Accountability of Organisations) Bill 2002 identified the overall purpose in establishing a specific schedule regulating registered organisations in the following terms (underlining added):
“The Act will establish a ‘Registration and Accountability of Organisations Schedule’ within the Workplace Relations Act 1996 (the WR Act) pertaining to registered organisations.
In particular, the Act proposes to:
(a) incorporate as a schedule of the WR Act all legislative provisions relating to the registration, deregistration, amalgamation and disamalgamation of registered organisations;
(b) regulate the rules of these organisations;
(c) provide for improved democratic control of organisations by regulating the conduct of elections for positions in organisations, and providing criteria for disqualification from office in an organisation;
(d) improve the accountability of registered organisations by modernising the requirements for record-keeping, financial reporting, and access to financial records;
(e) regulate the conduct of officers and employees of registered organisations; and
(f) provide for penalties, including civil penalties and civil compensation, with respect to breaches of the provisions of the Registration and Accountability of Organisations Schedule.
The amendments in the Act are consistent with the Government’s commitment to provide greater choice and flexibility to registered organisations and their members.
Many of the provisions relating to registered organisations in the WR Act will be replicated in the new Registration and Accountability of Organisations Schedule, with some amendments.
However, the provisions relating to registration, amalgamation and disamalgamation of organisations, the processes for conducting elections for offices in registered organisations and the financial accounting and reporting responsibilities of organisations will be altered...”
[42] The revised explanatory memorandum then set out a list of specific reforms, none of which was relevant to the provision under consideration here. It appears therefore that s.235(1) fell into the category of “replicated” provisions referred to. We consider that the principle of statutory interpretation that whenever legislation is re-enacted after having been judicially interpreted, the legislature is assumed to have approved that interpretation, is relevant in this context. 13 The replication of s.268(10) as s.235(1) of Schedule 1B was a form of re-enactment. Although the decision of Moore DP in AFAP v Hamilton Island Enterprises was not a judicial pronouncement, we consider that the legislature can be taken to have noticed his decision having regard to the legislative attention usually paid to decisions of this Commission and its predecessors which involve interpretation of industrial legislation, the adoption of Moore DP’s approach by the WA Supreme Court in Kierath, and Moore DP’s eminence in industrial law both as a member of the Australian Industrial Relations Commission and subsequently as a justice of the Federal Court of Australia. Therefore, consistent with AFAP v Hamilton Island Enterprises, s.235(1) was at that time to be regarded as conferring the power to authorise inspection of a registered organisation’s membership register for the purpose of persons exercising powers or pursuing rights given by or derived from the WR Act as a whole.
[43] The next changes of relevance occurred in 2009, when the FW Act was enacted as a separate piece of legislation establishing the substantive framework for the federal industrial relations system. At about the same time the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) was enacted (the FW Act was assented to on 7 April 2009 and the Transitional Act on 25 June 2009). Schedule 1 of the Transitional Act repealed almost the entire body of the WR Act and repealed all the schedules except for Schedule 1 (which Schedule 1B had now become by virtue of the Workplace Relations Amendment (Work Choices) Act 2005) and Schedule 10. Schedule 22 of the Transitional Act retitled the WR Act as the Fair Work (Registered Organisations) Act 2009 and made various amendments to the provisions which had been contained in Schedule 1. In short, the RO Act as it currently exists is Schedule 1 of the WR Act in modified form.
[44] The only modification to s.235(1) in this transition was that the reference to “a Registrar” (that is, the Industrial Registrar or a Deputy Industrial Registrar of the former Australian Industrial Registry) was changed to refer to the position of General Manager (of Fair Work Australia, subsequently renamed the Fair Work Commission).
[45] The interpretation of s.235(1) advanced by the CFMEU effectively requires acceptance of the proposition that the effect of the bifurcation in 2009 of federal industrial relations legislation into two separate Acts, one of which (the RO Act) was concerned specifically with the regulation of registered organisations, was that the scope of the power conferred by s.235(1) was narrowed significantly so that it could only be exercised for the purposes of RO Act rights and functions and not in relation to those arising under the FW Act.
[46] We cannot accept that proposition. There was no express textual amendment to indicate that such a result was intended. Notwithstanding that what had been dealt with in a single Act for more than a century was divided into two separate Acts, it is readily apparent that the provisions of both the FW Act and the RO Act remained inter-related and co-dependent. The RO Act concerns the regulation of organisations which have important rights, privileges and obligations under the FW Act, and the institutions on which the RO Act depends for its operation (in particular, the Fair Work Commission and the office of General Manager) were established under and are obliged to conduct themselves in accordance with the FW Act. For example, the statement of the parliamentary intention contained in s.5 of the RO Act (added as a result of an amendment in the Transitional Act) refers (in s.5(2)) to the need for associations of employers and employees “to meet the standards set out in this Act in order to gain the rights and privileges accorded to associations under this Act and the Fair Work Act”. The statutory note to s.5 adds:
“Note: The Fair Work Act contains many provisions that affect the operation of this Act. For example, provisions of the Fair Work Act deal with some powers and functions of the Fair Work Commission and of the General Manager. Decisions made under this Act may be subject to procedures and rules (for example, about appeals) that are set out in the Fair Work Act.”
[47] The Explanatory Memorandum for the Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 confirmed the inter-relationship between the two pieces of legislation:
“700. Although registered or recognised and regulated under the FW(RO) Act, organisations and recognised State associations will also have rights and obligations arising under the FW Bill. Consequently, there is considerable overlap between the two pieces of legislation, which rely on many uniform concepts and approaches.”
[48] In the circumstances described, the FW Act and the RO Act may properly be characterised as component parts of a scheme of legislation concerning industrial relations and therefore should be interpreted in a co-ordinated way as far as their respective texts permit. They have a substantially common purpose, are inter-connected and operate together. 14 The principle to be applied in interpreting legislation of this nature was described by Kirby P (as he then was) in Commissioner of Stamp Duties v Permanent Trustee Co Ltd15 as follows:
“Upon the hypothesis (which is admittedly often sorely tried) that there is a rational integration of the legislation of the one Parliament, it is proper for courts to endeavour to so construe inter related statutes as to produce a sensible, efficient and just operation of them in preference to an inefficient, conflicting or unjust operation.”
[49] In relation to the legislation under consideration in that matter, Kirby P went on to say:
“The result is that, in construing the legislation under consideration here, I will prefer that construction which is available in the language used and which facilitates the sensible operation together of the four statutes mentioned, avoiding inefficiency and the capricious operation of revenue law which would seriously impede or discourage the availability of beneficial statutory provisions for the sale or partition of property held by co-owners. In the case of ambiguity of the legislation I consider this to be the modern approach which this Court should adopt in implementing the will of Parliament. We should presume that Parliament intended its legislation to operate rationally, efficiently and justly, together.”
[50] The lack of any express restriction on the operation of s.235(1) in its text, the legislative history which we have earlier set out, and the need to interpret the provisions of the RO Act in such a way as to give them a co-ordinated operation with the provisions of the cognate FW Act, all lead us to conclude that the power in s.235(1) may be exercised not just for the purposes of the RO Act but also for those of the FW Act. That is, applying the approach taken in AFAP v Hamilton Island Enterprises in a way adapted to the current legislative structure, the General Manager is given the power to authorise inspection of an organisation’s membership register so that she or others can exercise powers or pursue rights given by or derived from the RO Act or the FW Act.
[51] Identification of a person’s membership of an organisation through the exercise of the inspection power in s.235(1) may aid the exercise of a number of powers or rights under the RO Act, as the CFMEU pointed out. For example, membership of the relevant organisation is or may be necessary for standing to make the following applications under the RO Act :
[52] Equally however, establishment of membership of an organisation may also be necessary or relevant for a number of purposes under the FW Act, such as:
[53] It would in our view not be a rational, efficient or just interpretation of s.235(1) for it to be able to be exercised to identify membership of an organisation for the purposes of the RO Act, including the RO Act provisions referred to above, but not for the FW Act including the FW Act provisions referred to above.
[54] The privacy and property considerations raised by the CFMEU as supportive of a narrow construction of s.235(1) are not such as to require the adoption of a contrary approach. Consistent with the decision in Kierath, where the same considerations were given significant weight in the construction of the statutory provisions in the WA industrial relations legislation which the Court ultimately preferred, the approach we prefer does not give s.235(1) a wide or unlimited sphere of operation but confines it to the facilitation of the purposes of the scheme of industrial relations regulation together established by the FW Act and the RO Act. Accordingly we reject the CFMEU’s first proposition that the General Manager’s decision to grant an authorisation in this case was invalid because it was not made in aid of a purpose of the RO Act.
[55] It would follow from our conclusions that the discretionary power conferred on the General Manager could validly be exercised to facilitate the enforcement of obligations under the FW Act, including obligations under the provisions of the FW Act referred to in the FWBII’s correspondence of 14 January 2016. It would also follow that the power could be exercised to facilitate the valid issue of a certificate under s.348 of the RO Act.
[56] That brings us to the CFMEU’s second proposition, namely that in this case the General Manager’s authorisation under s.235(1) was an invalid exercise of power because its purpose was to facilitate the invalid issue of a certificate under s.348. Consideration of this proposition requires identification of the nature and purpose of s.348. We have earlier set out the terms of the section. It is immediately apparent that the provision is not expressed in terms as a conferral of power on the General Manager to issue a certificate concerning the membership of or the holding of an office in an organisation, but rather states what the legal effect of such a certificate is once issued. In effect the section establishes a rule of evidence that the certificate is evidence of membership or the holding of an office, and operates both as an exception to the rule against hearsay and as a provision facilitating proof.
[57] No other provision of the RO Act establishes a specific power to grant the certificate referred to in s.348. However by necessary implication the General Manager must have the power to issue the certificate in order for s.348 to have utility. And, to the extent that s.348 involves the performance of a function by the General Manager, s.657 of the FW Act provides the necessary ancillary power to ensure that the function can be performed effectively. It relevantly provides:
Functions and powers of the General Manager
(1) ...
(1A) The General Manager also has the following functions:
(a) ...
(b) any function conferred on him or her by a law of the Commonwealth.
(2) The General Manager has power to do all things necessary or convenient to be done for the purpose of performing his or her functions.
[58] Neither party disputed the conferral of a power to issue a certificate under s.348, but the scope of that power was in contest.
[59] The legislative history of s.348 goes back to 1910, when the Conciliation and Arbitration Act 1904 was amended by, among other things, the addition of s.21A which provided:
21A. A certificate of the Registrar that any specified persons were at any specified time members of any specified organization shall (subject to review by the President under section seventeen of this Act) be conclusive evidence that the facts are as stated.
[60] In 1928, s.21A was amended so that the Registrar could certify the holding of office as well as membership in relation to an organisation. In 1947 by further amendment the provision (now s.72B) was substantively altered so that the certificate was only prima facie evidence of the facts stated, but the capacity of the President to review it was removed. The provision was renumbered as s.93 in 1956, and remained in substance the same until the repeal of the Conciliation and Arbitration Act.
[61] Section 291 of the IR Act was in identical form as the current provision except that it referred to the certificate being one of a Registrar (that is, the Industrial Registrar or a Deputy Registrar of the Australian Industrial Registry). The provision then became s.348 of Schedule 1B of the WR Act as a result of the Workplace Relations Amendment (Registration and Accountability of Organisations) Act 2002, and subsequently took its current form as s.348 of the RO Act as a result of the Transitional Act.
[62] For the same reasons we have earlier stated in relation to s.235, we consider that the legislative history supports the conclusion that the implicit power in s.348 to issue a certificate extends at least to purposes arising from the FW Act and not just the RO Act. The text of s.348 tends to further confirm that conclusion, since the certificate is given evidentiary effect “in all courts and proceedings”, which suggests a wider rather than a narrower scope of operation. However it remains necessary to identify the purpose for which the power to issue a certificate was conferred. It cannot be the case that a certificate of membership of an organisation can be issued by the General Manager for any purpose whatsoever. For example, it is unlikely that a certificate of membership could properly be issued at the request of a proud unionist who wished to have it framed and hung on the wall.
[63] The scope of the implied power to issue a certificate must necessarily be ascertained from the text of the provision considered in its statutory context. That the legal effect of a s.348 certificate is to serve as evidence of membership of an organisation in any court or proceeding is strongly suggestive of what the proper purpose of the necessary power to issue such a certificate is - namely, to aid proof of organisational membership before a court or in a proceeding. The word “proceeding” can, in the context of the section, only reasonably be understood as meaning the whole or part of an action or a matter before a court or a tribunal in which evidence may be adduced or received. Having regard to the historical origin of s.348 earlier described, it may be noted in this connection that in Federated Amalgamated Government Railway and Tramway Service Association v NSW Railway Traffic Employees’ Association 16 Griffith CJ said in relation to the expression “proceeding before the Court” in s.31(2) of the Conciliation and Arbitration Act 1904:
“The term ‘proceeding’ is a term of very wide application. In my opinion the term ‘proceeding before the Court’ includes every matter brought before the President in the exercise of the judicial functions conferred upon him by the Act.”
[64] We have earlier referred to the range of provisions in the RO Act and the FW Act in which membership of an organisation will be a relevant matter. In those provisions generally, and certainly in relation to the examples which we have set out, proof of membership of an organisation is relevant to standing to initiate a proceeding before a court or this Commission, a necessary element for the success of an application before a court or this Commission, and/or an element of a prohibition enforcement of which must occur by way of a court proceeding. That context supports an interpretative approach to s.348 whereby the proper purpose of the issue of a certificate is to facilitate proof of membership in a court or a proceeding.
[65] Does the proper exercise of the power extend to the issue of a certificate to aid an investigation by a regulatory authority such as the FWBII inspectorate? We think not. While it is arguable that a certificate might be able to be issued in respect of a court or tribunal proceeding which is contemplated but has not yet been initiated, an investigation by a regulatory authority is a different matter. At the stage of an investigation, there will have been no decision as to whether to institute proceedings, since the purpose of the investigation will presumably be to assess whether there is a sufficient basis to commence relevant proceedings in the first place. For that reason, an investigation may not lead to any proceedings ever being instituted. The issue of a s.348 certificate in that context would not therefore serve the proper purpose which we have earlier identified because the certificate would be used by the regulatory authority to ascertain the facts as to a person’s membership rather than to prove asserted facts in a court or proceeding.
[66] Subdivision D of Div.3 of Pt.5-2 of the FW Act contains specific provisions concerning the powers of Fair Work Inspectors appointed under s.700 of the Act. Under s.706(1)(a), those powers may be exercised for the purpose of determining whether the FW Act or a fair work instrument is being or has been complied with. Inspectors have the power, subject to identified restrictions, to enter premises and inspect and copy records and documents (s.709(e)), and also have the power to require records or documents to be produced on notice (s.712). Under s.59C of the BI Act, FWBII inspectors have the same functions and powers as a Fair Work Inspector. The Director is himself an inspector by virtue of s.59A of the BI Act. The existence and scope of the powers specifically conferred on inspectors provides them with the appropriate means to investigate any issue of membership of an organisation. Consequently there is no policy reason to read s.348 of the RO Act as if it were an investigatory tool, and indeed the specific powers conferred on inspectors provide a contextual reason not to read s.348 in that way.
[67] Our conclusion therefore is that there is no power under s.348 to issue a certificate concerning membership of an organisation merely as an aid to an investigation by a regulatory authority, and that the power in s.235(1) cannot validly be exercised with the object of issuing a s.348 certificate for that purpose. On the materials before us, the General Manager granted the authorisation the subject of the appeal for such a purpose and in doing so exceeded the powers conferred by the RO Act. It follows that the appeal must be upheld and the decision to grant the authorisation quashed.
Orders
[68] We make the following orders:
(1) Permission to appeal is granted.
(2) The appeal is upheld.
(3) The decision of the General Manager of 15 January 2016 to authorise inspection of the CFMEU’s membership register under s.235(1) of the RO Act is quashed.
VICE PRESIDENT
Appearances:
R. Reitano of counsel with T. Roberts and P. Boncardo for the Construction, Forestry, Mining and Energy Union.
M. Follett of counsel with F. Baldo for the Director of the Fair Work Building Industry Inspectorate.
Hearing details:
2016.
Sydney:
25 February.
2 [1980] FCA 143; (1980) 50 FLR 79 at 91
3 (1989) 32 IR 46
4 Ibid at 49
5 (1989) 32 IR 46
6 Ibid at 46-47
7 Ibid at 50
8 Ibid at 49-51
9 (1997) 75 IR 124
10 Ibid at 133
11 Ibid at 134
12 Ibid at 136-137
13 Pearce and Geddes, Statutory Interpretation in Australia, 8th ed. at 3.43-3.44. The relevant passage (from an earlier edition) was cited with approval by the Federal Court Full Court in Shephard v Chiquita Brands South Pacific Limited [2004] FCAFC 76 at [18]-[20]
14 See Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378 at [97] per Kiefel J
15 (1987) 9 NSWLR 719 at 722-724
16 (1906) 4 CLR 488 at 494
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