TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009
JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT GOSTENCNIK
s.94(1) RO Act - Application for ballots for withdrawal from amalgamated organisation
Application/Notification by Kelly – withdrawal from amalgamated organization – Mining and Energy Division – Construction, Forestry, Maritime, Mining and Energy Union
9.31 AM, TUESDAY, 8 JUNE 2021
JUSTICE ROSS: Good morning. I see I've got Mr Borenstein and Mr Bakri and various constructing solicitors for the applicant. I have Mr Dowling and Mr Massy for the amalgamated organisation with various instructors. For the CFMMEU Manufacturing Division there's Ms Wiles and Ms Kruschel. Ms Wiles, are you planning on making a submission or are you just observing?
MS WILES: Good morning, your Honour. No, we'll just be observing for today.
JUSTICE ROSS: All right. Thank you. I note there are various representatives of the ARTEIEU Locomotive Division also observing and there's Mr Dale Blackmore of Hall Payne Lawyers observing and Mr Gibian seeking to intervene on behalf of the ACTU.
MR GIBIAN: Thank you, your Honour.
JUSTICE ROSS: We also circulated a background document earlier this morning particularly for the - we put some questions to the applicant and the CFMMEU, so to you Mr Borenstein and you Mr Dowling. Do each of you have that document?
MR DOWLING: Yes, I do, your Honour. Thank you.
JUSTICE ROSS: Well, we've sent it to you.
MR BORENSTEIN: We haven't had a chance to look at it, your Honour. I'm not sure. Mr Bakri's just checking whether we've received it. Can you give us an indication what time it was sent, your Honour?
JUSTICE ROSS: I'll find out. It was sent at 9.17.
MR BORENSTEIN: Our instructor's indicated to us that he hasn't received it I'm afraid.
JUSTICE ROSS: Well, I don't know why that would be but - - -
MR BORENSTEIN: Can it perhaps be sent again?
JUSTICE ROSS: We're doing that now.
MR BORENSTEIN: Thank you.
JUSTICE ROSS: Mr Gibian, what's the nature of your submission?
MR GIBIAN: Thank you, your Honour. As was observed - well as arising from the submissions that is reflected in paragraph 8 of the background document that the Commission sent. There were two questions that appear to be raised by the submissions. Firstly as to whether the Mining and Energy Division is the constituent path and secondly as to whether the Mining and Energy Division became part of the CFMMEU as a result of the 2018 amalgamation. The ACTU would wish to be heard on the question of the - the underlying questions of statutory construction in relation to the second matter. That is the question as to whether or not essentially all parts of an amalgamated organisation become a new part of that organisation upon any amalgamation.
JUSTICE ROSS: All right. Is there any objection?
MR BORENSTEIN: Your Honour, the directions that were published at the beginning of this matter pursuant to which Mr Dowling's client and our client filed submissions, included a requirement that any party that wished to be heard on the matter should file written submissions and we haven't had any written submissions from Mr Gibian's client. So we're completely in the dark as to what he may want to say and - - -
JUSTICE ROSS: Well, I suppose, Mr Borenstein, you can listen to what he's going to say and then if you require time to reply you could be given that.
MR BORENSTEIN: Okay, well that will cover our position. Thank you.
JUSTICE ROSS: All right. Mr Dowling?
MR DOWLING: No, your Honour. We don't have any objection. It seems to us there's an obvious interest from the ACTU on the construction put by the applicant.
JUSTICE ROSS: All right. Well, Mr Gibian, we might hear from you first, given you've got a narrow interest. Put what you wish to say and then we'll revisit the background document issue and see if we can track down why Mr Borenstein doesn't have it. Okay?
MR GIBIAN: May it please the Commission. As I say, the ACTU would wish to be heard on the construction questions underlying the second issue identified or the issued identified in the second dot point in paragraph 8 of the background document, which for Mr Borenstein's benefit is whether the Mining and Energy Division became part of the CFMMEU as a result of the 2018 amalgamation. That question in terms of the interpretation of the section 94 draft of the Registered Organisations Act. In short the effect of this - - -
JUSTICE ROSS: Just a moment, Mr Gibian. Mr Borenstein, can you put yourself on mute. Thanks. Go on.
MR GIBIAN: As your Honours will have seen the effect of section 94(1) is that an application may be made which must relate to or for a ballot to be held in relation to a particular constituent part of an amalgamated organisation, and as to whether that particular constituent part should withdraw from the organisation.
There are then - that is subject to the three matters set out in subsection (1)(a), (b) and (c), namely that the constituent part, that is that particular constituent part which is sought to be the subject of the ballot had become part of the organisation as a result of the amalgamation. Either under part 2 or now any predecessor law. And that the amalgamation, emphasising the word 'the', that is that amalgamation which caused the constituent part to become part of the organisation occurred, firstly, not less than - no less than two years prior to the date of the amalgamation and is made - the application is made not before the period of five years the amalgamation, again emphasising the word 'the', that is the particular amalgamation occurred has elapsed.
The correct interpretation of those provisions, on our submission, is that the application firstly must relate to a particular constituent part of the organisation, the amalgamated organisation; and that the application must in effect be made between two and five years after the amalgamation, the particular amalgamation which resulted in that constituent part becoming part of the organisation.
In particular, an amalgamation does not, on a proper construction of these provisions, result in any part of the organisation being able to make such an application even though it had been part of the amalgamated organisation prior to the particular amalgamation, and perhaps indeed for many years.
There are three matters that we wish to raise in support of that construction. Firstly the premise of the contrary argument is that necessarily an amalgamation of any form results in an entirely new organisation coming into existence, rather than that it can result from organisations being deregistered and the members of the deregistered organisations becoming members of an existing and continuing organisation.
That conclusion is first of all not consistent with what is contemplated by the definition of an amalgamated organisation within section 93(1). Your Honours will have seen that section 93 deals with the definitions. The first definition in subsection (1) is that of an amalgamated organisation, which is defined in relation to an amalgamation to mean:
The organisation which members of a deregistered organisation become members under paragraph 73(3)(d) of Part 2, or an equivalent predecessor provision.
What is contemplated, at least as one alternative, by that definition is that there is:
The members of an organisation deregistered as part of an amalgamation will become members of an existing and ongoing organisation, which is then the amalgamated organisation.
That is apparent when one looks at the - goes back to the provisions dealing with the process for an amalgamation to occur. I will deal with them briefly. Firstly, as your Honours will know, an amalgamation requires a scheme, which in section 40 of the Act is required to set out or contain certain matters, in particular section 40, headed Scheme of Amalgamation, in subsection (2) provides that the scheme must contain a number of matters.
In subsection (2)(a), it must contain:
A general statement of the nature of the amalgamation identifying the existing organisations concerned -
and indicating three matters, firstly I (i):
if one of the existing organisations is the proposed amalgamated organisation--that fact.
If an association proposed to be registered as an organisation is the proposed amalgamated organisation--that fact and the name of the association; and the proposed deregistering organisations.
What that provision contemplates is that there are two alternatives that can occur in an amalgamation: on is, as in (i), that there is an existing organisation, which is the amalgamated organisation, which will be the amalgamated organisation for the purposes of the amalgamation; or in (ii), that there would be an association which would be registered as a new organisation, which would be the proposed amalgamated organisation.
If the alternative that is followed is the first of those, that is dealt with in (i), then the amalgamated organisation is not a new organisation, it is the existing organisation which the members of the deregistered organisations would become members. That is apparent when one looks at section 73(3), which is the provision referred to in the definition of an amalgamated organisation.
Section 73 sets out the actions to be taken after a ballot; 73(3) provides that, "On the amalgamation day if the proposed amalgamation" - sorry, subsection (3)(a) deals with the alternative of an amalgamated organisation not being registered, that is if an entirely new organisation is to be registered, and requires that that registration occur. Subsection (3)(b) deals with the alternative, that is if it's an existing organisation, then
proposed alteration to the rules of the existing organisation ... take effect.
(c) Deals with deregistration; and then (d) provides that:
The persons who, immediately before that day, were members of a proposed deregistering organisation become, by force of this section and without payment of entrance fee, members of the proposed amalgamated organisation.
If the alternative that was followed in the scheme was that that was an existing organisation, then the amalgamated organisation is the existing organisation. As such, here it does not appear to be disputed that the amalgamation that occurred in 2018 involved the MUA and the TCFUA being deregistered, and the members of those two unions becoming members of the existing organisation, the CFMEU. All that appears to have occurred so far as the CFMEU is concerned is that there was a name change; its membership incorporated the members of the MUA and the TCFUA; and there were certain divisional internal restructurings.
None of that involved the creation of a new organisation. The existing organisation continued to exist, albeit with some changes to its Rules. With respect, we don't think it is correct, as is said in paragraphs 62 and 63 of the mining and energy division's submissions, that the amalgamated organisation did not previously exist prior to that amalgamation occurring.
And the internal changes that I referred to, rule changes that are referred to in paragraph 64 of those submissions, did not result in a new previously not existing organisation, but merely internal rule changes in what was an existing and ongoing organisation; and indeed a type of internal organisational changes which could occur at any time absent an amalgamation occurring.
The second observation that we wish to make is by reference to the terms of section 94(1) itself, which is the relevant provision. The section provides, as your Honours will have seen, that:
An application may be made for a secret ballot to decide whether a constituent part of an amalgamated organisation should withdraw from the organisation.
As I've indicated, such an application can be made if the constituent part became part of the organisation as a result of an amalgamation; and the amalgamation, that is the particular amalgamation which resulted in the constituent part becoming part of the organisation, occurred in effect between two and five years prior to the application being made.
The text of subsection (1) of section 94 is inconsistent with the contrary view that in particular the references to "the constituent part" in (a) and to "the amalgamation" in both (b) and (c) make clear that the time periods relate to the particular amalgamation which caused the constituent part which is subject of the application to become part of the amalgamated organisation, and it is - the text is inconsistent with an interpretation which would mean that any part of any constituent part of an existing organisation which is an amalgamated organisation, could bring such an application within two and five years after amalgamation, even if that constituent part was already a component of the amalgamated organisation and had been for some years.
The third observation we would make in support of that conclusion is as to purpose. The ACTU is concerned that the contrary interpretation would have serious ramifications for organisations and for the operation of this part of the Registered Organisations Act, which would be both contrary to the policy and purpose of those provisions. The interpretation - the contrary interpretation advanced would appear to be a novel one which, had it not been previously contemplated in relation to section 94, the consequence of the interpretation would appear to be that or would introduce significant uncertainty in relation to the operations of amalgamated organisations and provide a disincentive for future amalgamations to occur.
It would appear to mean that if any amalgamation occurred then for the following five year period any part of such an organisation involved in such an amalgamation could seek to make application for a withdrawal ballot to be held. As I say, irrespective of whether that part had been a component of the amalgamated organisation for many years or indeed for decades. That outcome would, as I say, introduce significant uncertainty in the operation and constitution of amalgamated organisations, and it would provide a significant disincentive for an existing union to amalgamate if that uncertainty would be introduced for the period of two to five years after the amalgamation had occurred. That would, in our submission, be inconsistent with the purposes of the provisions which for the reasons that the CFMMEU have set out in their submissions we agree are to encourage and facilitate amalgamation organisations occurring.
If I could just have a moment. Unless there's anything further, those are the submissions that the ACTU wish to make on the construction question.
JUSTICE ROSS: Mr Gibian, it would assist if you can reduce your submission to writing so we're clear about what's put, and that would also provide an opportunity for the applicant and the CFMMEU to provide any comments they wish to make on it rather than putting them to the task of doing that on the run. Are you able to do that fairly quickly?
MR GIBIAN: Yes, your Honour.
JUSTICE ROSS: What sort of timeframe? Could you get it in by 4 pm tomorrow do you think?
MR GIBIAN: Yes.
JUSTICE ROSS: All right. Well, thank you, then Mr Borenstein and Mr Dowling, if I go to your first Mr Borenstein. Mr Gibian will provide the written submission of what he's just put tomorrow at four. How much time do you require to comment on that?
MR BORENSTEIN: Would we be stretching the friendship to ask for Monday?
JUSTICE ROSS: Well, it's your application so if you want 4 pm on Monday. Is that suitable for you, Mr Dowling?
MR DOWLING: Yes, your Honour.
JUSTICE ROSS: Mr Gibian, if anything arises from that you'd have until 4 pm on the Wednesday, all right?
MR GIBIAN: Yes.
JUSTICE ROSS: Just so that - bear with me for a moment. So that would be 4 pm on Monday the 14th, being a public holiday Mr Borenstein, I don't want to - I just wanted to draw that to your attention but - - -
MR BORENSTEIN: I'm a republican, your Honour.
JUSTICE ROSS: Okay. Then Mr Gibian - - -
VICE PRESIDENT HATCHER: So is Mr Bakri.
JUSTICE ROSS: Then Mr Gibian, anything in reply by 4 pm on the Wednesday. Look, there's liberty to apply in case something untoward happens or there's something people are desperate to comment on that someone else has filed but we'll proceed on that basis. Thank you, Mr Gibian. Mr Borenstein, have you now got that background document?
MR BORENSTEIN: I do, your Honour, and we've had a chance to have a look at it.
JUSTICE ROSS: Okay. What's the most convenient way to proceed? I note that we've had an opportunity to read the CFMMEU's submissions in reply and we've read your - the two main submissions in preparation for today. We thought we might start with you, Mr Borenstein. Did you want to - well I don't mind when you address the questions, either at the outset or during the running.
MR BORENSTEIN: Your Honour, I think I'd prefer to do it at the end of the other submissions that I want to make and what I had in mind if it's acceptable to the Full Bench is not to rehearse the written submissions but rather to take a short time to respond to the union's reply submissions which came in yesterday.
JUSTICE ROSS: No, that's fine, Mr Borenstein.
MR BORENSTEIN: Perhaps I'll do that and then I'll respond to the document which the Commission circulated.
Can I say at the outset that these reply submissions appear to in large part repeat the primary submissions but occasionally with a little twist. I'll make these submissions by reference to the particular paragraphs that are in the union's reply submissions because that gives a point of reference.
The first part of the submission that I seek to reply to is in paragraph 2, where there is disagreement asserted with our construction of paragraph (c) of the definition of secretary, identifiable constituent parts, and it said in the first sentence of paragraph 2 that the definition paragraph (c) doesn't include the words of limitation that we say form part of the definition, and that is that these parts are not parts that were parts of an organisation that was deregistered.
Our submissions, our primary submissions and our answer to this reply submission is that the position we advance is based on a reading of the plain words of the definition and drawing attention to the differences between the different paragraphs, each of which has a different purpose. So the point we made is that in paragraph (a) the part - the separately identifiable constituent part that may apply for withdrawal is one that derives from an organisation that was deregistered under part 2. The Bench will see that the reference - there's a condition which is that if an organisation is deregistered under part 2 but remains separately identifiable under the rules of the amalgamated organisation, either as a branch, division or part of that organisation then that part, division or branch may apply. So it's a successor to an organisation that was deregistered. That's (a), and that's the area of coverage of (a).
(b) If a state or territory branch of such a deregistered organisation, and that references back to the type of organisation that's mentioned in (a), namely an organisation deregistered under part 2. So if that deregistered organisation previously had a state or territory branch and that state or territory branch remains separately identifiable under the rules of the amalgamated organisation, then that branch, division or part can apply.
So both of those paragraphs (a) and (b) link back to an organisation that was deregistered, and they talk about the constituent part having been part of that organisation. Now paragraph (c) which is the new part of the definition is framed in different terms, and some significance must be attached to the difference. It is framed in terms of any branch, division or part of the amalgamated organisation not covered by (a) and (b) that is separately identifiable under the rules of the organisation may apply for withdrawal. So our construction draws on the adjusted position of (c) with (a) and (b), and seeks to give meaning and purpose to the different structure of (c) compared to the other two. (c) explicitly or targets only the branch, division or part of the amalgamated organisation. It doesn't link that to the need for that part to have been in a previous organisation which was deregistered under part 2. It confirms that by saying that these parts are not covered by paragraphs (a) and (b), which confirms what we say that they are not parts that would previously have been in a deregistered organisation and were carried over into the amalgamated organisation.
This idea that there are no words of limitation, the limitation arises out of the words of the provision read in the context of the provision as a whole, the definition as a whole. So to say well, there needs to be express words or something of that sort is a distraction. The Commission will construe this definition in its context giving attention to the differences of the different parts, which it is entitled to do as a part of orthodox statutory construction, and will come to the conclusion that (c) has a different purpose and a different meaning, and it is the meaning for which we contend. Having arrived at that meaning in conformity with the provisions of the Act, Interpretation Act, we draw attention to the provisions of the explanatory memorandum which is referred to in our primary submission, which confirms the reading. That's a permissible use of the explanatory memorandum in accordance with section 15AB. That's our argument in terms of the need for expressed words.
Now we might say by way of retort to the union's submissions that their concern for expressed words doesn't seem to extend to the submission that they make about the meaning of part (c) and when Mr Dowling addresses you, and when you read his submissions, you will see that they proffer a meaning of part (c) which also doesn't contain expressed words but does not find the sort of support in the actual text of the whole definition that ours does.
Then the second part of paragraph 2 that we want to respond to is at the end, where it said that:
If there was a division of a union which participated in amalgamation and has now been deregistered and remains separately identifiable to the amalgamated organisation that division would not be caught by paragraphs (a) or (b) of the definition of the separately identifiable constituent parts.
Now it's not clear how that's put but seems to be at odds with the provision, but the submission goes on:
If the deregistered union had a part or branch that was not defined by reference to state or territory and that part remains separately identifiable under the rules of the amalgamated organisation, then that part would not be caught by subparagraphs (a) or (b).
Now the hypothetical which is posed in that sentence is factually incomplete such that it precludes a clear analysis. What we say is that paragraph (c) refers to the parts that can apply for withdrawal in the same formulation as paragraphs (a) and (b). Namely, any branch, division or part of the amalgamated organisation. So there is a potential operation if a branch is part of the deregistered organisation which isn't defined by reference to state or territory but perhaps by some other criterion. But it will depend on whether that branch was part of the organisation before the amalgamation, and if it wasn't part of the organisation before the amalgamation then by choice of the parliament it hasn't been caught by this provision. There need not be an assumption that every part has to be dealt with by this provision. The legislation makes choices. It's made a choice. It originally made a choice in relation to paragraph (a) and (b) and I heard Mr Gibian say and it's part of the union's submissions that the way in which the Commission should read this legislation is that it is determined to encourage amalgamations of organisations. What that submission completely overlooks is that after the provisions providing for amalgamation were introduced, the legislature seems to have thought that it was an appropriate part of the overall scheme that parts of amalgamated organisations should be able to dis-amalgamate.
Now that would seem to undercut to some extent the absolute nature of the submission that's made about the need to encourage amalgamations. Certainly, the legislation had a scheme which facilitates amalgamations but as a matter of policy or legislation has now decided that there should also be a facilitation for withdrawal from amalgamations. Once one accepts that the legislation can provide for both and does provide for both, then the argument about paragraph (c) doesn't need to grapple with this idea that there's an immutable thrust in the legislation to encourage amalgamations. All that paragraph (c) needs to meet is the standard test for statutory construction which is that read in its context, having regard to its terms, does it intend to allow branches, divisions or parts from an amalgamated organisation that were not part of a deregistered organisation going into the amalgamation to apply for withdrawal.
One can speculate about all sorts of reasons why the parliament might have decided that that should be allowed but as a matter of statutory construction one can't proceed on the assumption that it should be read down because of some policy about encouraging amalgamations.
Indeed I'm reminded by Mr Bakri, one of the submissions Mr Gibian made was a concern about the disincentive which our proposition would pose for organisations in terms of future amalgamations. In our respectful submission, that's a misconceived concern. One might have thought if organisations that were proposing or considering going into amalgamations had regard to events that perhaps occurred in this very organisation over the last year or so, or read the financial review yesterday, they might be more comforted about the idea that if they do go into an amalgamation and it turns sour that there is an avenue for leaving, and that might be a greater encouragement to go into an amalgamation than the idea that if you go in you can never get out.
Moving onto paragraph 3 of the reply submissions. This is the proposition that we are somehow, in our submission, reading down paragraph (c), and we say that that completely misconceives what our submissions amount to. As I've explained, our submissions do nothing more than give effect to what we say is the clear meaning of the plain words of paragraph (c) when read in context and in contrast to paragraphs (a) and (b).
It's said that if our reading is right, then there is no need for paragraphs (a) and (b), but that's a misconception of the proper approach to statutory construction in relation to this definition. Paragraph (c) is expressly designed to preserve the situation in (a) and (b), but to operate in a field which is outside paragraphs (a) and (b).
Paragraph (a) and (b) apply before paragraph (c), but if (a) and (b) apply, then they apply. Paragraph (c) comes in to deal with matters to which (a) and (b) does not apply. It may be that paragraph (c) serves the purpose of allowing the sort of branches or parts or divisions which are referred to in paragraph 2 of the reply submissions, that is those that don't completely fall within the descriptions in (a) and (b).
But our submission is that the definition is designed to cover two areas: one is areas where the part was part of a deregistered organisation; and the second is where it was not, and it was part of the amalgamated organisation before the amalgamation. That is supported by an analysis of the circumstances that would arise in an amalgamated organisation in terms of withdrawal.
Paragraphs (a) and (b) cover the area where - and allow for withdrawal by parts of organisations that came into the amalgamated organisation and were then deregistered. It was perceived apparently that that left out an area which was those parts of the post-organisation that became part of the amalgamated organisation other than through the deregistration of the incoming unions.
One can speculate that it was thought that in terms of facilitating (indistinct) amalgamation, that area or that part of the amalgamated organisation was not to be treated differently than those parts of the amalgamated organisation which arrived through the deregistration of their previous union or organisation.
So we say that there are discrete and separate fields of operation. Paragraph (c) covers those parts of the amalgamated organisation that were there before the amalgamation, and paragraphs (a) and (b) covers those parts of the amalgamated organisation that came in by virtue of the deregistration of an organisation under part 2. And so that gives three parts of the definition continuing work to do. There is no overlap of their operation. They all have a function, one does not exclude the other.
Then moving on to paragraph 4. This appears to be a new submission, and it's not entirely clear what is intended by it. We have made submissions about the use that can be made of the object in section 92, and we rely on those submissions, particularly at paragraphs 50 to 56 of our primary submissions. That covers also paragraph 5 of the reply submissions.
Paragraph 6 suggests that we should read the definition consistently with the words that immediately surround it, and with text as a whole. And you will see from our primary submissions that that's exactly the tasks that we undertook. And we would submit that the primary function or the first stage of that function is to look at the provisions in the definition with which paragraph (c) is juxtaposed and to make sense of the three of them side by side such that they each have work to do. And we would say that our construction does that.
The construction for which our friends contend is that paragraph (c) somehow isn't designed to deal with other parts of a deregistered organisation. And as I've said before, the criticism that they direct to us about looking for words really applies more correctly and accurately to their submission, because nowhere in paragraph (c) is there any clue or hint that the parts that (c) is referring to are intended to be parts that derive from the deregistered organisation.
One can imagine that it would be very simple for the legislative draftsperson, if that was the intention, to say words to the effect of, "Any other branch, division or part of such a deregistered organisation", in exactly the way the words are used in paragraph (b). That isn't there, and its absence gives rise to the need to give attention to the actual words that appear in paragraph (c) in contrast - in stark contrast to the words that appear in (a) and (b).
In relation to paragraph 6 there's some response made to our reliance on the judgement of Mansfield J in the Australian Crime Commission case. We've given your Honours a copy of that in a bundle of cases. I think it's number 12 on the list. I'm not going to ask you to turn to it, but I'm just going to direct your attention to paragraph 22, which deals with the use that can be made of the objects clause.
His Honour there made the comments which we put in our primary submissions by reference to other authority in the court and in the High Court. And we rely on those, and we say that the approach which his Honour took and which we take is no different than what is suggested in paragraph 6.
In paragraph 7 there's a criticism made about our submission creating a gap. I hesitate to use the word lacuna because I've been criticised recently for using Latin-type phrases. Our submission is that there is no gap. We don't know what is meant by a gap. The legislation - the legislature is entitled to identify those parts of an organisation which it thinks should have access to this facility, or withdrawing from amalgamation. And the terms in which it is expressed, I've already addressed.
To the extent that there might be other parts of a deregistered organisation that cannot apply under this part, that's a choice that the legislation has made. In the authorities, particularly the authorities dealing with the use of objects, which we referred to, it's made clear that legislation can have more than one object and more than one purpose, and that oftentimes legislation will involve choices made by the Parliament about the directions in which various provisions will take it.
There is no basis on which it can be said that all parts of a deregistered organisation must - must be able to have access to withdrawal. All that can be said is that in paragraphs (a) and (b) certain parts have been identified many years ago by the parliament to enable those parts of withdraw and now the parliament has decided that within in an amalgamated organisation, the facility for withdrawal should be extended beyond particular parts that came in through a de-registration to parts that were there before the amalgamation. There's no doubt it's a parliamentary choice as to which entities will and which entities won't be entitled to withdraw from amalgamation and that's not a matter that effects the orthodox construction of the words that the parliament actually used, unless there is some clear indication that it is to be taken into account, and there is no such clear indication.
In paragraph 8 the submission puts words into our mouth about our apparent acceptance that the literal words at (c) have to be read down. We don't say that they have to be read down at all. We say that they have to be read in context in their normal and natural meaning and when you do that you arrive at the conclusion for which we contend.
Interestingly in paragraph 9 the respondent puts a similar submission to our criticism about the lack of words of limitation that would facilitate the interpretation that they advance for paragraph (c) and they say those words were not included because it's not necessary, having regard to the ordinary words of the provision. So we say that that's a submission that really doesn't assist the matter of the proper construction.
At paragraph 10 we're criticised for submitting that the argument advanced by the union requires the reading in or words into paragraph (c) and we simply say that in the absence of words that pick up a reference to the deregistered organisation in paragraph (c), you are left with a curious situation where it's argued by the union that (c) should have the same connection to the deregistered organisation as (a) and (b) does, and yet the draftsman has failed to express that connection in paragraph (c). We would have thought that's a classic case of asking the Commission to read in words and that shouldn't be done.
At paragraph 11 there's a criticism about use of the explanatory memorandum. As I've said a few moments ago, the use for which we - the use that we make of it is to confirm the construction that we've arrived at. That's a use that was endorsed by Fromberg J in the Bay Street case, which we've given you a reference to. I can say to your Honours that his Honour's judgment in that Bay Street case was approved by Flick J on appeal, with Burchett and Allsop JJ agreeing and if your Honours give me a moment, I'll tell you the paragraphs in the appeal. The appeal can be found in  FCAFC 192 and you will find the relevant endorsement of his Honour's reasons at paragraphs 59 and 73 of Flick's J judgment and Allsop J agreed with Flick J. So the use for which we make - the use for which we argue because the explanatory memorandum is endorsed by the court and it's consistent with section 15AB and there is nothing improper in it.
We then move to paragraph 12 where it's suggested that the explanatory memorandum doesn't support our contention. We invite the Commission to look at the explanatory memorandum, the extract is set out in our primary submissions. We've also provided you with a copy of it in the bundle of authorities that we forwarded and the Commission will see that that's a submission that has no substance.
Paragraph 13 is a repetition of earlier submissions and we don't answer it separately. Paragraph 14 deals with the question of the Mining and Energy Division becoming part of the CFMMEU's resulting amalgamation. The submissions which our friends make in relation to this have really been answered in our primary submissions and they essentially rehash the submissions that they made in the first place. We've made it clear in our primary submissions that there are two concepts that the legislation is dealing with. There is one concept which is that an organisation's a registered corporate body and no one can argue with that.
The problem for our friends is that there is a - that within this provision there is repeated reference to a different concept. A concept which is defined as an amalgamated organisation. That's defined in section 93 and your Honour's have that - and the Commission has that. When you go to paragraph 94 - I'm sorry, perhaps before we get to 94, when you look at the definition of separately identifiable constituent parts, it references an amalgamated organisation and throughout the definition that is the term that's used, that is the concept that is being used, not organisation. Even when you look at the definition of constituent part, it too only references amalgamated organisation not organisation.'
So then turning to the question under section 94.
An application may be made to the Commission for a secret ballot to be decided where a constituent part of an amalgamated organisation should withdraw from the organisation.
Now to the extent that something is sought to be made about the use - the contrasting use of amalgamated organisation and the organisation (indistinct) subsection (1), we say that that's quite misconceived. What we say is that the amalgamated organisation identifies the organisation at a particular point in time. It doesn't have anything to do with its legal status. It's simply identifying how it appears at a particular point in time within its structure. It's amalgamated, it has various parts, constituent parts and other things as a result of the amalgamation and that is the amalgamated organisation. So when there's a reference to that and then (indistinct) withdraw from the organisation, it's the same - it's the same entity that you're withdrawing from.
JUSTICE ROSS: Mr Borenstein, just to be clear then you say a reference to the organisation in paragraph 1 is a reference to the amalgamated organisation as referred to in the (indistinct).
MR BORENSTEIN: Yes.
JUSTICE ROSS: All right.
MR BORENSTEIN: It's referred to in a number of places and it must be a reference back to that otherwise it becomes meaningless. Otherwise if they're not the same thing, if you leave our the words constituent part and leave out the words of an amalgamated organisation then which organisation are you referring to? It has to be the same one. And even when you - even if you take the words constituent part, that - constituent part is defined by reference to constituent part of the amalgamated organisation.
JUSTICE ROSS: And in that sense we effectively read into 94(1) the relevant definitions of "amalgamated organisation" and "constituent part" as they appear in section 93?
MR BORENSTEIN: Necessarily so.
JUSTICE ROSS: And "constituent part", the definition of that really in this instance takes you to "separately identifiable constituent part".
MR BORENSTEIN: Correct. And at both levels - as I said, at both levels the reference is to the amalgamated organisation. The constituent part and the separately identifiable constituent part are both by reference - are both expressed to be of the amalgamated organisation.
Nobody is arguing, and it can't be said - it's inconceivable that when the legislature came to this legislation there was some belief that the amalgamated organisation created a new, separate legal entity. Clearly it didn't. It couldn't. And we don't argue for that. But what it does do is to acknowledge that there is a construct which is identified as the amalgamated organisation which reflects the effect on the previous organisation of the amalgamation, the administrative effects of the amalgamation.
And so the description of it as an amalgamated organisation is a convenient means of identifying what you're talking about and avoiding confusion in terms of applying both the definitions of constituent part and the operation of section 94.
VICE PRESIDENT HATCHER: Mr Borenstein, is section 94(1)(a) gives us the expression "an amalgamation" rather than "the amalgamation".
MR BORENSTEIN: Yes.
VICE PRESIDENT HATCHER: Does that contemplate that an amalgamated organisation may have been subject to multiple amalgamations?
MR BORENSTEIN: I'm sorry, I didn't catch part of that sentence, your Honour.
VICE PRESIDENT HATCHER: Section 94(1)(a) refers to "an amalgamation" rather than "the amalgamation".
MR BORENSTEIN: Yes.
VICE PRESIDENT HATCHER: Does that contemplate that the amalgamated organisation may have been subject to multiple amalgamations, and it's a case of selecting which one caused the constituent organisation to become part of it?
MR BORENSTEIN: Well, your Honour, that's a possible reading of it, but it has to be read together with the definitions of "constituent part" and by extension, "separately identifiable constituent part". And of course those definitions envisage, especially the "separately identifiable constituent parts", that the part that's applying for the withdrawal under section 94 will firstly have been a relevant unit of the ingoing organisation that was deregistered, and still remain separately identifiable after the amalgamation.
And part (c) envisages a situation where it will be that the part that's applying for the withdrawal will have been identifiable before the amalgamation that is relied upon and after, and still falls within the time limit.
So there's a number of qualifications, but yes, it doesn't specify - it does talk about "an amalgamation", but the other parts of the (indistinct) parts mean that number 1, it has to be an amalgamation that is more than two years ago and less than five years ago; and the definitions require that the part that's making the application has to have been identifiable before the amalgamation that is being relied upon and after.
And other than that, then the definition allows for there to be more than one amalgamation in the life of an amalgamated union. But for the purposes of withdrawal, the other moving parts narrow down the field of operation.
VICE PRESIDENT HATCHER: Paragraph (a) uses "an amalgamation" and paragraph (b) uses the expression "the amalgamation". That suggests that the amalgamation referred to in (b) may be one of a number of amalgamations referred to in (a). So the question becomes: where there has been multiple amalgamations, which amalgamation caused the constituent part to become part of the amalgamated organisation?
Once you identify that amalgamation, then (b) says: identify whether that amalgamation occurred within the two to five year frame; and if it doesn't, then you can turn to 94A.
MR BORENSTEIN: Yes. We say that reading (a), (b) and (c) together in subsection (1), (a) talks about "an amalgamation", (b) and (c) talk about "the amalgamation". It's, we would say, the natural reading of those that they are referring to the amalgamation that's referred to in paragraph (a).
In terms of the proposition that a union might have a number of amalgamations; an amalgamated union might be the product of a series of amalgamations, we accept that; but for the purpose of section 94(1), what the Commission is concerned to do is to say: well, we have an application from an applicant that claims to be a constituent part. It has to be a constituent part. We have an application.
So what is a constituent part? We go to the definitions, and in this case we go to the separately identifiable constituent parts, and we say that it's a branch, division or part of the amalgamated organisation not covered by (a) and (b) that's separately identifiable under the rules. So we come along to the Commission, we say, "There was an amalgamation in 2018. That's the amalgamation that we rely on for the purpose of our application."
That's an amalgamation that falls within the terms of section 94. It is an amalgamation. And we say that we are a constituent part of the amalgamated organisation. We were identifiable prior to the amalgamation as part of the union, and we are identifiable in the same form after the amalgamation, therefore we come within paragraph (c) of the definition of separately identifiable constituent part, ergo we are a constituent part, therefore we come under section 94, we say, "We're an applicant. We're a constituent part. We are relying on the amalgamation in 2018."
And in that way we satisfy paragraph (a) because we became a constituent part of the amalgamated organisation as a result of an amalgamation under part 2; the amalgamation occurred less than two years - I'm sorry, more than two years, it was in 2018 - and it's less than five years. And in that way we say we tick the boxes in subsection (1). And it's not to the point, we say respectfully, that in years earlier there were other amalgamations. And it may be or may not be ‑ ‑ ‑
VICE PRESIDENT HATCHER: Hang on a sec. I think I follow that to a certain point, but can you just explain to me again. You've said that a constituent part which you say you represent was identifiable before and after the 2018 amalgamation and the entity which is now the CFMMEU. How is it then that you say that it became a constituent part as a result of the 2018 amalgamation?
MR BORENSTEIN: It becomes a constituent part because it is a division - it is a division. The constituent part is a definition. The definition identifies units of the organisation, including divisions. We were a division, and we became a division of - we were a division before the amalgamation with the MUA and TCFUA in 2018.
We were a division - and we remained a division in the amalgamated organisation, and we are the same - we have the same coverage, same structure, we are the same in terms of our existence before the amalgamation and after the amalgamation. And so we are identifiable as a division of the amalgamated organisation under the Rules.
VICE PRESIDENT HATCHER: Mr Borenstein, the words "as a result of" can add a causal connection. I'm struggling to understand on the one hand you say this constituent part was identifiable in intervals before and after the 2000 amalgamation but at the same time you say you became part of that same organisation as a result of that amalgamation.
MR BORENSTEIN: Yes. I see, I think - - -
DEPUTY PRESIDENT GOSTENCNIK: (Indistinct) Mr Borenstein.
MR BORENSTEIN: No, I'm sorry. I misunderstood your earlier question. The division now is part of the CFMMEU.
DEPUTY PRESIDENT GOSTENCNIK: Yes.
MR BORENSTEIN: The CFMMEU is the amalgamated organisation. That's the artefact that's identified by the definition amalgamated organisation. It did not exist as such prior to 2018. Prior to 2018 the CFMEU had a division which was the Mining and Energy Division which had the same appearance and form as it does now, but that division became a part of the CFMMEU, that is the amalgamated organisation as a result of the amalgamation. It's the only way it could have become a part of it.
DEPUTY PRESIDENT GOSTENCNIK: But isn't it the case that it remained a part of the amalgamated organisation rather than became a part of it as a consequence of the amalgamation? The scheme for amalgamation created divisions as a consequence of those unions that were being deregistered principally the MUA, I think the TCFUA were absorbed into the Manufacturing Division. But nothing happened to the Mining Division either before or after. The rules remained the same.
MR BORENSTEIN: Correct.
DEPUTY PRESIDENT GOSTENCNIK: And the CFMEU was not deregistered. It's rules were altered to absorb the two deregistered unions.
MR BORENSTEIN: Yes, but the point that we rely on is the need to draw a distinction - I'm sorry. Is the need to give proper meaning to the idea of the amalgamated organisation. Now your Honour said the division was a part of the amalgamated organisation. It was not and could not have been because the amalgamated organisation that was created in 2018 did not exist before 2018. That's our point. Our point is that you have to give some meaning to the construct of an amalgamated organisation and it clearly to be distinguished from the organisation, the host organisation before the amalgamation is affected. It is the same legal entity but it has a different form. It has a form because it has absorbed other organisations and their members.
Now what we say is that when you look at the definition of amalgamated organisation you have to separate that in your mind from the union as the corporate entity because that's not what it's directed to. It's directed to the - it's directed to the form of the registered organisation which it took on as a result of the amalgamation, and that's why it's described as the amalgamation organisation and not just organisation. What we say is that once you get to that point in the reasoning then you say well all right, prior to the amalgamation in 2018, there was a union, there was an organisation but it was not this amalgamated organisation. It was an organisation which had a different form. It was the pre-amalgamation organisation if you like or the host. What we say is that on amalgamation day the amalgamated organisation, that construct came into existence. What we say is that the Mining and Energy Division was a part of that new construct, became a part of that new construct as a result of the amalgamation. It's in that way that it satisfies paragraph (c), and it's in that way that it becomes a part of the amalgamated organisation. Because you've got to give meaning to amalgamated organisation that distinguishes it from just organisation
JUSTICE ROSS: Mr Borenstein, Mr Gibian referred to some of the consequences of that interpretation. I mean it seems to me, for example, that that would mean that say the Victorian branch of the Construction Division could apply for a ballot. I mean that might solve everyone's problems but that's going down the path of absurdity, isn't it? That you could have geographic branches breaking away simply because of the way you define amalgamated organisation, without them ever having come into existence specifically as a result of amalgamation.
MR BORENSTEIN: Your Honour, that really exposes the heart of our argument. You've got to start with interpreting the concept of amalgamated organisation. Now there's no reason to draw a distinction between the Victorian branch of the Construction and General Division and the Mining and Energy Division, or any other division. As of the amalgamation in 2018 you have a new amalgamated organisation which is the CFMMEU. Didn't exist before. And what this has done and one can speculate about why the parliament did it, but that's not our task. The parliament decided clearly that rather than confine the ability to withdraw from amalgamations only to those parts that came in as a result of de-registration of other organisations that it would extend the facility to those parts of the union that came in other than from the deregistered organisations and were then formed into the new amalgamated union.
Now one might say well, you know, what's the rationale for that and we can speculate about that. One rationale might be that in the amalgamation and of course suddenly the incoming unions would have a vote in the amalgamation, some of the smaller parts of the existing union feel oppressed by the new entity. Feel oppressed by the incoming people, or alliances between the incoming people and those - and other parts of the union. There are all sorts of reasons why parts that were in the union previously after amalgamation might feel uncomfortable enough to take the big step of saying well we're going to withdraw. It's not a little step, it's a big step. But that's a judgment that the legislature made and we really can't second guess it except to say that that was a field that wasn't covered under the previous scheme, and now the legislature has seen fit to facilitate people in that field to have the same rights as people who come in from a deregistered organisation.
The point at which is all - what it comes back to is the point that you and the Deputy President have been putting to me, which is this idea of the amalgamated organisation, and as we say it's important to not read it as referring to a new entity, a new registered entity. It's an administrative entity, it's a new construct and you need to identify the amalgamated organisation for the purpose of invoking section 94 and the definitions. There's nothing to say - there's nothing to say that the CFMMEU is not an amalgamated organisation. There's nothing to say that the Mining and Energy Division did not come into the CFMMEU as a result of the 2018 amalgamation, because prior to that amalgamation there was no CFMMEU, and that's really our point.
DEPUTY PRESIDENT GOSTENCNIK: Mr Borenstein, if we go back to the definition of amalgamated organisation, it refers in relation to an amalgamation to an organisation of which the members of the deregistered organisation became members under 73(3)(d). 73(3)(d) actually refers to members becoming members of the proposed amalgamated organisation and if one goes back to the content of the scheme of amalgamation, section 40 requires, as was the case here, the identification of an existing organisation which is the proposed organisation - proposed amalgamated organisation. So on amalgamation day under the scheme, the members of in this case the TCFUA and the MUA became members of the proposed amalgamated organisation, which at that point was the CFMEU. And so when one looks at amalgamated organisation in relation to an amalgamation, it means the organisation being the CFMEU which is now the CFMMEU - and the mining division was already part of the CFMEU, and didn't become part of that organisation as a result of the amalgamation.
MR BORENSTEIN: Your Honour, we would respectfully disagree with your Honour's reading of section 40. Section 40 needs to be read having regard to the point in time at which all of this is - or the scheme is being proffered in the application.
DEPUTY PRESIDENT GOSTENCNIK: Yes.
MR BORENSTEIN: That's why it refers to the proposed amalgamated organisation. We would say that what that's referring to - just quickly having a look whether the use of the term "host organisation" is here, but what that's referring to is the organisation that will become the amalgamated organisation - - -
DEPUTY PRESIDENT GOSTENCNIK: I accept that.
MR BORENSTEIN: That's really consistent with your point. Our points is - - -
DEPUTY PRESIDENT GOSTENCNIK: But paragraph (d) of 73(3), which is engaged by the definition of "amalgamated organisation", also refers to the members becoming members of the proposed amalgamated organisation.
MR BORENSTEIN: I'm just looking. Which section is that, your Honour?
DEPUTY PRESIDENT GOSTENCNIK: This is the section that is engaged by the amalgamated organisation definition. You will see it refers to paragraph 73(3)(d).
MR BORENSTEIN: Yes, I'm just looking - - -
DEPUTY PRESIDENT GOSTENCNIK: 73(3)(d) makes reference to the members becoming members of the proposed amalgamated organisation.
MR BORENSTEIN: Yes, but again it's talking about the amalgamated organisation at an anterior time. What we're talking about is a situation where after it ceases being a proposed amalgamated organisation it is an actual amalgamated organisation, which is on the completion of the amalgamation. What we're saying is that when you get to that point the amalgamated organisation has a different content and form than the organisation which was being proposed pre‑amalgamation.
The point of the amalgamation is that the proposed organisation will change. It will change by the inclusion of new members and perhaps other things - perhaps eligibility rules and what have you - but part 3 is talking about a point in time after that which is after all that has been done, when you have a different looking organisation and it's different looking because of the amalgamation.
Our point of distinction is really that the construct which is the actual amalgamated organisation may contain, as the definition says, people coming into it as a result of an amalgamation under part 2, that's fine, and may include the members that came in, that's fine, but it is the product of an amalgamation and it creates a construct which is different than what existed before the amalgamation.
Although new members came in and organisations were deregistered, and what have you, in the new construct it included parts that were in the old construct and they became part of the new construct in the amalgamation - as a consequence of the amalgamation. The mining and energy division today is a division of the CFMMEU. Before amalgamation it was a division of the CF single MEU.
Our argument really is that there is a distinction to be drawn between the construct that was the CF single MEU and the construct that was the CF double MEU. The division became part of the latter as a result of the amalgamation and the whole point of paragraph (c) is to allow parts of the pre‑amalgamation organisation to access the rights to withdraw after amalgamation. That can be accommodated within the language that has been used.
Now, if I can just go back to the union's reply submissions for a short time. At paragraph 19 there is a submission that the definition of "organisation" in section 27 should be used and applied to the use of the word "organisation" in sections 93 and 94. We have answered that in terms of the difference which I've just discussed with the Deputy President.
If our friends are suggesting that there is no difference between "amalgamated organisation" and "organisation", then they ought to explain why the legislature has gone to so much trouble to use the term "amalgamated organisation" in part 3 and what purpose that serves. We would submit that the way in which we have analysed it is an appropriate use of the term "amalgamated organisation" and that it fits within the operation of section 94(1) in the way in which I suggested to the Vice President a few moments ago.
Now, there is a submission in paragraph 23 about section 93(4). We have made some submissions in our primary submissions about that and we rely on those, and we don't deal with paragraph 23 beyond that. In paragraph 26 of the reply submissions there is a submission made about the progressive easing of the "conveniently belong" test. This was part of a submission we made in response to the union's submission that the purpose of the legislation is to encourage amalgamations.
We made the response that there has been a general easing of restrictions on the registration of organisations in service of a policy of competitive unionism and we made the point responsively that the expansion of the operation of part 3 is consistent with that. The answer in paragraph 26 doesn't really engage with the submission. It doesn't really take the argument any further and that's the end of the reply submissions.
Can I then turn to the background document. In terms of the overview of our submissions in paragraph 6, in the first dot point can I just clarify that our construction of paragraph (c) of the definition of "separately identifiable constituent part" is that the parts covered by (c) are not the same as parts that can be covered by (a) and (b). If that's what that first dot means, then we agree with that. We agree with the second dot point.
In relation to the third dot point, it's not - the submission which we make about the mining and energy division is not exactly what's recorded there. What we were intending to say - and this is something that emerged in my discussion with the Deputy President just a while ago, is that the mining and energy division can be said to have become part of the CFMMEU as the amalgamated body.
And that in order to exemplify the change of its situation in the new body as compared to the old body, we drew attention to the fact that the new body was differently configured. It had an additional division; there were changes made to the governing structure to accommodate incoming unions; and we simply made the point that these are matters that were part of the amalgamation, the change between the CF-single M-EU and the CF-double M-EU, and that they affected the mining and energy division.
But the form of the division remained the same before and after, and so it can be said that the mining and energy division as an administrative unit came into the CFMMEU as a result of amalgamation.
The fourth, fifth and sixth dot points, we have no disagreement with. We don't respond to paragraph 7. We will leave that to Mr Dowling to say whether that accurately reflects his position. We agree with paragraph 8 as to the questions. We agree with question 3 that the mining and energy division came into existence by an administrative rule change that was unconnected with the amalgamation.
The evidence that was produced by the union in Mr Murphy's statement demonstrates how that came about. But the critical point is that come the time of the 2018 amalgamation it was in the form which it is now, so it was an identifiable part. And it remained the same following the amalgamation. So the answer to question 3 is yes.
The answer to question 4, the first part of the question: "any constituent part can make an application", we answer that yes on the basis that constituent part is intended to pick up the definition of constituent part in section 93. And we agree with the second dot point subject to this proviso, that the ability - we start from a different point.
The ability to make an application is constrained by time limits. And so when you're looking at various amalgamations, the first thing one has to do is to say: well, is there an amalgamation that one can rely upon within the relevant time period? In the hypothetical situation of there being more than one amalgamation that occurred within the relevant time period, we would submit that the proper reading of the legislation would be that it's the most recent amalgamation, because it's that amalgamation that gave rise to the amalgamated organisation, and that's the touchstone.
In relation to question 5 regarding a change in the structure of the amalgamated organisation after amalgamation, the internal restructuring of an organisation that's an amalgamated organisation we say doesn't affect the question because the term "amalgamated organisation" is defined, and it doesn't bear on any internal changes that occur after the relevant amalgamation.
And so section 94 would continue to apply, subject to the applicant being able to satisfy the requirements: that is to be able to show that it is a relevant separately identifiable part, and therefore a constituent part; and that it falls within the time limits. Subject to that - and to the extent that internal changes may occur, that may or may not affect the ability of the particular unit of the organisation to apply.
But in terms of the question per se, we say that it doesn't cease to be an amalgamated organisation simply because after an amalgamation it changes various internal structures. Unless there's anything else I can assist the Bench with, I will sit down.
JUSTICE ROSS: Mr Borenstein, can I just ask you this question: if we're in your favour on the first question, that is we accept your client is a constituent part; but we're against on the second question, that is we don't accept that it became a part of the amalgamated organisation in the course of the 2018 amalgamation; what follows then for your (indistinct)?
MR BORENSTEIN: That may depend in part on why the Bench decides that having been a separately identifiable constituent part, the requirements of section 94 have not been satisfied, and the way in which the Commission puts that. But at first blush that would be an outcome which was inconsistent with the way in which we put our application.
I'm just - on my feet, so to speak - trying to analyse how one would be a separately identifiable constituent part and not fall within section 94.
JUSTICE ROSS: Merely for the sake or argument, let's say that we didn't accept the way you approached the (indistinct) organisation and took the view that a constituent part did not become a result of the amalgamated organisation in the course of the 2018 amalgamation (indistinct) whatever reason. I guess (indistinct) does that conclusion require dismissal of the application, or is it still open for us to proceed to consider whether section 94A may allow the application (indistinct)?
For example, if for example the conclusion is available in fact the mining division became part of the organisation because of an earlier (indistinct) which is outside the five-year time period?
MR BORENSTEIN: But there is no such amalgamation.
JUSTICE ROSS: Does that involve a concession that again if you're unsuccessful in question 2, that section 94A is incapable of, as it were, saving your application?
MR BORENSTEIN: I wonder if I can take that on notice, your Honour. Looking at section 94A, that effectively builds on 94. And really effectively what it does is to allow you to receive an application beyond the five years in certain circumstances, but it doesn't - it's doesn't obviate the need to satisfy section 94(1) in terms of constituent part becoming part of the organisation - becoming partners of the amalgamation.
VICE PRESIDENT HATCHER: Do you remove the possibility that we might be satisfied, for example, that the Mining Division became part of the organisation because there was an amalgamation I think in 91 where (indistinct - audio malfunction).
MR BORENSTEIN: Well, your Honour, we don't rely on that amalgamation and we don't rely on it because it raises any number of other problems, which include the fact that the Mining and Energy Division as it is today there's little, if any, resemblance to the organisation that amalgamated in 1991/92. And that would raise - and that would raise all sorts of problems, and this is really - we would say this really points to an explanation of why the legislature might well have felt the need to introduce something like paragraph (c) to cover these sort of problems. I've explained to your Honour the sort of things one can speculate about as a justification.
VICE PRESIDENT HATCHER: One might say that if section 94A is not applicable to the current situation one might wonder what other situation is capable of (indistinct).
MR BORENSTEIN: Well, let's assume for example, your Honour, that we're making this application instead of in 2021 but in 2028 and let us assume we're all still here and legislation hasn't changed. And let us assume that in 2028 an organisation that satisfies or a unit of an organisation, amalgamated organisation satisfies the requirements of section 94 other than paragraph (c), comes along and says we want to make an application under 94A because of one of the reasons in subsection (2). That's what it would cover. But if you look at 94A it's only an exception to 94(1)(c), and 94(1)(c) is the time limit - the five year time limit, it's not an exception to the other parts of 94(1).
VICE PRESIDENT HATCHER: Mr Borenstein you've accepted by reference to the statement of Mr Murphy that the Mining Division in its current form was created by (indistinct). (Indistinct) paragraph of that statement which is relevant (indistinct - audio malfunction).
MR DOWLING: It's paragraph 33 if I can assist, your Honour Vice President.
JUSTICE ROSS: Mr Borenstein, I'd understood from the earlier mention that you weren't proceeding with the alternate proposition. In other words, you were putting all of your eggs in the one basket.
MR BORENSTEIN: That's correct.
JUSTICE ROSS: So on that basis 94A is not something we need to consider now. Not only for that reason but there's no material before us about the matters in subsection (2) of 94A and the relevant bodies who may make submissions under subsection (4), haven't been given the opportunity. So it really comes back to if we don't accept your construction of 94(1) and for argument's sake accept the construction advanced by the CFMMEU, then doesn't that simply mean that there is no valid application before us?
MR BORENSTEIN: At first blush I would have to agree with your Honour but I would ask for a little bit of time to take that question or think that question more deeply, but I have to say that that argument has been put on the basis that we put it. We pursued any reliance on section 94A and I only spoke about it in answer Hatcher's VP question, but if it would be satisfactory could we give you the absolute answer to the question which the Vice President put when we provide you with the note on Monday?
JUSTICE ROSS: Certainly. You can also address that request, Mr Dowling.
MR DOWLING: Thank you, your Honour.
MR BORENSTEIN: In those circumstances, I have no further submissions, thank you.
JUSTICE ROSS: Any further questions for Mr Borenstein?
VICE PRESIDENT HATCHER: No, thank you.
JUSTICE ROSS: Mr Dowling.
MR DOWLING: Thank you, your Honour. It's clear from the background paper and everything that's exchanged this morning that the Bench has our primary submissions of 19 May and our reply submissions of 7 June. Can I just please formally tender the statement of Declan Murphy dated 19 May and the annexures to it. I don't understand there to be any opposition to that but I need to tender it please.
JUSTICE ROSS: Yes, no opposition? We'll mark that as exhibit CFMMEU1.
EXHIBIT #CFMMEU1 STATEMENT OF DECLAN MURPHY DATED 19/05/2021, TOGETHER WITH ANNEXURES
MR DOWLING: Thank you very much, your Honour. Now could I just - given some of the matters that have exchanged between my learned friend and the members of the Bench, in our submission there will be some assistance if we can very briefly explain the salient parts of the history that led up to and shortly after 2018, and as I say we can do it briefly and I think one easy reference point from which to do it is exhibit DVN1, which is the certificate of registration of what is now the CFMMEU. What the Bench will see is that the Building Workers Industrial Union was registered on 11 September 1962 and that same corporate status which should be clear from our submissions has continually been maintained since that date in 1962, despite the changes in the legislation and despite the changes in the membership. There appears to be no dispute between the parties that the CFMMEU has continued that registration from 1962 continuously through to the present day.
Reference was made to some events in 1991 and 1992 and we should make very clear that the certificate you can see sets out a name change in September 1991 and that is because at that time the VWIU amalgamated with the Australian Timber and Allied Industries Union and it was rename the ATAIU and VWIU Amalgamated Organisation. You can see that noted on the certificate. The very first important date though is 10 February 1992, a reference was made to it a moment ago by Hatcher VP because that is the date that the ATAIU and VWIU Amalgamated Organisation amalgamated with what's colloquially called UMFA, the United Mineworkers Federation of Australia.
Pursuant to that scheme of arrangements, UMFA was deregistered and the members of UMFA became part of the amalgamated organisation. Immediately prior to that amalgamation the eligibility of UMFA was limited to workers in the coal and shale industries. You can see on the certificate that on 10 February, that date, 1992 the union was renamed and it was renamed the Construction Forestry and Mining Employees Union, and at this time its rules created a mining division. It's later in that year, so now September 1992 that that organisation, the CFMEU, then amalgamated with two other organisations, the Federated Engine Drivers and Farmers Association, FEDFA, and the Operative Plasterers and Plaster Workers Federation of Australia.
Pursuant to that scheme, those two organisations - FEDFA and the OPPWF - were deregistered following that amalgamation with the CFMEU. You will see there is another name change. On 28 September 1992, marked on the certificate is a change this time to change the organisation to the Construction, Forestry, Mining and Energy Union, but importantly at this time in 1992 there are still two divisions; the mining division and the energy division.
Now, this brings us to 1995 and paragraph 33 to which I referred before, to the statement of Mr Murphy. What happened in 1995 is that the national rules of the CFMEU were amended to combine those two divisions; the mining division and the energy division. I should say, going back one step, prior to May 1995 the mining division was also referred to in the union rules as the UMFA division and the union referred to the energy division as the FEDFA division, consistent with the history of the two divisions.
It's three years later, in May of 1995, that those two divisions are combined and this part seems uncontroversial. It is that internal rule change that creates the mining and energy division. It is this moment that the division now known as the mining and energy division came into existence. There does not seem to be a dispute raised by Mr Borenstein that that was, in our submission, unequivocally - at that time at least - not the result of an amalgamation.
The next date is, as has clearly been identified, 27 March of 2018. That is the date at which what is then the CFMEU amalgamates with the Maritime Union of Australia and the Textile, Clothing and Footwear Union of Australia. As part of that scheme and consistent with the schemes we have already seen, those two organisations are deregistered; the MUA is deregistered and the TCFUA is deregistered.
The host is still the same corporate vehicle and you can see again in the certificate the last of the notations, there is a last change to the name of the organisation. It's at that time, on 27 March of 2018, that it becomes the Construction, Forestry, Maritime, Mining and Energy Union. You see that notation about halfway down; the last of the handwritten notations.
Can we say one last thing about that history and this is by reference to Mr Murphy's affidavit again. He identifies four things in respect of the mining and energy division that happened - or do not happen at this time in 2018. The scheme of the amalgamation in 2018 provides that the structure and rules of the mining and energy division will not be affected by the amalgamation. The Bench will see that at paragraph 41(e) of Mr Murphy's affidavit. The scheme also provides that the rules of the mining and energy division will not be altered as part of the amalgamation. The Bench will find that at paragraph 41(f) of Mr Murphy's statement.
What Mr Murphy then does is compare the eligibility rules and the rules of the mining and energy division before and after. At paragraph 44(d), he there says:
There is no relevant change to the eligibility rule or the rules generally before and after 2018.
What he also does is search the register in respect of elections and what he says at paragraph 45 is that:
There were no elections for officers of the mining and energy division as the result of the amalgamation.
Can I add one last thing to that because of the submission that is made by the applicant in terms of other positions that might have changed. My instructions are unequivocally that there were no fresh elections for the national officials of the union as a result of the 2018 amalgamation. Mr Maher remained the president, Mr O'Connor remained the secretary and Mr Noonan remained the assistant secretary, so there were no changes in those national positions of the registered organisation that was then the CFMMEU that had continually been the same corporate entity since 1962. There were no relevant changes of any kind to the mining and energy division.
Now, before I come to the provisions in the RO Act as they stand today, can we raise one historical matter for one brief account of the history to make good the purpose as it is today and to make something of the concession that is made about how that purpose hasn't changed. I think what is clear to the Bench is that - relevantly I won't go back before 1991, but in 1991 it's the then Industrial Relations Amendment Act that creates the new scheme for the amalgamation of organisations.
In paragraph 28 of our primary submissions we refer to the AMMA v CFMMEU, a Full Court decision of the Federal Court, where the court there concluded that the primary purpose of those 1991 amendments and the amalgamation regime was to -
encourage and facilitate union amalgamations including by avoiding or minimising impediments to amalgamation.
Now, despite those changes in 1991 there were no provisions for the withdrawal from those amalgamations and the substance of what is now part 3 of chapter 3 was first introduced by the Workplace Relations and Other Legislation Amendment Act in 1996. There are only two provisions of that 1996 Act that we want to direct the Bench's attention to and both of them are in our material behind tab 1. The first is section 253ZH which set out the object of the division.
VICE PRESIDENT HATCHER: What page of the .pdf is that at?
MR DOWLING: Sorry, Vice President, I shall tell you - it starts on page 3.
VICE PRESIDENT HATCHER: I see, yes. Thank you.
MR DOWLING: So you there see the objects set out:
The object of this division is to provide for: (a) certain organisations that have taken part in amalgamations under division 7 to be reconstituted and re-registered; and (b) branches of organisations of that kind -
I will come back to those words as they appear today -
to be formed into organisations and registered in a way that is fair to the members of the organisations concerned.
Now, as we understand it the applicant accepts that the object of the scheme is now under section 92 - and we'll have something more to say about it, but in materially the same terms. In other words, whatever might have happened in 2020 and the amendments that my friend relies upon, what those amendments did not do is change the object of the scheme as first represented in 253ZH.
Secondly, the Bench will see at page 4 of the .pdf section 253ZJ. Now, that is the predecessor to section 94 under which the applicant's application is made. As we understand it, the applicant also accepts that the current section 94 is in substantially the same terms as section 253ZJ. Relevantly, it provides:
An application may be made to the court for a ballot to be held to decide whether a constituent part of an amalgamated organisation should withdraw from the organisation if: (a) the constituent part became part of the organisation as a result of an amalgamation under division 7 -
and there is a reference to a date, and then there is a reference to the window, which the window under this scheme was slightly different. Unfortunately, in the .pdf it's cut off and you see there under 253ZJ(1)(c) the reference to "three years", (c)(ii) provided for "five years", so that provided for a three to five‑year window. Again we say the object of this scheme as represented by section 253ZH, and consistent with the application that's to be made under 253ZJ, has not changed despite the changes in 2020 that our learned friend pins his application on.
We accept there were three changes in 2020: relevantly providing for the extension of time in certain circumstances under section 94A, to which reference has already been made; including a range of new provisions dealing with rules of any newly registered organisation and how the eligibility of that organisation would be ascertained; and then thirdly the change that we will come to to the definition of "separately identifiable constituent part".
But as we will explain, what our learned friend wants to do is despite no change to the object, and despite no change to the application process under section 94, wholly, in our submission, rewrite the scheme by reference to a definition within a definition, the definition of "separately identifiable constituent part" within the definition of constituent part.
So can we then come to the present provisions. Can I mention just one matter of principle before I do that. There does not seem to be a lot of controversy between the parties that the task of statutory construction requires consideration of the text and the context and the purpose. Begins with the statutory text reading context, and that context is the surrounding words as well as the history, and we will come to the important surrounding words, but I don't need to take the Bench to any cases about those propositions.
But can I just emphasise one matter, given the rather heavy reliance upon the explanatory memorandum made by the applicant, at least in respect of the first part of its case. And can I do that by reference to the Bolton decision. I don't need to take the Bench to it, but I would give the Bench the reference. That decision is Re Bolton and another ex parte Beane, which appeared behind tab 5 of our cases.
That part that would draw the Bench's attention to is in the judgement of his Honour Mason CJ and their Honours Wilson and Dawson JJ at paragraph 518 where they are there dealing with the inconsistency between a second reading speech and the words that they are being asked to construe. It's there they say:
The words of a Minister must not be substituted for the text of the law.
Leaving out a sentence or two the in between, they then go on to say:
The function of the Court is to give effect to the will of Parliament as expressed in the law.
As expressed in what it drafted or amended or did not amend. The segue from this point is to section 92 because my learned friend has made some complaint about how he can or can't speculate about what it is the draftsperson proposed, but in doing so, in our submission, has assiduously avoided section 92. Section 92, as we've seen consistent with its predecessor, relevantly provides that:
Certain organisations that have taken part in amalgamations -
to provide for:
certain organisations that have taken part in amalgamations ... to be reconstituted and re-registered.
And in respect of subparagraph (b):
Branches, divisions or parts of organisations of that kind to be formed into organisations and registered.
What is abundantly clear, we say, is that the applicant's interpretation is not consistent with that object. The object - the words themselves we say are easily understood, "Certain organisations that have taken part in amalgamations." Nothing ambiguous in any of that, as expressed in the object, "To be reconstituted and reregistered."
Necessarily and obviously we emphasise the re at the start of those words. It is to reconstitute or re-establish an organisation that existed prior to the amalgamation, and it is to reregister it. We don't need to be concerned about where we can and can't speculate when the object is squarely set out in the Act has not changed, the scheme has not changed since that introduced in 1996, and is still today directed at organisations that have taken part in amalgamations in reconstituting and reregistering.
All of that is consistent with section 94(1). 94(1), the section under which my learned friend makes his application, provides that:
An application may be made to the Commission for a secret ballot to be held, to decide whether a constituent part of an amalgamated organisation should withdraw from the organisation, if: the constituent part became part of the organisation as a result of an amalgamation under Part 2 or a predecessor law; and -
the application in that two to five-year window. Again the words, "became part of an organisation as a result of an amalgamation" do not create any difficulty, and on their plain reading make very clear, consistent with the object, what the target that we are looking for is.
Can I just interpolate one matter. Your Honour Hatcher VP in an exchange with my learned friend noted the reference to "the approximation" and the reference to "an amalgamation" in sub-part (1)(a). Clearly you have to determine which of the amalgamations is the relevant one for the two to five year window. The applicant, as we understand it, says the clock starts with every amalgamation. If that's right, it would seem to us that the reference to "an amalgamation" would really be a reference to any amalgamation.
Before I come to section 93, can I just note 94A in passing. We can't say anything more than what your Honour Ross J has already said. As we understood it, the applicant has assuaged any application under 94A and, as he said expressly, put all his eggs in the basket of his present argument, so we don't address 94A in these submissions. We note that it's there and we note that a process could be engaged in.
Perhaps for completeness to pick up your question, Hatcher VP, it may be that the UMFA or its members, under the definition of constituent part, itself could make an application; not under "separately identifiable constituent part", but under "constituent part" as defined, provided it could satisfy 94A. But no effort has been made to do that, and that's deliberately assuaged, as we understand it.
Can we then come to the definition of amalgamated organisation in section 93. And again there is an effort to assiduously ignore that part of the definition that refers to organisation. It provides - the definition in section 93 of amalgamated organisation provides:
In relation to an amalgamation, means the organisation of which members of a deregistered organisation became members under paragraph 73(3)(d) of Part 2, or an equivalent provision of a predecessor law, but does not include any such organisation that was subsequently deregistered under Part 2 or a predecessor law.
So it's directing attention to an organisation and how that organisation came to be, whether it was the deregistered organisation that's not an amalgamated organisation, or whether it is the one that came to be as a result of the amalgamation. What all of the submissions to date have ignored, in our submission, is that the definition of amalgamated organisation expressly refers to "the organisation" within it. "Organisation" is defined in the Act in section 6. Organisation is defined as, "An organisation registered under this Act." And it is that registration that gives in this case the CFMMEU its corporate status by operation of section 27, and it's that registration that has continued since 1962.
But one cannot ignore, as the applicant must, in the definition of "amalgamated organisation", the reference to organisation without explaining why it is that that definition would use the expression organisation in a way inconsistent with or without any regard to that term as it is defined in section 6 of the Act.
We need to do one other thing in respect of that definition of amalgamated organisation, and that is go to section 73(3), which is referred to in the definition. And, Vice President, you made note of this in questions to my learned friend because that provides, in respect of what happens on the amalgamation date, that at (3)(a):
If the proposed amalgamated organisation is not already registered--the General Manager must enter, in the register kept under subsection 13(1), such particulars -
well, we know here, of course, that the amalgamated organisation is already registered. And then at (d):
The persons who, immediately before that day, were members of a proposed deregistering organisation become, by force of this section and without payment of an entrance fee, members of the proposed amalgamated organisation.
And there was an exchange, Vice President, between you and my learned friend Mr Borenstein about the proposed amalgamated organisation. Can we add one thing to that exchange, that section 35 of the Act separately identifies "proposed amalgamated organisation".
It does so again by reference to the use of the word organisation, such that in our submission both section 93 and section 35 and the relevant definitions within them are careful to define the amalgamated organisation or the proposed amalgamated organisation by reference to the well understood concept of an organisation being a registered organisation.
Can we then come to two last definitions and the controversial ones, those are the definitions of "constituent part" and the definition within that of "separately identifiable constituent part". In respect of constituent part, (a) separates out the separately identifiable constituent part, and we will come to it; (b):
A part of the membership of the amalgamated organisation that would have been eligible for membership if an organisation deregistered under part 2 or a predecessor law in connection with the formation of amalgamated organisation; or a state or territory branch of such a deregistered organisation, if the deregistration had not occurred.
So can we make clear, if it's not already, clearly paragraph (b) of the constituent part is referrable to the amalgamation, and in that way we say wholly consistent with the scheme, provided for by the object at section 92, and provided for by the application at section 94. So if we combine for the moment section 92, section 94, and the definition of constituent part at paragraph (b), what is abundantly clear is all of what's said there makes very clear that the constituent part we are looking for has a connection to the amalgamation.
Then the definition of "separately identifiable constituent part". As referred to in the definition of constituent part, is a separately identified. (a) refers to the organisation:
If the organisation that was deregistered remains a separately identifiable, that organisation will be a separately identifiable constituent part; (b) if the state or territory branch of the deregistered organisation remains a separately identifiable, that will be the separately identifiable constituent part.
Again undoubtedly and clearly a connection to the amalgamation. That leaves (c):
Any branch, division, or part of the amalgamated organisation not covered by paragraph (a) or (b) that is severally identifiable.
What the applicant would have you accept is that that is any part of the amalgamated organisation not connected to the amalgamation. At this point in time on the applicant's argument the scheme is turned on its head, or in our submission the tail starts to wag the dog at this point.
You ignore section 92, you ignore section 94, you ignore the context created by constituent part at paragraph (b), you ignore separately identifiable constituent part in the context of (a) and (b), and you say as a result of all of that that now the scheme is widened by this change in this definition at paragraph 3 of separately identifiable constituent part. It's this is where the draftsperson chose to make this wholesale change to the scheme. I will return to that when we come to the first argument.
The only other definitions can we draw to the Bench's attention at this point is the definition of predecessor law, again within section 93, and there does not appear to be any contest that the relevant amalgamations took place under a relevant predecessor law. And section 93(4) that we draw in aid, and I will return to it in support of our argument in respect of the first question.
So can we say this about the first question: we except, as is set out in the background paper at paragraph 8, that the two questions there set out reflect the questions that the Bench is required to answer, and that the first of them: whether the mining and energy division is a constituent part of the CFMMEU for the purposes of 94(1) of the RO Act is the first question. Remembering of course that the starting point is, as the question makes clear, section 94(1), because it's 94(1) that tells us that:
An application may be made to the Commission for a secret ballot to decide whether the constituent part of the amalgamated organisation should withdraw, if constituent part became part of the organisation as a result of an amalgamation.
That's the context in which we are asking and considering the first question. Of course it seems like both sides accept that we have to read the relevant expressions in context and understood by looking at the Act as a whole, and that is what we want to do when we take you to 92 and 94 and all of the definitions within 93, including a reference to 73.
So where that takes us in our submission is that having regard to the purpose of the part, the words of section 94, and the application that is made, paragraph (c) of the definition of separately identifiable constituent part should be read ejusdem generis, meaning that paragraph (c) needs to have a relationship with the deregistered organisation.
We accept there is a criticism made against us that the ejusdem generis is just a tool. We accept it's just a tool, but it's a tool that we say is a permissible one to use and it's one to use together with the object in section 92 that the applicant ignores, the words of 94 and the words of the other part of the definition of "constituent partner".
When read in the context of all of those provisions, we say that's the only thing that can sensibly follow from paragraph (c). The words read in context can only mean one thing; in context of 92 and 94, they must be and must have a connection with the amalgamation. Now, what we've made clear and is partly responded to, if paragraph (c) is not read that way and is read at least literally or perhaps even read with the ex mem, there would be, it seems, no purpose for paragraphs (a) and (b).
Now, our friends in paragraph 39 of their submission have put a particular explanation for paragraph (c). It seems the submission that is made today is a little inconsistent with it, but they say that paragraph (c) -
intends to and does cover branches, divisions or parts of the amalgamated organisation that were not branches, divisions or parts of an organisation deregistered in connection with the formation of the amalgamated organisation.
That's not accepting, in our submission, the words of paragraph (c) on their face and it's not consistent with the ex mem in a way that we'll come to, but that's the way the argument was put in their written submissions and that's the proposition that we say when you read paragraph (c) in context simply cannot be maintained.
Can I make good one point that we make in our reply submissions and we do this at paragraph 2, and although my learned friend addressed it, we say didn't answer it. One of the things we endeavour to make clear from the reply submissions is in terms of the operation of the definition of "separately identifiable constituent part". Paragraph (a) covers the organisation that was deregistered and paragraph (b) covers the state or territory branch that was deregistered.
That still leaves a number of parts of the organisation that are not covered by those two subparagraphs and that's what we say is the need for paragraph (c). Take, for example, a division of an organisation that was deregistered. That would not be covered by paragraphs (a) and (b). That's why we say there is a need and there was a need for paragraph (c).
Now, we have put that proposition in paragraph 2 of our written submissions and as I heard my learned friend in his answer - if it can be described as such - he complained that our submission was factually incomplete and therefore precluded analysis, but there was no answer to the proposition that there is and must be parts of the deregistered organisation not covered by (a) and (b) that are picked up by (c).
If that's so, (c) has the work to do that we say and the Bench is left with a stark constructional choice: was (c) intended to wholly invert the scheme and provide now that any organisation or any part of an organisation unconnected to the amalgamation could apply or was it consistent with 92, 93, 94 to provide for parts of a deregistered organisation that were connected to that amalgamation and by paragraph (c) pick up those parts not covered by (a) and (b)?
Now, we have made a submission about a lacuna created. I'll bravely use the word "lacuna" even though my friend wouldn't. Can we explain it this way: as our friends would have it, on their construction of "separately identifiable constituent part" that definition would cover the whole organisation covered by subparagraph (a) of separately identifiable constituent part or a state and territory branch of such a separately identifiable constituent part and would then cover any part of an organisation not connected to the amalgamation, but would not pick up my example of a division, for example; a division that was deregistered.
I think our learned friend's answer to this is, "Well, it's just a drafting choice", but that is in our submission an extraordinarily odd outcome that parts of the organisation connected to the amalgamation, such as a division, are not to be covered by the definition, but any part unconnected to the amalgamation is to be picked up by the definition. Now, if the only explanation that can be given to that lacuna by our learned friends is that it's a drafting choice, it is in our submission an extraordinarily odd outcome created by our learned friend's construction and an extraordinarily odd constructional choice.
Can we say then one last thing in respect of the way our friend puts its case in respect of the explanatory memorandum. As we understand it, in respect of the case that the applicant puts in respect of paragraph (c), yes, it has some limitation. It's not just any organisation at any time. It is, as he pressed in paragraph 39 -
covering those branches, divisions or parts of the amalgamation that were not branches or divisions or parts of an organisation deregistered in connection with the formation of the amalgamation organisation.
It seems like the submissions made today are consistent. That at least is some form of limitation on paragraph (c). The explanatory memorandum has no such limitation and what we take from that is even our friend's submission, although it draws in aid the explanatory memorandum, is not consistent with it.
There is a good and logical reason for that and it's the one we have already identified, and that is if they were to take the literal words of the explanatory memorandum and put their argument consistent with it, then again as we said before paragraphs (a) and (b) would have no work to do. Paragraph (c) would be so broad, but there would be no need for (a) and (b). That forces our friends to create some limitation, but it forces them into the rather difficult situation of relying on the ex mem that is not entirely consistent with the argument that they put.
Ultimately on question 1 we say the definition of "separately identifiable constituent part" needs to be construed in the light of the primary provision to which recourse is made in this application, section 94, and consistent with the object in section 92. The ordinary meaning of the words "as the result of" indicates that the section is concerned with constituent parts that became a part of the organisation by way of the amalgamation and so much is clearly and obviously consistent with the object in section 92.
So much is also consistent with the definition of "consistent part" in 93(b) of the definition as it appears in section 93, so again the constructional choice construe subparagraph (c) consistent with the scheme, the objects, and the principal provision in section 94, or read it in a way that is at odds with those provisions. And as we've said, and there doesn't seem to be any controversy about this much, the statute must be read as a whole.
We say not only is the applicant's construction at odds with the surrounding provisions, but it would, as we've said, fundamentally alter the scheme, meaning that a wholesale change has been created, not by a change to section 92 or section 94, not by a change to the definition itself of constituent part, but by a change to a definition of - a definition within the definition of separately identifiable constituent part. And that, in our submission, is an extraordinary way to go about the wholesale change that our learned friends rely upon.
Can I come to question 2. And again we accept, as set out in paragraph 8 of the background paper, that it's accurate to express that question as: whether the mining and energy division became part of the CFMMEU as a result of the 2018 amalgamation. Our primary submissions address that question at paragraphs 55 to 67; and our reply submissions address it at paragraphs 14 through 27.
Can we just emphasise a number of matters. There seems to be no doubt that the second question turns on the phrase "as the result of the amalgamation". In terms of the background facts, there's no dispute that the mining and energy division came into existence in 1995; not in our submission is the result of an amalgamation, but we will address what it is our learned friends say.
The applicant's argument, as we understand it, involves the existing union or the existence constituent parts becoming part of the amalgamated organisation all over again as the result of the 2018 amalgamation; an effective, as we understand it, dissolution of the union as in 2018, and each organisation that is part of it becomes a part of it anew, as our friend puts it.
There are a number of problems with this proposition, and the first - and there's a reason we took some time to emphasise that within the definition of "amalgamated organisation", and within the definition of "proposed amalgamated organisation" is the reference to organisation. And organisation makes clear that it is the organisation registered under the Act. And that creates the legal personality, and there is no dispute on the evidence of Mr Murphy that that organisation has not changed; that that organisation continue to be registered.
Further, as we've set out in writing, section 73(3)(a) of the Act provides that:
On amalgamation day if the proposed amalgamated union is not registered, it must be registered.
And as we've said, here it already is. And that 73(3)(b) provides:
On amalgamation day any changes to an existing organisation's rules take effect.
And it's consistent with those provisions that the scheme of amalgamation which applied to both the MUA then and the TCFUA provided that the rules of the then CFMEU would be altered, the members of the MUA and the TCFUA would become members of the CFMEU, and that the assets and liability of the TCFUA and MUA would become those of the CFMEU. The scheme did not provide for any new entity to be registered, or for the CFMEU to be deregistered. That's because as we've already said, consistent with 73(3)(a) there was already the entity that was to be the host registered.
Understood in the context of those provisions, when the amalgamation took place, whilst the CFMEU underwent changes, it remained the same legal entity. And in this case there can be no dispute that the mining and energy division, which was created in 1995, was and became part of that organisation, that same corporate entity in 1995 when it was created.
We've said something about section 93(3) and we are content to rely on what we say about that in writing in both our primary submissions and in our reply submissions. But can we say something about the ordinary words. And again much is made by the applicant of drawing on the ordinary words and to the context, but of course the ordinary words in respect of relevantly section 94 here are the ordinary meaning of the words as a result.
We've endeavoured as best we could to define those, including by reference to "because or as a consequence of" and in this case what is undoubtedly clear is that the mining and energy division has been part of the legal entity that is the CFMEU since 1995. That amalgamation did not create any new legal entity or have any material effect on the relationship between the entity that is the CFMEU and the mining and energy division.
I think what seems to be accepted by the applicant is that the applicant's construction would be that upon any amalgamation, no matter how large or small, each and every administrative unit of the amalgamated organisation would be entitled to apply to withdraw and obtain separate registration. And that, we understand, is ‑ ‑ ‑
VICE PRESIDENT HATCHER: I think that subject to the part being a constituent part as defined in section 93.
MR DOWLING: Correct. Yes, we accept that, your Honour. But perhaps to take that example or to take that point, your Honour, the only matter that it's subject to then is being able to identify a separately identifiable constituent part in the rules of the relevant organisation.
If we take for example the rules of the construction and general division of the CFMMEU that provides not only for branches but for sub-branches, on the applicant's case as we understand it, a sub-branch, no matter how small, let's say the sub-branch has 100 members, no matter that they did not become part of the union as a result of the amalgamation, and were always part of the host union, let's say, and not connected to an amalgamation anyway, that sub-branch of those 100 members could withdraw. And they could do so today, on the applicant's argument, because we are in the window two to five years from 2018.
So as we understand it, that sub-branch with no connection to the amalgamation, and having always been part of the host, could now make application to strike out on their own, if you like.
VICE PRESIDENT HATCHER: Mr Dowling, the word "part" is used in this definition in (a), (b) and (c). What might a part be? What work might that word do separate from a branch or division?
MR DOWLING: Sorry, your Honour, I'm just making sure I have the definition in front of me. Is your Honour referring to "part" in the overriding description of what's being defined, a separately identifiable constituent part?
VICE PRESIDENT HATCHER: Yes. No, but not there, but in (a), (b) or (c) it refers to a branch, division or part in each paragraph. I'm just wondering what a part is, where it's not a branch or division.
MR DOWLING: Yes, your Honour. Remember the reference in the end of subparagraphs (a) and (b) to the branch, division or part - - -
VICE PRESIDENT HATCHER: Yes.
MR DOWLING: - - - is a reference to how it is that the organisation or State or Territory branch is separately identifiable within the rules of the organisation. So (a) provides for the whole of the organisation to have been deregistered, and it then is separately identifiable as a branch, division or part of that organisation.
VICE PRESIDENT HATCHER: So in respect of say mine workers you would no doubt say that there is no mine worker branch or division because they were rolled up into the mining and energy division, but I am just wondering what work the word "part" does separate from branch or division; that is a separately identifiable part, certainly identifiable, but not a branch or division.
MR DOWLING: Well, the work - sorry, two parts in the answer to that question. When we are dealing with UMFA of course we would say that they would be picked up by - they could be if they were to make such an application - picked up by the definition of constituent part itself in paragraph (b) of the definition of constituent part, if we are dealing with the UMFA members and how they might identify themselves. That's the first part. The second - - -
VICE PRESIDENT HATCHER: I see.
MR DOWLING: Yes. If we are dealing with UMFA and they wanted to make an application they could be a part of the membership of the amalgamated organisation that would have been eligible for membership of an organisation deregistered.
VICE PRESIDENT HATCHER: Yes.
MR DOWLING: Otherwise of course in 93 (a) deals with the whole organisation, (b) deals with the State or Territory branch of the deregistered organisation, and (c) branch, division or part picks up, we say, any entity connected with the amalgamation consistent with 92 and 93 that might be separately identifiable. Now, most likely it's going to be a branch or a division.
VICE PRESIDENT HATCHER: I am just trying to work this out, if it's paragraph (b) of the constituent part definition, which you have taken us to - - -
MR DOWLING: Yes.
VICE PRESIDENT HATCHER: - - - who would make the application and how would it be authorised?
MR DOWLING: If we are sticking with our example of UMFA for the moment, your Honour, it could be as that provision provides part of the membership - - -
VICE PRESIDENT HATCHER: So a member of that falling in that category could make the application?
MR DOWLING: Yes. A member falling - it might be a coal miner, and so they are part of the membership of the CFMMEU and they fall into the category of having been eligible for membership of the deregistered UMFA.
VICE PRESIDENT HATCHER: Yes. So Mr Kelly could make the application?
MR DOWLING: If he was making an application in respect of UMFA - - -
VICE PRESIDENT HATCHER: Yes.
MR DOWLING: - - - and if he was otherwise able to satisfy you in terms of the extension of time that might be necessary.
VICE PRESIDENT HATCHER: Yes. All right, thank you.
MR DOWLING: I think I was dealing with that part of the second question, and we were - after having described what we understand our learned friend's position to be, an effective dissolution of the union and starting again, we firstly emphasise the question or organisation and how that is defined. We secondly refer to and repeated our submissions in respect of 93(4), and then we are at the ordinary meaning of "as a result of", and I think then I had gone ahead to the fourth proposition that we set out in writing in response to your Honour Justice Ross's question about the limit, if there is one, upon our friend's construction, which is that it has to be separately identifiable, and I gave that notion of a sub-branch would still be separately identifiable.
Can I then just by reference to our submissions in reply at paragraphs 14 through to 25 make good what we say there. The concern that we have endeavoured to express in our reply submissions based on the way the applicant puts its case is what they do with the entity that's called an amalgamated organisation. It is as we understand it they say an entity, but not a legal entity, one they say in writing is unrelated to registration and therefore without legal status, and that took on, it's in their words, present form as the result of the CFMMEU amalgamation in 2018, but where that present form, as we understand it, is not a legal form or the legal form of the registered organisation with some core group and legal status.
So this is the strange entity that's created by our learned friend's construction, an entity that we say previously unknown to the law or to the industrial law, and if it is that the draftsperson intended to create this new entity, otherwise without some legal status and referable to organisation as referred to in the Act, we say it would have done so expressly.
What it alternatively did was choose to define amalgamated organisation by reference to organisation, that term commonly used and clearly defined as the registered organisation, the organisation registered under the Act. Now, having made that deliberate choice to use that word to suggest as the applicant does that what's created is some entity that has no legal status and it's unconnected to registration is, we say, a perverse outcome.
All of that too is undermined by, and we made this point in the context of question 1, what it is that the applicant says about the scheme and the scheme's history, and it accepts that sections 94 and 92 are consistent with 253ZJ and 253ZH. So it accepts that the scheme has maintained the same object and the same operation in terms of an application under section 94 and its predecessor. Yet that it says despite that what it intends is to create some whole new, or a dissolution upon every amalgamation, and despite that submission again the legislature chose not to amend the object in 92 and to amend in any way the section at 94.
One of the things that it called in aid in respect of that outcome is what it says is a progressive easing of the conveniently belong test in respect of new unions, the entrance of new unions into the industrial landscape. But the point that we have endeavoured to make in our written submissions is 95A(4) and (5) under the amendments in 2020 create a very different scheme, and those two provisions require the Commission to ensure that once a union leaves an amalgamation, the eligibility of the amalgamated organisation and the new union are to the extent possible, not overlapping.
That's to be contrasted with the applicant's submission about competitive unionism, and in our submission strongly counts in favour of the contention that what the legislature was intending to do and was endeavouring to permit was the re-establishment of the status quo which existed prior to the amalgamation, so that the pre-existing organisation had its coverage and the amalgamated organisation had its coverage, and not create an overlap.
The very opposite of the changes to the landscape in respect of conveniently belonging, and in a submission counts against what it is our learned friend puts.
All of that means, in our submission, that the facts in respect of this case, the law in terms of the proper principles in respect of statutory construction as applied to section 94, and the application presently before the full length, make clear that in respect of the ordinary meaning, consistent with the purpose and object of the words "as a result of the amalgamation", it cannot sensibly be said that the mining and energy division became part of the CFMEU as the result of the amalgamation.
All of that means on question 1 you must read the definition of "separately identifiable constituent part" in light of the primary provision in section 92; and read together with the first part of the definition of constituent part in 93 means that clearly the mining and energy division is not a constituent part; and even if they are, they did not become part of the CFMEU as the result of an amalgamation.
Can I just address those parts of the background document that are directed towards my client, the CFMMEU. In respect of paragraph 7, accepting as the background document describes, that the six dot points set out there are intended as an overview, we accept that they are accurate. I've already made clear that we accept paragraph 8 accurately reflects the questions.
And I can say in respect question 3 that it is common ground that the mining and energy division first came into existence by an administrative rule change that was preceded and unconnected with an amalgamation, that's the date in March 1995. So those are the three parts that are directed to us, and we confirm they are correct.
Can we just say this about paragraph 6, addressed to the applicant. In respect of the first dot point, as we hope we've made clear, we say what's set out there, as our friends accepted as accurate, involves reading down of the words. In respect of the fourth dot point, can we refer the Bench to the primary submissions of the applicant in paragraphs 61 and 63, and how it is that he endeavours to describe the entity, as he calls it, to make good the response to that paragraph.
Otherwise if the Bench would just excuse me for one moment so that I can communicate with those instructing me electronically just to confirm whether there's nothing else. Perhaps just for completeness in respect of the Vice President's question in terms of who could make the application.
Regulation 81 provides firstly it's the members that would do so. Regulation 81 provides some guide as to how that's to be done. And section 93(4) says the application can be made by the prescribed number of members, and there's a minimum number provided for by regulation 81. But that's very much for completeness in response to your question, Vice President.
VICE PRESIDENT HATCHER: Thank you.
MR DOWLING: Unless there are any questions, they are submissions of the CFMMEU.
VICE PRESIDENT HATCHER: Thank you, Mr Dowling. Mr Borenstein, anything you wish to say in response?
MR BORENSTEIN: Yes, your Honour. I will be brief. Just a couple of corrections and a couple of responses. At the outset Mr Dowling made reference to the effects of the amalgamation and made the submission that in terms of the effect of the amalgamation, there were no elections provided for or found by Mr Murphy in his searches.
We would direct to the Commission's attention to the transitional rule that was enacted as part of the rules of the amalgamated organisation in 2018. It's rule 42E. It's at page 1309 of Mr Murphy's PDF of his affidavit. It's headed Transitional Rule MUA and TCFUA and it makes provision for the installation of various officials from the MUA and the TCFUA into positions of the amalgamated union, that is the CFMMEU, not into the CFMEU.
And so the submission that we made in chief about the changes to the structures and governance structures of the organisation are made out by that transitional rule. And the transitional rule not surprisingly makes provision for elections to occur after a period of time after the election.
The scheme of amalgamation, which is in DVM25 at paragraph 21, which is on page 969 of the PDF, explains how these transitioning officers will serve out the balance of their term that they had left at the time of the amalgamation, and then there would be elections in accordance with the rules.
Our friend made some submissions criticising our use of the explanatory memorandum, and gave the Commission a reference to the judgement in Bolton. We point out that that was a judgement about the use of the words of parliamentarians in Parliament in a second reading speech, and is to be distinguished from the use that can be made of an explanatory memorandum. And for that purpose we've given a reference earlier to section 15A and B of the Act Interpretation Act.
There's no controversy about that allowing the use of an explanatory memorandum for the purpose of confirming a construction that is arrived at. And we've also given you a reference to the judgement in the Bay Street case. No answer was made to that by our learned friend.
In terms of the submission that he makes, great store is placed on section 92, the objects clause. We have made written submissions. I have taken time of the Commission as my friend did to go through the written submissions, but we have made detailed submissions about the use that should be made of section 92 in paragraphs 50 to 56 of our written submissions, and we would ask the Bench to have regard to those, including the authorities that we relied upon.
And in summary the thrust of the authorities is that one must take care not to allow the objects of legislation to dominate the orthodox construction of provisions that are in issue. If there is an object section, it is one factor that can be taken into account, but it doesn't dominate or dictate or determine the meaning of the words of a contested provision as they are interpreted in the first instance.
Mr Dowling then referred to section 73 and the Deputy President asked me about that in‑chief. I have made the submissions we want to make about that in response to that question. He also made reference to the definitions in section 35, to a definition of "proposed amalgamation". Can I draw attention also to the fact that there is a definition of "amalgamated organisation" in section 35 which refers to a completed amalgamation and refers to -
the organisation of which members of the deregistered organisations have become members.
It refers to the new manifestation, if you like, of the organisation after amalgamation. The definition of "proposed amalgamated organisation" refers to the proposed amalgamation in futuro and so we say it really doesn't add anything to the argument that is to be had here. Then I would like to respond briefly to the submissions that our friend made orally about the meaning of paragraph (c) of the definition "separately identifiable constituent part". He criticised the submission that we made.
He made reference to paragraph 39 of our written submissions and we would ask the Bench to have regard to that paragraph because there what we say is that in contradistinction to paragraphs (a) and (b), paragraph (c) -
intends to and does cover branches, divisions or parts of the amalgamated organisation that were not branches, divisions or parts of an organisation deregistered in connection with the amalgamation.
We make the point, which I've made earlier, that that construction gives effect to the explicit references in (a) and (b) to the deregistered parts and the absence in paragraph (c) to a reference to the deregistered parts. Now, our friend came up with all these hypotheses about all sorts of parts of deregistered organisations that might not be branches and might not be divisions, et cetera.
We say that's all very interesting, but the problem that our friend faces and has never answered is why or how he says that he overcomes his hypothesis of reading paragraph (c) as being referable to some part of a deregistered organisation - how he overcomes the fact that the draftsperson has not used the same structure or formulation that is used in (a) and (b). That is what you would expect if that's what they were intending, so that's the seed of our argument.
The seed of our argument is that if paragraph (c) was intending to be some other part or branch of a deregistered organisation, you would have expected it either to say some other branch, division or part and you would have expected certainly for it to reference the fact, as you've done in (a) and (b), that it's to be part of the deregistered organisation and it does not do it. It's telling that it does not do it.
So that's why we said in our written submissions our friends are really asking you to read in the words, to read in "any branch, division or part of a deregistered organisation", and you don't do that and you wouldn't do that because there's no need to do that. That's a hurdle that our friends cannot overcome and haven't even tried to overcome. Instead they have done an exercise - a misdirection - and they've said, "Oh, well, but, you know, there might be a semi group out in Geelong or in the back blocks on New South Wales or something and they're not called a branch, and they're not called a division and they miss out."
That's where we come back to the submission we made earlier. There is no indication at all anywhere in the legislation that every single part of an organisation that was deregistered in an amalgamation has to be able to withdraw. There's nothing that says they have to and so if the legislature makes a choice in describing those parts which it does say can withdraw, it's not for us, it's not for the Commission to say, "Well, we want to finish the picture. We want to fill the lacunas." There are no lacunas. The legislation has made its choice and that choice is there.
Now, apart from trying to pick up these parts of the deregistered organisations there is no other possible operation of paragraph (c) that our friends contend for, so we say that absent the necessary words linking paragraph (c) to a deregistered organisation, the clear words say that it's any branch, division or part of the amalgamated organisation. The CFMMEU is the amalgamated organisation and the mining and energy division is a division of that amalgamated organisation, and that's enough.
We say that that construction is permissibly confirmed by reference to the explanatory memorandum. Now, my friend in the written submissions says, "Oh, yes, but the explanatory memorandum doesn't support you", but it does. We have given you an extract of it in the written submission, but we have also provided you with a copy of it in the bundle. It might be easier if I just take you to it in the written submissions which are at paragraph 31. There it says, referring to paragraph (c):
This item adds the definition of "separately identifiable part" - new paragraph (c) which is "any branch, division or part of the amalgamated organisation not covered by the existing paragraphs (a) and (b) that is separately identifiable under the rules of the organisation".
Then importantly the next part:
The effect of this amendment is to provide that the withdrawal provisions set out in part 3 of chapter 3 apply to any branch, division or part of an amalgamated organisation that is separately identifiable under the rules of the organisation. This means that the ability to withdraw from an amalgamation is not limited by the pre‑existing deregistration in connection with the formation of the amalgamated organisation.
Now, that's as clear as an explanatory memorandum generally gets and it's confirmatory of the submission that we make about the meaning of paragraph (c). We say that there is no substance to the criticism which the union makes in relation to our construction of paragraph (c) and indeed there is nothing in the legislation that would support what our friends contend for in the definition.
That's why our friends are driven back to trying to import the object to make up for the lack of textual support for what they are arguing for. As we say, you have to be very careful on the authorities - you have to be very careful about using the object to overcome the sort of textual gaps which you find in paragraph (c) that stand against the construction which our friends argue for.
Mr Dowling also made some submissions about section 93(4). We have made submissions about this at paragraphs 58 to 70 of our written submissions and we ask the Commission to have regard to them. Then in relation to paragraph 2 of the reply submissions of the union, we again reiterate that the language of the definition does not support the arguments which they advance and we refer you to paragraphs 42 and 43 of our written submissions on that point.
We also stop to make a point - which is also in the written submissions - about the proposition that on our construction paragraph (c) might apply to small groups or small units of the amalgamated organisation, and the point we make in our written submissions is that even in paragraphs (a) and (b) of the definition there is no criterion of size for a unit being a separately identifiable constituent part. There is no minimum number of members, there is no minimum number of assets. All that's involved is the identification, the ability to identify the relevant part as a separately identifiable constituent part. So whatever operation paragraph (c) has, whether it effects large or small, is irrelevant.
I go next to the argument that our friend advanced about the lacuna, and again his impassioned plea this afternoon doesn't overcome the fact that the words, the actual words of the legislation relating to the definition do not support the hypothesis which he seeks to advance, and then he addressed one of the central themes of the union's argument, which is this fixation on the organisation, and at every point where other arguments failed they come back to that. They say, well it can't mean this, it can't mean that because there is only one organisation, and what Mr Kelly is doing he's trying to undermine the concept of a registered organisation.
Our position is not that at all. Our position recognises as we must that there is an organisation, and the organisation has corporate status. As I endeavoured to explain this morning and in the written submissions our position is that the registered organisation manifested itself in different forms at different times in its history.
Now, Mr Dowling took you through the history going back to when the CFMEU was first formed, and at that point it manifested itself quite differently than it does today. There were different groups of members. There were different rules, there were different officers with different responsibilities, and that is the point that we seek to make. We don't seek to undermine the concept of organisations registered under the legislation. That's a complete distraction. The point we seek to make is that at different points in its history an organisation would manifest itself in different ways, and the definition of amalgamated organisation in the Act is intended to address the manifestation of the registered organisation following a particular amalgamation.
VICE PRESIDENT HATCHER: Mr Borenstein, can I ask you a question about that. In section 94A(2)(a) it uses the phrase "Amalgamated organisation". Does the (indistinct) in the way you approach that expression that in effect any record that might be considered under that provision in respect of the CFMMEU would only be considered back to the amalgamation in 2018; that is the early record would be extinct as it were, because that (indistinct) record of the amalgamated organisation?
MR BORENSTEIN: That's another question your Honour has posed which I haven't had to consider for the purpose of preparing this, but there are all sorts of provisions, transitional provisions that the legislation provides in terms of carrying over of liabilities and so on from the pre-amalgamation organisations into the amalgamated organisation. I haven't look at all of those, but I do remember that proceedings that are on foot for example against organisations going into an amalgamation continue on in the name of the amalgamated body. So those are all matters that one might need to look at in terms of the question which you asked me.
I can tell you certainly that in terms of the sentencing practices of the Federal Court it's not uncommon to have the court have regard to prior contraventions of the organisation that preceded the CFMMEU or parts of it in terms of sentencing in current organisation, but I am not sure that provides you with a complete answer.
VICE PRESIDENT HATCHER: This is exploring a consequence of your interpretation in the very scheme of the Act (indistinct) govern.
MR BORENSTEIN: No, what I am seeking to put, your Honour, is that there is a single entity, which is a registered organisation. It's an entity which from time to time has changed its name, as Mr Dowling has showed us, and it's an entity which from time to time has been manifest in different forms - - -
VICE PRESIDENT HATCHER: I understand, Mr Borenstein, you're putting that in connection with the CFMMEU. Amalgamated organisation is referring to that manifestation of the organisation which has emanated from the 2018 amalgamation.
MR BORENSTEIN: Yes.
VICE PRESIDENT HATCHER: I understand that, but then the question follows, what are the consequences of that approach. That would seem to me to have the consequence that under 94A(2)(a) any contraventions (indistinct) amalgamation are not part of the record (audio malfunction).
MR BORENSTEIN: Your Honour, that would have to be formed by a study of the provisions of Part 2 in terms of the carry over of liabilities and obligations from the pre-amalgamated entity, or entities, all of them, even the deregistered ones, into the amalgamated organisation.
VICE PRESIDENT HATCHER: All right. Thank you.
MR BORENSTEIN: But I stress we are not saying it's a different legal entity, but we are saying that its manifestation at various points in time differs according to the progression of successive amalgamations, and in terms of the scheme in Part 3 what we submit is that the purpose of the scheme is to address the manifestation of the amalgamated organisation at a particular point in time in order to give room for the operation of the definitions of constituent part and so on, because they all are fixated on the amalgamated organisation after an amalgamation. They don't talk about organisation simpliciter, they talk about amalgamated organisations after an amalgamation, because their reference to (indistinct) operation.
The only other matter that I will delay your Honours with is a response to our friend's submission about section 95A. Can we say briefly that this really doesn't assist in responding to the argument which we made and which our friend sought to deal with, The fact that section 95A provides that at the point of withdrawal from amalgamation the amalgamated union and the departing group shall have different eligibility rules does not in any way detract from the provisions in the legislation, which we have referred to in our written submissions, which allow for a greater freedom for the competition between organisations in terms of coverage.
There have been a number of recent decisions in the Commission in the airline industry for example where groups have sought to expand membership into the area of other groups, and your Honours are well familiar with the loosening up of the legislation dealing with overspending rules, and that was the point we were making in response to the suggestion from the CFMMEU that the scheme of the legislation has all been one way, and that that should inform the Commission's approach to the interpretation which we advance for this new legislation. I think the other matters that we wanted to deal with, we would propose to deal with in the memo which the President has allowed us to file. Unless there's any other matters that I can assist the Bench with, they're our submissions.
JUSTICE ROSS: Thank you, Mr Borenstein. So just to be clear about the directions we discussed earlier: Mr Gibian, you will file your written submissions reflecting what you've put today by 4 pm Wednesday, 9 June; Mr Borenstein and Mr Dowling can file replies to that by 4 pm Monday, 14 June; you can both also address the question of - for want of a better description - the consequence for the application in the event that we're not persuaded by the applicant's construction of 94(1) and adopt the construction put by the CFMMEU; then, Mr Gibian, anything arising that you wanted to respond to by 4 pm Wednesday, 16 June.
Generally liberty to apply in the event that something unexpected happens or something that you need to deal with, just contact my chambers ‑ ‑ ‑
MR BORENSTEIN: Your Honour, sorry, can I just clarify the question about the circumstance that the Bench might not accept our construction of section 94(1). As I recall the question that was put by the Vice President, it was what we would say if the Bench accepted our construction of paragraph (c) of the definition of "separately identifiable constituent part" but did not accept our construction of section 94(1). Perhaps that could be confirmed.
JUSTICE ROSS: Yes. It really goes to the point of the argument you've advanced about the meaning of amalgamated organisation, doesn't it?
MR BORENSTEIN: Well, but the question is posed in a particular framework, which is: if we accept the separately identifiable constituent part but don't accept the other part of your argument, what do we do then ‑ ‑ ‑
JUSTICE ROSS: I wouldn't get - I wouldn't overthink this, Mr Borenstein. I think it's really if we don't accept your 94(1) argument, doesn't it follow from that that there's no valid application?
MR BORENSTEIN: Well, I think we understand the question from the discussion, so we will deal with that. Thank you.
JUSTICE ROSS: All right. Nothing further? All right. Thank you very much. We will adjourn and reserve, and await your written submissions. Thank you.
ADJOURNED INDEFINITELY [12.51 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #CFMMEU1 STATEMENT OF DECLAN MURPHY DATED 19/05/2021, TOGETHER WITH ANNEXURES.................................................................... PN221