Je COLCHHORDS Industrial Law - deregistration proceedings commenced by applicant under 5.143 of Conciliation & Arbitration Act - applicant subsequently deregistered pursuant to Act of Parliament - consequent locus standi of applicant to continue proceedings under 3.143 as an organisation or person interested - applicant seeking to substitute a registered Trade Union or natural person as the applicant in the principal proceedings - meaning of "person interested". Conciliation and Arbitration Act 1904 Builders' Labourers' Federation (Cancellation of Registration) Act 1986 Builders' Labourers' Federation (Cancellation of Registration - Consequential Provisions) Act 1986 Trade Union Act 1881 (NSW) Industrial Arbitration Act 1940 (NSW) Industrial Arbitration (Special Provisions) Act 1984 (NSW) Builders' Labourers' Federation Special Provisions) Act 1986 (NSW) Leon Laidley Pty Ltd v__ Transport Workers' Union of Australia (1980) 28 ALR 129 Australian Conservation Foundation Incorporated v The Commonwealth (1980) 146 CLR 493 Building Construction Employees and Builders' Labourers' Federation v Minister for Industrial Relations (31 October 1986 - unreported) Australian Building Construction Employees and Builders' Labourers' Federation v The Commonwealth of Australia (1986) 66 ALR 363 wey ee wees leis eyes tre I | Metropolitan Coal Company of Sydney Limited ov The Australian Coal and Shale Employees' Federation (1917) 24 CLR 85 In re The Australian Tramway Employees' Association; Ex parte Ryan (1912) 6 CAR 49 THE AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES' AND BUILDERS LABOURERS' FEDERATION v. THE MASTER BUILDERS' ASSOCIATION OF NEW SOUTH WALES No. I.3 of 1986 CORAM : Evatt, Beaumont and Jackson Jd. Sydney 11 November, 1986 ie he ewe: vo hate saree at rye: prewe oa aw . IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. I.3 of 1986 > ) INDUSTRIAL DIVISION ) IN THE MATTER of the Conciliation and Arbitration Act 1904 BETWEEN : THE AUSTRALIAN BUILDING CONSTRUCTION EMPLOYERS' AND BUILDERS LABOURERS' FEDERATION Applicant AND: THE MASTER BUILDERS' ASSOCIATION OF NEW SOUTH WALES - Respondent MINUTES OF ORDER COURT: Evatt, Beaumont and Jackson JJ. PLACE: Sydney DATE : 11 November 1986 THE COURT ORDERS THAT: 1. Note: The applications of Steven Black and of the Building Construction Employees' and Builders' Labourers Federation of New South Wales to be joined as applicants in these proceedings in lieu of the applicant be refused. The proceedings be dismissed. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. eo Ul, Yay ke os Toar sro IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. I.3 of 1986 ew ww INDUSTRIAL DIVISION IN THE MATTER of the Conciliation and Arbitration —— Act 1904 BETWEEN : THE AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES' AND BUILDERS ' LABOURERS' FEDERATION Applicant Ds: THE MASTER BUILDERS' ASSOCIATION OF NEW SOUTH WALES Respondent CORAM : EVATT, BEAUMONT AND JACKSON JJ. DATE: /] November 1986 PLACE: Sydney REASONS FOR JUDGMENT EVATT and JACKSON JJ. The circumstances in which these proceedings come before the Court are set out in the Reasons for Judgment of Beaumont J. which we have had the advantage of reading. % a es aT OTS tener ey, Pepe he Ye te wom pane + At the time when the principal proceedings were instituted the applicant in those proceedings (which we shall call "the BLF") was an organization registered as such pursuant to the Conciliation and Arbitration Act 1904. It was thus (see the definition of-that term in s.4(1) of that Act) an "organization" for the purposes of s.143(1), a provision which allows any "organization or person interested" and certain other nominated persons and bodies to apply to the Court for an order directing the cancellation of the registration of an organization. The registration of the BLF as such an organization was caritelled by s.3 of the Builders Labourers' Federation (Cancellation of Registration) Act 1986, and the BLF then ceased to be an "organization" under the Conciliation and Arbitration Act. Its status as a corporation pursuant to s.136 of that Act also then came to an end, that effect being brought about.by the combined operation of s.4(1) of the Builders Labourers' Federucion (Cancellation of Registration - Consequential Provisions) Act 1986 and s.143(6) of the Conciliation and Arbitration Act. Once the BLF lost the status of a corporation which registration as an organization had conferred on it, it became an unincorporated association (s.143(6) of the Conciliation and Arbitration Act). The members of the unincorporated re roo association are not parties to the principal proceedings. Because the body which is the applicant in the proceedings no longer exists and cannot prosecute the proceedings it seems to us clear that the proceedings should be terminated unless it is appropriate to accede to one of the applications for substitution as an applicant in the principal proceedings. One such applicant for substitution is the Building Construction Employees' and Builders Labourers' Federation of New South Wales (which we shall call "the New South Wales trade union"). That body is a trade union registered under the Trade Union Act 1881 and was formerly registered under the Industrial Arbitration Act 1940, both of the State of New South Wales. It is contended that the New South Wales trade union, enough not an "organization" for the purposes of s.143{1) of the Conciliation and Arbitration Act, is yet a "person", and is a "person interested" for the purpose of that provision. We accept that the New South Wales trade union is a "person" in terms of s.143(1). Registration as a trade union under the Trade Union Act has long been treated as conferring on a trade union a form of corporate personality sufficient to ee edge ee sores, see gaye re] "ve Bret eae ee es, we t a ge ep a me ee ee i make a registered union a "body corporate" for the purposes of the definition of "person" in s722-of the Acts Interpretation Act 1901. See the discussion of the cases by Lockhart J. in Leon Laidely Pty Ltd v. Transport Workers Union of Australia (1980) 28 A.L.R. 129 at 136-138 and by Deane J. on appeal ((1980) 28 A.L.R. at 602). It is necessary, however, that the "person" be a "person interested" and that expression to our minds means that the interest required must be related to the relief or result sought to be obtained. Compare the remarks of Aickin J. in Australian Conservation Foundation Incorporated v. The Commonwealth (1980) 146 C.L.R. 493 at 511. The relief sought in the principal proceedings is that the registration of The Master Builders' Association of New South Wales ("the MBA") as an organization under the Conciliation and Arbitration Act be cancelled. If the - application were successful the MBA and its members would cease to be entitled to the benefits of any award made under the Conciliation and Arbitration Act which applied to the MBA or its members (s.143(5)). It is not suggested in the proceedings that there is any advantage to the New South Wales trade union flowing from cancellation of the registration of the MBA as, for example, by leaving open to regulation by State industrial tribunals matters previously the subject of Commonwealth awards which would cease to apply by reason of cman wee nee me - By : Ve we Wp eee reeneneene seen eaten eae wee s.143(5). Indeed there would be difficulty in so showing because a declaration has been made under s.3(1) of the Industrial Arbitration (Special Provisions) Act 1984 by the Governor of New South Wales, and the effect of the making of the declaration is that the registration of the New South Wales trade union as an industrial union under the Industrial Arbitration Act 1940 is cancelled. See s.3({1) of the Builders' Labourers' Federation (Special Provisions) Act 1986, held valid by the Court of Appeal in New South Wales in Building Construction Employees and Builders' Labourers Federation v. Minister for Industrial Relations, 3lst October 1986, as yet unreported. There is also nothing to indicate that the New South Wales trade union would obtain any possible benefit by the granting of any form of relief available under s.143 in lieu of cancellation of registration. In the light of the New South Wales enactments to which we have referred nothing in the material before the Court in this case demonstrates any relevant "interest" on the part of the New South Wales trade union. - The second person seeking to be substituted as an applicant in the principal proceedings is Mr Black, who is a member of the federal executive of the BLF and secretary of the New South Wales trade union. Mr Black's affidavits seem to us to show no more than that it is inconvenient that the MBA is able to continue to appear in the Conciliation and we mere Shee et eee on cern, apres Arbitration Commission at a time when the BLF is no longer abIé to do so, the inconvenience being essentially that other " "Organizations registered under the Conciliation and Arbitration Act will attempt to establish wages and conditions for builders' labourers. It is manifest, in our view, that Mr Black obtains no relevant interest in these circumstances. In our opinion:- (a) the application of the New South Wales trade - union to be joined as an applicant in these proceedings in lieu of the BLF should be refused; (b) the application of Stephen Black to be joined as an applicant in the proceedings in lieu of the BLF should be refused; and (c) the principal proceedings should be dismissed. 'ame — ee eee I certify that this and the five preceding pages are 2 true con yy of the Reasons fer_Jnéceent herein of WS Honours Mr Justice fvarr and Hr Justice bck son thulfore7 Associate Dated. /f albvewstee 1986. a es -e ee IN_THE FEDERAL COURT OF AUSTRALIA }) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. I.3 of 1986 ) INDUSTRIAL DIVISION ) IN THE MATTER of the Conciliation and Arbitration Act 1904 BETWEEN : THE AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES' AND BUILDERS LABOURERS' FEDERATION Applicant THE MASTER BUILDERS' ASSOCIATION OF NEW SOUTH WALES B Respondent CORAM: Evatt, Beaumont and Jackson JJ. DATED: 11 November19986 REASONS FOR JUDGMENT BEAUMONT J. Before the Court are several interlocutory applications. They are made in the course of proceedings ("the principal proceedings") brought by the applicant, The Australian Building Construction Employees' and Builders Labourers' Federation ("the BLF"), seeking an order cancelling the registration of the respondent, The Master Builders' Association of New South Wales ("the MBA"), as an organization under the Conciliation and Arbitration Act, 1904 ("the Act"). Although interlocutory, the applications were heard by a Full Court in the os aaePSaeen we Oe ence ae meno ener we exercise of the Court's original industrial jurisdiction, as required by s.118(4B) of the Act. Registered organizations are dealt with by Part VIII of the Act. On compliance with the prescribed conditions, certain associations or persons may be registered as an organization (s.132(1)). Incorporation of a registered organization is dealt with by s.136 of the Act: every such organization has a perpetual succession and a common seal, and may purchase, sell and otherwise own, possess and deal with any real or personal property. An organization may sue or be sued in its registered name (s.146). Section 143(1) provides that any "organization or person interested", the Minister, or the Registrar, may apply to the Court for an order directing the cancellation of the registration of an organization on certain grounds. On 26 March 1986, the BLF filed an application and statement of claim seeking, pursuant to 35.143, the cancellation of the registration of the MBA. After reciting that the BLF and the -:MBA were organizations of employees and employers respectively registered under the Act in connection with the building construction industry, the statement of claim alleged that the MBA had breached awards applicable to the building construction industry to which the BLF and the MBA were parties. But, on 14 April 1986, before the principal proceedings had been heard, the Parliament enacted legislation which' resp een on _ ~-4 \ cancelled the registration of the BLF as an organization under the Act and made provision for certain consequential matters (the Builders Labourers' Federation (Cancellation of Registration) Act 1986 ("the Cancellation of Registration Act") and the Builders Labourers' Federation (Cancellation of Registration - Consequential Provisions) Act 1986 ("the Consequential Provisions Act"). The legislation came into force — on 14 April 1986. A challenge to its validity on constitutional grounds was rejected by the High Court (see the Australian Building Construction Employees' and Builders Labourers' Federation v. The Commonwealth of Australia, (1986) 66 A.L.R. 363). The MBA now contends that, by virtue of the cancellation of its registration, the BLF is no longer an "organization interested" in the cancellation of the MBA's registration within the meaning of s.143(1) of the Act and thus lacks standing to prosecute the principal proceedings. The MBA moves the Court under 0.6 r.93 for an order that the BLF cease to be a party to the principal proceedings; it also seeks consequential orders that the statement of claim be struck out and that the principal proceedings be dismissed. It is conceded by the BLF that it now lacks standing to prosecute the principal proceedings as an "organization" within the meaning of s.143(1) of the Act. "In my opinion, the concession is properly made. By s.4(1) of the Act, except where : a eee wt - os - af otherwise clearly intended, "organization" means an organization registered pursuant to the Act. Since the Cancellation of Registration Act cancels the BLF's registration, it is no longer an organization. But the BLF submits that it has standing to sue under s.143(1) asa "person interested" in the cancellation of the MBA's registration. The MBA contests this proposition. To resolve "this question, it is first necessary to consider the effect of the recent Commonwealth legislation. The preamble to the Cancellation of Reqistration Act states that the Parliament considers that it is desirable, in the ' interest of preserving the fedenal system of conciliation and m } arbitration for the ' prevention | and settlement of industrial "1 ' disputes, to cancel 'the registration of the BLF. This is achieved by s.3. \ i '' The provisions | of the Consequential Provisions Act are more complex. The effect on the BLF of the cancellation of its i registration is dealt with by s.4 of the Consequential Provisions Act. By s.4(1), sub-sections (4) and (6) of s.143 of the Act are I made applicable to the BLF. Sub-section (4) is not material here but sub-section (6) provides: "(6) Upon the cancellation of the registration of an organization, the organization shall cease to be an organization - Wy cee er co og 7 er at ore eee 5. i and a corporation under this Act, but shall not by reason of the cancellation cease to be an association. The property of the organization shail, subject to any order which the Court, upon application by a person interested, may make with respect to the satisfaction of the debts and obligations of the organization otit of that property, be the property of the association and shall be held and applied for the purposes of the association in accordance with the constitution and rules of the organization insofar as they can be carried out or observed notwithstanding the deregistration of the organization." After picking up this provision, s.4 Consequential Provisions Act continues: "(2) Any award that would, but for this sub-section, apply to the Federation or its members does not have any effect in relation to the Federation or its members. {In the Consequential Provisions Act, "Federation" is defined to mean: "(a) subject to paragraph (Db), the association that was registered under the Conciliation and Arbitration Act by the name 'The Australian Building Construction Employees' and Builders Labourers' Federation'; or (b) if the name of that association has been or is changed - that association under the new name;" (s.3).] (3) A non-registered association is not capable of being a party to, and shall not be permitted to intervene in, a proceeding before the Commission and is not capable of being a party to an award made by the Commission. of C"Non-registered Association" is defined to mean: "(a) the Federation; or (b) another association - (1) that is not registered under the eee the pura chews acne = a ee lee a. re rr ser a TyTN pot me 6. Conciliation and Arbitration Act; (ii) that was formed in or in connection with the industry ora part of the industry 1n or in connection with which The Australian Building Construction Employees' and Builders Labourers' Federation was registered under the Conciliation and Arbitration Act immediately before the commencement of the Builders Labourers' Federation (Cancellation of Registration) Act 1986; and OO (iii) all or a majority of the members of which are persons who are or have been members of the Federation;" (s.3)] (4) Subject to sub-section (5), the Commission does not have any powers under the Conciliation and Arbitration Act in relation to - (a) an industrial dispute in so far as that industrial dispute resulted from - (i) an act done by a non-registered association or by persons who are members of a non-registered association; or (ii) an act done by an employer as defined by section— 4 of the Conciliation and Arbitration Act in relation toa non-registered association or in relation to persons who are members of a non-registered association; or {b) an industrial matter as defined by section JOA of the Conciliation and Arbitration Act in so far as that industrial matter relates to a claim made by a non-registered association or by persons who are members of a non-registered association. (5) Nothing in this section prevents the Commission from exercising powers under the Conciliation and Arbitration Act in relation to an industrial dispute in so far as that industrial dispute involves members of an ' tee see ie in Vos i we a> wet, SUT ese or perp se . fo (Cg ort ene Pd Ye Me ahs acts oe H ac vi : Gens eter soe Bee ae an ? FETS 7. organization of employees registered under that Act who are also members of a non-registered association. (6) A person or an organization or association of employees is not entitled to be represented by an officer, employee, agent or member of a non-registered association in any proceedings before the Commission or the Registrar other than an application by the non-registered association under paragraph 5(1)(b) or an application by the non-registered association for registration under section 132 of the Conciliation and Arbitration Act." " ir H ' t * By s.5(1) of the Consequential Provisions Act, a non-registered association is not entitled to apply to be, or to be, registered under that section unless - (a) a period of 5 years has elapsed from the day of commencement of the Cancellation of Registration Act; (b) the Commission, on application by the non-registered association, has declared that it is satisfied that - yocecoe (i) if the non-registered association a were registered under that section, the non-registered " association would not engage in conduct inimical to the prevention and settlement of industrial disputes by means of conciliation r? ane arbitration; and . (ii) the registration of the non-registered association under ts. that section would not prevent or ' seriously hinder the achievement , of an object of the Act; and is (c) the requirements of the Act, and of the regulations in force under the Act, that would, apart from this section, apply in relation to an application by the non-registered association for registration under section 132 of the Act have been 2 complied with. Section 7 of the Consequential Provisions Act deals with the eligibility of certain building industry employees for membership of certain organizations. By s.7(2), where an executive officer of an organization of employees registered under the Act has consented in writing to persons: who are, or are usually employed in work of a specified kind or class in a relevant industry (defined in s.7(1) as one in or in connection with which the applicant was, immediately before the commencement of the Cancellation of Registration Act, registered under the Act), the regulations under the Consequential Provisions Act may declare those persons to be eligible for membership of that organization; and where the regulations so declare, they have effect according to their tenor notwithstanding anything in the rules of that organization as in force at the time when the regulations came into operation. So far as presently relevant, the legislative scheme may thus be summarised as follows: 1. The BLF's registration is cancelled in the interest of preserving the system of conciliation and arbitration (Cancellation of Registration Act, preamble, s.3). 2. Upon cancellation of its registration, the BLF ceases to be an organization and corporation under the Act but does not cease to be an association or trade union (unincorporated) composed of or representative of, wae Ba ee ie ea ayes ro peices " > . os — ae tee, «-, of? ee ee - ote 7 Pee 9. employees in the building construction industry (Consequential Provisions Act, s.4(1), picking up 3.143(6) of the Act and the definition of "association" in s.4(1) of the Act). Any award that would otherwise apply to the BLF or its members does not have any effect in relation to the BLF or its members (Consequential Provisions Act, 5.4(2)). The BLF or any related association (i.e. one formed in connection with the building construction industry, all or a majority of the members of which are persons who are or have been members of the BLF) is not capable of being a party to, and shall not be permitted to intervene in, a proceeding before the Commission and is not capable of being a party to an award made by the Commission (Consequential Provisions Act, s.4(3)). The Commission does not have any powers under the Act in relation to industrial disputes or matters involving the BLF or any related association (Consequential Provisions Act, s.4(4)). In proceedings before the Commission or the Registrar, a person or an organization or association of employees is not entitled to be represented by an officer, employee, agent or member of the BLF or any related association TY ee Sr ae a ee eo oqo eee eee we . _ 10. (Consequential Provisions Act, s.4(6)). 7. The BLF or any related association is not entitled to apply for registration as an organization under Part VIII of the Act for at least five years (Consequential Provisions Act, s.5(1)). 8. Building industry employees are to be eligible for membership of certain existing (registered) --organizations (Consequential Provisions Act, s.7). Can it then be said that, notwithstanding the manifest objective of the Parliament to exclude the BLP and any related association from the federal industrial arena, the BLF is nonetheless a "person interested" in the cancellation of the MBA's registration within the meaning of s.143(1)? It is submitted on behalf of the MBA that, upon the cancellation of the BLF''s registration, the BLF is neither an "organization" nor a "person" within the meaning of s.143(1). In my opinion, even if one were to accept that the BLF can now properly be described as a "person" within the opening words of s.143(1), it is difficult to resist the conclusion that by reason of the Cancellation of Reqistration Act and the Consequential Provisions Act, the BLF no longer has the requisite "interest" in wee Seng eure eeene oe Vee ee a. 11. the cancellation of the MBA' s registration. ~~ It is true that in Metropolitan Coal Company of Sydney Limited v. The Australian Coal and Shale Employees' Federation (1917) 24 C.L.R. 85, Barton J. said (at pp.91-2) that the term "person interested" should not be narrowly construed in the present context (see also per Higgins J. at p.100). On the other hand, in In re the Australian Tramway Employees Association; Ex parte Ryan (1912) 6 C.A.R. 49, Higgins J., sitting as President of the Commonwealth Court of Conciliation and Arbitration, doubted whether the Court should cancel the registration of an organization if the nominal applicants, though apparently interested, were not the real applicants but merely allowed their names to be used by persons not really interested. Higgins J. said (at p.50): "The object of Parliament was, I presume, to ensure that an organization shall not be harassed, or the time of the Court occupied, if the applicant has no interest - that is to say, no veal, direct, particular interest - in the question of the registration of the organization attacked." Higgins J. was of the opinion that the Court had no right to cancel registration except on the -application of a "genuine applicant who is genuinely interested". His Honour said (at p.5l): "IT am strongly impelled to the conclusion that the nominal applicants are not the real movers in these applications, that the process of this Court is being abused by outside persons, perhaps political or quasi-political bodies, who are not interested within the meaning of section wt ee wos ADE qe are 12. 60, and who have promised to find any moneys required." However, Higgins J. continued (at p.51): "Tf on these applications I have to find affirmatively that they are made by persons 'interested,' I cannot so find. But I do not like to dismiss the applications on such a point, and on a mere balance of evidence, where the evidence 15 so deficient. Besides, Parliament has forbidden any appeal from any order that I make; and this provision makes me doubly careful to consider the applications in every aspect before making an order which cannot (if the legislation is valid) be cured in another Court. I proceed, therefore, to consider the applications on the assumption that the persons named are genuinely the applicants." Higgins J. then proceeded to dismiss the application on the merits. In my opinion, since, by virtue of the operation of the Cancellation of Registration Act and the Consequential Provisions Act, the BLF is now excluded from any legally effective role in the federal industrial sphere, it must follow that the BLF no longer possesses the "real", "direct" or ""particular" interest contemplated by s.143(1). It should be removed as a party accordingly. In anticipation of the possibility that it be held that it lacks standing to prosecute the principal proceedings, the BLF seeks to have another party substituted as applicant or applicants. Two notices of motion were filed on behalf of the BLF on 2 June 1986: (i) a notice of motion by the BLF and the _* * coy ' acm ore meee nn pe eee ee myer as : 5 r ator fa um a ' < ane ry a ere er whoo in er bl 13. Building Construction Employees' and Builders' Labourers' Federation of New South Wales ("the New South Wales Trade Union") that the New South Wales Trade Union be substituted for the BLF applicant in these proceedings; (11) a notice of motion by the BLF and Steven Black that Mr. Black be substituted for the applicant in these proceedings. In support of the first notice of motion, an affidavit sworn by Mr. Black on 30 May 1986 was read. Mr. Black, a member of the Federal executive of the BLF and secretary of the New South Wales Trade Union, a trade union registered under the Trade Union Act, 1881 (N.S.W.), says that many persons employed as builders labourers remain members of the BLF, and that the BLF desires to continue these proceedings; but should the Court decide that the BLF is not capable of maintaining the proceedings, it requests that the New South Wales Trade Union be substituted as applicant. It appears that, pursuant to the provisions of the Industrial Arbitration (Special Provisions) Act, 1984 (N.S.W.) the registration of the New South Wales Trade Union under the Industrial Arbitration Act, 1940 (N.S.W.) was liable to be cancelled and was, in fact, subsequently cancelled, but the Union continues to exist as a trade union registered under the Trade Union Act, 1881 (N.S.W.). Proceedings in the Court of Appeal of the Supreme Court of New South Wales seeking to challenge the validity of the cancellation of the registration of the New South Wales Trade Union under the Industrial Arbitration Act were dismissed (31 October 1986 - unreported). + yecotce OT lias Meteo E died says: 14. Mr. Black says:- "ll. In the State of New South Wales a great majority of persons employed as builders' labourers are governed by the awards of the Conciliation & Arbitration Commission obtained by the Federation. The State Union has, by custom and practise, obtained a counterpart award reflecting the conditions established by the Federation Award to cover those employees in New South Wales who are not covered by the terms of the Federation Award. This position has been recognised by various members of the New South Wales Industrial Commission and is recognised in the terms of the State Award." In support of the second notice of motion, affidavit by Mr. Black sworn on 30 May 1956 was read. "7. Many persons employed as Builders' Labourers remain members of the Federation and shall have their wages and conditions regulated by the Conciliation & Arbitration Commission. By virtue of the provisions of the Builders' Labourers' Federation (Cancellation of Registration - Consequential Provisions) Act, 1986 the Federation shall not be entitled to appear before the Conciliation and Arbitration Commission in relation to the setting of wages and conditions for builders' labourers. 9. Other organisations registered pursuant to the provisions of the Conciliation & Arbitration Act, 1904 shall henceforth attempt to establish wages and conditions for builders' labourers although unfamiliar with the industrial desires and aspirations of such employees. The Award so made shall apply to members of the Federation. In such circumstances it is undesirable that the Respondent continue asa registered organisation and so participate in the regulation of wages and conditions for builders' labourers in proceedings before a further Mr. Black pope i is. \ —the Conciliation & Arbitration Commission. 10. Neither the Builders' Labourers' Federation (Cancellation of Registration) Act; 1986 nor the Builders' Labourers' Federation (Cancellation of Registration - Consequential Provisions) Act, 1986 contemplates that there shall never hea ' registered organisation of builders' labourers. There is a strong likelihood 1. that such an organisation shall again be registered under the Conciliation & Arbitration Act." : The MBA opposes the applications to substitute eitherthe New South Wales Trade Union or Mr. Black as applicant in lieu of the BLF. In my opinion, these applications should be refused. i hs a, ' It may be accepted for this purpose what the New South - il Wales Trade Union and, of course, Mr. Black are' "persons" capable of having the interest required by s.143{1) *\ (see Leon Laidely Pty. Ltd. v. Transport Workers Union of "Australia (1980) 28 A.L.R. 129, 589; per Lockhart J. at pp.136 et seq; per Déane J. at p.602). It is a different question whether either party possesses an "interest" of the kind required by s.143(1). joe , In seeking to substitute Mr. Black; or the New South | Wales Trade Union as applicant, it is plain that the objective of the BLF is to endeavour to keep the principal proceedings on foot for its own benefit notwithstanding the disabling provisions of the Cancellation of Registration Act and the Consequential (a ee aR eror TRENT QOS Tm reece er, eee te amen ee af ye a Steen Sr ee ora eee ee wer 16. | Provisions Act. In my opinion, the application.by the BLF to substitute Mr. Black or the New South Wales Trade Union as the moving party in the principal proceedings is no more than a device to evade the operation of the Cancellation of Registration Act and the Consequential Provisions Act. It is an attempt to thwart the stated object of the legislation cancelling the registration of the BLF, that is, to exclude that union from the federal industrial arena in the interest of preserving the federal system of conciliation and arbitration for the prevention and settlement of industrial disputes. Since the application to introduce Mr. Black or the New South Wales Trade Union asa substituted applicant in the principal proceedings is no more than an attempt to do indirectly, or by the "back-door", what cannot be done directly, it should be rejected as something impliedly prohibited by the intended operation of the Cancellation of Registration Act and the Consequential Provisions Act (see James v. Eve (1873) L.R. 6 H.L. 335 at p.344; Oxley County District Council v. Macleay River County District Council (1964) 65 S.R. (N.S.W.) 13 at p.28; Sentry Life Assurance Ltd. v. Life Insurance Commissioner (1983) 49 A.L.R. 292 at p.308; Bennion, Statutory Interpretation (1984) at p.347). Alternatively, to adopt the language of Higgins J. in the QDramways case, neither Mr. Black nor the New South Wales Trade Union has, in ny view, a "genuine" interest in the principal proceedings. They are merely nominees for the BLP. TF Ld S rar aprror ae BEY yl vee ve wer + ~ een Tes POU Teer? oF Pars 7 FUE, we me a Ne at ~f OT On re Se peg ane on + ao Te ¢ < iy cars 7 eb, . a —— -- =e -— — - -- ws ne lee es 17. In the circumstances, I am of the opinion that since neither Mr. Black nor the New South Wales Trade Union has the requisite interest in the principal proceedings, neither has standing to sue under s.143(1). I would refuse their applications. It must follow that the principal proceedings should be dismissed. I propose the following orders: 1. That the applications of Steven Black and of the Building Construction Employees' and Builders' Labourers Federation of New South Wales to he joined as applicants in these proceedings in lieu of the applicant be refused. 2. That the proceedings be dismissed. I certify that this and the preceding S$/x7étn (/@) pages are a true copy of the —_ Reasons for Judgment herein of his Honour Mr. Justice. Beaumont. Phecle | Chise~ Associate Dated: // Nevom LL [%b oO and tor ae rece rer error ae '. D - 'et me eee 19 ty