CATCHWORDS INDUSTRIAL LAW - registered organisation - rules - rule restricting hours member can work - whether rule imposes conditions that are oppressive, unreasonable or unjust - whether rule prevents or hinders observance of law - status of award of Coal Industry Tribunal - character of registered organisation. Industrial Relations Act 1988, ss 196(b)(i) and (ii), (c) The Commonwealth v Colonial Combing, Spinning and Weaving Co Limited (1922) 31 CLR 421 The Queen v Ludeke; Ex parte Australian Building Construction Employees and Builders Labourer's Federation (1985) 159 CLR 636 Australian Commonwealth Shipping Board v Federated Seamen's Union of Australasia (1925) 36 CLR 442 Metal Trades Employers Association v Amalgamated Engineering Union (1935) 54 CLR 387 The Queen v Sweeney; Ex parte Northwest Exports Pty Ltd (1981) 147 CLR 259 Jumbunna Coal Mine, No Liability v Victorian Coal Miners' Association (1908) 6 CLR 303 Williams v Hursey (1959) 103 CLR 30 Hornby v Close (1867) LR 2 QB 153 Victorian Employers' Federation v Federal Commissioner of Taxation (1957) 96 CLR 390 Clark v Printing and Kindred Industries Union (1977) 30 FLR 39 Municipal Officers Association of Australia v Lancaster (1981) 54 FLR 129 The Queen v Portus; Ex parte Neil (1961) 105 CLR 537 The Queen v Coldham; Ex parte Fitzsimmonds (1977) 137 CLR 153 Falovic v Ben Simon Construction Builders (1974) 160 CAR 379 Aldous v Qantas Airways Ltd (1982) 3 IR 341 The Queen v Gaudron; Ex parte Uniroyal Pty Ltd (1978) 141 CLR 204 Williams v Hursey (1959) 103 CLR 30 No. QI 193 of 1994 GREG PEARCE and others v ANDREW VICKERS and others WILCOX CJ, NORTHROP & MOORE JJ BRISBANE 1 JUNE 1995 IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) No. QI 193 of 1994 QUEENSLAND DISTRICT REGISTRY ) BETWEEN: GREG PEARCE and others Applicants AND: ANDREW VICKERS First Respondent AND: PETER NEILSON Second Respondent AND: CONSTRUCTION, FORESTRY, MINING & ENERGY UNION Third Respondent AND: ANDREW VICKERS and others Fourth Respondents CORAM: Wilcox CJ, Northrop & Moore JJ PLACE: Brisbane DATE: 1 June 1995 ORDER OF THE COURT THE COURT ORDERS THAT: 1. The appeal is dismissed NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules. IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) No. QI 193 of 1994 ) QUEENSLAND DISTRICT REGISTRY ) BETWEEN: GREG PEARCE, GREGORY CARR, PETER JAMES, LAURANCE McCONNELL, JOHN TORNEY, ERIC COLTHUP, IAN McKINLAY, ALFRED HARROD, WILLIAM EVA, WILLIAM RICHMOND, JAMES TURNER, WILLIAM PRICE, ASHLEY HENNESSY, JAMES McGHEE, JAMES HICKS, NEIL KELLAR, GARY ANDERSON, WINSTON HOUSTON, ROBERT RAWLINS, TROY COOK, RONALD TURNER, WILLIAM BIRSE, STEVEN ALLERY, GARY GRAHAM, MALCOLM BUCKLEY, STANLEY MacQUEEN, JONATHON PECKOVER, TERENCE FACER, MURRAY JAMES JOHNSON and RODNEY WILLIAM HICKS Applicants AND: ANDREW VICKERS First Respondent AND: PETER NEILSON Second Respondent AND: CONSTRUCTION, FORESTRY, MINING & ENERGY UNION Third Respondent AND: ANDREW VICKERS, PETER NEILSON, GREGORY BETTS, JAMES LAMBLEY, RAYMOND BARKER, PATRICK HEUMILLER, DOUGLAS BLOXSOM, RICHARD STAKER, GREGORY HALL, RODNEY KUNST, ROBERT BARRON, HAMDI LATIFI, ROB CLARK, BRYAN BUTLER, JOE READIE, ROY MORLEY, RUSSELL FECHNER, MERV CURRIE, GEOFF SAUNDERS, ROBERT BEST, HANK DOEVENDANS, RAY COLEMAN, PAUL CONWAY, JIM NESBIT, JOHN QUINN, GARTH WALSH and REG COATES Fourth Respondents CORAM: Wilcox CJ, Northrop & Moore JJ PLACE: Brisbane DATE: 1 June 1995 REASONS FOR JUDGMENT WILCOX CJ AND MOORE J: Proceedings were brought under s208 of the Industrial Relations Act 1988 ("the Act") by thirty members of the Construction, Forestry, Mining and Energy Union ("CFMEU") seeking a declaration that certain rules of the CFMEU were contrary to s196 of the Act. CFMEU is an organisation of employees registered under the Act. One impugned rule was r15(iv) of the Queensland District Branch of the United Mine Workers Division of the CFMEU. In a judgement of 26 August 1994, Spender J refused to declare that r15(iv) was contrary to s196 and discharged the rule to show cause in so far as it concerned r15(iv). While the judgment of Spender J dealt with other matters, they are not directly relevant. The appeal brought from that judgment concerns only the validity of r15(iv). The legislation and facts Rule 15(iv) provides: "No member of this Union shall work in or about any Colliery or Open Cut Mine for more than seven hours in any one day, unless the Chairman and Secretary of the Branch to which such member belongs gives him special permission, and all cases in which such permission is given shall be reported by the Branch Secretary to the next meeting of the Board of Management." Rule 15(iv) concerns members of CFMEU engaged in the coal mining industry in Queensland. Industrial regulation of that industry in that State is generally governed by the Coal Industry Act 1946 (Cth) ("the Coal Act") which establishes the Coal Industry Tribunal ("the Tribunal"). The Coal Act invests the Tribunal with jurisdiction to deal with industrial disputes in the coal mining industry: see s34(1), and provides that it has, for the purpose of exercising that jurisdiction, all powers given to a member of the Australian Conciliation and Arbitration Commission: see s34(1A). By operation of s88 of the Industrial Relations (Consequential Provisions) Act 1988 this should be taken to be a reference to the Australian Industrial Relations Commission ("the Commission"). While the Coal Act establishes a system of dispute resolution in the coal mining industry it does not, unlike the Act, provide for a system of registration of trade unions or their regulation. It defines "organization" as: "organization" means an association or body, whether corporate or unincorporate, the objects of which include the protection of the interests of its members in industrial matters, whether in the coal mining industry only or in that industry and other industries (and in particular their representation before industrial tribunals and authorities) and which, in the case of an association or body of employees, is registered under a law of the Commonwealth or of a State or Territory;" This definition includes an organisation registered under the Act, such as CFMEU. The appellants, the thirty members who made the application under s208, are employees of Ensham Resources Pty Ltd ("Ensham") working at the Yongala Mine near Emerald in Queensland. Their employment is regulated, in the main, by individual agreements reflecting the terms of a collective agreement entitled the "Ensham Enterprise Industrial Agreement - Yongala Operations". The circumstances in which the collective agreement was made and the identity of its parties are not apparent from the material placed before us. However, it appears that the agreement provides for the working of twelve hour shifts for seven days followed by seven days off. Shifts of this type are in fact worked. The employer, Ensham, is bound by the Coal Mining Industry (Production and Engineering) Interim Consent Award September 1990 ("the Award") which is an award of the Tribunal. Its application to Ensham is limited; only cl22 applies. It is entitled "Preference to Unionists" and provides: "(a) Except as provided for in sub-clause (b) herein, preference of employment in the engagement of labour covered by this award shall be given to applicants who are members of an organisation of employees which is registered as an organisation pursuant to the Industrial Relations Act, 1988, (as amended). (b) Preference to the Federation: Queensland When labour covered by this award as specified in Schedule "B" is required at any time at any mine in the State of Queensland, Clause 25 hereof if applicable to the circumstances shall first be complied with. When Clause 25 is inapplicable or when it has been complied with the following provisions shall apply: (1) Preference of employment shall be given to financial members of the Federation or to persons who give the employer an undertaking in writing to make application to join the Federation within fourteen days of accepting employment. (2) An employee who is not a member of the said union shall not be continued in employment under this award unless the employee makes application to join the Federation within fourteen days from the date of commencing employment. (3) A person shall not be deemed to have made application to join the union unless such person has tendered the fee prescribed by the rules of the Federation as from the date of commencing work. (4) The entrance fee prescribed by the rules of the Federation on the date of this award shall not be increased unless in compliance with the Industrial Relations Act 1988." The decision of the Tribunal to limit the application of the Award to Ensham in this way appears to have been an interim one pending discussions between the CFMEU and Ensham about the hours employees would work at the Yongala mine. Clause 6 of the Award, "Hours", relevantly provides: "(a) Ordinary Hours (1) The ordinary hours of work shall be an average of thirty five hours per week. (2) The ordinary working hours of any shift shall be worked between such hours as may be agreed between the employer and the employees. (3) Where the employer and the employees fail to agree, the starting and finishing times shall continue until the matter is referred to the appropriate industrial authority and determined. (b) Shift Length (1) The employer can determine the shift length to be worked up to a maximum of eight ordinary hours. (2) Shift lengths greater than eight ordinary hours can only be implemented by agreement between the employer and the majority of affected employees. (c) Number and Spread of Shifts The number and spread of ordinary shifts may be varied by the employer, or by order of the appropriate industrial authority." Section 196(b) The appellants submitted that r15(iv) contravened s196 of the Act. Section 196 provides: "The rules of an organisation: (a) shall not be contrary to, or fail to make a provision required by, this Act or an award, or otherwise be contrary to law; (b) shall not be such as to prevent or hinder members of the organisation from: (i) observing the law or the provisions of an award or an order of the Commission; or (ii) entering into written agreements under an award or an order of the Commission; and (c) shall not impose on applicants for membership, or members, of the organisation, conditions, obligations or restrictions that, having regard to the objects of this Act and the purposes of the registration of organisations under this Act, are oppressive, unreasonable or unjust." They submitted the rule prevents or hinders members of the CFMEU from observing the law or an award or order of the Commission (s196(b)(i)) or entering into written agreements under the Award (s196(b)(ii)). They also said it imposes upon members of the organisation conditions, obligations and restrictions that, having regard to the objects of the Act and the purposes of the registration of organisations under the Act, are oppressive, unreasonable or unjust (s196(c)). The arguments based on par(b) or s196 may be disposed of shortly. The Award is not "an award or an order of the Commission"; it is an award of the Tribunal but we accept that it is comprehended by the expression "the law" in s196(b)(i). The respondents put an argument to the contrary based on The Commonwealth v Colonial Combing, Spinning and Weaving Co Limited (1922) 31 CLR 421 at 431 and 432. However that case concerned the expression "the laws of the Commonwealth" in s61 of the Constitution. The High Court viewed it as a reference to laws made by the Parliament of the Commonwealth. The expression "the law" in s196(b)(1) should not be narrowly construed. Its purpose is to ensure that members of an organisation are not obliged by rules to do that which a law obliges them to refrain from doing or to do something they are forbidden to do. The source of the legal obligation may be an Act of Parliament or a delegated legislative instrument. If an award of the Tribunal were breached, a penalty might be imposed: see s36 of the Coal Act read with s178 of the Act. It is unlikely that Parliament intended to render immune from challenge under s196(b) a rule that exposed a member to a penalty under s178 because the award that was breached was an award of the Tribunal and not the Commission. However, there is no evidence that r15(iv) prevents or hinders members of the CFMEU from observing the Award. The only part of the Award that applies to Ensham is cl122. That clause has nothing to say about hours. Because of the extremely limited application of the Award to their employer and its operations, the members of CFMEU who are employed by Ensham are not placed under any obligation by the Award in respect of working hours. While this situation continues, r15(iv) does not prevent or hinder CFMEU members employed by Ensham observing the Award. There may be CFMEU members who work for an employer who is bound more comprehensively to the Award. Clause 6 of the Award provides for a 35 hour working week, the employer being entitled to "determine the shift length to be worked up to a maximum of eight ordinary hours". Where that clause applied, conflict could arise between a determination requiring employees to work a shift of more than seven hours and the terms of the rule; in which case the rule might be declared void because it contravenes of s196(b)(i). But there is no evidence that this situation has arisen. The Court has not been made aware of any operation involving CFMEU members to which cl6 applies. Unless and until it is demonstrated that the rule impedes observance by members of a provision of the Award binding on those members, it cannot be said to contravene s196(b)(i). The argument in relation to s196(b)(ii) is even more tenuous. Sub-paragraph (ii) refers only to "agreements under an award or an order of the Commission". The Award is not an award of the Commission. Even if cl6 applied to particular members, it would not answer the description in sub-par(ii). Section 196(c) The appellants' more detailed argument is that concerning par(c). This paragraph refers to the objects of the Act. It is a consequence of the legislative arrangements, summarised above, that the validity of a rule of the CFMEU that operates on members employed in the coal mining industry is to be assessed having regard to the objects of an Act that is not the Act that governs dispute resolution in the industry in which they are employed. Notwithstanding this oddity, it is clear that s196(c) directs attention to the objects of the Act and the purposes of the registration of organisations under that Act, rather than the terms of the Coal Act. Those are the objects and purposes that must be considered in determining the validity of the rule on the basis that the rule is oppressive, unreasonable or unjust. We turn first to the purposes of registration of organisations under the Act. It is clear that the primary purpose of registration of organisations under the Act is to permit the effective exercise of the power conferred on the Commonwealth Parliament by s51(xxxv) of the Constitution to settle and prevent industrial disputes extending beyond the limits of a State: see The Queen v Ludeke; Ex parte Australian Building Construction Employees and Builders Labourer's Federation (1985) 159 CLR 636 at 647 referring to the judgment of Isaacs J in Australian Commonwealth Shipping Board v Federated Seamen's Union of Australasia (1925) 36 CLR 442 at 453-454. As a feature of the system of dispute prevention and settlement established by the Commonwealth in exercise of that power, an organisation may make claims on employers (whether or not they employ members of the organisation) stipulating minimum standards of pay and working conditions. The resultant dispute may be settled by an award prescribing standards thought by the arbitrator to be appropriate or which are agreed: see Metal Trades Employers Association v Amalgamated Engineering Union (1935) 54 CLR 387. That aspect of the system assumes the existence of organisations able to determine what they consider to be appropriate standards and to demand their provision by employers. Organisations may determine what standards they will demand of employers by decisions of an appropriate governing body whose powers derive from the rules adopted by the organisation and accepted by members upon admission to membership: see Re Construction, Forestry, Mining and Energy Union; Ex parte WJ Deane & Sons Pty Ltd (1994) 125 ALR 16. Governing bodies are elected under rules that the Act requires to be democratic. The result is, as noted by Stephen J, in The Queen v Sweeney; Ex parte Northwest Exports Pty Ltd (1981) 147 CLR 259 at 267 that: "As democratic institutions, trade unions may from time to time contain factions holding differing views on any number of questions. The faction commanding majority support will speak with the authoritative voice of the union itself. That that voice may reflect only the views of the majority of members, leaving those of a minority unspoken, is a necessary consequence of the principle of majoritarian democracy to which the Act gives effect. It in no way prejudices the truly representative quality of the union." The appellants do not dispute that a registered organisation is able to determine what it considers are appropriate employment standards and seek to have them provided by employers. But they deny that it is consonant with the purposes of registration of an organisation for it to require its members, by its rules, to adhere to the determined standards. Addressing that question involves consideration of the nature of a registered organisation. In order to obtain registration under the Act an organisation must be a bona fide association for furthering or protecting the interests of its members: see s189(1)(a) of the Act. The situation was the same under the Act's predecessor, the Conciliation and Arbitration Act 1904 ("the 1904 Act"): see reg115(1)(a) and (b) of the Conciliation and Arbitration regulations, as they were at the time of their repeal. Both Acts permitted the registration of associations of employees commonly known as "trade unions". Indeed s55 of the 1904 Act provided, at the time of its enactment, for the registration of an association of not less than one hundred employees and "association" was defined in s4 as meaning, amongst other things, "any trade or other union". While these provisions did not exclude the registration of associations which were not trade unions, they clearly contemplated that trade unions would be registered: see Jumbunna Coal Mine, No Liability v Victorian Coal Miners' Association (1908) 6 CLR 303 especially at 336 per Griffith CJ and Williams v Hursey (1959) 103 CLR 30 at 70 per Fullagar J. What constituted a trade union was described in this way by Cockburn CJ in Hornby v Close (1867) LR 2 QB 153: ".... every combination by which men bind themselves not to work except under certain conditions, and to support one another, in the event of being thrown out of employment, in carrying out the views of the majority." The review of this and other authorities led Kitto J in Victorian Employers' Federation v Federal Commissioner of Taxation (1957) 96 CLR 390 to conclude that, for the purposes of the Income Tax Assessment Act 1936, a trade union, to adopt the definition in the Oxford Dictionary, was: "an association of the workers in any trade or in allied trades for the protection and furtherance of their interests in regard to wages, hours, and conditions of labour and for the provision from their common funds, of pecuniary assistance to the members during strikes, sickness, unemployment, old age etc." Historically trade unions were formed for the purpose of creating in employees the capacity to bargain collectively. In order to do so effectively restrictions were imposed on the members, by their rules, that were in restraint of trade. Legislation was passed in the United Kingdom in the late nineteenth century, and later in Australia, intended partly to ameliorate the common law consequences of a trade union having such a purpose: see Williams v Hursey at 61-64. Variants on the Trade Union Act 1871 (UK) were passed in New South Wales in 1881, Victoria in 1886, Queensland in 1886, Tasmania in 1889 and Western Australia in 1902. The principal reason for its passage in Western Australia was to resolve a doubt whether trade unions could register under the arbitration legislation when, at common law, they were often unlawful associations: see The Development of Australian Trade Union Law, J.H. Portus, Melbourne University Press. We refer to the essential character of a trade union and this legislation to make the point that those who drafted the initial Commonwealth legislation, enacted in 1904, would have been well aware that a trade union to be registered under that legislation might have rules that were in restraint of trade. The 1904 Act required, by operation of s55 and Schedule B, an organisation to have rules dealing with certain matters with the overriding qualification that rules dealing with other matters not be "contrary to law". In Williams v Hursey, Taylor J at 99 made clear, though expressed as a negative proposition, that it was intended that an association whose rules dealt with matters specified in s4 of the Trade Act 1871 (UK) would be able to obtain registration under the 1904 Act. Section 4 of the English Act identified various agreements that were not rendered enforceable by the Act but it contained a proviso that nothing in the section "shall be deemed to constitute any of the abovementioned agreements unlawful". One type of agreement referred to in s4 was an agreement between members of a trade union concerning the conditions on which members might be employed: see s4(1). Plainly Taylor J was indicating that, in his opinion, a trade union with a rule constituting such an agreement could obtain registration under the 1904 Act and such a rule was not "contrary to law". Putting to one side the colour given to the words "oppressive", "unreasonable" and "unjust" in s196(c) by the reference to "purposes of .... registration" and "the objects of this Act", a rule such as r15(iv) is a manifestation of what is often the essential character of a trade union. The rule cannot, simply because it is in restraint of trade, be seen to be unreasonable, oppressive or unjust. As the learned author of Citrine's Trade Union Law, 3rd Ed, Stevens & Sons, said at 40: "There does not appear to be any reason in principle why a mutual obligation, voluntarily entered into by a member of a trade union, to observe terms and conditions which are specified, should not be treated as valid and binding, provided it does not extend beyond the limit of what, under the circumstances, is a reasonable restraint." Upon joining the organisation, a member voluntarily assumes the burden of the rule. Voluntary membership is a matter to which we will return. Similar considerations were discussed by St John J in Clark v Printing and Kindred Industries Union (1977) 30 FLR 39 at 63-64, though in the context of the application of what is now s196(a) and (b). After discussing how an agreement in restraint of trade, though unenforceable at common law, is within the law in the sense that it is not proscribed, his Honour said: "To these considerations could be added the definition of 'association' in s.4 of the Act, with its meaning of 'any trade or other union ... for furthering or protecting the interests of employers or employees', which definition has remained in the same terms since 1904. 'Trade union' therein must mean either trade union as known to the common law or the common law as modified, if at all, by State statutes. Whichever of the two meanings is adopted there is legislative recognition of their existence, encouragement to register, the offer of the benefits of incorporation made and the whole apparatus of the industrial dispute-settling procedure set up in order that both trade unions and employers' associations may avail themselves of them. There is not one word of adverse criticism, or of direct reference to, rules in restraint of trade and the legislature must be taken to have appreciated the common law position in relation to restraint of trade and the existence of the State statutes referred to. The very nature of a trade union demands some sacrifice of the right of a member to bargain privately whilst he remains a member. For the foregoing reasons I am firmly of the view that rules do not come within s.140(1)(a) or s.140(1)(b) merely because they are in restraint of trade. However, this does not mean that rules affecting the members' opportunities of employment may not be oppressive or unjust." In this passage, St John J is stating in a slightly different way the views expressed by Fullagar J in Williams v Hursey, whose judgment reflected the reasons of the majority of the High Court, at 61: "Apart from the numerous Combination Acts, which were repealed in England by the Act of 1824 and not revived by the Act of 1825, there was no reason why employers or employees should not form associations for the furtherance of their respective trade interests. It was only if, and so far as, such an association offended against the sacred principle of freedom of trade, that it incurred the disfavour of the common law. Any agreement which involved the 'imposition of restrictions on the conduct of a trade or business' was an agreement in unreasonable restraint of trade and void. And a trade union, or any other association, which had among its objects (as the Waterside Workers' Federation has) the imposition of such restrictions was regarded as an 'unlawful association' whose rules and agreements the Courts would not enforce or recognize: Russell v Amalgamated Society of Carpenters and Joiners. It is now well settled that the mere making of such an agreement or the mere membership of such a trade union was not illegal in the sense of being indictable at common law or in any other relevant sense. Before 1892 there were certain dicta to the contrary. The most notable was that of Crompton J in Hilton v Eckersley. But Lord Campbell CJ (who, as the conclusion of his judgment shows, was by no means well disposed towards trade unions in general) expressed strong disagreement with Crompton J. See also Hornby v Close and R v Stainer. In Mogul Steamship Co v McGregor, Gow and Co all the learned Lords expressed disagreement with the dictum of Crompton J. The true position had been clearly put by Bowen LJ in the same case. The learned Lord Justice said: 'The term "illegal" here is a misleading one. Contracts ... in restraint of trade are not ... illegal in any sense except that the law will not enforce them. It does not prohibit the making of such contracts; it merely declines, after they have been made, to recognize their validity'." Against this background, we turn to the question whether r15(iv) is oppressive, unreasonable or unjust having regard to the objects of the Act and the purposes of registration. The system of conciliation and arbitration prior to the amendments made by the Industrial Relations Reform Act 1993 operated, in substantial part, on the basis that claims would be made by organisations that certain standards be adhered to and, if rejected, the resultant dispute would be dealt with in the way provided by that system. That would involve the exercise of powers of conciliation and arbitration. It might be thought that a rule that required a member of an organisation to adhere to a particular employment standard was inconsistent with the objects of an Act that established such a system; the reason being that it might compromise the role of the arbitrator who is empowered to decide that a standard embodied in the organisation's rules was inappropriate. The rule might, in that context, be thought to impose conditions, obligations or restrictions that are oppressive, unreasonable or unjust. However that approach to s196(c), denies s196(b) its full operation. If an arbitrator determines that a standard other than that reflected in a rule is appropriate, or the organisation agrees to a different standard in conciliation, then the standard determined or agreed would be embodied in an award or certified agreement. Section 196(b) would then provide the basis upon which the rule can be impugned. In the absence of an award provision at variance with the rule, we see no reason to treat a rule as contravening s196(c) simply because it requires a member to maintain a working condition that might, in due course, conflict with an award provision. As is apparent from both the extract from the judgment of St John J in Clarke, supra, and the case more generally, rules that are in restraint of trade might nonetheless be oppressive, unreasonable or unjust. In the present case there is nothing manifestly oppressive, unreasonable or unjust about a rule limiting the hours a miner may work on a shift. The rule specifies a standard the organisation has adopted. The approach long taken in considering rules under s196(c) and its legislative predecessors is that organisations are generally free to assume rules of their choosing: see Municipal Officers Association of Australia v Lancaster (1981) 54 FLR 129 at 164. We see no reason in principle why an organisation cannot have a rule which imposes upon members a requirement to observe specified working conditions. Nonetheless situations may arise where the Court is able to conclude that a particular rule imposes a standard that is oppressive, unreasonable or unjust. We are not able to say that the standard embodied in r15(iv) is demonstrably of this character. For all we know, the matter not having been the subject of evidence to which our attention was drawn, limiting shifts to seven hours may be justified on grounds relating to the safety or welfare of the miners. Equally, it may be that a seven hours' limit is too conservative and twelve hour shifts do not compromise miners' safety or welfare. This is a judgment this Court cannot make on the material before it. We are not satisfied that the imposition of the standard of seven hour shifts is, of itself, oppressive, unreasonable or unjust. We turn to the question whether the objects of the Act suggest that it is oppressive, unreasonable or unjust for rules of an organisation to limit the conditions under which its members may work having regard to the amendments made by the Industrial Relations Reform Act 1993. We were referred by the appellants to ss3(a), (b)(i), (c), (d), 88A(a), (b), (c), (e), 90AA(2), 106, 170LA, 170MC(1)(b), (e) and (f) and (2), 170MK(1)(a), Div3 of PtVIB especially 170NC(1)(d), (g), (h) and (i), 170NL(1)(a). Many of these provisions concern, directly or indirectly, bargaining and agreements in settlement of disputes, with an emphasis on agreements at a workplace or enterprise level: see s170LA(1)(b). The securing of such agreements is a clear object of the Act. If the dispute is one in which the organisation is a party principal then the terms upon which agreement is reached are to be determined by the organisation through its organs of government and a rule of the character of r15(iv) has no bearing on whether agreement is reached. In any event, the rule is likely to reflect the standards the organisation would require in any agreement. Different considerations might arise if the dispute was one to which individual members affected by the rule were parties - although perhaps unlikely, this situation is possible: see The Queen v Portus; Ex parte Neil (1961) 105 CLR 537 and The Queen v Coldham; Ex parte Fitzsimmonds (1977) 137 CLR 153, Falovic v Ben Simon Construction Builders (1974) 160 CAR 379 and Aldous v Qantas Airways Ltd (1982) 3 IR 341 - and an agreement was proposed to settle it which contained a provision at odds with the rule. Such an agreement might be certified by the Commission under Div2 of PtVIB. A similar situation would arise if an enterprise flexibility agreement was sought with members affected by the rule. Such an agreement is between an employer and its employees though an organisation may also be a party: see s170NP. The jurisdiction of the Commission to approve the implementation of such an agreement under Div3 of PtVIB does not depend upon the existence of a dispute but rather depends upon the employer being a constitutional corporation: see s170NA(1) and the definition of "constitutional corporation" in s4. The constitutional foundation of Div3 lies in s52(xx) and not s52(xxxv) of the Constitution. In these last two situations a rule such as r15(iv) might be thought to inhibit agreement about a matter to which the rule related if the relevant term of the proposed agreement was in conflict with the standard prescribed by the rule. However this eventuality is addressed by s196(b). Both an agreement certified under Div2 of PtVIB and an enterprise flexibility agreement approved under Div3 of PtVIB are "awards" for the purposes of that paragraph: see definition of "award" in s4. If an agreement was reached which permitted hours in excess of those specified in the rule to be worked, and the agreement was considered by the Commission under either Div2 or Div3 and met the legislative standards the Commission is required to apply, the certified or approved agreement would become an award, as defined. A rule which prevented the member from working in accordance with the agreement would contravene s196(b) and would be invalid for that reason. There was a suggestion in the appellants' argument that the requirement of s196(c) that the question whether rules are oppressive, unreasonable or unjust be determined "having regard to the objects of the Act and the purposes of registration" meant that a particular rule could be justified only if it was found to relate to one or more objects of the Act or purposes of registration. This is incorrect, as Deane J pointed out in Municipal Officers' Association of Australia v Lancaster at 166: "Section 140(1)(c) provides that the question whether a condition, obligation or restriction is oppressive, unreasonable or unjust is to be determined 'having regard to' the objects of the Act and the purposes of the registration of organizations under the Act. This does not, however, impose a requirement that every provision in the rules of an organization should either serve or be consistent with those objects or purposes. Nor does it alter the fact that the operative tests is whether, having regard to those objects and purposes, the relevant condition, obligation or restriction can properly be described as 'oppressive, unreasonable or unjust'. It does, however, mean that in answering that question it is necessary to take into account relevant objects of the Act and relevant purposes of the registration of organizations under the Act." In the circumstances that presently exist, in our opinion, r15(iv) does not impose upon members conditions, obligations or restrictions that, having regard to the objects of the Act and the purposes of the registration of organisations under the Act are oppressive, unreasonable and unjust. The appellants criticised the form of the rule. They submitted that it recognises the need for relaxation of the seven hour standard but imposes a regime for relaxation that may prove impracticable under some circumstances, especially emergencies. We are not persuaded by this criticism. No particular formality attaches to the grant of special permission by the Chairman and Secretary of the Branch; it may be conveyed by telephone. Even if we felt that the provision might usefully be relaxed a little, for example, by requiring permission from only one of the office bearers, this would not justify a finding of invalidity on the ground that the rule is oppressive, unreasonable or unjust. The principle that a registered organisation is prima facie entitled to determine for itself the content of its rules should be applied. In these reasons we have proceeded on the basis that a member of an organisation voluntarily assumes whatever restraints the organisation rules impose on the membership generally. In the present case the preference clause of the Award, cl22, applies to the applicants. As Spender J observed, it appears to require Ensham employees to become members of CFMEU. The validity of cl22 is not a matter we are called on to consider in this appeal though its validity may be open to doubt. It may be beyond the statutory power of the Tribunal: see The Queen v Gaudron; Ex parte Uniroyal Pty Ltd (1978) 141 CLR 204, and s34(1A) of the Coal Act and s122 of the Act. We would dismiss the appeal. I certify that this and the preceding twenty-two (22) pages are a true copy of the Reasons for Judgment of Chief Justice Wilcox and Justice Moore. Associate: Date: 1 June 1995 Counsel for the Applicants: Dr C. Jessup QC & Solicitor for the Applicants: Clayton Utz, Solicitors Counsel for the Respondents: Mr J.W. Shaw QC Solicitor for the Respondents: Turner Freeman, Solicitors Date of hearing: 16 December 1994 Date of judgment: 1 June 1995 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA No QI 193 of 1994 QUEENSLAND DISTRICT REGISTRY ON APPEAL FROM THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA CONSTITUTED BY A SINGLE JUDGE B E T W E E N : GREG PEARCE AND OTHERS Applicants A N D : ANDREW VICKERS AND OTHERS Respondents COURT: WILCOX CJ NORTHROP J MOORE J PLACE: BRISBANE DATE: REASONS FOR JUDGMENT NORTHROP J This appeal is brought by the appellants against an order made by the Court dismissing their application for an order declaring Rule 15(iv) of the rules of the Queensland District Branch of the United Mine Workers Division of the Construction, Forestry, Mining and Energy Union contravenes section 196 of the Industrial Relations Act 1988 ("the 1988 Act"). The application had been brought under section 208 of the 1988 Act which, in substance, allows a member of an organisation to apply to the Court for an order declaring that the whole or a part of a rule of the organisation contravenes section 196; subsections 208(1) and (2). In section 208, a reference to a rule of an organisation includes a reference to a rule of a branch of the organisation; subsection 208(12). If the declaration had been made, Rule 15(iv) would have been deemed to have been void from the date of the declaration; subsection 208(5). For the sake of easy reference, the whole of section 196 of the 1988 Act is set out, but paragraphs (a) and (c) are relevant for present purposes: "196The rules of an organisation: (a) shall not be contrary to, or fail to make a provision required by, this Act or an award, or otherwise be contrary to law; (b) shall not be such as to prevent or hinder members of the organisation from: (i) observing the law or the provisions of an award or an order of the Commission; or (ii)entering into written agreements under an award or an order of the Commission; and (c) shall not impose on applicants for membership, or members, of the organisation, conditions, obligations or restrictions that, having regard to the objects of this Act and the purposes of the registration of organisations under this Act, are oppressive, unreasonable or unjust." The Construction, Forestry, Mining and Energy Union ("the Organisation") is an organisation of employees under the 1988 Act. By its rules, the Organisation is divided into five divisions one of which is named the United Mine Workers Division. Each division has many of the attributes of an organisation under the 1988 Act, but this matter need not be pursued further in these reasons. The rules of the Organisation recognise that there may be branches within a division. The Queensland District Branch ("the Branch") is a branch of the Organisation within the United Mine Workers Division. The affairs of the Branch are, subject to the rules of the Organisation, regulated by that part of the rules of the Organisation contained under the heading "Queensland District Branch". These rules are numbered 1 to 17. In these reasons the appropriate Queensland District Branch rule will be identified by its number. Rule 15 is headed "BY LAWS OF THE QUEENSLAND BRANCH OF THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, UMW DIVISION". Rule 15(iv) is headed "Hours of Employment" and provides as follows: "No member of this Union shall work in or about any Colliery or Open Cut Mine for more than seven hours in any one day, unless the Chairman and Secretary of the Branch to which such member belongs gives him special permission, and all cases in which such permission is given shall be reported by the Branch Secretary to the next meeting of the Board of Management." This is the rule challenged by the appellants, each of whom is a member of the Organisation attached to the Branch. At the hearing of the appeal, the Organisation appeared to oppose the orders sought by the appellants, see subsection 208(3) of the 1988 Act. In the context of Rule 15(iv), the words "No member of this Union" are to be understood as referring to members of the Organisation attached to the Branch. At this stage it is sufficient to say that on its face Rule 15(iv) appears to be directed to the conditions of employment of members of the Branch when employed to work "in or about any Colliery or Open Cut Mine". The Rule imposes a prohibition on members to prevent them from working more than the specified number of hours on any one day. True it is that the prohibition may be lifted at the discretion of other persons but this does not deny the fact that the rule imposes a prohibition on the member, as an employee, from working more than the specified hours. The facts as found by the trial Judge on the issue before the Full Court can be expressed in short form. They are taken from the reasons of the trial Judge. Each of the appellants is employed by Ensham Resources Pty Ltd ("Ensham") in or about an open cut mine at Yongala in the State of Queensland. Each of the appellants has entered into an agreement with Ensham to work on the basis that shifts will be of 12 hours duration worked on a roster of seven days on and seven days off. It is not necessary to refer to the details of the agreement but the terms and conditions are set out in various documents. The appellants have agreed in writing to be bound by those terms and conditions. One of those documents is the Ensham Enterprise Industrial Agreement - Yongala Operations. The Industrial Agreement contained, under the heading "Hours of Work" the following term: "(a)The ordinary hours of work shall be an average of 35 hours per week over a two week roster cycle. (b) Days of work shall be divided into 2 x (12) twelve hour shifts, starting and finishing at 7.00 am and 7.00 pm respectively. (c) Roster Cycles Normal shifts are of twelve (12) hours duration worked on a roster of seven (7) days on and seven days off commencing on a Tuesday of each relevant week. In developing this provision due regard has been given to Union policies for the working of twelve (12) hour shift rosters. The roster cycle is two (2) weeks in duration." The primary submission advanced on behalf of the appellants is that Rule 15(iv) contravenes paragraph 196(c) of the 1988 Act. As a first step it is necessary to consider the proper construction and application of that paragraph. There have been a large number of authorities of the High Court, the Australian Industrial Court and the Federal Court of Australia which have considered the construction and application of the equivalent provision contained in the Conciliation and Arbitration Act 1904 ("the 1904 Act"). Immediately before the 1988 Act came into operation the relevant provision, as set out in paragraph 140(1)(c) of the 1904 Act, was as follows: "140(1) The rules of an organization - (a) ... (c) shall not impose upon applicants for membership, or members, of the organizations, conditions, obligations or restrictions which having regard to the objects of this Act and the purposes of the registration of organizations under this Act, are oppressive, unreasonable or unjust; and (d) ... " The legislative form of subsection 140(1) of the 1904 Act is referred to in Wiseman v Professional Radio and Electronics Institute of Australasia (1978) 35 FLR 24 by Evatt and Northrop JJ at 32-34. The objects of the 1904 Act and the 1988 Act have, from time to time, been amended and the statutory provisions contained in those Acts giving effect to those objects have been amended from time to time. The objects of the Act are not limited to the stated objects but are to be recognized from the provisions of the Acts as well. Many authorities support this view but at present reference is made to Wright v McLeod (1983) 74 FLR 146 per Bowen CJ at 151-53. Nevertheless some of the objects remain similar and the earlier authorities constitute a useful guide to the construction of the 1988 Act. As was said in Wiseman, by Evatt and Northrop JJ at 34: "The present application of decisions of the Commonwealth Court of Conciliation and Arbitration and the Commonwealth Arbitration Court relating to the earlier comparable but different provisions corresponding to s140(1)(c) of the Act and decisions of the Commonwealth Arbitration Court given at a time when the object set out above was not included in s2 of the Act, may thereby be affected." This principle will be referred to later in these reasons, but it is helpful to refer to Wright v McLeod, a decision of a Full Court of the Federal Court constituted by five Judges. The judgments, containing references and quotations from many earlier authorities, include much of interest and are instructive of the jurisprudence developed by the Courts relating to organisations, their purpose of registration and the objects of the Act in the context of sections 140 and 141 of the 1904 Act. That jurisprudence has equal application to the comparative provisions of the 1988 Act and should be understood by all who practice in this area of the law. In applying paragraph 196(c) of the 1988 Act, regard must be had to the objects of the Act and the purposes of the registration of organisations under the Act. This means that in an application under section 208, the Court must take those objects and purposes as a guide by which the challenged rules are to be tested, see Wiseman at 34. The use of the words "having regard" requires the Court to take those matters "into account and to give weight to them as a fundamental element in" making its decision, see Re Hunt Ex Parte Sean Investments Pty Ltd (1979) 53 ALJR 552 per Mason J at 554. See also Municipal Officers' Association of Australia v Lancaster (1981) 54 FLR 129 where Evatt and Northrop JJ at 151-2 applied the same methodology. One of the chief objects of the 1904 Act was to encourage the organisation of representative bodies of employers and employees and their registration under the Act, see paragraph 2(e) of the 1904 Act. The corresponding provision in the 1988 Act is paragraph 3(c) which provides: "3. The principal object of this Act is to provide a framework for the prevention and settlement of industrial disputes which promotes the economic prosperity and welfare of the people of Australia by: (a) ... (e) encouraging the organisation of representative bodies of employers and employees and their registration under this Act; and (f) ... " For the purpose of deciding this appeal, it is not necessary to refer to the detailed provisions of the 1904 Act and the 1988 Act which give effect to that object nor to the many authorities dealing with those provisions. It is sufficient to say that the Acts confer rights on organisations. Among the rights so conferred is a monopoly to act as a party principal in obtaining awards under the Acts as well as, where appropriate, the Coal Industry Act 1946. In Wiseman Evatt and Northrop JJ at 38-39 described the purposes of the registration of organisations as follows: "The purposes of the registration of organizations under the Act, stated broadly, are to facilitate the creation and settlement of disputes arising from industrial relationships between groups or classes of persons ascertained by reference to the conditions of eligibility prescribed by the rules of organizations which, upon registration, become corporate bodies separate and distinct from their members: generally see Jumbunna Coal Mine, No Liability v Victorian Coal Miners' Association (1908) 6 CLR 309; The Queen v Dunlop Rubber Australia Ltd Ex Parte Federated Miscellaneous Workers' Union of Australia (1957) 97 CLR 71; Williams v Hursey (1959) 103 CLR 30 and The Queen v Clarkson Ex Parte Victorian Employers' Federation (1973) 131 CLR 100." In a long passage at 39-40, this proposition was discussed with reference to other authorities. More recently, in McJannet v White (1993) 122 ALR 82 I had occasion to refer to this matter of industrial jurisprudence. This was a dissenting judgment, but the other members of the Court did not need to consider this matter. I refer to and repeat what was said at 92-96. I set out what appears at 96: "Organisations have a unique position with respect to the regulation of industrial relations under the commonwealth legislation. They are able to create industrial disputes. They have the exclusive right to appear in the Commonwealth Industrial Relations Commission with respect to those disputes." These provisions of the Act and the jurisprudence developed by the Courts create the monopoly referred to earlier in these reasons. Because of this unique position, organisations cannot be compared with trade unions either at common law or under State Trade Union Acts. The unique position of an organisation is illustrated by the fact that as a party principal it is not affected by the objection of individual members who might disagree with the terms and conditions of employment sought by the organisation. This is made clear by a reference to the authorities discussed in Wiseman by Evatt and Northrop JJ at 39-40. In Wiseman, Evatt and Northrop JJ held that the rule of the organisation there challenged, which prevented an employee from negotiating directly with an employer but required the employee to act through the organisation, did not contravene paragraph 140(1)(c) of the 1904 Act. Keely J dissented on the basis that insofar as the rule prevented the employee from negotiating directly with the employer with respect to, for example, over award rates of pay, it did contravene the paragraph. The issue was over procedures to be followed. The rule did not purport to impose conditions of employment between an employer and employee. It may well be that because of other objects that have been inserted into the 1988 Act as well as provisions giving effect to those objects, if Wiseman came to be decided now, a different result might be reached. In submissions, counsel for the appellants referred, in particular, to the following provisions of the 1988 Act, paragraphs 3(a), (b)(ii), (c) and (d), section 88A and the provisions of Part VI, section 90AA, Part VIB, "Promotion Bargaining and Facilitating Agreements" and in particular sections 170LA, 170MC, 170MK and especially Division 3 of Part VIB dealing with enterprise flexibility agreements. Having come to the conclusion that Rule 15(iv) does contravene paragraph 196(c) of the 1988 Act without considering these further matters, I do not find it necessary to consider these other matters further except to say they strengthen the opinion already formed. One fact is very clear. Having regard to the objects of the 1988 Act, the implementation of those objects by the provisions of the 1988 Act and the purposes of the registration of organisations under the 1988 Act, an organisation does not have the right or power to impose conditions of employment on the relationship of an employer and employee. The existence of such a right or power is the very antithesis of the objects of the 1988 Act and the purposes of the registration of organisations under the Act. In the absence of any agreement, it is the function of the Industrial Relations Commission or the Coal Industry Tribunal to determine the terms and conditions of employment applying to employers and employees by the making of an award. This case does not involve a consideration of the structures of the Organisation or the Branch. Many of the authorities of the Courts involving the construction and application of section 140 of the 1904 Act and section 208 of the 1988 Act relate to the structures adopted by organisations. In those authorities, the internal structures adopted by the organisation had to be considered in the context of whether they complied with the requirements prescribed by provisions such as section 195 of the 1988 Act. It is in this context that the courts have made it clear that organisations are free to adopt structures of their choice and that the courts will not impose their modes of thought on organisation. Municipal Officers Association of Australia v Lancaster (1981) 54 FLR 129 was such a case. The oft repeated passage from the judgment of Deane J at 164 is directed to the structures of the organisation there involved. It has no direct application to the facts of this case which do not relate to the structures of the Organisation or the Branch. Nevertheless, those authorities provide a useful guide to the methodology to be adopted by the Court in construing and applying the two sections of the Acts. The general principles expressed and applied in those authorities should be applied in the present case. From a reading of the reasons for judgment of the trial Judge it would appear that no submissions had been made at the trial relating to the proper construction and application of paragraph 196(c) of the 1988 Act nor of the objects of the Act and the purposes of organisations registered under that Act. The only reference seems to be directed to enterprise flexibility agreements, the stated objects of the 1988 Act and the submission for the appellants that in respect of Rule 15(iv) "it is inappropriate that if there is an award allowing twelve hour shifts, that there shall be a rule of the union forbidding it except in special circumstances." Further, the outline of submissions for the Organisation handed to the Court made no reference to these matters. The relevant paragraphs are set out: "5 The objects of the Industrial Relations Act 1988 remain, taking account of the provisions of the Industrial Relations (Reform) Act 1993, essentially a collectivist system of industrial relations involving a strong role for registered organisations: see Section 3(e) and (f) of the Act. Where the Act contemplates 'agreements' (such as in the provisions of Section 170LA) this should be construed as meaning agreements within the statutory scheme, that is to say, either certified agreements or enterprise flexibility agreements and not individual common law contracts: see the explanatory memorandum to the 1993 amending legislation. 6 There is nothing unlawful or contrary to Section 196 in a registered organisation having rules applicable to its members which prescribe, limit or define working conditions, and which therefore inhibit arrangements which employees may make with their employers. In particular: (a) it is permissible for an organisation to have a valid rule which requires all industrial matters to be negotiated not by individual members of the organisation but through and as authorised by the organisation itself: Wiseman V Professional Radio and Electronics Institute of Australasia (1978) 35 FLR 24 at 37-42; (b) it is inherent in the nature of trade unionism (which is encouraged by the statutory scheme) that there is some element of sacrifice of the right of a union member to bargain privately, as distinct from taking part in a collective bargaining process: Clark V Printing and Kindred Industries Union (1977) 30 FLR 39 at 64; (c) it is inherent in the nature of trade unionism that such a combination of employees is lawfully able to impose restrictions on the conduct of a trade or business and to regulate the relationship between employers and employees: Williams V Hursey (1959) 103 CLR 30 at 61,62. 7 There is nothing on the face of the rule impugned in these proceedings which shows that it is oppressive, or unreasonable or unjust, especially applying to an industry which (it may reasonably be assumed) has elements of danger and risk for the employees working in it. It is also a reasonable inference that excessive working hours may be considered by the organisation to exacerbate risk to the lives and wellbeing of employees in such an industry. An organisation is free, subject to the provisions of the Act, to determine its own policies, objects and what it considers to be in the best interests of members or potential members: Wiseman at 41, 42; Municipal Officers Association V Lancaster (1981) 54 FLR 129 at 164, 165." In oral submissions at the hearing of the appeal, the same submissions were made: "Now that brings me, your Honours, to what I think is the substantial question in the case. And if your Honours contemplate the appellant's submissions, they are very wide sweeping, in that they say that no rule of an organisation can deal with questions of the terms and conditions of employment, because the appellant says those matters must be dealt with by awards or agreements under the statute. They cannot be part of the regulatory role of the union. The appellant says the union, the registered organisation, has no role whatsoever in doing anything other than making demands or agitating these matters under the statutory scheme. It cannot provide anything about this in its rules. And really, your Honours, the appellant has to puts (sic) its case that highly because, if we are right in putting aside the award as not relevant, if that submission be correct, then there is nothing really in this particular rule which one could say is drastic or offensive to any value judgment one might make about the participation of organisations in industrial affairs. There is nothing particularly special or drastic about the rule in question, and so the appellant puts its case on a very high level of generality, a very high plane of principle that, no matter how reasonable or how defensible a particular rule might be, dictating or determining terms and conditions of employment, that rule must ipso facto be bad because it is entering a forbidden field, is the way, I think, the appellant's case would go." It should be noted that in Clark, referred to in the outline of submission set out above, the Australian Industrial Court held that a rule of an organisation which prevented a member from accepting employment unless that employment was approved by the organisation, the "OK" rule, was in contravention of paragraph 140(1)(c) of the 1904 Act in that it imposed on members obligations or restrictions that having regard to the objects of the Act and the purposes of the registration of organisations under the Act were oppressive, unreasonable or unjust. It should be noted also that members of an organisation, or a majority of them, cannot by a rule of the organisation, or as a matter of principle adopt and enforce a policy which is in contravention of section 196 of the 1988 Act. This is illustrated by a reference to Dugmore v Porter (1982) 3 IR 418. That authority is an interesting sequel to the judgment in Clark. The members of the organisation involved in that case sought by general meeting to enforce the "OK" rule of the organisation which the Australian Industrial Court had declared to be in contravention of section 140 of the 1904 Act. In Dugmore the Federal Court held this could not be done. All of the reasons, including the orders made, are of interest but particular reference is made to 424-425. An appeal from that judgment was dismissed; Porter v Dugmore (1984) 3 FCR 396. Because the legal principles to be applied in cases of this kind were not argued fully before the Full Court, particularly having regard to the amendments made by Industrial Relations (Reform) Act 1993, it is not considered desirable to decide this appeal on the broader basis discussed above. Other rules of the Branch could be affected by the proper application of paragraph 196(c) of the 1988 Act. On its face, and in truth, Rule 15(iv) of the rules of the Branch impose obligations and restrictions on members, and for that matter, on employees. It purports to regulate the terms and conditions of employment of members. This is the very thing, having regard to the objects of the 1988 Act and the purposes of registration of organisations under the Act, an organisation cannot do. The fact that "special permission" may be given does not make valid a rule which otherwise offends against paragraph 196(c) of the 1988 Act. The rule can have no legal effect. The rule does not purport to impose procedures to be followed by a member, or members, of the Organisation seeking to negotiate directly with an employer; see Wiseman. If it did, having regard to the objects of the 1988 Act now in operation, the rule could contravene paragraph 196(c) of that Act. The rule cannot be enforced against a member for the reason that the Organisation, having regard to the purposes of its registration under the 1988 Act, has no power to make a rule imposing conditions of employment between an employee and the employer. The rule takes on aspects of a moral blackmail by imposing, or rather, purporting to impose conditions on members which cannot be enforced. To this extent at least, Rule 15(iv) is unreasonable and oppressive. For these reasons, the appeal should be allowed and the order made by the trial Judge set aside and in lieu thereof a declaration should be made that Rule 15(iv) of the rules of the Branch contravenes section 196 of the 1988 Act. As a result of that declaration being made, the provisions of subsection 208(5) of the 1988 Act apply. By operation of that subsection, Rule 15(iv) of the Branch shall be taken to be void from the date of the order containing the declaration. Having regard to the conclusion reached, it is not necessary to decide the other main issue raised, namely whether terms of an award made by the Coal Industry Tribunal under the Coal Industry Act 1946 binding upon the Organisation and Ensham are capable of coming within paragraph 196(a) of the 1988 Act. An award so made is not an award as defined in the 1988 Act, but paragraph 196(a) provides, for present purposes, that a rule of an organisation "shall not be contrary to ... this Act or an award or otherwise be contrary to law". The use of the word "otherwise" in this phrase illustrates a classic example for the application of the ejusdem generis principle. In its context, the word "otherwise" in the phrase "or otherwise be contrary to law" is to be construed as "or be contrary to any other law". Such a "law" must imply a law additional to "this Act or an award". The ejusdem genesis principle imposes a limitation or restriction on the meaning to be given to the word "law". Any such law must come within the genus or class of "law" coming within the things specified in the phrase "this Act or an award.". In these reasons it is not necessary to give any exhaustive definition of such a law. On any view an award made by the Coal Industry Tribunal is a type of law coming within the phrase "this Act or an award." Such an award is similar to an award as defined in the 1988 Act in that each award imposes duties and obligations on employers and employees which can be enforced by legal proceedings taken under provisions of statutes. There is much to be said for the view that an award made by the Coal Industry Tribunal is such a "law". In the present case, there is an award made by the Coal Industry Tribunal binding Ensham and its employees being the appellants, but that award does not prescribe the hours of work to be undertaken by the appellants. If it did, and that award was in the form of the agreement referred to earlier in these reasons, thereby imposing an obligation on the appellants to work shifts of 12 hours duration, there can be little doubt that Rule 15(iv) would be in disconformity with paragraph 196(a) of the 1988 Act. In these circumstances, the Organisation could not bring a successful charge against the appellants for being in breach of Rule 15(iv). This would be so even if no declaration had been made under subsection 208(2) of the 1988 Act. This illustrates the inappropriateness of Rule 15(iv) and supports the view that it contravenes paragraph 196(c) of the 1988 Act. It would be incongruous to permit another member of the Organisation working similar hours, but in the absence of an award, to be liable to be charged successfully with a non-observance of the rule while the appellants would be immune. Further, on the hypothesis stated, if a member of the Organisation sought an order under subsection 208(2) of the 1988 Act, in all probability the Court would make an order declaring Rule 15(iv) contravenes section 196 of the 1988 Act with the result that, pursuant to subsection 208(5), Rule 15(iv) would be deemed to be void from the date of the order. That deeming provision does not have retrospective effect. Thereafter, that rule could not be enforced against any member. This illustrates further the inappropriateness of Rule 15(iv) and supports the view that it contravenes paragraph 196(c) of the 1988 Act. The nature of the consequences flowing from orders made in different types of proceedings under the 1904 Act, and by analogy, the 1988 Act, have been considered in a number of authorities of Courts. In Linehan v Transport Workers' Union of Australia (1981) 76 FLR 329 at 337-339 I set out in summary form the effect of earlier authorities. That case is of interest since it illustrates the effect of the different orders that can be made under subsection 208(2) of the 1988 Act. Reference should be made also to Egan v Maher (No 1) (1978) 35 FLR 197 at 242-251 where I discussed these matters at some length. I certify that this and the preceding eighteen (18) pages are a true copy of the Reasons for Judgment of The Honourable Justice Northrop. Associate: Date: