Industrial Relations Commission New South Wales Medium Neutral Citation: Application by Emergency Medical Services Protection Association (NSW) for registration as a State Industrial organisation of employees [2013] NSWIRComm 35 Hearing dates: 4 - 8 March 2013; 22 March 2013 (Written Submissions 2 April 2013, 10 April 2013) Decision date: 21 May 2013 Jurisdiction: Industrial Relations Commission Before: Haylen J Decision: 1. The applicant may be registered as a State organisation under the IR Act subject to meeting the requirements identified by amending its current rules. Pursuant to the provisions of s 219(5) of the IR Act, leave is granted to the applicant organisation to amended the application and its rules in order to meet objections taken to its registration. 2. The Commission will list the matter for further directions at 9.45 am on 28 May 2013 in order to lay down an appropriate timetable for the filing of further evidence regarding the required further steps. Catchwords: INDUSTRIAL RELATIONS ACT 1996 - s 217, s 218 - CLAUSE 29A INDUSTRIAL RELATIONS (GENERAL) REGULATION - application for registration of State organisation of employees to represent industrial interests of paramedics employed by the Ambulance Service - amendments to statutory scheme introduce concepts of freedom of choice and competitive unionism - objection by existing registered organisation with coverage for paramedics - numerous technical objections taken in relation to the formation and operation of applicant organisation - consideration of approach to be taken to technical objections - consideration of nature of unincorporated associations - whether statutory regime requires applicant to be an unincorporated association or an organisation to represent industrial interests of members - applicant meets test of unincorporated association/organisation - applicant validly formed - leave granted to amend rules to meet objections - applicant consists of members of Executive and no other members - members of closely connected incorporated association not validly transferred to applicant - applicant to provide evidence of 50 or more members under amended rules - principle of ratification considered - applicant organisation provides acceptable undertaking regarding avoidance of demarcation disputes. REGISTERED ORGANISATION - s 217, s 218 - CLAUSE 29A INDUSTRIAL RELATIONS (GENERAL) REGULATION - application for registration of State organisation of employees to represent industrial interests of paramedics employed by the Ambulance Service - amendments to statutory scheme introduce concepts of freedom of choice and competitive unionism - objection by existing registered organisation with coverage for paramedics - numerous technical objections taken in relation to the formation and operation of applicant organisation - consideration of approach to be taken to technical objections - consideration of nature of unincorporated associations - whether statutory regime requires applicant to be an unincorporated association or an organisation to represent industrial interests of members - applicant meets test of unincorporated association/organisation - applicant validly formed - leave granted to amend rules to meet objections - applicant consists of members of Executive and no other members - members of closely connected incorporated association not validly transferred to applicant - applicant to provide evidence of 50 or more members under amended rules - principle of ratification considered - applicant organisation provides acceptable undertaking regarding avoidance of demarcation disputes. Legislation Cited: Associations Corporation Act 1981 (Vic) Associations Incorporation Act 2009 Commonwealth Industrial Relations Act 1988 Companies (Consolidation) Act 1908 Companies Act 1961 Industrial Regulations (General) Regulation 2001 Industrial Relations (General) Amendment (Registration) Regulation 2013 Industrial Relations Act 1991 Industrial Relations Act 1996 Industrial Relations Amendment (Industrial Representation) Act 2012 (No 68) Workplace Relations Act 1996 (Cth) Cases Cited: AMP Society Staff Association v Australian Insurance Staffs Federation [1944] CAR 53 836 Australian Education Union v Lawler [2008] FCAFC 135 Ball v Pearsall (1987) 10 NSWLR 700 Bolton Partners v Lambert (1889) 41 Ch D 295 Cameron v Hogan (1934) 51 CLR 358 City of Gosnells v Roberts (1994) 12 WAR 437 Conservative and Unionist Central Office v Burrell (Inspector of Taxes) [1982] 2 All ER 1 Conservative and Unionist Central Office v Burrell [1980] 3 All ER 42 Donald F Hagens v Old UGC, Inc and ors [2006] NSWIRComm 329 Ermogenous v Greek Orthodox Community of SA, Inc (2002) 209 CLR 95 Harington v Sendall [1903] I Ch 921 Kibby v Registrar of Titles [1999] 1 VR 861 Peckham v Moore [1975] 1 NSWLR 353 Postal Delivery Officers Union, Print S 3912, (Australian Industrial Relations Commission) 18 February 2000 R v Turbet; Ex Parte The Australian Builders' Construction Employees and Building Labourers' Federation (1978) 144 CLR 335 Re Australian Chamber of Manufacturers (1993) 50 IR 87 Re Australian Chamber of Manufacturers, New South Wales Branch (1994) 56 IR 313 Re Commonwealth Homes & Investment Co Ltd [1943] SASR 211 Re CPSU (2000) 100 IR 296 Re Recher's Will Trusts re National Westminster Bank Ltd v National Anti-Vivisection Society Ltd [1971] 3 All ER 401 Re Smith Johnson v. Bright-Smith (1914) 1 Ch 937 Re Society of Australian Surgeons (2003) 122 IR 447 Re Thackrah [1939] 2 All ER 4 Re Tobacco Trade Benevolent Association [1958] 1 WLR 1113 Re Unley Democratic Association [1936] SASR 473 Re VIPA [2009] FWA 175 Re WISEU (1983) 4 IR 67 at 72 The Association of Professional Sciences of Australia (1961) CAR 920 The Free Church of Scotland [1904] AC 515 Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis and anor (2007) 70 NSWLR 565 Vanstone v Clark (2005) 147 FCR 299 Watson v J & A G Johnson Ltd (1936) 55 CLR 63 WorkCover v Lucon (Aust) P/L (2002) 112 IR 332 Texts Cited: Associations and Clubs Law in Australia and New Zealand, (3rd ed (2010) A S Sievers, Federation Press), Australian Contract Law Commentary( LexisNexis) G E Dal Pont, Law of Agency, 2nd ed, Australia, (LexisNexis 2008) Halsbury's Laws of Australia Jean Warbuton, Unincorporated Associations: Law and Practice 2nd ed (1992) Sweet and Maxwell Joske's Law and Procedure at Meetings in Australia" (8th ed by E S Magner, (1944) Law Book Co Ltd) M G Horsley in The Law and Administration of Associations in Australia,[ (1976) Butterworths N E Renton in, Guide for Meetings and Organisations, (4th ed, (1985) Law Book Co Ltd) The Laws of Australia (Legal Online) Category: Principal judgment Parties: Emergency Medical Services Protection Association (NSW) (Applicant) Health Services Union NSW (Objector) Minister for Health (Intervenor pursuant to s 167(1) of the IR Act) Unions NSW (Intervenor) Representation: I Latham of counsel (Applicant) A Hatcher SC with Mr Gibian (Objector) M Easton of counsel (Intervenor pursuant to s 167(1) of the IR Act) C Christodoulou (Intervenor) Shaun Kerrigan, Solicitor (Applicant) Maurice Blackburn Lawyers (Objector) Crown Solicitor's Office (Intervenor pursuant to s 167(1)) Unions New South Wales (Intervenor) File Number(s): IRC R 163 of 2012 Judgment AN APPLICATION FOR REGISTRATION 1A body described as the Emergency Medical Service Protection Association (NSW) ("EMSPA (NSW")) has applied for registration as a State organisation of employees under the provisions of the Industrial Relations Act 1996 ("IR Act"). The application was accompanied by a variety of documents including, the "Amended" printed rules of the organisation. By r 3 of the Constitution, EMSPA (NSW) was to consist of any person employed on a permanent basis as a paramedic of the Ambulance Service of New South Wales ("AS") as well as persons employed as a paramedic, patient transport officer or in a paramedic support position. Also included in membership were persons employed on a permanent basis as an office holder of EMSPA (NSW) or persons employed by EMSPA (NSW). The Amended Application for Registration claimed that the applicant Association had 1387 members. 2A number of objections were filed opposing the registration of the applicant. Those objectors were: The Australian Salaried Medical Officers' Federation; New South Wales Fire Brigade Employees' Union; Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales; the New South Wales Local Government, Clerical, Administrative and Energy, Airlines and Utilities Union ("USU") Health Services Union NSW ("HSU"); and, the Peak Council, Unions NSW. All objections, except for the objection filed by the HSU, were settled and the terms upon which those objections were settled appears in the transcript of the proceedings but also appears as Annexure A to this decision. The objection by Unions NSW was withdrawn by leave of the Commission, however, as a Peak Council pursuant to s 215 of the IR Act, Unions NSW was given leave to intervene and file submissions in the proceedings. It is appropriate to note at this juncture that the Minister for Industrial Relations intervened in the proceedings pursuant to the provisions of s 167(1) of the IR Act. 3The objection filed by the HSU, verified by Statutory Declaration, broadly raised the issue of its existing coverage of the employment categories sought to be covered by EMSPA (NSW), pointing to its constitutional coverage of persons employed in or in connection with "ambulance work." It was stated that the HSU was a registered organisation of employees having coverage of persons working in a wide variety of occupations within the New South Wales public health system. Persons employed as paramedics and paramedic support staff fell within that coverage. At the time of objection, the HSU stated that it had a total membership of approximately 32,000 and within "ambulance work" the HSU had approximately 2,150 members. It was stated that the HSU had been the principal union with coverage of paramedics and paramedic support staff for the past 100 years and within the provisions of s 218(1)(n), the objecting union was an organisation to which ambulance, paramedics and paramedics support staff could most conveniently provide coverage. In the notice of objection the HSU acknowledged that a number of its members held dual membership with the applicant, EMSPA (NSW). Reference was made to the union structure of sub-branches which provided representation for this class of employee and details were also given of the industrial services provided by the HSU, including the procurement of awards for salaries and conditions for ambulance, paramedic and support staff. 4After the time for lodging objections had closed, the HSU filed notices of motion seeking to amend its objection. The new matters raised on these notices of motion included: a challenge to the capacity of the applicant to be registered because of its incorporation under the Associations Incorporation Act 2009 ("the Associations Act") having regard to the provisions of s 217(1)(a); that the applicant was not an organisation capable of applying for registration as it was not formed for the purpose of its incorporation under the IR Act but was formed for the purposes of its incorporation under the Associations Act and that the application for registration could not be granted as its rules did not make provision as required by s 218(1)(f) of the IR Act in that the rules had not been amended to comply with the requirements of the Act in that they did not make provision for the election of officers as required by s 238 of the IR Act and otherwise failed to comply with the IR Act; that the application did not comply with the requirements of s 218(1)(j) because a majority of members present at a general meeting or an absolute majority of the Committee of Management of the organisation had not passed a resolution in favour of the registration as the meeting relied upon was not called in accordance with the rules of the Association. Issues were also raised concerning the formation of the applicant. In light of the variety of issues already before the Commission in relation to the application for registration and the fact that issues going to the formation of the applicant were likely to require investigation by the Commission in any event, leave was granted to the objector to amend its objection accordingly. As discussed in further detail in the following paragraphs and following the opening by counsel of behalf of the applicant, questions arose as to the proper identity on the applicant body and the manner in which that body had decided to seek registration. STATUTORY FRAMEWORK 5This application for registration was the first to be brought and contested under the provisions of the Industrial Relations Amendment (Industrial Representation) Act 2012 (No 68) assented to on 24 September 2012. The nature of those amendments will be dealt with in greater detail later in this decision but for present purposes it is sufficient to set out the relevant statutory provisions at the time the Application for registration was lodged and as operating at the time of the hearing: 217 Organisations capable of applying for registration (1) Any of the following organisations may apply to the Industrial Registrar to be registered under this Chapter: (a) an organisation of employees or employers that is formed for the purpose of its incorporation under this Act, other than a federally registered organisation (or a branch of such an organisation) or another organisation which is already incorporated under the Corporations Act 2001 of the Commonwealth, the Associations Incorporation Act 2009 or any other Act (a State organisation), (b) subject to subsection (2), an organisation of employees or employers that is a federally registered organisation (without branches) or a branch of such an organisation (a federal organisation), (c) an organisation of employers that is incorporated under the Corporations Act 2001 of the Commonwealth, Associations Incorporation Act 2009 or any other Act, other than a federally registered organisation (a separate organisation). (2) A federal organisation of employees cannot apply for registration under this Chapter unless the application is made with the consent of each registered State organisation of employees whose constitutional coverage extends to all or any of the class of members proposed to be covered by the federal organisation. (3) The regulations may declare that any specified organisation or class of organisation is capable, or is taken, to be registered under this Chapter. The regulations may modify the application of this Chapter in respect of any such organisation. (4) In this section, federally registered organisation means an organisation registered under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth. 218 Criteria for registration (1) The Industrial Registrar is to grant the application for registration if, and only if: (a) the organisation is a genuine organisation of a kind that is capable of registration under this Chapter, and (b) the organisation is an organisation for furthering or protecting the interests of its members, and (c) the organisation is capable of representing its members in connection with industrial matters, and (d) in the case of an organisation of employees - he organisation has, at the time of registration, at least 50 members who are employees, and (e) in the case of an organisation of employers - the organisation has, at the time of registration, at least 2 members who are employers and those members employ between them at least 50 employees, and (f) the rules of the organisation make provision as required by this Chapter to be made by the rules of such an organisation, and (g) in the case of an organisation consisting of the members of a branch of an organisation - the branch is of sufficient importance to be registered separately, and (h) the organisation does not have the same name as that of an organisation registered under this Chapter and does not have a name that is so similar to such a name as to be likely to cause confusion, and (i) the name of the association is not, in the opinion of the Industrial Registrar, unsuitable to be the name of a registered organisation, and (j) in the case of a State organisation - a majority of the members present at a general meeting of the organisation or an absolute majority of the committee of management of the organisation has passed, under the rules of the organisation, a resolution in favour of registration of the organisation, and (k) in the case of a federal organisation - the rules of the organisation (including any parent body) confer on the organisation applying for registration a reasonable degree of autonomy in the administration and control of New South Wales assets and in the determination of questions affecting solely or principally members resident in New South Wales, and (l) in the case of a federal organisation of employees -the application for registration of the organisation is made with the consent of each registered State organisation whose constitutional coverage extends to all or any of the class of members proposed to be covered by the federal organisation, and (m) in the case of an organisation of employees (other than an organisation referred to in paragraph (o) during the period referred to in that paragraph) -there is no other industrial organisation of employees to which the members of the organisation might conveniently belong, and (n) in the case of an organisation of employees - the organisation is free from control by, or improper influence from, an employer or by an organisation or other association of employers, and (o) in the case of an organisation of employees to which Schedule 5 applies that made an application for registration before, or makes such an application within 12 months after, the date of assent to the Industrial Relations Amendment (Industrial Representation) Act 2012 - the organisation satisfies the requirements of subsection (1A) . (1A) An organisation satisfies the requirements of this sub-section if: (a) there is no other industrial organisation of employees to which members of the organisation might belong or, if there is such an organisation, it is not an organisation: (i) to which the members of the organisation could more conveniently belong, and (ii) that would more effectively represent those members, or (b) the Industrial Registrar accepts an undertaking from the organisation that the Industrial Registrar considers appropriate to avoid disputes as to the demarcation of the industrial interests of the organisation and any other organisation that might otherwise arise from an overlap between eligibility for membership of the organisation and membership of the other organisation. (1B) In determining under subsection (1A) (a) whether an existing organisation would more effectively represent members than the applicant organisation, the Industrial Registrar must have regard to the resources and representative infrastructure of the applicant. (2) An organisation may be registered even if its members include: (a) officers of the organisation, or (b) in the case of an organisation of employers- persons other than employees who carry on business but who do not have any employees, or (c) in the case of an organisation of employers- persons admitted to membership who have ceased to be employers, or (d) in the case of an organisation of employees- independent contractors who would be eligible for membership if their work were done as an employee. However, an organisation with any such members may be registered only if it is effectively representative of the members who are employees or employers, as the case requires. 219 Applications for registration (1) An application for registration under this Chapter is to be made in the manner and form approved by the Industrial Registrar. (2) The Industrial Registrar may require information in the application to be verified by statutory declaration and may require proof of the authority of the applicants to act on behalf of the organisation concerned. (3) An applicant must, within 14 days after submitting an application, publish a notice of the application in a newspaper circulating throughout the State. (4) The Industrial Registrar must, within 14 days after receiving an application, notify any organisation registered under this Chapter that, in the opinion of the Industrial Registrar, may be affected by the application. (5) The Industrial Registrar may grant an applicant leave to amend the application (including for the purposes of a change in the name or rules of the organisation to meet an objection to registration). 220 Objections to registration (1) Any person may lodge with the Industrial Registrar a notice of objection to an application for registration. The notice must be lodged within 28 days after publication by the applicant of the notice of the application in a newspaper or within 28 days after being notified by the Industrial Registrar of the application (whichever last occurs). (2) The notice of objection must set out with reasonable particularity the ground or grounds of the objection and the facts and circumstances relied on as establishing those grounds, and must be verified by statutory declaration. (3) A copy of the notice of objection must be served on the applicant for registration by the objector within 7 days after lodging the objection with the Industrial Registrar. (4) After conducting a hearing into any objections to an application for registration, the Industrial Registrar is to determine the application. The Industrial Registrar may determine the application without a hearing if there are no objections. (5) The procedure to be followed at any hearing in connection with objections to registration is, subject to the rules of the Commission, to be as directed by the Industrial Registrar . Note. Section 194 provides for an appeal to the Commission against a decision of the Industrial Registrar on the application for registration by the applicant or an objector. 221 Registration (1) When the Industrial Registrar grants an application for registration, the Industrial Registrar must immediately record, in the register kept for the purpose: (a) the name of the organisation, and (b) whether the organisation is an organisation of employees or employers, and (c) whether the organisation is a State, federal or separate organisation, and (d) such other particulars of the organisation as are prescribed by the regulations or determined by the Industrial Registrar, and (e) the date of the entry. (2) An organisation is taken to be registered under this Chapter as an industrial organisation of employees or an industrial organisation of employers when the Industrial Registrar records that information in the register. (3) The Industrial Registrar must issue to each organisation registered under this Chapter a certificate of registration. The regulations may make provision for or with respect to certificates of registration. 222 Incorporation of State organisations on registration A State organisation, when registered under this Chapter: (a) is a body corporate, and (b) has perpetual succession, and (c) has power to purchase, take on lease, hold, sell, lease, mortgage, exchange and otherwise own, possess and deal with any real or personal property, and (d) is required to have a seal, and (e) may sue or be sued in its registered name. Industrial Registrar may determine alterations of rules where breach of demarcation undertaking 244A (1) If an organisation breaches an undertaking given under section 218 (1A) (b), the Industrial Registrar may, by instrument in writing, determine such alterations of the rules of the organisation as are, in the Industrial Registrar's opinion, necessary to remove the overlap between the particular classes or groups of employees who are eligible for membership of the organisation and another organisation that gave rise to the undertaking. (2) The Industrial Registrar must give the organisation, and the other organisation, at least 14 days to be heard on the matter before determining the alterations. (3) Alterations determined under this section take effect on the date of the instrument. [s 244A insrt Act 68 of 2012 Sch 1[4], opn 24 Sep 2012] SCHEDULE 5 - REGISTRATION OF SIMILAR ORGANISATIONS (Sch 5 insrt Act 68 of 2012 Sch 1[9], opn 24 Sept 2012] Application of Schedule This Schedule applies to the following organisations: the Emergency Medical Service Protection Association (NSW) Inc (EMPSA NSW), the Australian Salaried Medical Officers' Federation (NSW). 6To complete the legislative framework it is necessary to refer to the provisions of the Industrial Relations (General) Amendment (Registration) Regulation 2013. The amendment inserted a new cl 29A in the Industrial Regulations (General) Regulation 2001 and was in the following terms: 29A Emergency Medical Service Protection Association (NSW) (1) It is hereby declared under section 217 (3) of the Act that the Emergency Medical Service Protection Association (NSW), as referred to in the application for registration of that body as a State organisation of employees filed in the Industrial Registry on 17 August 2012, is capable of registration as a State organisation of employees, even if it is not so registrable because of the operation of section 218 (1) (m) of the Act. (2) A reference in section 218 (1) (o) of the Act to an Application made by an organisation of employees referred to in Schedule 5 includes a reference to the application made by the Emergency Medical Service Protection Association (NSW) for registration of that body as a State organisation of employees and filed in the Industrial Registry on 17 August 2012. (3) This clause is made for the avoidance of doubt. 7The Explanatory note accompanying the amended Regulation was in the following terms: The amendments to the Industrial Relations Act 1996 by the Industrial Relations Amendment (Industrial Representation) Act 2012 provided for circumstances in which specified bodies, including the Emergency Medical Service Protection Association (NSW) Inc (EMPSA) NSW), could be registered as State organisations of employees even if another body represented the same employees. To avoid doubt, this Regulation prescribes the Emergency Medical Service Protection Association (NSW) as a body that is capable of registration as a State organisation of employees even if it would not otherwise be capable of registration because of provisions of the Industrial Relations Act 1996 that prevent registration where there is another industrial organisation of employees to which its members could belong. The provisions inserted by the 2012 amendment are applied to an existing application for registration by that organisation. . This Regulation is made under the Industrial Relations Act 1996, including sections 217 (3) and 407 (the general regulation-making power) and clause 2 (1) of Schedule 4 to the Act. The Regulation commenced on the day on which it was published on the New South Wales Legislation website and that occurred on 27 February 2013. The Regulation was, therefore, in operation at the time the hearing for the registration of EMSPA (NSW) commenced. 8In view of the submissions concerning the meaning and operation of the amendments to the Act, it is appropriate to reproduce in full the Second Reading speech of the Minister for Industrial Relations made on 18 September 2012. INDUSTRIAL RELATIONS AMENDMENT (INDUSTRIAL REPRESENTATION) BILL 2012 18 SEPTEMBER 2012 Page: 34 Second Reading Mr MIKE BAIRD (Manly-Treasurer, and Minister for Industrial Relations) [3.53 p.m.]: I move: That this bill be now read a second time. I am pleased to introduce the Industrial Relations Amendment (Industrial Representation) Bill 2012. This bill proposes to make amendments to the eligibility provisions applying to industrial organisations in the Industrial Relations Act 1996. Industrial organisations may be associations of employers or associations of employees. The latter is usually referred to as unions. Registered organisations have the right to represent the industrial interests of their members. They also have obligations, which encourage the responsible management and democratic control of these bodies. The purpose of these amendments is to provide greater choice for particular groups of employees - junior doctors and paramedics in the health industry - about the organisations they want to join and which organisation has the right to represent their industrial interests. I put on the record that the Government had wanted the amendments to go much further and to provide choice and competition in relation to the organisations that all employees can join and that represent their industrial interests. However, those in the other place narrowed the scope of the amendments. Most amendments now only apply in relation to applications made within the next 12 months by two named organisations: the Emergency Medical Services Protection Association [EMSPA] and the Australian Salaried Medical Officers' Federation [ASMOF]. While it is disappointing that the principle of choice was not enacted, the Government is pleased that at least some employees, if they want to join a union, will have some choice in the union they can be represented by. The current eligibility provisions in the Industrial Relations Act 1996 have been in place, largely unchanged, since the Act was first made in 1996. Indeed, many of the provisions of the 1996 Act were carried forward from its predecessor, the Industrial Relations Act 1991. Broadly speaking, those provisions are intended to create a situation where only one organisation is eligible to represent employees in a single occupational group. Overlapping coverage and the subsequent competition between organisations is neither supported nor encouraged under the current Act. The aim of this arrangement is to provide representational stability and continuity at the workplace. However, even the best intentions can have unforeseen consequences. The danger in institutionalising monopoly coverage is that of all monopolies: the danger of organisations losing touch with their clients and becoming unresponsive to their needs. In this case, the usual remedy is the best one, creating an environment where healthy competition keeps representative organisations closely in touch with their clients' needs. The bill puts to an end the notion, at least in the health sector, that if there is already an organisation to which employees can conveniently belong then no other organisation has the ability to represent them. Even if there is an organisation to which junior doctors or paramedics belong, with these amendments it will be possible for the other two named organisations to make applications to the Industrial Registrar to be eligible to cover those employees. Provisions of this kind have existed in the Federal jurisdiction for well over a decade. In that time, a number of cases have been decided where overlapping coverage has been awarded and operated. There have been few, if any, related demarcation disputes. As such, this bill represents a significant departure from the existing approach to industrial coverage of workplaces and/or classes of employees. Instead of an exclusive coverage approach, overlapping coverage will be possible in relation to the particular classes of employees specifically identified by the amendments made in the other place. I turn now to the elements of the bill. The first means by which the bill provides for freedom of choice is by making amendments to the criteria for registration of an organisation. Section 218 currently provides for an organisation to satisfy a number of requirements in order to be granted registration. In particular, the current section 218 (m) permits a new organisation to be registered only if there is no other industrial organisation to which the members might conveniently belong. The amendments as agreed to in the other place change the criteria for registration, but only in the limited case of the two organisations, the Emergency Medical Services Protection Association and the Australian Salaried Medical Officers' Federation, and only where these organisations make their applications within 12 months of assent to the legislation. For all other organisations, the requirements will remain as they are currently expressed in section 218, except in one respect. The only amendment that has been made to the general criteria for registration is that in future any organisation seeking coverage of employees will also need to satisfy the Industrial Registrar that the organisation is free from control by or improper influence of an employer or an employer association. This amendment is not limited to the two organisations to which the other amendments apply. The amendment provides that if there is an existing organisation to which members of the applicant organisation might belong, the existence of that other organisation will only prevent registration of the applicant if the existing organisation is one to which the members could more conveniently belong and is one that can more effectively represent those members. In the present case, it is clear that neither the paramedics nor the junior doctors are of the view that their current union, the Health Services Union, is effectively representing them. Alternatively, a new organisation may be registered if the Industrial Registrar accepts an undertaking from the body that is appropriate to avoid demarcation disputes that could otherwise arise from an overlap of the membership rules of two organisations. In circumstances where a registered organisation breaches a demarcation undertaking, the proposed new section 244A provides an important safeguard. The amendment gives the Industrial Registrar the power to alter the rules of the organisation that gave the undertaking and remove the overlap and thus remove the power of the organisation to represent that particular class or group of employees. In addition to the above described requirements, in deciding whether to accept an application for registration, the Industrial Registrar will also have to have regard to the resources and representative infrastructure of the applicant organisation. Freedom of choice will also be enhanced by making amendments to the eligibility rule provisions in the Act. The proposed section 245 amendments are similar in nature to the criteria for registration amendments; that is, they are intended to provide paramedics and junior doctors with greater choice of representation. The proposed section 245 (3) amendments will mean that the Industrial Registrar must not consent to an alteration of the eligibility rules of an organisation where there is another organisation to which those persons could more conveniently belong and which would more effectively represent junior doctors and paramedics. However, similar to the amendments dealing with the registration of a new organisation, the Industrial Registrar is given the discretion to accept an undertaking from the organisation seeking the rule change that it would avoid demarcation disputes that might arise from the overlap. The acceptance of such an undertaking can then be the basis of consent to the rule change. The Industrial Registrar may refuse to consent to an alteration of rules if it would contravene an agreement or understanding to which the organisation is a party dealing with its right to represent a particular class or group of employees. However, it should be noted that the intention of this provision is not to permit existing agreements for exclusive coverage to thwart the broad purpose of this bill and act as an obstacle to overlapping coverage. It would be inconsistent with Parliament's intention in enacting this legislation for any such agreements made under the previous legislation to operate as an obstacle to a relevant rule alteration. I hasten to add that decisions about this issue will, of course, depend on the relevant facts and circumstances of each case and the exercise of the commission's discretion. Section 294 is to be amended by inserting a new subsection (3) that sets out the circumstances in which the commission can make a demarcation order. Such an order must not be made unless the commission is satisfied that the conduct, or threatened conduct, of an organisation, or an officer, employee or member of the organisation, is preventing, obstructing or restricting the performance of work or is likely to have that effect. Proposed new subsection (4) provides that the commission will be required to have regard to a number of matters in considering whether to make a demarcation order. These include the wishes of the affected employees, the effect of any order on the operations of an employer, any agreement relating to industrial representation, the consequences of not making an order and any other order made by the commission in relation to another demarcation dispute applicable to the organisation that are relevant. These requirements are modelled on their equivalents in the fair work legislation, which, as noted earlier, have been operating effectively for some time. When significant changes to legislation such as this are made, the Minister may intervene in the first relevant matter or matters with the purpose of assisting the commission in construing the purpose and intended operation of that legislation. I will consider doing so as and when such cases arise. As originally introduced in the other place, this bill was designed to provide choice of representation for all employees in the workplace. As amended in the other place and now introduced in this place, the bill has a more limited effect. It provides such choice for paramedics and junior doctors only. In providing that extra degree of choice, competition between organisations could arise, but the Government is confident that the bill provides adequate safeguards to ensure that competition is not unrestrained and will not lead to damaging demarcation disputes between organisations. If there is to be competition between organisations, it must be competition between organisations that are capable of representing their members, responding to their needs and delivering what they want. I understand that the Opposition will support the bill and I commend it to the House. IDENTIFICATION OF THE APPLICANT 9An issue that loomed large from the opening of the case was the identification of the applicant. The HSU was aware of an association of paramedics that had been registered under Associations Incorporation legislation and using the short title EMSPA Inc. It had assumed that this body was the applicant for registration as a State organisation of employees. That understanding changed after receiving the evidence of Mr Flint, the secretary/treasurer of the applicant. Mr Flint was also the secretary/treasurer of EMSPA Inc. Essentially, Mr Flint's evidence was that an extraordinary general meeting and a meeting of the Executive Committee of EMSPA Inc had resolved to take all steps necessary to register an industrial union. On the same day that resolution was passed, a group of people (who were, in fact, Executive members of the incorporated association) met, purportedly, as an unincorporated association acting pursuant to the resolution of the Executive Committee and formed a new body for the purposes of making the application for registration as an industrial union of employees under the provisions of the IR Act. This new body was EMPSA (NSW), the applicant in these proceedings. The minutes recording these various steps were not detailed and much of the evidence as to how this new body came into existence was derived from Mr Flint's oral evidence. 10At this point it is to be remembered that when s 218 of the Act was amended in 2012 to modify the criteria for registration for two organisations appearing in Sch 5, the relevant entry in Sch 5 was in the following terms: The Emergency Medical Services Protection Association (NSW) Inc (EMPSA (NSW). There appears to be no organisation carrying that precise title: indeed, there is no evidence of a body known as EMPSA and this appears to be a misdescription. The application for registration relates to an organisation referred to as the Emergency Medical Service Protection Association (NSW). In precise terms that is not a body apparently appearing in Sch 5, when the 2012 amendment was introduced. 11There does not appear to have been any precision adopted in the use of the name EMSPA (NSW). In Mr Flint's statutory declaration filed in support of the application for registration he said in [4] that he was the secretary/treasurer of the applicant for registration Emergency Medical Service Protection Association (NSW) (EMSPA (NSW)). In [5] he spoke about EMSPA (NSW) being an Association of ambulance employees that had been assisting Ambulance Service employees since its inception in New South Wales in February/March 2009. This reference to EMSPA (NSW) could not be a reference to the unincorporated body as it purported to come into operation in August 2012. Mr Flint's reference to EMSPA (NSW) in this way reflects his evidence which is, essentially, that the incorporated body and the unincorporated body in effect comprised the same people and it is one body with "two heads." That unusual expression appears to encapsulate a concept whereby the same body of people constitute the incorporated body and the unincorporated body and that the purpose of the unincorporated body was solely to be the vehicle for obtaining industrial registration under the IR Act. 12Although it was not put directly to Mr Flint, it appears an open inference that the use of an unincorporated body as the applicant for registration might, at least, avoid technical arguments arising from the terms of s 217 and in particular, sub-section (1)(a) that excludes from registration an organisation of employees that is already incorporated under Associations legislation. In adopting this approach it may well be that the organisation was influenced by a long history of industrial organisations operating with both State and Federal industrial registration in relation to precisely the same group of people. The complexities that arose from that type of organisation do not need to be explored further for the purposes of this decision. 13The case then proceeded on the basis that the applicant was not the incorporated association but a new association said to be established in August 2012. The HSU was permitted to pursue grounds of objection going to the creation and operation of the applicant. 14Although forming no part of the formal objection initially filed by the HSU, senior counsel for the HSU cross-examined the applicant's witnesses (especially Mr Flint) regarding the formation and operation of the applicant. This course acknowledged the expanded grounds of objection the HSU was permitted to pursue. This examination developed into a lengthy exercise, indeed, to the point where the technicalities of formation, election of office bearers, rules and membership dominated the written submissions and comprised the vast majority of the oral submissions for the HSU. EVIDENCE OF FORMATION OF AN UNINCORPORATED ASSOCIATION 15As already briefly outlined, Mr Flint's evidence was that the incorporated association had resolved to seek industrial registration and to do all things necessary to achieve that purpose. This was said to have occurred at the extraordinary general meeting of the incorporated association held on 1 August 2012. The minutes of that meeting were not detailed but indicated the discussion and resolutions that were said to have been passed. Also, there was a discussion about the need to refine the rules of the incorporated association as well as obtaining a directive from the meeting to proceed with registration under the IR Act. It is recorded in the minutes that a number of individuals spoke from the floor in favour of "the motion" and no one spoke to the "negative". 16In submissions the HSU accepted that the incorporated body was created in February 2009 for the incorporation of a new association. That body commenced taking members from approximately March 2009 after becoming an incorporated association. On the evidence, all persons who have joined the organisation had applied to join the incorporated organisation. This body was to be distinguished from the unincorporated body that did not exist, if at all, until 1 August 2012 at a meeting held at 12.30 pm following the extraordinary general meeting of the incorporated association. It was pointed out that the purpose of that meeting was to include discussion of industrial registration and "auxiliary matters" to registration as well as filling the secretary/treasurer vacancy. There were also various proposed alterations to the rules of the incorporated association, including a change to its name and the removal of the words "incorporated" or "inc." The HSU pointed out that no notice was given of any intention to create a separate unincorporated association. The applicant does not appear to have disputed these factual matters. What happened after the extraordinary general meeting of the incorporated body was subjected to close analysis. 17Mr Flint was closely questioned on the steps taken after the extraordinary general meeting of the incorporation that purportedly led to the creation of an unincorporated association, the applicant in the current proceedings. Mr Flint accepted that notice of an intention to create a separate unincorporated body was not given to the members of the incorporated body because such a step had not yet been contemplated. Mr Flint regarded the broad terms of the resolution of the special general meeting as empowering the Executive Committee to apply for registration and to do all things necessary in that connection to allow an application to be made. His interpretation of that motion was that, at that meeting, he had the backing and support of the members to do whatever was necessary to obtain registration. The unincorporated association came into existence later that day. 18During the extended period that Mr Flint was under cross-examination he gave the appearance of a person trying to answer the very technical questions raised in cross-examination by senior counsel as to the formation of the applicant unincorporated association. He often couched his answers in terms of not offering a legal opinion but having received advice as to what was needed in order to have a body registered as an industrial union for paramedics. Given the significance of this evidence, the following summary is a chronological account of his evidence during the days he was in the witness box: there were two bodies, the incorporated association (incorporated under the Associations Act ) and the unincorporated association that was the applicant. Although there were two bodies they had the one "head", namely, the Executive Committee. The same people were on the Executive Committee for both associations and Mr Flint was the Secretary of both bodies. The officers of the organisation were mirrored in every way and both bodies operated out of the same registered office; the only documents produced in response to documents called for by the HSU as representing the membership of the applicant referred to members of the incorporated association. Mr Flint said that this came about because of the "mirrored effect" of the two bodies; the membership of the incorporated association had "carried across" to the applicant unincorporated body. This carrying across of membership arose because the extraordinary general meeting of the incorporated body on 1 August 2012 authorised the Executive to undertake that process; there were two meetings held on 1 August 2012. The first was the extraordinary general meeting of the incorporated association. The second meeting was a meeting of the Executive committee "to develop the way forward for the application" for registration. The applicant unincorporated association came into existence on 1 August 2012 and these steps were taken on legal direction. In this way the unincorporated association was the outcome of the extraordinary general meeting; in this evidence, Mr Flint used the label "EMSPA" in a general sense. Before 1 October 2012 that was to be read as a reference to the incorporated body but after that date, that term was a reference to either or both bodies. There was only one set of bank accounts; Mr Flint could not recall immediately what was done to create the unincorporated association and he was unsure if there was a need for the election of the executive. The Executive Committee had been empowered by the incorporated body to take steps to achieve industrial registration; there was no requirement to fill out an application form to become a member of the unincorporated body. Separate fees were not payable but after it was formed, the funds became the funds of both bodies. This was in recognition of the "mirrored position of the bodies." The unincorporated body was funded by the incorporated body and did not have its own funds; now, there were differences between the rules of the unincorporated association as filed with the application for registration and the rules of the incorporated association. The rules of the incorporated association were circulated with proposed changes. The rule changes were designed to move away from being an incorporated association and a new object was added, namely, to become a registered industrial organisation. The intention of these changes was to register an unincorporated body but not the incorporated association. The rules were set up, nevertheless, to allow the incorporated body to be registered as an industrial organisation and then de-register as an incorporated association. Deregistration was not mentioned in the rules. After the Rules were altered to allow for the deregistration of the incorporated association it was later found that could not happen because when de-registration of such a body occurred, it was required to dispose of all its assets. The assets of the incorporated association were meant to be available for the unincorporated association when it was registered as an industrial union; * there was no need to hold a special general meeting on 1 August 2012 to consider forming an unincorporated association because, at that time, the only matter being considered was the de-registration of the incorporated association. Mr Flint regarded the motion of the extraordinary general meeting of the incorporated body as giving support to do all that was necessary to obtain industrial registration. That extraordinary general meeting did not have a proposal before it to establish an unincorporated association; * the rules attached to the application for registration filed in the Registry on 17 August 2012 were the rules of the unincorporated association. They were now different to the rules of the incorporated association because the new rules were drafted in order to comply with requirements for industrial registration; * in the rules of the applicant, Rule 19 provided for a Committee of Management as the governing body. The Committee of Management consisted of a President, Vice-President, Secretary/Treasurer and six committee members to be elected. As yet, there had been no election of officers as the unincorporated association had interim officers for the purposes of industrial registration. The applicant's rules did not contain a provision for an interim Committee of Management; * Mr Flint believed and understood that there was flexibility about the application of the rules of an unincorporated association as it was not a legal entity. The rules of the incorporated association provided for four office bearers and four committee members and this was different to the rules of the applicant association. Although these differences in the Committee of Management existed there had not been any time for elections in the unincorporated association; * at the meeting on 1 August 2012, an interim executive was determined. The Department of Fair Trading was advised that for the incorporated body there were no elections at the AGM because the Executive had been nominated on the application for registration as an industrial union. There was no resolution in the books of either association regarding the election of an interim Executive. The interim Executive committee had decided that there be an interim Executive Committee as they were empowered to do so by the members at the extraordinary general meeting held on 1 August 2012; * no person had applied for membership of the unincorporated association and there was no need to do so as they "automatically carried across." They were automatically granted membership status when the unincorporated body was established. Mr Flint had not applied to join the unincorporated association. The members of the applicant were all those who were members of the incorporated association and had been "carried across." The members "were carried across" because of the resolution of the extraordinary general meeting of the incorporated body that empowered the Executive to take such action. Mr Flint accepted that no permission had been given by individual members, but permission for the carrying across of membership was given by way of the terms of the resolution of 1 August 2012 empowering the Executive Committee of the incorporated association to do what was necessary to obtain industrial registration. There were no rules of the incorporated association that deemed its members to be also members of the unincorporated association, nor was there such a rule operating in the unincorporated association deeming its members to be also members of the incorporated association; * the rules of the applicant required the payment of a fee of not more than $30. No fee had been established for the unincorporated association. A person could now join the applicant and no fee would be required. The Executive Committee had not set a fee as there was "no need" for that to occur at this stage. Members would not be charged double. On the registration of the unincorporated association as an industrial union, the incorporated association would be de-registered. That could not occur now because it would have to dispose of its assets and they were to be handed over to the registered body after registration was achieved; * Mr Flint said that the members were kept informed and the Executive Committee was doing what the members wanted in relation to the application for registration as an industrial union. The members generally had not been told of the formation of the unincorporated association on 1 August 2012 and that body did not have a website; * Mr Flint confirmed that the extraordinary general meeting of members preceded a meeting held by the unincorporated association. The Committee of the incorporated body had not met prior to 12.30 pm on 1 August 2012 to do anything in respect of the resolution passed by the extraordinary general meeting; * there had been no formal meeting of the Executive Committee of the incorporated body to take action on the registration resolution but between the time that the extraordinary general meeting was held (that closed at 11.30 am) and the later meeting at 12.30 pm, they went to lunch and the development of a plan B was discussed - "That's why the 12.30 pm meeting was held. There was no plan for this meeting to be held prior to the extraordinary meeting." Plan A, after the extraordinary general meeting, was to de-register the incorporated association. Plant B was to create an unincorporated association with no restrictions if there was a problem with de-registration. There was an informal lunch time discussion where no formal resolution emerged. It was put to Mr Flint that, prior to having the 12.30 pm meeting, nothing had been done to bring the alleged unincorporated association into existence. Mr Flint agreed that there was only informal discussion prior to the meeting and his understanding was that it only required informal discussion to lead to a meeting to create an unincorporated body; * There were no rules because it did not exist at lunch time. When the meeting opened at 12.30 pm the association did not exist and did not have any rules because it did not exist. There were no rules at that time because there was no understanding that rules were required at that point. This informal gathering convened to create the unincorporated association. After 12.30 pm an Executive meeting was held due "to the agreement with those present." The minutes did not record any resolution that the association was formed or the adoption of any rules. The only discussion of Rules was a motion that the rules and by-laws of EMSPA (NSW) be altered as required in line with the requirements for registration and that was a reference to the rules of the incorporated body. While there was no resolution adopting the same rules as the incorporated body for the unincorporated body, Mr Flint said this was "implied by the motion with respect to the EMSPA (NSW) rules."; * It was put to Mr Flint that there was no resolution to establish a Committee of Management, interim or otherwise, to which he replied that it also "was implied that one head would be for both bodies." Two separate Executives would create problems with harmony. "The people who met informally to create the unincorporated body were the same people who are running the Executive of the incorporated body." There was no resolution to that effect. There was no resolution admitting any person to membership; * Mr Flint stated that when he used the term "implied" he meant that it was the belief and understanding of those who were present who were moving forward on behalf of the members to seek registration. There was total agreement. This was done following the informal agreement reached during the lunchtime discussion. The minutes of the unincorporated body represented his best recollection of what occurred at that meeting. Not all the people who were at the extraordinary general meeting attended the 12.30 pm meeting; * there had not been an extraordinary meeting of the unincorporated association, only meetings of the Executive; * the resolution of the extraordinary general meeting directing the Executive to seek industrial registration and take necessary steps to do so was not only talking about the registration of the incorporated association. Although there was no unincorporated body at that time, that was the proposal put forward at the lunch time informal meeting; * it was pointed out that two sets of minutes had been produced for a meeting held between 12.30 pm and 1.00 pm on 1 August 2012. One set of minutes was said to be for the incorporated body and the other set of minutes for the unincorporated body. The same people were at both meetings. The minutes were produced as a result of a "cut-and-paste" for convenience. The two meetings were held simultaneously because they were constituted by the same people. They were the Executive of the incorporated body and the Executive of the unincorporated body. This was the concept of one head for "both bodies". Advice had been received that, while the minutes of the unincorporated association made reference to the rules and the By-laws, a motion was required from the incorporated body to allow that to occur; * the minutes of the Executive of the incorporated body record a resolution directing the Executive to take appropriate steps to satisfy s 218 and s 219 of the IR Act. That resolution was made for the incorporated body to ensure that there was a resolution covering both bases, bearing in mind that the first plan was to de-register the incorporated association. The third motion of the incorporated association was to establish two entities and to establish the unincorporated entity. Mr Flint accepted that, by this motion, the incorporated association purported to establish some separate association. That was not a motion moved at the meeting of the unincorporated association. The incorporated body passed a motion that EMPSA would conduct monthly management meetings, separate from the quarterly meetings of the incorporated body. That was a motion moved by the incorporated body directed to the conduct of the unincorporated body. That appeared to be the correct thing to do at the time; * there had been meetings of the unincorporated body held by teleconference informing the members of the Executive of the progress of the registration application; * there had not been a meeting of the unincorporated body to elect a committee. Nobody had applied to or been admitted to membership because membership was "implied." The minutes of 8 August 2012 by teleconference were minutes of the Executive of the unincorporated association. There was a discussion about taking appropriate steps to satisfy the registration provisions of the IR Act. A motion was carried that the draft rules and application as circulated were accepted as the new rules of the organisation. Everybody agreed to that resolution. Mr Flint said that, before this time, the unincorporated association did not have rules; * the purpose of the 12.30 pm meeting held on 1 August 2012 was that an informal group of individuals together would create an unincorporated body that could apply for industrial registration if the de-registration of the incorporated body could not occur. The minutes of these meetings were not a verbatim account of what took place. ESSENTIAL FEATURES OF UNINCORPORATED ASSOCIATIONS (a) The Nature of unincorporated associations 19The HSU submitted that the absence of rules, especially at the point of formation, had the consequence that an unincorporated association was never validly formed and therefore the applicant did not exist. Further, because of this fatal flaw, the applicant was "not an organisation of employees" able to apply for registration under s 219 of the IR Act. In support of this submission it was argued that the usual way for an association to be formed was that a group of persons would gather together and would agree to form an association and be bound by its rules. Such rules usually provided that specified persons would hold office until a given date or event. At this point the association is set up and has foundation members. After that, the association is able to recruit members and hold meetings in ways permitted by the rules. Having regard to the issues raised by the HSU objection, it is necessary to consider the nature of an unincorporated association and the ability to overcome perceived defects in its formation, rules and operation. 20In Cameron v Hogan (1934) 51 CLR 358, the High Court acknowledged that there was an assumption that members of an unincorporated association do not intend to be contractually bound by the Association's rules and the courts would assume that there were no legal obligations between members unless the rules actually made it clear to the contrary. 21Having regard to these general principles, it is appropriate, therefore, to set out in some detail passages of the judgments in Cameron that have particular relevance for the present proceedings. In the joint judgment of Rich, Dixon, Evatt and McTiernan JJ, commencing at p 370, their Honours stated: Judicial statements of authority are to be found to the effect that, except to enforce or establish some right of a proprietary nature, a member who complains that he has been unjustifiably excluded from a voluntary association, or that some breach of its rules has been committed, cannot maintain any action directly founded upon that complaint. For example, in Forbes v Eden, (1867) LR 1 Sc. & D. 568 at p 581, Lord Cranworth said Save for the due disposal and administration of property, there is no authority in the Courts either of England or Scotland to take cognizance of the rules of a voluntary society entered into merely for the regulation of its own affairs. Gavan Duffy, J, considered that such statements should be understood as relating only to the jurisdiction of Courts of Equity. There are, however, reasons which justify the statement that, at common law as well as in equity, no actionable breach of contract was committed by an unauthorised resolution expelling a member of a voluntary association, or by the failure on the part of its officers to observe the rules regulating its affairs, unless the members enjoyed under them some civil right of a proprietary nature. As a generalisation it expresses the result produced by the application of a number of independent legal principles: it is not in itself the enunciation or explanation of a rule or rules of the common law. One reason which must contribute in a great degree to produce the result is the general character of the voluntary associations which are likely to be formed without property, and without giving to their members any civil right of a proprietary nature. They are for the most part bodies of persons who have combined to further some common end or interest which is social, sporting, political, scientific, religious, artistic, or humanitarian in character, or otherwise stands apart from private gain and material advantage. Such associations are established upon a consensual basis, but, unless there were some clear positive indication that the members contemplated the creation of legal relations inter se, the rules adopted for their governance would not be treated as amounting to an enforceable contract. ... (pp 370 - 371) ... If a member of a voluntary association complains, not of an invalid expulsion, but of some failure to observe the rules on the part of the committee or other officers, it would be necessary for the member complaining to show that the rules were intended to confer upon him a contractual right to the performance of the particular duty upon which he insists. It can seldom be the true meaning of the rules of any large association of such a kind that those undertaking office thereby enter into a contract with each and every member that they will execute the office in strict conformity with the rules. If, however, it were determined that the committee or the officers of a voluntary association, in attempting to exclude the member complaining, or in some other respect, had committed a breach of contract, the remaining members of the association would not be responsible. The committee or officers may be agents for the members of the association. But if so they are agents for all the members. If in the case of a member complaining they have violated the rules, they have exceeded their authority. Upon no doctrine of agency can one of the joint principals hold the others responsible. (p 373). But the question which arises first is whether the rules relating to the selection of party candidates were intended to operate at all as a contract. If the action be treated as a representative proceeding against all the members of the party other than the respondent, it would be necessary for him to establish that the rules should be understood as a warranty by every member to every other who should be nominated for selection that his name would be admitted to ballet, unless it was withdrawn after proper opportunity for defence. If the action be treated as a proceeding against the members of the central executive who failed to submit the respondent's nomination for ballot, to establish a breach of contract it would be necessary for the respondent to show that the appellants, either by accepting office, or by adhering to the rules as members of the party, engaged with him contractually as a member to perform their duties in relation to nomination, in complete accordance with the rules. Neither of these interpretations of the rules appears to be warranted. Hitherto rules made by a political or like organisation for the regulation of its affairs and the conduct of its activities have never been understood as imposing contractual duties upon its officers or its members. Such matters are naturally regarded as of domestic concern. The rules are intended to be enforced by the authorities appointed under them. In adopting them the members ought not to be presumed to contemplate the creation of enforceable legal rights and duties so that every departure exposes the officer or member concerned to a civil sanction. (p 376). 22In his separate judgment, Starke J, at p 384, stated: As a general rule the Courts do not interfere in the contentions or quarrels of political parties, or indeed in the internal affairs of any voluntary association, society, or club. Agreements to associate for purposes of recreation, or an agreement to associate for scientific or philanthropical or social or religious purposes are not agreements which Courts of law can enforce. They are entirely personal. Therefore, in order to establish a civil wrong from the refusal to carry out such an agreement, if it can be inferred that any such agreement was made, it is necessary to see that the pursuer has suffered some practical injury, either in his reputation or in his property - Murdison v Scottish Football Union, (1896) 23 R (Ct. of Sess.) 449 at pp 466-67. Contractual rights, therefore, appear to me out of the question. The rules of a voluntary association organised for political purposes are not agreements enforceable at law, or, in other words, contracts. Members of such associations who have grievances must resort to the remedies and the redress afforded them by the rules of their associations and not to the Courts of law. 23It was submitted for the HSU that "the essential or normal characteristics" of an incorporated association had been identified in Conservative and Unionists Central Office v Burrell (Inspector of Taxes) [1980] 3 All ER 42 at 58 as follows: (i) there must be members of the association; (ii) there must be a contract binding the members inter se; (iii) there will normally be some constitutional arrangement for meetings of members and for the appointment of committees and officers; (iv) a member will normally be free to join or leave the association at will; (v) the association will normally continue in existence independently of any change that may occur in the composition of the association; (vi) there must as a matter of history have been a moment in time when a number of persons combined or banded together to form the association. 24The passage quoted above from the 1980 report was from the judgment of Vinelott J sitting at first instance in the Chancery Division. The passage quoted from p 58 does not represent the court's determination but recounts the argument for counsel for the Central Office of the Conservative Party that those six characteristics were "either essential or normal characteristics of an unincorporated association." The first instance judgment was later considered on appeal in Conservative and Unionists Central Office v Burrell (Inspector of Taxes) [1982] 2 All ER 1. 25The issue that arose in the Conservative and Central Office case was whether income earned on subscriptions to the Conservative party was taxable as the Conservative Party and its various organisational modes was "an unincorporated association" within the meaning of provisions of the Income and Corporation Taxes Act 1970. For the purposes of this Taxing legislation, the earnings of unincorporated associations were treated as earnings of a corporation. The argument, therefore, developed around the nature of the Conservative Party: the evidence showed that it was constituted by members of the Parliamentary Party, the mass membership represented by the national union and the Party headquarters known as the Central Office. The Central Office was assessed as liable to pay corporation tax on investment income as being an unincorporated association within the meaning of the Taxation legislation. This assessment was appealed by the Central Office to the Special Commissioners where it argued that it was not an unincorporated association and even if the National Union was an unincorporated association, the funds did not belong to the National Union but were administered by the Central Office. The Conservative Party was an "amorphous combination of various elements" lacking the characteristics of an unincorporated association. Ultimately, Vinelott J held that it could not be said that the Conservative Party was an unincorporated association and thus, the appeal against the taxation assessment was upheld. 26The matter proceeded by way of a Stated Case. The essential aspects of the Stated Case were recorded at the beginning of the report where the following extract was reproduced from the determination of the Special Commissioners regarding the relevant law (at 47): We were usefully referred to a number of cases dealing with the characteristics of unincorporated associations in a variety of contexts. Three of the cases contained short statements of what are some of the essential features in law of an unincorporated association. In Re Thackrah [1939] 2 All 4 at 6, a gift by will to the Oxford Group was in question. Bennett J commented: "Before one can find an association, there must be some rules, either written or oral, by which those who are supposed to be members of it are tied together. I think that they would probably be written rules. There must be some constitution." In Re Price [1943] 2 All ER 505 at 508, [1943] Ch 42 at 428, Cohen J referred to the comment of Lord Buckmaster in Macaulay v O'Donnell [1943] Ch 435 at 436 referring to a gift to an unincorporated association: "A group of people defined and bound together by rules and called by a distinctive name can be the subject of a gift as well as any individual or incorporated body." In the case of The Caledonian Employees' Benevolent Society 1928 SC 633 at 635, absence of any consensual contract amongst its member was a bar to the claim that the Society was an unincorporated association. The Lord President, referring to the Companies (Consolidations) Act, 1908 said: It is not, I think, open to doubt that the fundamental and essential characteristic of the whole class of bodies described in the Act as companies, associations and partnerships, is that they are bodies constituted by some species of contract of society, and founded on the contractual obligation thus undertaken by the members, ... No doubt the word 'association' is by itself capable of including a wide variety of much more loosely and irregularly constituted bodies of persons: but looking to the context in which it appears ... I see no reason to doubt that what is meant is a society (whatever its object) based on consensual contract amongst its constituent members whereby their mutual relations inter se with regard to some common object are regulated and enforced. 27The Special Commissioners' reasons also contained reference to in Re Recher's Will Trusts re National Westminster Bank Ltd v National Anti-Vivisection Society Ltd [1971] 3 All ER 401 at 407 - 408 where Brightman J was dealing with a gift to a non-charitable association. It was noted that persons could band themselves together as an association or society, pay subscriptions and validly donate their funds in pursuit of some lawful non-charitable purposes. The obvious example given was a member's social club. Personal advantage was not essential to the members. The funds of such an association may be applied exclusively to the pursuit of some outside purpose. Of such a body, Brightman J stated: Such an association of persons is bound, I would think, to have some sort of constitution; that is to say, the rights and liabilities of the members of the association will inevitably depend on some form of contract inter se usually evidenced by a set of rules. In the present case it appears to me clear that the life members, the ordinary members and the associate members of the ... Society were bound together by a contract inter se. Any such member was entitled to the rights and subject to the liabilities defined by the rules. If the committee acted contrary to the rules, an individual member would be entitled to take proceedings in the courts to compel observance of the rules or recover damages for any loss he had suffered as a result of the breach of contract. 28It was in that context that counsel for the Central Office identified six characteristics that were said to be required to establish the body as an unincorporated association. These were the six matters referred to in the written submissions for the HSU. The need for a contract, however, was able to be met "usually" by a set of written rules. These were submitted to be the "essential or normal characteristics of an unincorporated association." Importantly, it was then recorded at p 49 that counsel for the Crown submitted that in Re Smith Johnson v. Bright-Smith (1914) 1 Ch 937 supported the proposition that the "contract" between the members of an unincorporated association "might be in agreement or understanding falling short of a legally enforceable contract." The Commissioners then pointed to the speeches in The Free Church of Scotland [1904] AC 515 where Lord Davey referred to that Church "as a voluntary and unincorporated association of Christians united on the basis of agreement in certain religious tenets and principles of worship, discipline and church government." The Special Commissioners said that this was an illustration of an unincorporated association where the basis of the banding together was a commitment to an acceptance of certain ideas and doctrines and where the contract between the members depended not so much on any written rules as on "what had to be inferred from all the surrounding circumstances." 29After setting out the submissions for counsel for the Central Office as to the six characteristics (either essential or normal) for the establishment of an unincorporated association, at p 58 (relied upon by the HSU in the present case) it was then recorded that counsel for the Central Office made it clear that three of the six characteristics were not essential characteristics of an unincorporated association, namely, that there would normally be some constitutional arrangement for meetings of members and for the appointment of committees and officers; that a member would normally be free to join or leave the association at will and the association would normally continue in existence independently and any change that may occur in the composition of the association. In relation to this argument, Vinelott J (at 58) stated: It is possible to imagine an unincorporated association which lacked, at least, one of these characteristics. For instance, a members' club might be so exclusive as to make no provision for the admission of new members and the original members might conceivably band themselves together in life membership. But the first two characteristics are put forward, I think rightly, as essential characteristics. Indeed, they seem to me no more than an analysis of the concept of an unincorporated association. The sixth characteristic is, I think, also a necessary characteristic of an unincorporated association. If an unincorporated association is a "group of people defined and bound together by the rules and called by a distinctive name" (see per Lord Buckmaster in Re Mcaulay's Estate, Mcaulay v O'Donnell [1943] Ch 435 at 428), there must have been a moment in time when the first members agreed expressly or impliedly to be bound by the rules. But in practice the task of answering the question whether a body with a distinctive name is an unincorporated association will rarely, if ever be, much assisted by asking when it came into existence. In many, if not most cases, an unincorporated association will have been gradually transformed over a period of time in to something very different from the unincorporated association from which it grew and it may well be impossible to ascertain either the date of its formation of (sic) the moment in time in this process of change when it assumed its distinctive contemporary character. 30Before dealing with the judgment on appeal, it is appropriate at this point to observe the central role played by contract in the English cases. In the variety of cases referred to above, contract was essential and was evidenced by the rules or inferred from surrounding circumstances. That is why the rules are significant in English cases even though those rules need not be in writing and the circumstances may have to be examined to see when the members first agreed "expressly or impliedly" to be bound by the rules. The High Court in Cameron v Hogan, as noted above, did not embraced the concept of contract as being essential for the existence of an unincorporated association: the presumption is that no contract was intended by the parties but the presumption is rebuttable by analysis of the terms of the arrangement. 31On the appeal, (Conservative and Unionist Central Office v Burrell (Inspector of Taxes), again the central issue was the identification of a contractual relationship between the three major threads of the Conservative Party. Lawton LJ noted that both parties to the appeal asked the Full Court to consider the legal nature of the Conservative Party and the statutory background where certain earned income of an unincorporated association was taxable and then stated at p 4: I infer that by 'unincorporated association' in this context Parliament meant two or more persons bound together for one or more common purposes, not being business purposes, by mutual undertakings, each having mutual duties and obligations, in an organisation which has rules which identify in whom control of it and its funds rests and on what terms and which can be joined or left at will. The bond of union between the members of an unincorporated association has to be contractual. ... Since membership of an unincorporated association is based on agreement between the members, a starting point for examining the legal nature of the party is to consider how anyone can join it. On this analysis it was found that no one could directly join the party with membership being obtained either through a local constituency association or through the parliamentary party. On the facts, nothing could be found which contractually linked members of the local constituency associations to Conservative members of the House of Commons representing their constituencies. It was noted that while counsel for the Crown accepted that all those who were members of the national union were members of an unincorporated body, it still left "a constitutional gap" between the national union and the parliamentary party. Brightman LJ agreed with the analysis of Lawton LJ that such an overall unincorporated association did not exist and Fox LJ agreed with the judgments of Lawton and Brightman LJJ. 32The HSU submissions then relied on the judgment in City of Gosnells v Roberts (1994) 12 WAR 437 at 448 for the proposition that, without rules, an alleged association lacks the essential characteristic of an unincorporated association, that is, a composite body of persons in a legal relationship giving rise to mutual rights and obligations. That case involved an action for negligence where a horse had strayed on to a public road and the plaintiffs were injured as the result of a collision. The action was brought in negligence. The City of Gosnells was joined as a defendant as it owned the land from which the horse had escaped and the owner of the horse was also joined. Further defendants were the office bearers of the Gosnells Polocrosse Club, the body to which the City of Gosnells had leased the land at the time of the accident. At first instance, the club was found liable because of its occupation and control over the land and that liability attached to the members of the Executive Committee. That result ensued because the law had to attribute liability to some person where an unincorporated body was involved. 33In the judgment of Pigeon J at 443, his Honour considered whether or not the club could be made liable in circumstances where it was not incorporated, did not have a constitution or rules and was not a legal entity. In relation to this matter, his Honour stated: In my view, the proper conclusion on the evidence is that the body did exist as an unincorporated association. The evidence showed the existence of a group of persons carrying on an activity under the name of the Gosnells Polocrosse Club. It had a bank account and it held meetings and the activities it pursued were determined at these meetings. These facts are apparent from the club's minute book. The common law relating to the conduct of meetings would apply in respect of these meeting and the moneys in the bank account would be held on trust to carry out the activity of the club as determined by these meetings. Any liability which such group would have towards other persons would not be extinguished merely because it did not have a written constitution and the trial judge recognised this. 34In a separate judgment, Roland J appears to have accepted the correctness of the result proposed by Pigeon J (as did the third member of the court, Anderson J). His Honour noted that all parties recognised and accepted that an unincorporated body without a constitution could not be a party to these proceedings and simply did not exist as a legal entity (at 444). He noted, however, there were authorities to support a claim that those who band together for a common purposes can, through their collective appointed officers, incur liability. 35In its submissions the HSU relied upon the separate judgment of Anderson J. At 448, his Honour expressed his views as follows: As to whether there was a lease or agreement for lease to the "club", in my opinion there was not. In the first place, there was, in truth, no such legal entity. The "club" had no constitution and no rules. It did not therefore have the essential characteristic of an unincorporated association, ie, a composite body of persons in "a legal relationship ... giving rise to joint rights or obligations or mutual rights and duties": see Re Commonwealth Homes & Investment Co Ltd [1943] SASR 211 at 228, per Mayo J. See also Bohemians Club v Acting Commissioner of Taxation (Cth) (1918) 24 CLR 334 at 337 per Griffiths CJ. There was a mere aggregation of persons not in any legal relationship, not bound together by any identifiable consensual arrangement and not defined by any constitution. There was therefore no separate or identifiable entity for whom Mrs Duncan might have had some authority to complete the transaction. 36It is not totally clear where the majority opinion lies in this case. The presiding Judge, Pigeon J, concluded that the club did exist as an unincorporated association. Anderson J concluded to the contrary. Roland J agreed generally with both their reasons but did not specifically reject this aspect of either Pigeon J or Anderson J. His Honour does appear to have accepted, however, that the club was an unincorporated body because he referred to the fact that as an unincorporated body without a constitution, it could not be a party to the proceedings. He cited authority for that proposition. The headnote also treats his Honour as being in agreement with Pidgeon J on this issue. 37The judgment of Anderson J principally relied upon the judgment of Mayo J in Re Commonwealth Homes & Investment Co Ltd [1943] SASR 211 at 228. That case is, however, of little assistance in relation to the issues arising in the present proceedings. In that case, a limited company was incorporated under the Companies Act 1961 for the purpose of issuing bonds that were to be acquired by subscribers in consideration of payment of premiums. An issue arose about the terms of a prospectus that has no bearing on the present issue before this Court. At pp 228 - 229, his Honour considered whether the acts of the company and the bondholders resulted in the formation of an association. His Honour stated that to establish an association a legal relationship must be created between the members giving rise to joint rights or obligations of mutual rights. The rights, inter socios, if not of statutory origin, may ordinarily be expected to be contractual. The importance of this consideration was that if there had been such an association, then a statutory provision would prohibit the operation of such an association and would deprive the participants of action against each other. No party had suggested that there was such an association but it was a matter that his Honour concluded should be investigated and determined. His Honour held that there was no such association because, on the evidence, there was no direct intercourse between applicants for bonds or bondholders as such and he noted that by joining in and becoming privy to a common project without any direct communication, persons may, nevertheless, sometimes find themselves in a contractual relationship. That was not the case in the matter before Mayo J and therefore there was no formation of an association under the relevant statutory provision. Again, that appears to be an association whereby contractual relations were not created. Perhaps, because of special statutory provisions, Mayo J did not make any mention of Cameron v Hogan, a case decided by the High Court in 1934: nor did Anderson J in his separate judgment in City of Gosnells. The Bohemian Club case turned on the character of fees as income for tax purposes. The Club was assumed to be an unincorporated association. It is difficult to see how these cases supported the views expressed by Anderson J about the essential elements of an unincorporated association. 38More recently, the Victorian Supreme Court has dealt with the issue of the formation and the time when an unincorporated association comes into existence. In Kibby v Registrar of Titles [1999] 1 VR 861, Mandie J dealt with a claim that an incorporated association established under the Associations Incorporation Act 1981 (Vic) claimed that land registered in the plaintiff's name was held on trust for an unincorporated association of which it was the successor. In the proceedings it was alleged that the association, prior to its incorporation, purchased certain land with several members of the association agreeing to act as trustees. Those members were shown on the certificate of title as the registered proprietors. For many years a small group of people had met regularly in the library of a house located near the property in question. There were regular meetings where the participants discussed religion, comparative and oriental religion and philosophy. There were occasional lectures or talks. Some four years or so after these meetings commenced, a property directly opposite this meeting place became available for sale. A steering group or committee had been informally set up to find an appropriate site and this land was chosen. At approximately this time, a named association commenced although there was a dispute about when that occurred. At the discretion of the senior member of the association, there was evidence of membership being granted with people joining and remaining but there was no set of rules or a constitution. Other evidence suggested that the membership was fluid and based on friendship, with people coming and going as they pleased. 39At [40], his Honour commenced an analysis of the characteristics of an unincorporated association, introducing this discussion as follows: The characteristics of an unincorporated association [40] The Act provides no particular guidance as to the nature of an association apart from the definition in s. 3(1) but there is no reason to suppose that the Act narrows the legal concept of an association apart from the requirement that it have not less than five members. A number of cases contain statements as to the nature of an unincorporated association and, provided that account is taken of any statutory or other special context, those statements are of assistance in the present case. [41] An association has of course no separate or distinct existence apart from its members. It is a voluntary combination of persons with some object or purpose in common: see Amos v Brunton (1897) 18 L.R. (N.S.W.) Eq. 184 at 186-7; 14 W.N. (N.S.W.) 69 at 70. If the association "has" assets, they belong, subject to the rules, to the members for the time being: see Doust v Attorney-General (1904) 4 S.R. (N.S.W.) 577 at 583. Doust v Attorney-General (1904) 4 S.R. (N.S.W.) 577 at 583. The rules do not necessarily constitute an enforceable contract between the members (Cameron v Hogan (1934) 51 C.L.R. 358; but cf. Re Sick and Funeral Society [1973] Ch. 51 at 59-60 per Megarry J). 40His Honour then considered statements from the High Court in Watson v J & A G Johnson Ltd (1936) 55 CLR 63, in Re Thackrah [1939] 2 All ER 4, The Conservative Unionists Central Office case (judgment of Vinelott J) and appearing in The City of Gosnells. At [44], his Honour noted that in Twycross v Potts [1928] SC 633 at 635, Lord President Clyde, whilst deciding that the words "company, association or partnership" in the Companies (Consolidation) Act 1908 referred to bodies "constituted by some species of contract of society", nevertheless, stated that "no doubt the word 'association' is, by itself, capable of including a wide variety of much more loosely and irregularly constituted bodies of persons" other than in the context of the Companies Acts. 41His Honour then considered dictionary definitions of the word "association" and identified the requirements of an unincorporated association. Those passages of his Honour's judgment are set out below: [49] A selection of definitions from the Shorter Oxford English Dictionary points to the tautology or circularity involved in the s 3(1) definition of "association" Association: "a body of persons associated for a common purpose"; Associate: - "combine for a common purpose, join". Society: "a number of persons associated together by the same common interest or purpose". Club: "an association of persons meeting periodically"; "an association of persons interested in the promotion of some object"; an assocition of persons formed mainly for social purposes". Institution: "an establishment, organisation or association instituted for the promotion of some object": Body: - "a society, association, league, fraternity". [50] In the light of the judicial statements to which I have referred and the ordinary meaning of the words contained in the said definition, I consider that the essence of an "association" may be described as some form of combination of persons (with a common interest or purpose) with a degree of organisation and continuity at least sufficient to distinguish the combination from an amorphous or fluctuating group of individuals and with some clear criteria or method for the identification of its members. [51] I do not think that a name or title, or the existence of a written constitution or rules governing the combination, or the existence of some form of contract between the members, is an essential characteristic, but clearly the existence of one or more of these would go a long way towards satisfying the need for some degree of organisation and continuity and for the satisfactory identification of members. Likewise, the existence of office-bearers, a committee and a bank account are relevant to a degree of organisation. The absence of all of these features makes it unlikely, but not impossible, that an association has been formed or is being carried on. 42The flexibility with which unincorporated associations might operate was demonstrated in Ball v Pearsall (1987) 10 NSWLR 700. In that case, Young J was dealing with an application for declarations pursuant to the provisions of the Supreme Court Act 1995 as to the validity of an election of officer bearers in an unincorporated association and a declaration that a member (who had been expelled at the same meeting as the election took place), was entitled to move a motion of which notice had been given. 43The brief facts were that, during the course of an apparently highly volatile meeting, members had withdrawn and some had returned to the meeting in general protest as to the manner of its conduct. When up to 100 people finally left the meeting, the remaining 20 or so members purported to conclude the business. A question arose as to whether it was necessary to have a quorum of an unincorporated association at the time when it conducts an election or whether it is sufficient that the quorum was present at the commencement of the meeting: an allied question was whether, as a matter of law, all members of the unincorporated body had to be present before any business could be transacted. The by-laws and constitution of the body did not nominate a quorum for an annual meeting or a special general meeting but nominated seven as a quorum for a committee meeting. 44As to the issue of whether all members had to be present to form a quorum in the absence of a specified quorum in the rules, his Honour stated, at p 703 The first focus of this judgment must be on whether it is necessary to have a quorum of an unincorporated association at the time when it makes an election or whether it is sufficient that the quorum is present at the commencement of the meeting or indeed, whether as a matter of law all the members of the unincorporated body must be present before any business can be transacted. It seems to me that as a matter of theory the last-mentioned possibility is the correct one, if there is nothing else in what the parties have done to exclude it. It seems to me that cases such as Green v The Queen (1891) 17 VLR 329; St Leonards Municipality v Williams (1966) Tas SR 166; 15 LGRA 62 and John v Rees [1970] Ch 345, go a long way to establishing this view. It is also consistent with the general law that normally a person must be consulted on his rights, unless he has appointed agents to exercise those rights for him. However, it seems to me that in the instant case the consensual compact between the parties has moved away from the position that only a meeting at which everybody is present is effective to act. The body consists of at the moment almost 200 members, there is a written constitution, which envisages that there will be an annual general meeting at which apologies can be received, which would be quite otiose if members' meetings would only be efficacious if all were there and the trappings of a normal corporate meeting that minorities are protected by the business of the meeting being specified in the notice at least a certain time before the meeting. This usually is done so that people can make up their minds whether they will attend a meeting or not because if the business does not interest them they might stay away. This runs contrary to there being a rule that only meetings attended by the whole of the members can be effective. It is quite clear that when considering the consensual compact of a body such as this, one can look to the activities of the members after the consensual compact was made. Lord Lyndhurst's Act has not, of course, been adopted in New South Wales, but the law as to dissenting chapels that was worked out in England in the first part of the nineteenth century in cases such as Attorney-General v Murdoch (1852) 1 De G M & G 86; 42 ER 484, at 109; 494, makes it quite clear that one can look at even relatively recent conduct to get some light as to what the real consensual compact was. Indeed, even cases such as John v Rees itself show that not only does one look at the consensual compact through the written rules but also through unwritten usages. It was significant really that apart from being put as a back-up submission the proposition that all members had to agree in everything was only faintly raised in submissions in these proceedings. 45In Ball v Pearsall, the evidence disclosed that there were approximately 200 members of the unincorporated association and more than 100 attended the meeting that was the subject of the challenge. The vast majority of those attending, approximately 100, left the meeting at a vital stage leaving approximately 20 members to purportedly conduct the meeting of the association. It seems clear from the discussion later conducted by Young J that a meeting of more than 100 members, in the absence of a specific quorum rule, was sufficient to constitute a quorum and to conduct the business of the association but when the number of attendees was reduced to a relatively small number of members, no quorum existed. 46The case of Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis and anor (2007) 70 NSWLR 565 dealt with the issue of tort and the liability of unincorporated associations.. Mason P (Ipp and McColl JJA agreeing) made observations about the nature of unincorporated associations, stating at [47]: A corporation has perpetual succession and is liable to sue and be sued. An unincorporated association that is not a partnership is a group of individuals associated together for some lawful purpose other than profit that may or may not have a rigid constitution or a fixed and finite membership. Procedurally, it cannot (at common law) sue or be sued in its own name because, among other reasons, it does not exist as a juridical entity. 47In dealing with the issues that have arisen, some assistance is provided by the judgment Reed AJ of the South Australian Supreme Court in Re Unley Democratic Association [1936] SASR 473. In that case, an unincorporated association had purchased a meeting hall to facilitate its purpose to advance the cause of democracy. Over the years its membership fell away dramatically until there were only four members remaining. The trustees had sold the meeting hall and the court was to determine who was entitled to the proceeds of the sale. There had not been any resolution for the dissolution of the association and the rules provided that five members constituted a quorum. In those circumstances, the affairs of the association were not formally wound up and the association was not dissolved. Rule 19 dealt only with dissolution and provided that the association could not be dissolved so long as five members remained who wished the association to continue. There was no capacity for the remaining four members to hold a meeting and no capacity for five members to require the association to continue. His Honour resolved the situation at p 480 as follows: It seems to me that the solution in these circumstances is that the law implies a condition resolutive of the contract, that condition being that when the number of members should fall below the necessary to carry on the affairs of the association in accordance with the rules for the time being enforced, the association should be dissolved. 48After considering authority in relation to "frustration", at p 481 his Honour continued: In this case I infer from a consideration of the whole of the circumstances of the Association that the parties to the rules, both the original members and those who subsequently became members, contemplated that the basis of their contractual relationship was that there should be at least the minimum number of members necessary to carry on the affairs of the Association in accordance with the rules from time to time enforced. This is in accordance with the principle annunciate by Lord Loreburn in F A Tamplin Steamship Co v Anglo-Mexican Petroleum Products Co. [1916] 2 A C 397 at pp. 403-404, where he said: A Court can and ought to examine the contract and the circumstances in which it was made, not of course to vary, but only to explain it, in order to see whether or not from the nature of it the parties must have made their bargain on the footing that a particular thing or state of things would continue to exist. And if they must have done so, then a term to that effect will be implied, though it be not expressed in the contract. In applying this rule it is manifest that such a term can rarely be implied except where the discontinuance is such as to upset altogether the purpose of the contract. Relying on these authorities, his Honour held that the association was dissolved from the time when only four members remained. 49It can be seen from the above discussion that there was no hard and fast principle that for an unincorporated association to be established there had to be written rules. The written submissions for the HSU failed to recognise that the so-called six principles (referred to in the Conservative Party case) identifying an unincorporated association contained some principles that were "essential", namely, a contract and others that were "usual", or, providing evidence of the contract. Under English law the rules of the association could be oral or there may be no such rules at all with the contract to be inferred from the surrounding circumstances as with the Free Church of Scotland case. The HSU's submissions overstate the proposition to the extent that they suggest that the absence of rules and in particular, written rules, meant that the applicant was invalidly formed as an unincorporated association. Essentially, all that is required for the formation of an unincorporated association is a group of people with a common purpose: as found in Kibby, a form of combination of persons with a common interest or purpose with a degree of organisation or continuity, will suffice. No public notice of the meeting is required. These matters will be discussed later in this decision under the heading "Was the Applicant Organisation Validly Formed." 50As explained above, in dealing with the authorities relied upon by the HSU, none of them appear to have any direct relevance to the present case and none of them would constitute a binding authority for the proposition that an unincorporated association without rules is a nullity and does not exist. (b) The Industrial Cases 51In written submissions, the HSU relied upon the decision of McIntyre, VP in relation to an application for registration of the Postal Delivery Officers Union Print S 3912), Australian Industrial Relations Commission, 18 February 2000. The association applying for registration was found not to have been created for a variety of reasons, including that at the time the rules were adopted no person had been admitted to membership and no resolution was moved and passed for the Association to be formed with interim arrangements for the committee. There was a purported election for members of the Senate but no members were eligible to vote. The rules adopted required the Senate to consider all applications for membership but the Senate was not validly elected and could not consider any such applications. The senate itself had not been elected according to the rules adopted. The cases relied on to establish the failure of the applicant to be brought into existence followed a line of decisions in the Federal industrial jurisdiction requiring strict compliance with the rules of the applicant association, an approach that was regarded as mandatory because of the statutory requirements to be met by an applicant. A number of applications had failed because statutory requirements had not been followed. Those cases are of little assistance in the present matter because of differences in the statutory regimes and the fact that the applicant organisation had not adopted rules at the time it was created or at the same meeting it was created. In the present case it is to be remembered that the association, as formed and as now exists, is comprised of only those people who attended the 1 August 2012 meeting. This conclusion is discussed later under the heading: "Who are the members of the applicant organisation?." 52Similar issues to those raised in this application by the HSU were dealt with in the Australian Industrial Relation Commission by Williams SDP in Re Society of Australian Surgeons (2003) 122 IR 447. That case concerned an application for registration of an association of surgeons and certain objections were raised including, whether at the time of application for registration, the association existed. This argument was conducted in the context of the particular requirements of the Workplace Relations Act 1996 (Cth). Those provisions were similar but not identical to the provisions now applying under the IR Act. Section 188(2) of the Act prescribed criteria for registration and regulation 22 laid down a number of matters, including the form of the application for approval. In the course of the hearing, apparently, it became evident to the applicant that the rules filed with the application, as required by the statutory regime, had not been adopted in accordance with the provisions of the rules and an application was foreshadowed to seek leave of the Commission to alter the rules in order to meet a number of technical objections. One of the issues that arose was that there was nobody authorised under the rules (now operating) who could amend the rules. 53In dealing with whether the applicant association was capable of applying for registration under the legislative scheme, his Honour, at [63], noted that s 189 prescribed the criteria that had to be satisfied to obtain registration. The time for determining whether the applicant met the requirements of the section and was entitled to registration, would generally be "the time at which the Commission" was deciding to grant or refuse to grant registration. The Senior Deputy President noted that at the time at which the applicant association must fall within one or other of the descriptors of the kinds of association that may apply for registration, was the time at which the application for registration was made, that is, when it was lodged in the Registry. He observed that, if at that time, the applicant association was not an association of the kind described in s 188 then it could not make an application. Such an application would be invalid. 54The Senior Deputy President then addressed issues such as the nature of unincorporated associations and the manner in which they come into existence. The following passages are of relevance to the present proceedings: 65. The SAS has made an application under s 188(1)(b) for registration as an organisation of employees. The provisions of s 188(1)(b) are set out earlier in this decision. The first requirement of s188(1)(b) is that the SAS must have been, at the time it made its application, an existing association, ie it must have been in existence prior to, or at least at the time of, the application being made. In the context of these s 111(1)(g)(iii) applications, there has been no suggestion that an association was not formed at the meeting on 23 June 2001. In Federated Clerks Union of Australia v Wool Selling Brokers Officers Association of Australia (1950) 67 CAR 232 the Commonwealth Court of Conciliation and Arbitration was, in the course of determining an application for deregistration of an organisation, required to deal with an argument that the organisation in question had not been originally an association capable of registration because, at the date of its application for registration, there had in fact been no association. The Court rejected the argument with Foster J stating: An association of persons exists when a number of persons agree to act together in association for some objective and in fact do so act whether with a written constitution or not. No formalities are required to exist or be observed but agreement to associate must be clearly proved (at 234). 66 There have been various judicial observations as to the characteristics of unincorporated associations and their formation (For recent examples see Kibby v Registrar of Titles [1999] 1 VR 861 and the cases referred to therein at 869-873 and Popovic v Tanasijevic (No 5) (2000) 34 ACSR 1). Any such observations must be considered in the context of any relevant statutory provisions. For the purposes of this decision, I am prepared to assume that the SAS was formed at the meeting on 23 June 2001. As I apprehend their submissions, the objectors have not, at this stage, contended to the contrary. That the SAS was so formed appears to be supported by the evidence in relation to that meeting. The carriage of the resolution "to form a trade union to protect the industrial interests of surgeons" demonstrated an agreement between the persons participating in the meeting to act together for a specified objective. That, of itself, would appear to be sufficient to bring the SAS into existence as an association. ... 70. It is generally accepted that, unless it is seeking some form of statutory recognition, there is no legal requirement that an unincorporated association have a formal constitution or a written set of rules. An unincorporated association is founded upon the agreement between the members as to what has been described as their "shared understanding concerning the basis of their continuing relationship" (Fletcher, The Law Relating to Non-Profit Associations in Australia and New Zealand (1986), p 35). For a variety of good and sufficient reasons, it is advisable for an association to have a written constitution (See J Warburton, Unincorporated Associations: Law and Practice (2nd ed, 1992), p 11). However, the legal basis of an association is contractual and it is sufficient for the contract to be an oral one. ... ... ... Whatever might have been the breadth of its eligibility rule at the relevant time, the SAS may in fact have been an association the membership of which was constituted of employed surgeons. If it was, the defect in the eligibility rules would be one that may be remediable by appropriate alteration with the Commission's leave granted under s 190. Whether, in the circumstances of this case, such leave might be given is not relevant to this aspect of the decision. It is sufficient that it be recognised that a defect of this type in the eligibility rules of an applicant association may, if the Commission considers it appropriate, be remedied. ... ... Has there been such non-compliance with reg 33 as to render the registration application a nullity? 93 The provisions of reg 33(1) are mandatory. There is a considerable body of authority that non-compliance with like provisions renders an application invalid (See for example Building Workers Industrial Union of Australia v Amalgamated Engineering Union (Australian Section) (1952) 74 CAR 53; Re Australian Insurance Employees Association (1984) 294 CAR 557). However, these decisions relate to the legislation as it was when such applications were dealt with at first instance by Industrial Registrars who did not have the powers conferred by the Act upon the Commission (National Tertiary Education Industry Union v Community & Public Sector Union (1999) 93 IR 365 at 419-412). I do not resile from the view I expressed in Re Victorian Principals Federation (1999) 95 IR 262 at 278-279. (See also National Tertiary Education Industry Union v Community & Public Sector Union (1999) 93 IR 365 at 411-412) that: where, by reason of non-compliance with Regulation 33 an application for registration is so defective that it would not constitute an "application", the designated Presidential Member has the power under s 111(1) to allow an amendment or a correction which would bring the application into compliance with the requirements of that Regulation. There is also much to commend the view that "in registration cases every effort should be made to assist applicants to overcome purely technical objections" (Re Air Pilots' Guild of Australia (1970) 133 CAR 65 (Aird J)). 94 Accepting as I do that the powers conferred by paras (p) and (r) of s 111(1) are available, it must also be accepted that their exercise is discretionary, to be exercised in the circumstances of a particular case. It may be that, in registration cases, they should be exercised only for the purpose of allowing "purely technical objections" to be remedied. Be that as it may, it is possible that any defects that may exist in the registration application might be remedied so as to bring it into compliance with the requirements of reg 33. Factors which might be taken into account for the purposes of determining whether or not the powers should be exercised would, in my view, include the nature and extent of the non-compliance with reg 33, the level of unfairness to the applicant association in not exercising the powers and the degree of prejudice to objectors if the powers were to be exercised. 55The next issue considered by Williams SDP was whether or not the applicant association could now alter its rules. At [98] his Honour acknowledged. "It is now well accepted that, subject to the constraints and restriction imposed by legislation, the content of the rules of a registered organisation is primarily a matter for the members", citing numerous authorities. Further, the members of an unincorporated association were entitled, subject to public policy issues perhaps, to determine the content of the rules of that association. Once the rules had been determined, the contents of those rules meant that they bound the members of the association. His Honour then concluded that, with the coming into operation of the rules filed with the application, the interim officers no longer held office and there was no body established under the rules in existence that otherwise had power to alter the rules. 56His Honour then noted, at [101], that there were authorities supporting the proposition that an unincorporated association had the capacity to alter its rules by unanimous agreement of its members or by something less than unanimous agreement followed by the acquiescence of members. His Honour referred to Harington v Sendall [1903] I Ch 921 and in Re Tobacco Trade Benevolent Association [1958] 1 WLR 1113. In the Harington case the view was taken that a majority of members could not alter the rules in the absence of a provision for amending a particular rule. In the Tobacco Trade case it was decided that, in certain circumstances where there was no power to alter rules but 11 years after the association was formed, the resolution passed at a general meeting purported to regulate the method for altering rules. The Court held that the association began with no power to alter its rules and that such a body could not alter its rules by its own motion, except possibly by the concurrence of every member of the body. After citing these cases his Honour then considered further authority in [102] et seq: 102 In Abbatt v Treasury Solicitor [1969] 1 WLR 1575, a club, when it was formed, had a set of rules but those rules did not contain any power of amendment. Some years later, pursuant to a resolution carried at a special general meeting, it changed its name and adopted a different set of rules. The new rules were sent to all the members and no-one of those members objected. In the view of Lord Denning MR, whilst it was true that the old rules contained no express power of amendment " ... it was implied that the members could, on notice, by a simple majority in general meeting, amend or alter the rules" and that, if members not present at the meeting or present at the meeting but opposed to such alterations "take no objection to it - but instead by their conduct acquiesce in the change - then those rules become binding on all." 103 However, each of the above cases was concerned with a situation where the rules of the association did not contain any express power of amendment. 104 In Re Producers' Defence Fund [1954] 1 VLR 246, an association had been formed with the object of resisting attempts by farm workers to obtain an award or determination fixing rates of wages for their work. Subsequently, a concern arose that the existence of the association might facilitate the making of an award. The association's council resolved amongst other things to disband the association. Under the rules, the council did not have the power to dissolve the association although it did have the power to alter the rules. It could, therefore, have altered the rules to give itself the power to dissolve the association, but it did not do so. The Court considered that it was a proper inference to be drawn from the subsequent history that "all the persons who were the members of the Association at the date of the passing of the resolutions subsequently consented and agreed to the Association being dissolved, and its funds applied in accordance with the resolutions." (At 249). It went on to hold that, at the time that the council carried the resolutions, "it was open to the existing members, by the consent of all, to dissolve the Association and to dispose of its funds in the manner set out in the resolutions" and that, although the council's disbandment of the Association was in excess of its powers, the Association had been dissolved. (At 254). 105 In Master Grocers' Association (Victoria) v Northern District Grocers Co-operative Ltd [1983] 1 VR 195, one issue was whether or not, in the absence of some provision in the rules, an unincorporated body can be dissolved or amalgamated with another body by the agreement of all or something less than all of its members. The rules did not contain an express power to dissolve the association. They did, however, contain a provision that allowed for the rules to be altered by a specified majority at a general meeting. The Court found that such a provision enabled the rules to be amended so as to provide for dissolution and/or amalgamation but that any such amendment must be made in accordance with the requirements of that provision. The Court did find that "unanimous agreement to dissolve will, whatever the rules may say, always be effective". That statement does not, however, denigrate from the Court's earlier observations that, in so far as rule amendments are concerned, an express provision in the rules must be followed. (At 203). 57The Commission would agree with the comments of Williams SDP in the Surgeons' case and his reliance on the comments of Aird J that, in dealing with the registration of organisations, technicalities are to be avoided and applicants for registration should be given the benefit of discretionary powers, such as amendment, in order to rectify any shortcoming concerning their formation or operation. It is to be noted that s 219(5) of the IR Act allows the Registrar to grant leave to the applicant to amend the application including, for the purposes of a change in the name or the rules of the organisation, in meeting an objection to its registration. 58The Commission also agrees with the comments of Williams SDP that in many of the earlier Federal cases dealt with by industrial registrars, a much stricter approach to these technical arguments was accepted: that approach was explicable by the fact that registrars appeared not to have jurisdiction or discretion to allow amendments in order to meet technical objections. Members of the Commission, of course, had a much wider and generous power of amendment available to them allowing technical objections to be addressed and rectified. (c) Relevant Texts 59The notion that unincorporated Associations must have rules and must strictly comply with their rules is a theme that runs consistently through the submissions for the HSU. There are a number of authorities, however, that suggest otherwise. In Joske's Law and Procedure at Meetings in Australia, (8th ed, ES Magner, (1994) The Law Book Co Ltd), the learned author deals with informal consent to a decision requiring resolution under the articles of incorporated bodies and the same approach being open in relation to unincorporated associations. The learned author Jean Warbuton, Unincorporated Associations: Law and Practice 2nd ed (1992) Sweet and Maxwell, stated at page 1: Whenever several people join together to carry out a mutual purpose, otherwise than for profit, an unincorporated association comes into being. An unincorporated association is founded by the agreement between the members, no further steps such as registration are needed. At p 11, dealing with the rules of such bodies, the learned author said: There is no legal requirement for an unincorporated association to have a formal constitution or written set of rules. An association are quite capable of existing without one. Unincorporated associations are based on contract and oral contract is quite sufficient. In relation to that commentary, it is to be noted that the author deals with the state of the English law and that in Australia the decision of the High Court in Cameron v Hogan would apply. 60In relation to the formation of unincorporated associations, in the text Associations and Clubs Law in Australia and New Zealand, (3rd ed (2010) A S Sievers, Federation Press), it was stated at pp 1-2 in [1.1]: A voluntary association is formed when individual persons decide of their free will to join together and thus does not include groups such as military units (re Edi's Trusts, Campbell-Smith v Davies [1972] 2 All ER 769). ... Any number of individual persons may form an unincorporated non-profit association by agreeing to associate together, for a particular purpose or purposes, with the intention that the association will continue as a factual entity although the original may be replaced by others. 61In relation to the amendment of rules of unincorporated associations, at [2.1.4] the author states: An unincorporated association is not a separate legal entity so the members acting unanimously or according to whatever procedure is prescribed in the association's rules may make any alterations they wish to the association's name. purposes, objects or rules. Company law doctrines such as ultra vires have no relevance to an unincorporated association because, as Fullagar J said in Williams v Hursey (1959) 103 CLR 30 at 66: [t]he capacity of an unincorporated society can depend on nothing but the capacity of its individual members. In the same paragraph, the author noted that in the absence of a clause laying down a procedure for altering or amending the rules, there had been a traditional view that the rules may only be altered by the unanimous consent of all members of the association. Having cited three cases between 1903 and 1999 that adopted that approach, the author then stated: However, some courts have adopted a less rigid approach and have upheld amendments agreed to by a majority of their members even though there is no procedure for amendment in the rules. In Abbatt v Treasury Solicitor [1969] 3 All ER 1175, the English Court of Appeal upheld the validity of a majority decision by the members to alter the rules when an association, in circumstances where it appeared that the dissenting members and those who had not voted, had acquiesced in the decision of the majority. Other modern cases tend to support this pragmatic approach but it is still not clear whether a court would, in all the circumstances, uphold an amendment agreed to by a majority of the members of the association's rules did not include a procedure by which those rules could be amended (see in particular the judgment of Brooking J in Master Grocers' of Victoria v Northern District Grocers Co-Operative Ltd [1983] VR 195). In some cases the courts have upheld the vote of the majority of the members in favour of dissolving an association on the grounds that the remaining members who had not participated in the vote had acquiesced in the decision (see Reproducers' Defence Fund [1954] VLR 246; Re K G N Bolts and Nuts Sports and Social Club [1982] 2 All ER 855). 62In par 2.1.5, the author dealt with the effect of the rules of an association noting that the High Court in Cameron v Hogan stated that members could not maintain a legal action alleging a breach of the rules of an association "except to enforce or establish some right of A proprietary nature." It was noted that Cameron v Hogan had not been overruled but had been distinguished in numerous more recent cases dealing with the rules of association where a person's profession, livelihood or reputation was at stake. In this context the author stated: There is now little doubt that a court will find that the rules of a body such as professional sporting associations or trade associations were intended to create a legally enforceable contract between the association and the members. However, in circumstances where there is no connection or relationship of any kind between an association and a profession, livelihood or reputation of its members and the association has no property in which a member can be said to have an interest or a proprietary nature, the court may still decide that the relationship between the members and the association is purely consensual and the association's rules should not be legally enforceable. 63In par 2.1.6, dealing with the management of the affairs of unincorporated associations, the author noted that, while the rules of most unincorporated associations provided for the body's activities to be managed by a committee, especially where there was a small and stable membership, the association may wish to make all decisions on a collective basis. 64Numerous cases were referred to in argument as reflecting a strict approach to the operation of unincorporated bodies in circumstances where they have applied for registration as an organisation under industrial legislation. Many of those cases turned principally upon what were described as mandatory provisions of the relevant legislation and therefore have to be approached with that factor in mind. 65 It would be an error, however, to approach the functioning of unincorporated bodies as if they were strictly bound in their operation as registered organisations under industrial legislation or corporations. As noted in Halsbury's Laws of Australia, in theory, the simple mutual understanding of the members is all that is necessary for the formation of an association. It is therefore not necessary for the association to have a name or although that is a usual occurrence as identifying its purposes. It is for the members of the unincorporated association to agree to join together to form the body and it is totally a matter for the members to decide amongst themselves whether it should have formal, written constitutional rules. It is, of course, trite law that an unincorporated association is not a separate legal entity and therefore has no capacity to be a party to a binding legal contract (see, for example, Peckham v Moore [1975] 1 NSWLR 353; Ermogenous v Greek Orthodox Community of SA, Inc (2002) 209 CLR 95). Halsbury's further notes that, with very few qualifications, the content of the rules and the terms and conditions on which persons are admitted to membership of an unincorporated association are for the members alone to determine. It is not necessary for unincorporated associations to have a name in order to function. 66A number of other well-known texts have also carried commentaries on this topic. * N E Renton in, Guide for Meetings and Organisations, (4th ed, (1985) Law Book Co Ltd) at [902] commented that a written constitution, "while not strictly essential", was very desirable. The author continued: An organisation can, however, be governed by a mixture of rulings from the chair, precedents from the past and resolutions carried from time-to-time as specific problems arise. ... To the extent that an organisation has no Constitution, or that a particular subject is not covered by the Constitution, common law would apply except in respect of any matters determined by resolution. ... Earlier at [111], the author stated: Procedure can also be governed by the custom of the organisation itself. Precedents are, of course, not binding, but in practice they form a useful guide. If custom is at variance with the written rules, the latter must prevail, although such a position would indicate that it might be desirable to amend the rules. Nevertheless, custom should always be taken into consideration in interpreting ambiguities in the rules. At [911.7] lack of a quorum is dealt with as follows: In the absence of a quorum, an informal meeting can be held, any business transacted being ratified by a formal meeting held later. * M G Horsley in The Law and Administration of Associations in Australia,[ (1976) Butterworths] deals with unincorporated associations in ch 5 at p 55. In [501], the author stated: An unincorporated association has no existence in law: it is neither a natural person nor an artificial person. It is not a legal person and yet it is not illegal ... Although an unincorporated body is not a legal entity, the courts recognise that membership of defined groupings of people is a normal part of community life and that the resultant unincorporated, non-profit associations have legal consequences. ... The unusual characteristics and indeterminate legal nature of unincorporated voluntary associations, as compared with partnerships, means that there is no precise law which regulates their way of life. However, there is a limited body of case law which is available as guidelines, although the courts do not look on an unincorporated association as a body with any rights or obligations which are distinct in a separate way from the rights or obligations of its members. In [502], dealing with the advantages of an unincorporated association, the author states: Unincorporated associations are not regulated, in the detailed conduct of their affairs, by the various requirements of an Act and its Regulations, amendments to which may occur from time to time. In particular they do not have to comply with specific requirements at the outset before incorporation is achieved. They do not need to undertake and comply with the formalities associated with registration and incorporation involving legal advice as well as documentation. * Halsbury's Laws of Australia, dealing with voluntary associations, contains the following entries: [435-40] Unincorporated associations. Although in theory an unincorporated not-for-profit association may exist without a name, the decision of the first members of an association to adopt an identifying name is an important element in their agreement to form an association that the members regard as having a separate identity, at least in a social sense, from the members as individuals. ... (At footnote 5, the Commentary states that, if the rules of the association do not include a procedure to be followed when altering the association's name, there is considerable doubt as to whether such a change may be validly made by a majority of members where unanimous agreement is necessary). [435-50] In theory, nothing more than the mutual understanding of the members is necessary for the formation of an association. However, in most circumstances, the members will usually decide to agree to give the association a name and to adopt at least a rudimentary constitution or rules. The members have complete freedom to decide the matters which will be regulated by the constitution or rules. [435-95] The members of an unincorporated association agree to join together to form the association. Whether the association has a formal written constitution or rules is normally a matter for the members to decide amongst themselves. The first members of an unincorporated association will usually agree to adopt written rules but this is not essential and there are many unincorporated associations which have continued for many years without written rules. [435-300] The members of an unincorporated association are bound together for a common purpose or purposes by mutual undertakings inter se to carry out such purpose or purposes and to comply with the mutual rights and obligations which are stated in the rules of the association. The basis of this relationship is generally accepted to be consensual but it is unclear in Australia whether, in all the circumstances, the rules of a voluntary, unincorporated association will be construed as creating a legal enforceable contractual relationship between the members. With very few qualifications, the content of the rules and the terms and conditions on which persons are admitted to membership of an unincorporated association are a matter for the members alone to determine. * The Laws of Australia (Legal Online) dealing with unincorporated associations at TLA [4.8.1200] noted: Unincorporated associations are formed when persons who share a common lawful purpose agree to further that interest by collective action. The association is formed by the voluntary action of those people who agree to its formation and the terms of association. At TLA [4.8.1210], it was stated: The terms of association ... are matters to be determined by the members. In some cases, an implicit agreement to work towards the attainment of a particular goal might suffice but in most cases, a body of rules will be developed ... At TLA [4.8.1320], dealing with the management of unincorporated associations, the following commentary is provided: Management of an unincorporated association is determined by the members in accordance with its constitution. While it is possible that in the collective membership a particular person could be vested with executive authority, most associations confer management powers on an elected or appointed committee of management. 67While it is usual that the meetings of unincorporated associations are to be convened and conducted in accordance with the rules, where there are no rules, the common law regulates how a meeting is to be called and conducted. The common law will usually require reasonable notice of the meeting, the matters to be set out in the notice, the conduct of the meeting, the appropriate election of a chairperson and voting: validity of the association, however, is not called into question. (d) Ratification 68In the Surgeon's case, Williams SDP considered that the doctrine of ratification was available to unincorporated associations, especially, in order to meet technical objections in registration cases. In Australian Education Union v Lawler [2008] FCAFC 135, Jessup J came to a similar conclusion as a matter of principle: [221] The union's next point was that, by reason of the alleged irregularities to which I have referred, the federation became legally "defunct" at some stage after 13 February 1998. What was involved in this idea was that, by reason of persons subsequent to the original 67 not properly joining the federation, or by reason of any or all of the members losing their financial status, the governing organs of the federation were not, at the time of later events which became relevant, properly constituted and, therefore, that the federation was incapable of governing itself. However, valid these propositions may be as far as they go, I do not think that there is any way in which they could lead to the conclusion that the federation did not exist as an association at all, even if it had no more than 67 valid members. As it happens, I take the view that the federation's members at the time of its application for registration included at least such of the attachment A applicants as had not resigned their membership. To state this conclusion here is, however, to anticipate a subject to which I shall return. [222] Although it is perhaps not strictly necessary to decide the point, I would add that I am quite unpersuaded that the irregularities in the operation of the federation which the union alleges, even if established, would justify the conclusion that the federation was, at the relevant time, "defunct" in the sense of having ceased to exist. The evidence before the commission (which was to no extent controverted by the union in this court) was to the effect that the federation had in fact continued to function and operate as an association of employed principals at all relevant times. It was the validity, rather than the fact, of that existence and operation which the union called into question. That a voluntary body of persons who in fact adhere together and act in combination might do so in a way that involves all manner of irregularities or, indeed, invalidities, does not, in my view, inevitably lead to the conclusion that the body itself has at some point become defunct. Such a conclusion would be inconsistent with the possibility that, recognising the irregularities and invalidities, persons, however few in number, who were in fact, or who had been, members of the body might, by a new consensus, either ratify things purportedly done in the name of the body, restructure the body in such a way as to restore validity to the acts of its purported officers, or take some other appropriate step. What might be done in such circumstances would, it seems to me, depend entirely upon the desires of those who, according to normal principles of civil law, had recognised interests in the property of the association or some other legitimate basis upon which to call for the restoration of the integrity of the association. I mention these possibilities not because I have reached the point of thinking that they would be appropriate, or even open, in the case of the federation, but merely to demonstrate how far the union's factual case stands from the point at which it might be possible to conclude that the federation had become defunct in the sense of having ceased to exist. 69A number of legal texts have considered the operation of the principle of ratification. The Laws of Australia states: Ratification refers to the approval of an act originally done without authority. Where the act has been done by a person expressly on behalf of another, though without prior authority to do so, and is subsequently ratified by that other person, the relationship of principal and agent or the relevant authority is constituted retrospectively, and the act is as valid and as effectual as it would be if it had been done with prior authority. The doctrine applies regardless of whether the intermediary was an agent exceeding authority, or was a person having no authority at all. The act is not merely validated from the date of ratification, but takes effect from the time of the agent's act. 70The retrospective effect of ratification has long been accepted (see Bolton Partners v Lambert (1889) 41 Ch D 295. The Laws of Australia also contains the following: Generally, every act, whether lawful or unlawful that is capable of being done by an agent is capable of ratification by the person on whose behalf it is done. An exception to the rule is that acts which are void cannot be ratified. The main application of the rule concerning void acts in the past has been in relation to companies. As the doctrine of ultra vires in relation to companies has now been abolished, the scope of the rule may not be very great. However, acts which are merely voidable are not legal nullities, and before avoidance takes place they can be ratified. Generally, ratification will need to occur within a reasonable time: what is a reasonable time may depend upon the circumstances. The majority of the Court of Appeal in Presentaciones Musicales SA v Secunda [1994] Ch 271 held the act of issuing a writ without authority and without ratification was not a nullity and therefore the nominal plaintiff was entitled to ratify and adopt the action notwithstanding the expiration of the limitation period. 71In Australian Contract Law Commentary( LexisNexis), in dealing with unincorporated associations at [38-550] it was noted that unincorporated associations did not have separate legal existence and therefore could not be sued or be sued in the association name. After referring to the City of Gosnells and ors v Robert anor the Commentary then continued: The relationship between members of unincorporated associations, such as joint ventures and clubs, will depend on the general law of agency as well as the constituent documents of the association. Agency, in this way, overcomes what would otherwise be the problems arising from multiplicity of parties, both in the making and in the enforcement of contracts, and the need to consider individual disabilities. 72On the subject of subsequent ratification the Commentary at [43-720] stated: The effect of ratification is to rectify the absence of original authority. Ratification is equivalent to original authority - it relates back to the time of the agent's act, so that, in the end, the parties are left in the position they would have been in if the agent had possessed actual authority from the start. Earlier in the Commentary it was stated: To be effective, the principal's ratification of the contract must occur within a reasonable time, but what is reasonable depends on the circumstances and there was no hard and fast rule in this regard. It has been held in two New South Wales cases (Celthene Pty Ltd v W K J Hauliers Pty Ltd (1981) 1 NSWLR 605 at 615; Lifesavers (Australasia) Ltd v Frigmobile Pty Ltd (1983) 1 NSWLR 431 at 438) that, provided it occurs within a reasonable time, the principle can even ratify during the course of litigation, by filing a pleading claiming the benefit of the contract made by the unauthorised agent. ... Except in special circumstances (for example, where the principle effectively has no option but to act in a particular way), if the principal with full knowledge of the facts accepts the benefits flowing from an unauthorised contract that will usually be regarded as sufficient evidence of ratification. Ratification also can be inferred from a knowledgeable principal's silence when acquiescence in the agent's unauthorised acts. The failure to repudiate in good time a contract known to have been made without authority may, because it could induce the contractor to incur a detriment from which he or she can no longer be extricated, be treated as cogent evidence of an intention on the part of the principal to adopt the contract. 73In G E Dal Pont, Law of Agency, 2nd ed, Australia, (LexisNexis 2008), in Ch 5 the learned author deals with ratification of legal proceedings commenced by an agent, stating: [5.51] An interesting application of the above principles is where a person commences legal proceedings purportedly for a principal, and the principal subsequently ratifies those proceedings. The basic law applicable in this context was stated by Jenkins LJ in Danish Mercantile Co Ltd v Beaumont: [A] solicitor who starts proceedings in the name of a [client] without verifying whether he has proper authority so to do, or under an erroneous assumption as to the authority, does so at his own peril, and ... so long as the matter rests there, the action is not properly constituted. In that sense, it is a nullity and can be stayed at any time, provided that the aggrieved defendant does not unduly delay his application; but it is open at any time to the purported plaintiff to ratify the act of the solicitor who started the action to adopt the proceedings, to approve all that has been done in the past, and to instruct the solicitor to continue the action. When that has been done, then, in accordance with the ordinary law of principal and agent and in accordance with the ordinary doctrine of ratification, in my view, the defect in the proceedings as originally constituted is cured; and it is no longer open to the defendant to object on the ground that the proceedings thus ratified and adopted were, in the first instance, brought without proper authority. 74In Joske's Law and Procedure at Meetings in Australia" (8th ed by E S Magner, (1944) Law Book Co Ltd) the author (at 156-157) dealt with the notion of informal consent: In Re Express Engineering Works Ltd [1920] 1 Ch 466, the company had five directors who were also the only five members of the company. At a meeting of the board of directors the five directors unanimously agreed that the company should buy certain property of the directors. Such a transaction, under the articles, required the approval of the members. The Court of Appeal said that all the members had given their assent at a meeting and it was immaterial that the meeting was a board meeting and not a members' meeting. ... The case of Parker and Cooper Ltd v Reading goes further than Re Express Engineering Ltd and cannot be reconciled with Re George Newman & Co Ltd. It decides that if the assent of all the members is given to a course of action, it does not matter that the consent is given at different times and not at a meeting at all. In this case all four members of a company, at different times, approved the giving of security by the company for a loan. Astbury J said that the assets were equivalent to the consent of a general meeting. ... In Perseus Mining NL v Landbrokers Pty Ltd [1972] WAR 12; (1973) 47 ALJ 98, Wickham J clearly considered that Parker and Cooper Ltd v Reading stated the law correctly. In Perseus, by an apparent oversight, the articles made no provision for the appointment of the first directors of the company. Wickham J held that the unanimous consent of all the members to the appointment of certain persons as directors was effective for that purpose even though there had apparently been no meeting. There must, however, be actual consent. The fact that the members could have given their consent and probably would have given it if the question had been put to them is not enough if, in fact, they did not consent. 75As discussed, the doctrine of ratification is available to the applicant organisation to address a number of the technical objections raised by the objector, HSU. It might also be observed to be a curious result that the HSU, as a stranger to the applicant organisation could, nevertheless, have standing to raise matters going to the existence and operation of EMSPA (NSW) when members of that organisation arguably have no standing to litigate the same issues: however, it is unnecessary to further consider or determine that question. It accords with the law and common sense that the applicant organisation has access to procedures such as amendment and doctrines such as ratification (and possibly other avenues) in order to meet any irregularities in its formation or operation. (e) "Organisation"/unincorporated association 76The arguments in this case have focused on the applicant as an unincorporated association: it should be observed that Ch 5, Pt 3 of the IR Act, dealing with the registration of organisations, does not in terms require an applicant to meet the description or, establish that it is, at law, an unincorporated association. Part 3 deals with the registration of "organisations" and s 217(1) identifies "organisations" that may apply to be registered under the Chapter. Section 218 deals with the criteria for registration of an "organisation" that meets a number of identified criteria, such as being a genuine organisation and being an organisation for furthering or protecting the interest of members. The Dictionary to the IR Act does not define the term "organisation" simpliciter. The Dictionary defines "industrial organisation" as meaning an industrial organisation of employees or an industrial organisation of employers, while "an industrial organisation of employees" is defined to mean an industrial organisation of employees registered, or taken to be registered, under Ch 5. These definitions, clearly enough, refer to a body already registered and not to the "organisation" that may apply for registration. The Macquarie Dictionary defines the word "organisation" relevantly to be "a body of persons organised for some end or work." 77Having regard to the use of the word "organisation" in Ch 5, Div 1, it is not readily apparent why such a body has to meet strict criteria appropriate to constitute an "unincorporated association", especially when s 217 and s 218 of the Act between them lay down a number of requirements to be met by an applicant organisation yet nowhere is it required that the applicant organisation be a body that meets the legal definition of an "unincorporated association." The choice of such a broad term as "organisation" is also significant having regard to the long history of technical objections being pursued in the Federal jurisdiction that, in effect, required an applicant to be an unincorporated association. The IR Act continues the use of the word "organisation" following deregistration under s 228. A body deregistered by operation of sub-section (3)(a) ceases to be a body corporate under the Act but does not cease to be an "unincorporated organisation." The choice of the word "organisation" in the IR Act appears to be deliberate and not merely the result of happenstance. (f) Overview 78This extensive consideration of authorities regarding the nature of an unincorporated association became necessary because of the varying approaches adopted by different courts and tribunals over the years. So far as it is pertinent to the present case, the preponderance of authority supports the conclusion that the existence of rules and a name is not an indispensable requirement for the formation of an unincorporated association. The authorities consistently accept that an unincorporated association comes into being when a group with a common purpose meet to establish a body to achieve that purpose. The cases draw a distinction between that type of body and an amorphous group that comes together from time-to-time but without the same level of purpose as would amount to forming an unincorporated association. The term "association" itself is a word of wide import as drawn to attention in Kibby. In addition, considerable licence is accorded to unincorporated associations in their operation: a variety of mechanisms are available to correct unauthorised acts or omissions. 79In addressing the requirements of Ch 5, Pt 3 of the Act, the Commission is satisfied that the applicant is "an organisation of employees." It came into existence so that the members of the incorporated association could register an industrial organisation of employees under the Act. The purpose of registration was to give it audience before the Commission on industrial matters and further the industrial interests of persons employed by the AS as paramedics and paramedic support staff. It was, then, in every sense, a body organised for a particular end. The extent of its organisation on its formation was that it had executive members and had an arrangement with the unincorporated association whereby financial support would be received for the purposes of obtaining registration as an industrial organisation of employees under the Act. On this approach, the first tranche of technical objections as to formation without rules are without foundation. The validity of formation is considered in detail in the following paragraphs. WAS THE APPLICANT ORGANISATION VALIDLY FORMED? 80This matter was put forward by the HSU as a fundamental question. There are other related matters raised by the HSU and they will be dealt with separately. In summary, the HSU's argument was that there was no discernible meeting of a group of people who wished to form the association evidenced by a resolution to that effect and there was no evidence of any rules of the association such as to permit an interim Executive to operate. This submission requires, firstly, an analysis of the motions adopted by the extraordinary general meeting of the incorporated association held on 1 August 2012 and then the minutes of the apparently joint meeting held later that day by the Executive of the incorporated association and the unincorporated association. Secondly, the submission requires an analysis and application of the relevant legal principles and the authorities concerning the nature and flexibility of the operation of incorporated associations. To fully understand the argument the minutes of those meetings are reproduced in the following pars: Extraordinary General Meeting 1 August 2012 at 10.12 am Nominations * The nominations of Mr Paul Reason and Mr Wayne Flint were confirmed to the meeting. * A letter from Mr Reason withdrawing his nomination dated July 30 was read to the meeting. * Mr Flint was appointed to the position of Secretary/Treasurer unopposed Discussion 1. The purpose of the proposals for voting and the calling of an extraordinary for the members was outlined and opened to the floor. 2. It was outlined to the meeting of the need for these proposals to be considered and voted upon to refine the EMSPA NSW Rules and Regulations in addition to obtaining the directive of the meeting to proceed with a registration application to the Industrial Relations Commission NSW in accordance with the Industrial Relations Act 1996 3. A number of individuals spoke from the floor in favour of the motion. No one spoke to the negative of the proposals offered to the membership in accordance with the existing rules and by-laws. Motion 1. This meeting instructs the executive to make an application for industrial registration as soon as practicable and to do all things necessary and in connection to allow an application to be made. 2. Moved Gerry Pyke, Seconded Peter Richards. All in attendance agreed to this change unanimously with no objections. Discussion 1. The floor was open to Shaun Kerrigan (acting for EMSPA NSW to inform the members of the process ahead, the time frames considered reasonable and likely costs. 2. Barrister Ian Latham (acting for EMSPA NSW) addressed the meeting. 3. Q and A then occurred between all parties. Executive Committee Meeting (EMSPA INC) 1 August 2012 at 12.30 pm Discussion * The purpose of this meeting is for discussion on and agreement as to the pathway to Industrial Registration for EMSPA NSW. * To make application to the Industrial Relations Commission for registration in accordance with the Industrial Relations Act 1996 as soon as practicable. Motion This meeting instructs the executive to make an application for industrial registration as soon as practicable and to do all things necessary and in connection to allow an application to be made. Moved Wayne Flint, Seconded Andrew Barton All in attendance agreed to this change unanimously with no objections. Motion 1. The Rules and By -Laws of EMSPA shall be altered as required in line with the requirements necessary to become an Industrially Registered Organisation. Moved W Flint, Mark McElroy, carried unopposed. 2. The executive take the appropriate steps required to satisfy sections 217 and 218 of the Industrial Relations Act 1996 Motion 3. To satisfy the Act as of this date the association by virtue of this motion two entities of mirrored proportion existing of officers and membership known as EMSPA NSW. Its operation as an unincorporated entity will be financed by the EMSPA NSW Inc. as deemed appropriate action by the executive endorsed at the extraordinary meeting conducted on this premises earlier today. Moved, Wayne Flint, Gary Wilson, carried unopposed. Motion 4. EMSPA NSW will conduct monthly management meetings separately to the quarterly EMSPA NSW Inc. Moved W Flint, Mark McElroy, carried unopposed Executive Committee Meeting (APPLICANT) 1 August 2012 at 12.30 pm Discussion * The purpose of this meeting is for discussion on and agreement as to the pathway to Industrial Registration for EMSPA NSW * To make application to the Industrial Relations Commission for registration in accordance with the Industrial Relations Act 1996 as soon as practicable. Motion * This meeting instructs the executive to make an application for industrial registration as soon as practicable and to do all things necessary and in connection to allow an application to be made. Moved Wayne Flint, Seconded Andrew Barton All in attendance agreed to this change unanimously with no objections. Motion 1. The Rules and By-Laws of the EMSPA NSW shall be altered as required in line with the requirements necessary to become an Industrially Registered Organisation. Moved W Flint, Mark McElroy, carried unopposed. 81It is to be noted that the extraordinary general meeting of the incorporated association commenced at 10.12 am. Its purpose was to change the rules and to obtain direction to proceed with the registration application under the IR Act. All members present agreed to the proposals. A motion was then passed instructing the Executive to make application for industrial registration as soon as practical and to do all things necessary and in connection with it to allow the application to be made. That was unanimously agreed to. A general discussion then took place with the legal representatives for the association about the process and the costs. As noted above, this meeting closed at 11.30 am. 82The minutes of the Executive Committee of the incorporated association began at 12.30 pm on the same day. At this meeting, the Executive discussed the pathway to industrial registration and instructed itself, effectively, to make application for industrial registration in identical terms to the authorising resolution of the extraordinary general meeting on the same topic. That was unanimously approved. Then there was a motion for the rules of EMSPA (NSW) to be altered to meet the requirements of industrial registration with the Executive to take steps to satisfy s 217 and s 218 of the IR Act. 83The third motion before the Executive Committee of the incorporated association referred to satisfying the Act, presumably meaning the IR Act. The incorporated association, by this motion, resolved that there would be two entities of mirrored "proportions" existing (perhaps, meaning consisting) of officers and members known as EMSPA (NSW). Its operation as an unincorporated entity was to be financed by the incorporated body as deemed appropriate by the Executive and presumably, as endorsed at the extraordinary general meeting earlier that day. The new body was to conduct monthly management meetings separate to the quarterly meetings of the incorporated association. That resolution was unopposed. 84What is the effect of these two meetings and the motions they passed? It is understood from Mr Flint's evidence that the minutes were not a verbatim record but the mode of expression is somewhat clumsy: the language used, especially in relation to the Executive Committee meeting, is neither neat nor adroit, but having regard to Mr Flint's evidence overall, its intention is unmistakeable. The attack on these minutes and resolutions searches for fault and invalidity but properly approached, the motions are to be given a meaning that they appear capable of bearing, having regard to the surrounding circumstances. 85The background is important in reaching a conclusion as to the effect of these meetings and the resolutions that were passed unanimously. The extraordinary general meeting of the incorporated association endorsed an application for registration as an industrial union and empowered the Executive to do what was necessary to achieve that purpose. At lunch time there was a discussion about alternatives whereby registration was achievable. The incorporated association was receiving legal advice. Undoubtedly, the legal advisers were aware of the provisions of s 217 of the IR Act excluding registration as an industrial organisation of employees of a body already incorporated under the provisions of Associations legislation. EMSPA Inc was such a body. Plan A was to alter the rules of the incorporated body to comply with the IR Act and then de-register it under the Act when registration was achieved under the IR Act. This plan faced a number of problems: even a change in rules could not change it from an incorporated association; further, de-registration as it was called, or winding up as it is dealt with under the Associations Act, prohibits the assets of the body being wound up, being distributed to members, former members or, to any person who would hold the assets on trust for any member or former member. Therefore, the winding up of the incorporated association would deprive it of the capacity of transferring its, not inconsiderable, assets to the industrially registered organisation. 86Plan B was then discussed. That plan involved forming a new unincorporated association for the purposes of registration as an industrial organisation under the IR Act. The effect of the third motion unanimously passed by the Executive Committee of the incorporated association was that those attending formed an unincorporated association for the purposes of the IR Act, a body to be funded by the incorporated association. That action taken by the Executive was authorised both by the extraordinary general meeting and the Executive itself. When that resolution was passed the new unincorporated association came into existence. The Executive of the incorporated association, by this resolution, was to hold the same positions in the unincorporated association. The issue of "carrying across" membership will be discussed later. 87In this context it can be seen that the members of the Executive of the incorporated association, having made these decisions, created the unincorporated body comprising the very same Executive members as its officers. The minutes of the Executive Committee of the unincorporated association refers to the same discussion as to the purpose of the meeting and then adopts a motion in the same terms as the Executive of the incorporated association to make application for registration. The final motion of this meeting of this Executive Committee of the unincorporated association, understandably, having regard to what was decided by the Executive Committee of the incorporated association, resolves that the rules and by-laws of EMSPA (NSW) are to be altered as required in line with the requirements necessary to become an industrially registered organisation. That motion was passed unanimously. It is important to remember, however, that these minutes did not represent a verbatim account of what took place at the meetings. Some confusion is possible as to what was meant by EMSPA (NSW) in that motion but that is resolved by the fact that a resolution in the same terms was unanimously passed by the Executive Committee of the incorporated body. Consistent with the intention that there be a "mirrored" body, this motion then contemplates that the rules of the unincorporated association, when modified, will be the rules of the incorporated body in order to meet the registration requirements of the IR Act. Mr Flint's evidence was that there were no rules of the unincorporated body at the time of the meeting to create that body: that the process had been adopted at these meetings on "legal direction." Mr Flint's evidence was that, at the meeting held between 12.30 pm and 1.00 pm on 1 August 2012, the applicant was formed by those persons who were otherwise the Executive members of the incorporated association. On this scenario, those rules were yet to be prepared and therefore it was not until the meeting of the Executive of the unincorporated association on 8 August 2012 that the draft rules as circulated were accepted as the new rules of the applicant organisation. 88The HSU submits that this process was tainted by the coalescence of the incorporated association and the unincorporated association such as to render the unincorporated association lacking existence in law. There is authority, however, of similar circumstances being found to lead to the creation of a bona fide and valid applicant for registration. In Re Australian Chamber of Manufacturers, New South Wales Branch (1994) 56 IR 313, Maidment J, sitting as the Industrial Relations Court of New South Wales (as it was then known) was dealing with an application for registration under the provisions of the Industrial Relations Act 1991 ("the 1991 IR Act"). The Chamber of Manufacturers of New South Wales pursued objections together with an individual associated with that objector: both objections were substantially in the same terms. The objections raised the relationship between the applicant and an organisation registered pursuant to the provisions of the Commonwealth Industrial Relations Act 1988. As is common in such proceedings, there were a litany of matters raised in objection, including the fact that the association was not a genuine association as required by the 1991 IR Act because under its rules, it was limited to members of a Federal body with associated objections raising the small number of members failing to pay membership fees and the fact that the applicant had been formed and maintained by a federally registered body. 89In evidence before his Honour was a resolution of the national council of the Federally registered union where New South Wales registration was considered together with the options available. It was resolved that the current councillors representing New South Wales form the New South Wales body to suit the requirements of the Act and to seek registration in New South Wales. Other evidence indicated that there was a deliberate limitation in the rules such that the newly registered body would not be employing staff and persons employed by the Federal organisation would perform those duties. 90Maidment J drew attention to two decisions of the Industrial Commission of New South Wales as being relevant and although the passages are lengthy, it is appropriate to substantially reproduce them because of their assistance in determining this important issue in the present proceedings. Between pp 320 and 323, his Honour stated: In 1963 the Commission, Richards, Cook and McKeon JJ in Re Electrical Trades Union of Australia, New South Wales Branch[1963] AR 796 considered an appeal against a decision of the Industrial Registrar under the Trade Union Act 1881(NSW) approving registration of an association formed by seven members of a federally registered organisation which was supportive of the registration application. The Commission said at 811: We said earlier in these reasons that associated with the ground of appeal that the applicant union is not a bona fide trade union of employees was the assertion that the applicants were not competent applicants. The contentions of the objector on those matters were that the real applicant was still the State branch of the federal organisation; that the purpose of its application was to overcome the organisation's failure to have the New South Wales union - we use that ambiguous phrase advisedly - adopt the rules which the Federal Council had decided upon in 1959; that proof that the applicant upon [sic] was the same body as the applicant in the earlier application was furnished by the fact that between the date when this present application was lodged and the decision of the Commission in the appeal relating to the earlier application, the present applicant union had been wholly inactive; that all the work which, since December 1962, had gone into the recruiting of members of the applicant union had been carried out by paid officials of the State branch of the federal organisation; that the purported reimbursement in March 1963 of that State branch by the applicant union was authorised by persons who were officials of the State branch and was, therefore, a payment by the State branch to itself; and that the applicant union had never functioned as a trade union at any time. In our opinion, there is nothing of substance in any of those contentions. ... It surely is perfectly legitimate and natural for a federal organisation with members dispersed throughout the States to be zealous and active to gain for those members not only benefits available under Commonwealth law but also benefits available under the law of a State. It seems to us that that is just what the federal organisation's attitude was in this case. Having reached the conclusion, as was said in the earlier proceedings it did and as we believe it did, that the affairs of what had been in reality a registered trade and industrial union in New South Wales were in such a state that the registrations were called for, the federal organisation, through its Federal Council, took what seems to us was an obvious course. Clearly the simplest step in the course to obtain fresh registration in New South Wales, provided it was a step that could be validly taken, was the step it took, namely, to seek to have its branch in New South Wales registered as a trade union, and later as an industrial union, under the State laws. The branch was a ready-made association of employees associated together for their common industrial good. Why, if it was not necessary to do so, organise another association? That the organisation failed in the step taken was the result only of what this Commission held to be the law that related to the application that was made. The federal body, however, had apparently been alerted to the possibility of failure of that first step on legal grounds, and its request, or for those who prefer it its direction, to seven of its New South Wales members to form a new trade union with themselves as the nuclei and to register that trade union under State law was no more than a prudent alternative. We think that this present application is not tainted by any mala fides emanating from the federal organisation. We think, too, that nothing adverse to the applicant union flows from the fact that when the application for registration was made the number of members was seven. The statute allows for an application by seven persons, and it does not specify any other minimum membership. Nor does anything adverse to the applicant union arise from the fact that, between the date of this application and the date when this Commission passed final judgment on the application by the branch for registration, the applicant union was inactive. How unwise it would have been to have actively canvassed for members for the applicant union so long as the possibility of its being a superfluous trade union existed, for it would have been a superfluous trade union had the application made by the branch finally succeeded. On the proven facts the real applicants in this case are individuals, and the facts that they are members of the federal organisation and have acted at the will of the Federal Council of that organisation do not matter. What alone is to the point is that as individuals they are genuine, we are satisfied, in their desire to have themselves and their employee colleagues in their industry function as a registered trade union in this State for purposes of improvement of their conditions of employment, and for such other benefits as may flow to trade union members generally. The manner of the growth of the applicant union calls for no strictures. The help the promoters received from the federal body was very substantial but it was not improper, and, if one looks at the realities of the case, it might well have been expected. ... All these factors lead, in our opinion, to the conclusion that the applicant union is a bona fide trade union of employees. It follows that the objector's second ground of appeal also fails. In 1980 the Commission, Cahill, Watson and Liddy JJ, in Re Shop Distributive and Allied Employees' Association New South Wales [1980] AR 384 considered an appeal against a decision under the Trade Union Act granting registration of an association (the O'Neill trade union) fostered by a federal organisation and said at 391: In the first place it is plain, we think, that the federal organisation, including its State branch, has been genuine in its efforts to enable its members in New South Wales to participate in the trade union and industrial relations systems established under the laws of this State. It has openly pursued that course by seeking, as a first objective, to secure registration under the Trade Union Act of the State branch, if that were able to be legally achieved, and, alternatively, registration under that Act of a separately-formed trade union with broadly similar objectives and eligibility provisions as the branch, the obvious intention being, of course, in the alternative event, that members of the State branch would also be enabled to become members of that new State trade union. We can find no lack of bona fides in that course of action and we also do not agree with a contention by Mr Sweeney that the actions taken by the federal organisation in some way seek to avoid the necessity for it to comply with sections of the Commonwealth Act providing for autonomy of branches of organisations and separate funds for those branches. ... Thirdly, we have no criticism to make about the support and assistance given to the new trade union in regard to its establishment and its application for registration under the Trade Union Act. On this aspect we have the same general views as those expressed by the Commission in Court Session in the Electrical Trade Union Case concerning the help given to the fledgling State trade union, Electrical Trades Union of Australia, New South Wales Branch, by its federal sponsor. Finally, we do not regard the O'Neill trade union as lacking bona fides as a trade union of employees because of a continuing need in practice to avail itself of the support, financial and otherwise, of the State branch of the federal organisation. That support has been given and is still available is crystal clear from the detailed evidence of Mr O'Neill who, in addition to being secretary of the new union, is also the secretary of the State branch of the federal organisation. 91Having regard to the cases and analysis referred to above, the Commission is satisfied that an unincorporated association was brought into existence on 1 August 2012 by the actions of the Executive Committee of the incorporated association. Their purpose in doing so was to promote the achievement of industrial registration of an organisation of employees under the IR Act. It is of some significance that Mr Flint's evidence was that the members had been kept informed of the registration process and that the Executive was doing what the members wanted. There was no challenge to that evidence. No member or purported member has come forward to challenge the existence of the applicant organisation or its registration application. WHO ARE THE MEMBERS OF THE APPLICANT ORGANISATION? 92As earlier recorded, Mr Flint's understanding was that once the Executive Committee had established the new body with "mirrored" members and officers, then, not only the Executive members but all the members of the incorporated association became dual members of both associations. There is nothing extraordinary about that concept of dual membership and it is well known to registered organisations that operate in both the Federal and State industrial field. The difficultly with Mr Flint's understanding is that he was unable to identify any rule of the incorporated association which permitted the Executive to transfer membership to some other body. There may be a number of ways in which this could be achieved but in the absence of such authority directly authorising dual membership, on balance, it must be concluded that there was no authority in the rules to do so. 93Mr Flint relied upon the broad terms of the resolution authorising the Executive Committee of the incorporated association to take all steps necessary to achieve industrial registration but it is a step too far to construe the admittedly broad terms of that resolution to also, without specific authority, transfer members to another body. As Young J stated in Ball v Pearsall, the general law is that, normally, a person must be consulted on his rights unless he has appointed agents to exercise those rights for him. The applicant has not suggested that an agency arrangement operated under the rules of the incorporated association such as to allow a transfer of membership. Having heard the evidence from a number of members of the incorporated body and having observed a continuing large attendance of paramedics during the hearing of this application it might very well be the case that, if specifically asked, the majority of members or all the members may agree to take that step but that step of requesting authority has not been taken. As previously discussed in relation to the principle of ratification, it may even be available to the members to subsequently ratify the decision of the Executive to create a dual membership organisation for the purposes of registration. Again, that action has not yet been taken. 94Having regard to the composite picture represented by the three sets of minutes debated in these proceedings, the Commission concludes that, when it was created, the unincorporated association was comprised of those people who attended the 12.30 pm meeting on 1 August 2012. Those people also constituted the Executive of the unincorporated association by common consent of all of them and there was no need therefore to adopt a separate resolution nominating an interim committee. This approach may vary from the normal way in which unincorporated associations are usually created and how they make provisions for their governance in the early phases of operation but it does not follow that the course adopted by the people who met at 12.30 pm on 1 August 2012 did not validly create an incorporated association, nor can it be said that they were not the Executive of that association. Indeed, they were the only members of the association and that remains the case until the present time. THE EFFECT OF THE AMENDING LEGISLATION AND THE INTRODUCTION OF CLAUSE 29A OF THE INDUSTRIAL RELATIONS REGULATION. 95The Minister for Industrial Relations intervened to deal particularly with the interpretation and application of the recently amended provisions of s 218 of the IR Act. It was pointed out that the 2012 amendment was designed to allow organisations named in Sch 5 to be registered if satisfying the requirements of s 218(1A) as an alternative to meeting the requirements of the "conveniently belong" test specified in s 218(1)(m). The Minister's Second Reading Speech was pointed to as disclosing an intention to significantly depart from the existing approach to industrial coverage of workplaces by replacing an exclusive coverage approach with the possibility of overlapping coverage in relation to particular classes of employees. In this context reference was made to similar (but not identical) provisions that had applied in the Federal industrial jurisdiction for over 15 years and decisions of the Federal industrial tribunal acknowledging that, in the new provisions, it had to be recognised that a purpose of the Workplace Relations Act was to allow for competition between organisations but discourage demarcation disputes. 96Particular attention was directed to the decision of the Full Bench of the Australian Industrial Relations Commission in Re CPSU (2000) 100 IR 296 at [82] where the Full Bench stated: However, among the consequences of the changes to which we have referred is an increased and explicit statutory tolerance of overlapping coverage between organisations. Another is an encouragement of freedom of employee choice about forms of representation, including freedom to avoid organisations altogether. The changes affecting union registration may be assessed in that perspective. In that perspective, it would be obtuse to consider that the result of the changes must be other than increased competition by and between unions for representative roles and membership. In our view it would also be obtuse to hold that such a result is not the intended purpose and effect of the legislation. It was submitted that those comments were "relatively apposite'' to the recent amendments in New South Wales with the amending provisions attempting to strike a balance between allowing for competition between the applicant and the HSU yet discouraging that kind of competition that manifests itself as a demarcation dispute. It was also submitted for the Minister that the applicant otherwise had to meet the requirements of s 218(1)(a) to (l). 97In relation to the operation of cl 29A of the Industrial Relations Regulation, ("IR Regulations"), it was submitted that Sch 5 to the Act identified the incorporated association while the applicant in the present proceedings did not carry the descriptor "Inc" in its tittle. It was noted that there was controversy between the principal parties as to the claimed "creation of an unincorporated association on 1 August 2012": it was stated that the specific legislative provisions for the inclusion of EMSPA Inc in Sch 5 displaced the general limitation found in s 217(3) and by doing so, Parliament had displaced the general limitation upon incorporated associations and their capacity to be registered. 98The matter, however, was said to be put "beyond doubt" by the newly inserted cl 29A of the IR Regulation. That clause declared that, pursuant to s 217(3), the applicant organisation was "capable of registration as a State organisation." It was further submitted that cl 29A (2) modified the application of s 218 of the Act in respect of the applicant so that a reference in s 218(1)(o) to certain applications was taken to include a reference to the applicant organisation. The Regulation drew upon powers available under s 217(3). The outcome of that provision was that a specified organisation or class or organisations is or are declared capable of registration under Ch 5. That was achieved by cl 29A(1). Further, the application of Ch 5 of the Act was modified in respect of a specified organisation or class of organisation and that was achieved by way of cl 29A(2). Section 217 determined the types of organisations "capable" of applying for registration and s 217(3) permitted the making of regulations in that regard. Section 218(1)(a) required an organisation to be, inter alia, "of a kind that is capable of registration under this Chapter." It was then submitted that the declaration that the applicant was "capable of registration" simply declared that the applicant was capable of registration for the purposes of s 217 and s 218(1)(a) but not for all purposes. This submission is taken to mean that the requirements of s 218 (1)(a) - (n) were still required to be satisfied. 99For the applicant it was initially argued that, to be registered, EMSPA had to comply with the formal requirements set out in sub-section 218(a) - (n), presumably so far as relevant to employee organisations. It was accepted that the applicant must then show either that there is no other organisation to which its members may more conveniently belong and would more effectively represent its members or, the applicant had to provide an acceptable undertaking to prevent demarcation disputes. 100In further submissions, the applicant drew attention to the terms of s 217(3) and submitted that cl 29A of the IR Regulation removed the need to deal with the conveniently belong objection in s 218(1)(m) and (o) and in fact, in relation to any other ground of objection. This result was said to flow from the fact that the Regulation declared the applicant capable of registration. The word "capable" was defined by the Macquarie Dictionary as "having the ability, strength etc to: qualified or fitted for." On its ordinary meaning, the effect of this newly introduced clause in the Regulation meant that the applicant organisation was qualified or fit for registration, in other words, there were no further conditions that were required to be satisfied for registration to occur and no prohibitions against registration existed. 101This construction was said to be supported by the legislative context. The previous provisions for registration were designed to protect the rights of existing unions while the amended provisions were designed to provide for freedom of choice of industrial representation and competitive unionism. 102It was then submitted that, assuming the organisation was fit for registration, the Commission had no residual discretion not to register (Re Australian Chamber of Manufacturers (1993) 50 IR 87 at 101). The applicant had been determined by Parliament to be fit for registration and therefore the Commission should now do so. In the alternative it was submitted that the applicant had to satisfy the criteria in s 218 relevant to an applicant for registration as an organisation of employees and this submission, effectively, had the same effect as the original submission made on behalf of the applicant. 103In the course of submissions for the HSU, it was argued that cl 29A of the Regulation was invalid if it had the effect of adding a new organisation to Sch 5 of the IR Act. The Commission accepts the submissions for the Minister in support of the validity of the new clause in the regulation. Section 217(3) of the IR Act permits, in clear terms, the modification of the application of Ch 5. Under this provision the new clause in the Regulation made it clear that a specified organisation was "capable" of being registered and otherwise authorised the modification of the application of Ch 5. 104Clause 29A provides that the reference in s 218(1)(o) to an application made by an organisation of employees referred to in Sch 5 includes a reference to the application made by EMSPA (the subject of these proceedings) and falls squarely within the substantive head of power. It permits the application of the Chapter to be widened or narrowed. As submitted by counsel for the Minister, Weingberg J in Vanstone v Clark (2005) 147 FCR 299 noted that one qualification to the principle of repugnancy was that the inconsistency may be authorised by the empowering Act - in principle, there was no reason why delegated legislation could not operate to extend the meaning of a term in an Act (see also Donald F Hagens v Old UGC, Inc and ors [2006] NSWIRComm 329 at [22]). The submissions for the HSU to the contrary cannot be accepted. The submissions for the applicant that the new clause resulted in the registration of that organisation being a mere formality cannot be accepted. On its face, the clause did not bring about such a result. 105The Commission accepts the submissions for the Minister, not only in relation to the operation of cl 29A of the Regulation but also in relation to the operation of s 218(1)(o) and sub-section (1A) of the IR Act. The result is that the applicant organisation is declared to be "capable of registration" for the purposes of s 217(1)(a) and s 218 (especially sub-section (1)(a)). Further, in considering the application for registration, the applicant organisation will not be inhibited by the fact that another organisation will enter the field of industrial representation of paramedics employed by the AS: a purpose of the 2012 amendments was to encourage competition between registered organisations and to give a choice to the paramedics in the Health industry as to which organisation should represent them. Schedule 5 to the IR Act is to be taken as applying to the applicant organisation. THE REQUIREMENTS OF s 218 OF THE IR ACT 106Having concluded that, pursuant to s 217, the applicant is an organisation of employees that may apply for registration and it is declared capable of registration, it is then necessary to consider the various provisions of s 218 of the IR Act. 107Section 218(1)(a) requires the applicant organisation to be a genuine organisation of a kind capable of registration under the Chapter. It is to be noted that the effect of cl 29A of the IR Regulation declares the applicant capable of registration. Section 217(1)(a) requires the organisation to be formed for the purpose of incorporation under the Act. It is clear from the minutes in evidence and the close connection between the incorporated body and the applicant, that the applicant was created for the purposes of registration as an industrial union for those who had previously been represented industrially, as far as possible, by the incorporated association. This requirement, in any event, is satisfied by the declaration in cl 29A. As to whether or not it is a "genuine organisation", the fact that it is financed by the incorporated association will not affect its status as a "genuine" body (see the cases previously referred to and considered by Maidment J in Re Australian Chamber of Manufacturers).There is no other evidence to suggest that the applicant is not a "genuine" organisation. 108Section 218(1)(b) requires the organisation to be one for furthering and protecting the interests of its members. Although the applicant is of recent origin, its close connection with the incorporated association cannot be ignored. The incorporated association has, for a significant period of time, organised membership and made representations on behalf of its members to the extent that it was able to do so. It is clearly the intention that those efforts will be taken up by the applicant once it is registered and that the incorporated association will either become moribund or wound up. There appears to be no impediment to the incorporated association passing its assets on to the registered association prior to applying to be wound up. The history of representation of members, including the costs associated with legal representation, while undertaken by the incorporated association, is clear evidence that there is a capacity in the new organisation to act industrially on behalf of its members. The financial support of the incorporated association is no bar to such an assessment and similar arrangements by way of financial support by a Federal industrial body has been accepted as appropriate in the cases considered by Maidment J in the Australian Manufacturers Case. 109Section 218(1)(d) requires an organisation of employees to have "at the time of registration" at least 50 members who are employees. The Commission has already held that the applicant association at present has no more members than those who attended the 12.30 pm meeting on 1 August 2012 when the applicant was formed. The evidence shows that there are in excess of 1300 paramedic members of the incorporated association. HSU accepts that some of its membership also has membership of the incorporated association. The incorporated association's membership amongst paramedics is quite significant although there was no precise evidence as to the total number of paramedics employed by the AS as distinct from managerial or clerical staff and support staff who assist work in the AS. The important factor in this provision, however, is that there must be evidence of at least 50 members who are employees "at the time of registration." Consistent with the approach of Williams SDP in the Surgeons' case and the provisions of s 219(5) whereby an applicant may be granted leave to amend its application for the purpose of changing its rules to meet an objection to registration, that leave should be granted so that the association may adopt rules expanding its membership beyond the current executive members and to meet the minimum requirement of 50 employee members. The Commission will require an affidavit as to the steps taken by the Executive in relation to its rules as well as demonstrating the consent of employed paramedics to join the applicant organisation. 110Section 218(1)(f) requires that the rules of the organisation make provision as required by Ch 5 to be made by the rules of such an organisation. Division 2, Ch 5 deals with the rules and what is required to be contained within the rules of an organisation once registered. The evidence indicates that there has been contact between the applicant and the Registry as to these requirements and as advised, the applicant has made amendments to those rules. The HSU objection originally focused upon the impossibility of the applicant to comply with the provisions because of its status as an incorporated association. Having regard to the determination of the Commission as to the separate existence of the unincorporated association as the applicant in these proceedings, there is no longer any force in that objection. 111In line with authorities that have been referred to at length earlier in this decision, while it is clear that unincorporated associations do not require rules, particularly at the point of formation, an applicant also seeking registration under the IR Act is required to have rules making a number of provisions as set out under Ch 5 of the Act. It is accepted that on 8 August 2012 the Executive adopted rules that had been circulated in draft form. One of the problems with those rules is that they did not directly make specific provision for interim officers to conduct the affairs of the applicant until registration, nor did they make any provision by way of timetable for elections to be held under the rules following registration. The Executive can now attend to this matter because, as pointed out above, the Commission has held that they are presently the only members of the applicant organisation. On the basis of authority earlier cited, the unincorporated association may, by unanimous vote, ratify the election of an interim Executive or, vary or alter those rules as necessary. Leave should therefore be granted to the applicant organisation to amend its rules so as to provide for an interim Executive (namely, those who attended the 1 August 2012 Executive meeting) to conduct the business of the organisation until its registration and then to set a timetable for the holding of the first elections of the registered organisation at an appropriate time following registration. Ideally, that time should not be too lengthy but should allow necessary arrangements to be made for the holding of an election of officers and the term of each office. 112The written submissions for the HSU also point out that there are a number of omissions from the rules claimed by the applicant to be the operative rules. It is suggested that the rules do not make provision for various procedural and administrative matters including, providing for the registered office of the organisation (s 237(1)(q)) and the auditing of its accounts (s 237(1)(r)). Rule 23 makes provision for the removal from office of a committee member by resolution of a general meeting not limited to circumstances in which an officer has been found guilty of misappropriation of funds, substantial breach of the rules or gross misbehaviour (s 237(2). The rules do not require the organisation to inform applicants for membership (in writing)of the financial obligations arising from membership and the circumstances and manner in which a member may resign from the organisation (s 237(3). Rule 19(6) makes provision at the annual general meeting for the election of office bearers and other committee members "in such usual and proper manner as the committee may direct." This amounts to a direct voting system without providing for a secret ballot as required by s 240(1). Rule 18(4) makes provision for the direct appointment by the committee of a person to fill a casual vacancy for the period until the conclusion of the next annual general meeting that may be a period greater than 12 months (s 242(2)). The rules do not provide for limitations upon loans, grants or donations made by the organisation to be subject to a decision of the committee that the loan, grant or donation is in accordance with the rules or that appropriate security is provided (see s 243(1)). In terms, these alleged shortcomings of the rules were not contested by the applicant organisation. In written submissions, the applicant sought leave to amend the application to meet such technical objections. Having considered these matters, the Commission accepts that it is proper to grant leave to the applicant organisation to amend its rules to comply with these provisions and generally comply with the provisions of the Act. 113Section 218(1)(h) requires the organisation not to have the same name of an organisation registered under Ch 5 or having a name that is so similar as likely to cause confusion. While there is EMSPA Inc and EMSPA (NSW), the incorporated association is not a registered organisation under the IR Act. The Commission accepts the evidence that it is the intention of the incorporated association, upon the registration of the applicant as an industrial State organisation, to wind up the affairs of that body or potentially to leave it moribund and inactive. Regardless of the approach taken to the continued operation of the incorporated body, there can be no confusion with any other registered body under the IR Act. This provision is met by the applicant organisation. 114Section 218(1)(j), dealing with a State organisation, requires a majority of the members present at a general meeting or an absolute majority of the committee of management of the organisation, having passed, under the rules of the organisation, a resolution in favour of registration of the organisation. In this case, the HSU, apart from challenging the existence of the applicant organisation, submits that the provision cannot be met because there had not been an election of the Executive and so this provision had not been satisfied. It may also be suggested that there were no relevant rules at the time the resolution was passed. It can be readily accepted that this is an important requirement demonstrating a positive endorsement by an authoritive body within the organisation of an application for registration under the IR Act. The Commission has concluded that the applicant organisation was established at the 1 August 2012 meeting and that its only members were those who formed the Executive of the applicant (being also members of the Executive of the incorporated association). This resolution in favour of seeking registration under the IR Act was passed when the applicant did not have any rules, however, the fact is that every member of the association voted in favour of the registration resolution. If there had been relevant rules it is difficult to construct a provision more effectively demonstrating the will of the organisation than a unanimous vote of all its members at the time the vote was taken. The authorities earlier cited dealing with later ratification of informal votes would also permit the applicant to ratify that vote under amended rules that specifically give the Executive the management of the organisation. This is a situation where the substance of the matter is of prime importance, (see Re WISEU (1983) 4 IR 67 at 72; R v Turbet; Ex Parte The Australian Builders' Construction Employees and Building Labourers' Federation (1978) 144 CLR 335; WorkCover v Lucon (Aust) P/L (2002) 112 IR 332 at 349).The substance of this requirement has been satisfied by the applicant. 115Section 218(1)(n) requires an organisation to be free from control by or improper influence from an employer or by an organisation or other association of employers. There was no evidence that the applicant organisation or the incorporated association was being controlled by or improperly influenced by an employer or an organisation of employers. The industrial history of the incorporated association, regarded as relevant because of the close connection with the applicant organisation, points, unmistakeably, in the other direction: there was evidence of frequent occasions where industrial representations were forcefully made, especially by the incorporated association. Regardless of that evidence, there is simply no basis at all to find that the applicant organisation is under the disability identified by this section of the IR Act. 116It will be observed that in this analysis the Commission has not addressed the provision of s 218(1)(m) that might be appropriately be described as the traditional conveniently belong ground. It is unnecessary to consider this ground because, by amendment, it is the subject of a proviso applying s 218(1A) to an organisation appearing in Sch 5. The Commission has accepted that the effect of cl 29A of the IR Regulation treats the reference to the incorporated association in Sch 5 of the Act as a reference to the applicant organisation. In this case, the traditional conveniently belong test reflecting the principle of single union coverage restricting an overlap of coverage between industrial organisations now must yield to the provisions of s 218(1A). Having regard to all these matters, the applicant organisation has satisfied the requirements of s 218 of the IR Act. THE EFFECT OF s 218(1A) 117The Commission accepts the thrust of the submissions for the Minister that s 218(1A) introduced a fundamental change for Sch 5 organisations seeking industrial registration under the IR Act. The strictures of the traditional conveniently belong test were set aside. A new test was established, in terms much less rigorous than the traditional conveniently belong test and reflecting the legislative intention that the members of Sch 5 organisations were to be accorded freedom of choice in the organisations to which they wished to belong, uninhibited by previous policies. In effect, the section introduced the concept of competitive unionism in New South Wales although that concept (in less amplified terms) had been in operation under Federal industrial legislation since the mid-1990s. 118Importantly, s 218(1A) offers a choice to the Commission in dealing with a Sch 5 application for registration: the matter may be concluded if there is no other industrial organisation of employees to which the members of the applicant organisation might belong. Alternatively, if there is such an organisation it is not an organisation to which the members of the organisation could more conveniently belong and that would more effectively represent those members. Unlike the traditional provision, it is not sufficient that there might be an organisation to which the members of the applicant organisation "might conveniently belong" but there is a requirement for a determination that they "could more conveniently belong" to such an organisation and further, that organisation would more effectively represent those members. 119The alternative to this modified conveniently belong test is that the Registrar (or in this case, the Commission), accepts an undertaking from the organisation that is considered appropriate to avoid disputes as to the demarcation of industrial interests of the organisation and any other organisation that might arise from an overlap between the eligibility for membership of the organisation and membership of the other organisation. No statutory direction is given as to which alternative might be given primacy and on its face, sub-section 1A treats both provisions as equally important and efficacious. There is nothing in the Minister's Second Reading Speech to suggest otherwise. Significantly, there is no direction that, if the applicant could not make out a case under sub-section 1A(a), the Commission could not consider an undertaking under sub-section (b). There is no requirement for the Commission to articulate why consideration was not given under the alternate sub-section. Indeed, the submissions for the Minister acknowledged that it was quite possible to fail under sub-section (1A)(a) but to succeed under sub-section (b). 120In determining that the Commission would decide this matter by considering the appropriateness of the undertaking offered by the applicant organisation, a significant factor has been the need to give primacy to the legislative objective in enacting these provisions. The Minister's Second Reading Speech has been set out in full and relevant passages have been reproduced from the Federal tribunal concerning the operation of similar provisions. The emphasis of the provisions is upon competitive unionism and freedom of choice for members. The evidence from persons who are members of the incorporated corporation established that they had exercised a rational choice in determining to join an unregistered body rather than the HSU. That choice did not have to be "correct" in any legal sense but demonstrated that, over a period of time, tensions had grown between paramedics employed by the ambulance service and the HSU and a number of paramedics had expressed their concern about the adequacy of their representation. It is unnecessary for the purposes of this decision to attempt to recount the difficulties recently experienced by the HSU, both in the Federal and State jurisdiction (although an amount of material in that aspect was formally tendered during the hearing). It is sufficient for present purposes to note that concerns as to the administration of the HSU under previous officers had raised disquiet among some paramedics about the financial management of that union. At the conclusion of evidence, nothing had been brought forward indicating that the HSU had yet been invited to return to the fold of the Peak Council, Unions NSW, or to the ACTU. Undoubtedly, many efforts are now being made by the new officers to address these issues but they need to persuade approximately 1400 people who have joined the incorporated association that their industrial interests will be better protected by the HSU. In essence, that is the point of competitive unionism and freedom of choice. Those matters are of considerable significance in the Commission giving primary consideration to the undertaking option established by s 218(1A)(b). 121`There is some significance to be attached to the level of membership achieved by the competing organisations. A membership level that may be described as de minimis in relation to the number of members employed in eligible categories is likely to raise questions, not only of viability but questions going to the heart of the process of registration, namely, whether such an organisation should be registered to give effect to the principles of freedom of choice and competitive unionism. Mr Flint's evidence was that, in round numbers, the incorporated association had 1390 paramedic members. The evidence for the HSU was that, at the time of the filing of the application (August 2012), it had a total membership of 32,000 with 2150 employed in ambulance work. The "ambulance work" membership was not broken down to demonstrate the number of paramedic members. The HSU conceded that there was some dual membership with EMSPA. There was some acknowledgement by the HSU that there had been a reduction in its total membership in recent times but the position had improved with new elections. It was in those circumstances that there was surprisingly no precision in the numbers able to be verified in evidence by the HSU as to paramedic membership. 122Late in the proceedings, at the request of the Commission, counsel for the Minister was able to produce a break down of ambulance staff as at June 2012. That document disclosed that: 3913 people were employed as "ambulance staff"; of those, 3238 were employed as "on-road paramedics including, supervisors"; 223 were "patient transport Officers"; 303 were employed in operations centres; 77 were operations managers/superintendents; and, 72 were engaged in training/education. 123It is unclear to the extent to which the claim for coverage exercised by EMSPA travels beyond the 3238 engaged as on-road paramedics. The evidence suggests a relatively small number of other employees may be eligible and a working figure of 3500 potential members appears to be a reasonable estimate. The situation disclosed is that the applicant, EMSPA, has approximately 1400 of the 3500 eligible employees as members. HSU has a total of 2150 employed as ambulance staff and stated that it was not able to further break down these figures to disclose how many of the 3238 paramedics were members of that union. There is, therefore, no available basis to estimate the number of HSU members employed as paramedics, other than to work on the basis that membership would be below 2150. Indeed, the total membership of approximately 3550 of the HSU and EMSPA (with some overlap) exceeds the total number of people employed as paramedics. 124On the available figures, the incorporated association has approximately 43 per cent membership of all eligible paramedics on the ambulance staff and 40 per cent of those are employed on the assumed eligibility figure. The figures suggest that there may not be a large difference between the applicant and the HSU in relation to their relative membership of paramedics. Such a level of membership obtained since 2009 by the incorporated association, in circumstances where it had no right of audience in industrial tribunals, suggests a relatively high level of support for the organisation. Although it is inappropriate (absent an evidentiary basis) to estimate the number who may join the applicant organisation, these numbers indicate that a significant proportion of paramedics are looking beyond the HSU for industrial representation. Having regard to the close connection between the incorporated association and the applicant organisation, the Commission cannot discount the possibility that a large proportion of the 1400 may take up membership of the applicant organisation. While it may be thought that there is an element of conjecture about these figures, there is one clear fact: a large number of paramedics have chosen to leave the HSU. It is a mistake, however, to treat the numbers alone as conclusive in this case but they do play a role as representing a relevant consideration in determining the application for registration. 125Section 3(d) of the IR Act continues to lay down, as an object of the Act, the encouragement of participation in industrial relations by representative bodies of employees. In this context, the continued existence of EMSPA in any of its emanations now cannot be dismissed as a passing fad. Even under the strictures of the traditional conveniently belong test, unions were registered in recognition of the fact that it was better to bring employees into the system of industrial relations than leave them outside and potentially beyond jurisdiction. For example, in the AMP Society Staff Association case, Piper CJ spoke of it as being undesirable to refuse registration because it was "better to have more than one organisation than to have a large number of employees unorganised." (see [1944] 53 CAR at 849). 126It is also worthy of note that even under the single union approach that had previously existed using the traditional, conveniently belong test, nevertheless, new organisations were registered where they were able to establish that there was some particular community of interest amongst the applicant employees that warranted recognition by way of separate registration as against an organisation with more general coverage (see, for example, the AMP Society Staff Association v Australian Insurance Staffs Federation [1944] CAR 836 and The Association of Professional Sciences of Australia (1961) CAR 920). Because of the 2012 amendment to the IR Act it is unnecessary to "plumb the depths" of this proposition but it is clear that there is a community of interest amongst the now highly skilled paramedics that is different to the much more generally based membership of the HSU. THE POSITION OF UNIONS NSW 127In its capacity as a State Peak Council for employees pursuant to the provisions of s 215, Unions NSW filed submissions in the proceedings opposing the application. Unions NSW declared its longstanding opposition to competitive unionism and the legislative amendments introduced in 2012. No submission was made about the operation of similar provisions in relation to Federally registered unions, many of whom would be affiliates of Unions NSW through State branches. The submission raised general concerns about the ability of the applicant to finance adequate industrial representation for its members but did not comment on the extent of the operation of EMSPA Inc since 2009 and the industrial activities it had undertaken as set out in Mr Flint's evidence. 128Much of the submission dealt with industrial issues that might have been relevant to a traditional conveniently belong case and may have also had some relevance to the alternative test of convenience set out in s 218 (1A)(a). Unions NSW warned that expectations of members of the applicant were high and based on the small membership and financial base, arguably, unachievable. It was further submitted that the undertaking proffered by the applicant was inadequate but no more effective form of undertaking was put forward and no mention made of the sanction available under s 244A if such an undertaking was breached. The intervention of Unions NSW is an important step although the burden of the case fell to the HSU. The status of Unions NSW as a Peak Council requires its views to be carefully considered. In the present case those views have not persuaded the Commission, on the grounds articulated, to refuse registration to the applicant. THE UNDERTAKING PROFFERED BY THE APPLICANT 129The terms of the Undertaking proffered by the applicant organisation is as follows: EMPSA, in the event it obtains registration, shall by itself, its officers or agents undertake to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of EMSPA and the eligibility rules of the Health Services Union and in particular, would raise no objection to the participation by the Health Services Union in industrial matters which affect members of the Health Services Union. The Commission accepts the submissions for the Minister that some guidance as to the assessment of this undertaking is provided by the decision in the matter of Re VIPA [2009] FWA 175. In that case, Richards SDP accepted an undertaking and in doing so: (i)noted that the particular undertaking would not remove all risk of demarcation disputes arising upon and after registration; (ii)accepted that the likely result of the undertaking was that the risks of demarcation disputes would be minimised to the extent practically achievable; (iii)suggested that the decision-maker consider the totality of the circumstances relevant to the undertaking before accepting an undertaking as appropriate; (iv)observed that the appropriateness of a an undertaking does not rest exclusively on the language used; and (v)concluded that the discretion vested in the decision-maker allowed the decision-maker to consider, for example, whether the undertaking may be adhered to in reality, or otherwise respected, given the evidence before it in respect of the conduct of the applicant association or the dynamics of the relationships in the particular workplace. 130The Minister, relying on other Federal decisions submitted that, in determining the adequacy of the undertaking, the Commission should not require a "cast iron guarantee that demarcation disputes would never occur" but the undertaking should provide a reasonable expectation in the Commission's mind that the demarcation disputes described will not occur. 131Mr Flint gave evidence over three days in the proceedings and was closely tested. There was nothing about his evidence to suggest that there was an underlying agenda of waging demarcation war upon the HSU if the applicant organisation was registered. There appeared to be a clear acceptance that the applicant's own registration would be the result of giving effect to the legislative intent of promoting freedom of choice and creating competitive unionism. Mr Flint appeared to accept that those objectives provided a two-way street for employees who would be just as entitled to leave the applicant organisation should it be registered and either, not join any union or, join the HSU. He appeared to accept that competitive unionism, in seeking to demonstrate the industrial effectiveness of an organisation, might lead to an atmosphere where both unions would attempt to obtain the best possible results for paramedics: he did not regard demarcation disputes as conducive to that result. 132Having regard to the matters referred to above, the Commission is satisfied as to the adequacy of the undertaking proffered by the applicant organisation pursuant to the provisions of s 218(1A)(b). That undertaking is specifically relied upon by the Commission in granting registration (if the applicant otherwise meets the additional requirements referred to elsewhere in this decision). In addition, the attention of the applicant organisation is drawn to the provisions of s 244A and the consequences for an organisation breaching an undertaking given pursuant to the provisions of s 218(1A)(b). It must be clearly understood by the applicant organisation that any resort to demarcation disputes as a vehicle for recruitment or, as part of an industrial war for membership with the HSU, is likely to result in a review that will fundamentally go to its registered status. CONCLUSION 133For the reasons provided above, the applicant may be registered as a State organisation under the IR Act subject to meeting the requirements identified by amending its current rules. Pursuant to the provisions of s 219(5) of the IR Act, leave is granted to the applicant organisation to amended the application and its rules in order to meet objections taken to its registration. The Commission will list the matter for further directions at 9.45 am on 28 May 2013 in order to lay down an appropriate timetable for the filing of further evidence regarding the required further steps. ANNEXURE A UNDERTAKINGS (1)The New South Wales Fire Brigade Union Employees' Union: The applicant has undertaken to amend the Rules of the organisation to make clear that par 3.1 and par 3.2 apply to persons employed by the Ambulance Service of New South Wales. The applicant undertakes, on the record before the Commission, that it is not the applicant's intention by this Application to cover or seek to cover or represent industrially or otherwise the interests of persons employed by the Fire Brigade. (2)The Australian Salaried Medical Officers' Federation: The applicant undertakes that it is not its intention by this Application to cover or seek to represent industrially the interests of medical practitioners employed or engaged in the State of New South Wales. To avoid doubt, "medical practitioners" shall include any person eligible to become a member of the Australian Salaried Medical Officers' Federation or employ or engage as a staff specialist, career medical officer or junior medical officer, however described, for example, resident medical officer, registrar or clinical fellow. (3)New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union: The Emergency Medical Service Protection Association (NSW) for the purposes of resolving the objection lodged by the New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union and to facilitate its Application for Registration, undertakes to the Honourable Commission and the New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union. 1. To amend its constitution or eligibility Rule (Rule 3 Constitution) as filed in the Application, in part to state: 3.1 Ordinary Membership (c) Any person who is employed by the Ambulance Service of New South Wales as a paramedic, patient transport Officer or in a paramedic support position employee may apply for ordinary membership of EMSPA (NSW). 3.2 Casual Membership (a) Any person who is employed by the Ambulance Service of New South Wales on a casual basis as a paramedic patient transport Officer or a paramedic support position employee may apply for casual membership of the EMSPA (NSW). 2. Undertakes for all purposes of the eligibility or constitution Rule (Rule 3 Constitution, as amended), the term "Paramedic Support Position Employee" is a uniformed trained and qualified Paramedic where such Paramedics may be deployed in research, clinical education or other roles such as media whilst on secondment or in return to work programs. 3. Undertakes the sole intention of the Application and the eligibility or constitution Rule (Rule 3 Constitution, as amended), is to only represent uniform trained and qualified Paramedics employed by the Ambulance Service of NSW and no other persons employed by the Ambulance Service of NSW. 4. Acknowledges and undertakes it has no capacity or entitlement to represent persons eligible to be members of the New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union. (4)Emergency Medical Services Protection Association (NSW) AND Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales RECITALS: A. Emergency Medical Service Protection Association (NSW) ("EMSPA") has lodged with the Industrial Relations Commission of New South Wales ("the IRC") an application (R0163 of 2012) for registration ("the Application"). B. The Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("PSA") has lodged with the IRC an objection to the Application. PREAMBLE: The agreement is made on the basis that EMSPA will give an undertaking pursuant to S.218 of the Industrial Relations Act 1996 ("the Act") to abide by the terms of this agreement and do the acts required by the terms of this agreement, on the basis that PSA will withdraw its objection to the Application and will abide by the terms of this agreement. This agreement shall be placed on the IRC file of the Application as a record of the undertakings made herein. TERMS OF AGREEMENT: 1. This agreement is, and is intended to be, legally binding as between the parties and to have full legal force and effect notwithstanding any changes in the Act or otherwise. 2. This agreement shall remain in force until varied or rescinded by 2. any subsequent agreement of the parties. 3. The parties agree that EMSPA will represent uniformed paramedics employed by the Ambulance Service of New South Wales and no other persons. 4. EMSPA will make application to the IRC to amend the Application so that rule 3.1 of EMSPA's Rules will read as follows: (a) Any person who is employed on a permanent basis as a paramedic of the Ambulance Service of New South Wales may apply for ordinary membership of EMSPA (NSW). (b) Any person who is employed on a permanent basis as an office holder of EMSPA (NSW) or as an employee of EMSPA (NSW) may apply for ordinary membership of EMSPA (NSW). (c) Any person who is employed by the Ambulance Service of New South Wales as a paramedic, patient transport officer or in a paramedic support position may apply for ordinary membership of 0EMSPA (NSW). 5. EMSPA will make application to the IRC to amend the Application so that rule 3.2 of EMSPA's Rules will read as follows: (a) Any person who is employed by the Ambulance Service of New South Wales on a casual basis as a paramedic, patient transport officer or a paramedic support position may apply for casual membership of EMSPA (NSW). (b)(i) Any person who is employed on a casual basis as a Paramedic of the Ambulance Service of New South Wales may apply for casual membership of EMSPA (NSW). (ii) Any person who is employed on a casual basis by EMSPA (NSW) may apply for casual membership of EMSPA (NSW). 6. Pursuant to s.218 of the Act EMSPA undertakes to the IRC that, as a condition of the consent of the IRC to the Application, nothing in the rules of EMSPA will: (a) in any way disturb the status quo as to membership, awards, agreements and industrial coverage as between the two organisations; or (b) in any way limit the rules of the PSA as to eligibility for membership of the PSA. 7. Upon EMSPA applying to amend the Application and giving the undertakings above, in consideration of the undertakings of EMSPA and this Agreement, the PSA will withdraw its objection to the Application. 8. Any disagreement arising from this Agreement to be immediately discussed between EMSPA and the PSA. Either party may seek the assistance of Unions NSW to mediate any dispute. Amendments 21 May 2013 - The following words were inserted at the end of the paragraph:"likely to result in a review that will fundamentally go to its registered status." Amended paragraphs: 132 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 May 2013