PN70

ACTING PRESIDENT HATCHER: I'll take the appearances. Mr Borenstein, you appear with Mr Bakri for the applicant?

PN71

MR H BORENSTEIN: I do. Thank you very much.

PN72

ACTING PRESIDENT HATCHER: Mr Dowling, you appear with Mr Massy for the CFMMEU?

PN73

MR C DOWLING: I do. Thank you, your Honour.

PN74

ACTING PRESIDENT HATCHER: Are you going first, Mr Borenstein?

PN75

MR BORENSTEIN: I am. Thank you, Vice President.

PN76

DEPUTY PRESIDENT GOSTENCNIK: You have demoted him already.

PN77

MR BORENSTEIN: Demoted?

PN78

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN79

MR BORENSTEIN: I'm not sure how formal under the Act an acting position is. A bird in the hand.

PN80

ACTING PRESIDENT HATCHER: I'm holding two jobs at the moment, so it's � anyway.

PN81

MR BORENSTEIN: There is a precedent for even more than that. This application is made by Mr O'Connor under section 94 of the Registered Organisations Act and it was filed on 15 September 2022. As the Bench will have seen, the application is for a secret ballot to be held to decide whether the manufacturing division of the CFMMEU should withdraw from that union.

PN82

On 30 September the union, the CFMMEU, filed a notice of objection which had one jurisdictional objection and that objection was, as you will see from the document that is filed, that the CFMMEU objects to the application on the basis that the manufacturing division did not become part of the CFMMEU within the meaning of section 94 of the RO Act on 27 March 2018 and, accordingly, there is no jurisdiction to make the order. Now, the objection of course invokes the terminology of section 94(1)(a) which I'll come to very shortly.

PN83

On 3 October, the Commission issued directions programming the hearing of the jurisdictional objection and only the jurisdictional objection, and there were directions made for the filing of submissions. The applicant filed written submissions on 24 October together with a statement of Geoffrey Borenstein, dated 24 October 2022, which annexed a number of relevant documents being various iterations of the rules and also the scheme, an outline for the 2018 amalgamation. We would seek to tender those documents.

PN84

ACTING PRESIDENT HATCHER: The statement of Geoffrey Borenstein, dated 24 October 2022, will be marked exhibit 1 in the proceedings.

EXHIBIT #1 STATEMENT OF GEOFFREY BORENSTEIN DATED 24/10/2022 PLUS ANNEXURES

PN85

MR BORENSTEIN: I take it that the Bench doesn't require the tendering of the written submissions.

PN86

ACTING PRESIDENT HATCHER: No.

PN87

MR BORENSTEIN: The CFMMEU filed its written submissions on 21 November and that is accompanied by a statement of Ms Dawson‑Field. I'll leave Mr Dowling to deal with that.

PN88

ACTING PRESIDENT HATCHER: Is it convenient that we mark that now, too, Mr Borenstein?

PN89

MR BORENSTEIN: I have no problem with that.

PN90

ACTING PRESIDENT HATCHER: All right. The statement of Jessica Margaret Dawson‑Field � what is the date of that?

PN91

MR BORENSTEIN: It's 21 November.

PN92

ACTING PRESIDENT HATCHER: Thank you � 21 November 2022, will be marked exhibit 2.

EXHIBIT #2 STATEMENT OF JESSICA DAWSON-FIELD DATED 21/11/2022

PN93

MR BORENSTEIN: Then to end the chronology, on 5 December the applicant filed reply submissions and for the record we submit that the applicant relies on the materials which were filed with the application, together with exhibit 1 and the written submissions. What I propose to do is to address the Commission in three parts this morning.

PN94

Firstly, to address the relevant parts of the legislation and then to outline our submissions as to why the Commission should find that the manufacturing division did become a part of the CFMMEU on 27 March 2018 as a result of the amalgamation on that date, which was an amalgamation between the former CFMEU, the TCFUA and the MUA. Thirdly, I'll take a short time to deal with some of the written submissions of the CFMMEU as they appear in its written documents.

PN95

Dealing firstly with the current legislation, the Commission will be aware that at Chapter 3 of the Registered Organisations Act provision is made for amalgamation of organisations in Part 2 and withdrawal from amalgamations in Part 3. A withdrawal from amalgamation under Part 3 is initiated by an application under section 94 and it is made in relation to what's called a constituent part. It must be a constituent part which demonstrates that it became part of the organisation as a result of an amalgamation and the application is for a ballot to decide whether it should withdraw from the amalgamated organisation.

PN96

The application has to be brought in the period between two years and five years after the amalgamation, and this application is brought within that time frame because the amalgamation was in 2018. So, the necessary elements are amalgamated organisation, a constituent part of the amalgamated organisation, that the constituent part became part of the amalgamated organisation as a result of amalgamation and the time period for that application being between two years and five years.

PN97

'Amalgamated organisation', as at least two members of the Bench have noted in earlier proceedings, is defined in section 93 and, to paraphrase, it's the organisation of which members of deregistered organisations became members under section 73 as part of an amalgamation or an equivalent provision. In terms of the concept of 'constituent part', that's also defined in section 93. We rely in this proceeding on the constituent part being a separately identifiable constituent part; that is, the manufacturing division is a separately identifiable part of the CFMMEU. That's clear in rules and that's not an issue that is contested.

PN98

The history of the provisions for amalgamation and withdrawal from amalgamation we have set out for completeness in our written submissions at paragraphs 13 to 24. I don't need to waste the Commission's time going through them in any sort of detail, but simply to point out that Commonwealth legislation has allowed for amalgamation of organisations going back to the Conciliation and Arbitration Act. The Workplace Relations Act 1996 introduced the concept of withdrawal from amalgamation.

PN99

When that was introduced it was available to a limited range of persons and that has been steadily liberalised or broadened over the years up until the amendments in 2020 to the Registered Organisations Act. Those amendments were enacted by a legislation called the Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) 2020 and the critical aspect of the amendment was the addition of paragraph (c) to the definition of 'separately identifiable constituent part'.

PN100

At least two members of the Bench will be aware that previously the definition of 'separately identifiable constituent part' had two parts to it; paragraphs (a) and (b). Paragraph (a) identified constituent parts � and I'm paraphrasing � that represented registered organisations that had become deregistered as part of an amalgamation and paragraph (b) of the definition identified branches, divisions or other parts of such organisations which had become deregistered. The thrust of all that was that they were linked to a process of deregistration of previous organisations coming into amalgamation.

PN101

The introduction of paragraph (c) was intended to expand that field to include constituent parts unrelated to the issue of whether they came from entities that had been deregistered as part of an amalgamation and that was confirmed by the explanatory memorandum to the bill, the extract of which we set out at paragraph 32 of our written submissions. The operation of that change to the definition was dealt with by the Full Bench in Kelly and by the Full Court. We would hand up copies of the decisions in those two matters for the Bench. I am going to go to some parts of that - not right now, but shortly � and it's just convenient to hand - - -

PN102

MR DOWLING: They have already got them.

PN103

MR BORENSTEIN: Mr Dowling says you have already got them.

PN104

ACTING PRESIDENT HATCHER: Yes, we do.

PN105

MR BORENSTEIN: Okay, well, then we don't need to trouble you with more paper. So that is the legislative context in which the application arises, if the Commission pleases, and I now seek to address the issue of whether the manufacturing division did become a constituent part of the CFMMEU as a result of the 2018 amalgamation. Firstly, stating the obvious, the CFMMEU is the amalgamated organisation relevant to the application under section 94(1); that is not in contest. The manufacturing division is a separately identifiable constituent part of the CFMMEU within the meaning of paragraph (c) of the definition. That, too, isn't contested.

PN106

Immediately prior to the 2018 amalgamation the CFMMEU was known as the C‑F single M‑E‑U and comprised of three divisions. They were the construction and general division, the mining and energy division and the forestry, furnishing, building products and manufacturing division which is called by the abbreviation FFPD. The application under section 44 of the RO Act for the ballot to approve the 2018 amalgamation was accompanied, as it needed to be, by a scheme of amalgamation and an outline. We have provided the Commission with a copy of both of those documents.

PN107

Relevantly, I would seek to go now to the scheme for amalgamation which is annexure GB4 to the affidavit of Geoffrey Borenstein, which is exhibit 1, and it's on page 268 of that affidavit. The purpose of going to this is to show to the Commission what changes were made in particular in relation to the FFPD as a result of the amalgamation. If the Bench has that document can I just draw its attention to the parts that we say are significant.

PN108

Paragraph number 1 identifies the parties to the amalgamation, which is the C‑F single M‑E‑U, MUA and TCFUA. Paragraph number 2, the proposed amalgamation, the CFMEU is the proposed amalgamated organisation. The MUA and the TCFUA will be merged with the CFMEU and they are the proposed deregistering organisations. The scheme refers in paragraphs 4 and 5 to alternative proposals which aren't relevant because the main proposal was successful.

PN109

Then under the heading 'Overview', at paragraph 6, there is an outline of what the effect of the amalgamation is intended to be. 6.1 provides for the creation for the new division to be called the Maritime Union of Australia division. 6.2 indicates that there will be a merger of the TCFUA with the forestry, furnishing, building products and manufacturing division of the CFMEU which will be renamed as the manufacturing division proposed amalgamation organisation.

PN110

Paragraph 6.3 deals with the attachment of members of the MUA to the MUA division, 6.4 deals with MUA branches, and 6.5 the establishment of an MUA division. 6.6 deals with the TCFUA members becoming members of the proposed amalgamated organisation and being attached to the manufacturing division. So, the members of the deregistered organisation called the TCFUA are to be attached to the manufacturing division. 6.7, the current TCFUA branches are to be integrated into the manufacturing division.

PN111

Paragraph 6.8, there is to be created a textile, clothing and footwear sector within the manufacturing division. It is to be constituted � as you will see from 6.8 � on the amalgamation day by the members of the TCFUA and then by all TCF sector members so that the incoming TCFUA membership will have a discrete sector to which they will attach and the governance of that sector is provided for in 6.9 by the establishment of a new governance body; that is the TCF sector council and it will have specific roles and responsibilities in respect to the policies and issues relating to the TCF industry.

PN112

ACTING PRESIDENT HATCHER: Mr Borenstein, the new manufacturing division consisted of the previous FFPD plus the TCF sector?

PN113

MR BORENSTEIN: Correct, correct, so the whole of the TCF union that was is merged with the FFPD. The rules that follow the amalgamation or reflected the amalgamation have given effect to these various measures in the scheme and, for example, the creation of the TCF sector can be found in rule 44(i) of the manufacturing division rules that were after the amalgamation and they are available to be seen at annexure GB6 of the Borenstein affidavit at page 321. I won't take you to it, but I just give you the reference.

PN114

The TCF sector council, which is referred to in clause 6.9 of the scheme, is referenced in rule 9A of the manufacturing division rules and also rule 44(x). Then at 6.10 of the scheme provision is made for the establishment of specific TCF positions and officers in the proposed amalgamated organisation, and in the manufacturing division, and again the reference in the rules to that is at rule 9(i), rule 30A(i)(c) and rule 30B in the manufacturing division rules. Clause 8 of the scheme provides that:

PN115

On amalgamation the assets and liabilities of the MUA and the TCFUA will become assets of the proposed amalgamated organisation. The use of the assets and meeting of liabilities of the MUA and TCFUA shall be subject to the governance processes of the MUA division and the manufacturing division respectively.

PN116

Then at paragraph 11:

PN117

The national funds of the TCFUA shall form part of the divisional funds of the manufacturing division.

PN118

At clause 12 of the scheme there is a provision that:

PN119

Until the end of December 2022 a subcommittee of the TCF council comprised of TCF sector members must approve the use of a TCF special fund.

PN120

The TCF special fund is identified in that clause as relating to the TCF's interest in the New South Wales building and that's provided for in the manufacturing division rules at rule 14E. There is also a TCF mortality fund which is to be continued and you'll find provision for that in the manufacturing division rules at rule 14.

PN121

ACTING PRESIDENT HATCHER: So, in paragraph 12, who controls the TFC special fund after the end of this year?

PN122

MR BORENSTEIN: It's not clear. That ends I think at the end of that period.

PN123

ACTING PRESIDENT HATCHER: I see.

PN124

MR BORENSTEIN: But in terms of the effect of the amalgamation in 2018 on the previous FFPD this is relevant in terms of demonstrating the restructuring of that division to accommodate the amalgamation with the TCFUA. We would submit that the relevant time that you focus on for the purpose of 94(1)(a) is the time of the amalgamation and what happened - the time of the amalgamation in terms of the constituent part.

PN125

The scheme then goes on to deal with what is called the structures and at paragraph 19 dealing with the TCFUA it provides that:

PN126

The TCFUA will be merged into the existing CFMEU and shall form part of the manufacturing division of the proposed amalgamated organisation.

PN127

Then it goes on to deal with the changes to the structure of the overall organisation in clause 20 and provides in 20.1 for representation of the TCFUA in the national rules. Clause 20.3 provides that:

PN128

The structures and rules of the mining and energy division and the construction and general division will not be affected by the amalgamation.

PN129

Then 20.4 deals with the MUA division rules, which we don't need to take time with. Then at clause 20.8 the scheme returns to the situation of the TCFUA and it provides under 20.8 that:

PN130

On amalgamation taking effect, officers will be established under the national rules of the proposed amalgamated organisation with TCFUA officers as follows �

PN131

and they are listed. Then 20.9:

PN132

New manufacturing division rules will provide for its management and governance by division conference, division executive and then a TCF sector council �

PN133

with various responsibilities which are spelt out there. I have already indicated to the Bench that that is reflected in manufacturing division rule 9A.

PN134

ACTING PRESIDENT HATCHER: In 20.8, what is the position of the TCF national secretary of the manufacturing division?

PN135

MR BORENSTEIN: That is a provision which is � I'll come to that very shortly because there is a table set out as we come to it, but there is a position designated for a TCF national secretary of the division and then that person holds a position at the national level as a result of that.

PN136

ACTING PRESIDENT HATCHER: Is that person the head of the division or head of the TCF sector?

PN137

MR BORENSTEIN: I will dig up the rule and show that to you. The transitional provisions in rule 44 provide for that office to be elected by the members of the TCF sector.

PN138

ACTING PRESIDENT HATCHER: Rule 31 sets out the full‑time paid officers.

PN139

MR BORENSTEIN: Yes, I think that's one of them. I was going to come to rule 44 specifically, but provision is made for the accommodation of the amalgamation of the TCFUA in the manufacturing division rules at rule 44. We will go to those and we will identify these issues that your Honour has inquired about. In rule 20.9 provision is made as a part of the management and governance of the new manufacturing division for a TCF council and we have made mention of that. Then the point that you were asking me, Vice President, was at clause 20.11:

PN140

On amalgamation taking effect, officers will be established under the manufacturing division rules for all the TCFUA officers including TCF national secretary, divisional senior vice president �

PN141

and so on.

PN142

ACTING PRESIDENT HATCHER: What I really want to know is does the TCF national secretary have responsibility for the entire manufacturing division or just the TCF sector of the division? That is, is it a broader position or something else? Is that the head of the - - -

PN143

MR BORENSTEIN: Well, I think the divisional bodies include the TCF positions, so in that respect they form part of the overall governing body as well as being elected through the TCF sector. That's my understanding of it.

PN144

ACTING PRESIDENT HATCHER: Does the manufacturing division have a single national secretary? Is that the same person as the TCF national secretary of - - -

PN145

MR BORENSTEIN: No.

PN146

ACTING PRESIDENT HATCHER: No, okay.

PN147

MR BORENSTEIN: Sorry, I misunderstood. Mr Bakri has indicated that you see that in the rules of the manufacturing division after the amalgamation, which are at page 321 of Mr Borenstein's affidavit. At rule 9 of those rules it sets out the membership of the division of executive and there is a divisional secretary, a divisional president and a TCF national secretary, then TFC divisional vice presidents. Then at 9A on page 335 you have the TCF sector council with the senior official on the council being TCF national secretary.

PN148

Then if you go to rule 13, which is on page 337, that sets out the duties of the various divisional officers. At paragraph (ii) on page 338 of the affidavit there are set out the duties of the various officers and (ii) is the divisional secretary who is the principal officer of the division. At (iv) there is reference to the TCF national secretary and you will see that that position is subordinate to the divisional secretary, and it fits in with the structure of the TCF council.

PN149

ACTING PRESIDENT HATCHER: If you look (iv) in the second sentence - - -

PN150

MR BORENSTEIN: Yes.

PN151

ACTING PRESIDENT HATCHER: - - - that seems to indicate that the TCF national secretary in the absence of the divisional secretary would exercise powers across the whole division, not just in relation to the TCF sector.

PN152

MR BORENSTEIN: In the absence of the divisional secretary, yes.

PN153

ACTING PRESIDENT HATCHER: Yes.

PN154

MR BORENSTEIN: I need to correct something that I said to you about rule 44 on page 383. You will see under the heading of 'Eligibility and qualification for office' number 1, the TCF national secretary. There needs to be financial membership of the TCF sector, so that person must come from that sector, but in terms of the constituency that elects that person to that office, on the next page in (x):

PN155

TCF representatives will be elected from the membership as follows �

PN156

and the TCF national secretary is elected by all the members of the division of the TCF sector which I said earlier. That is (x) on page 384 under the heading 'Electorates'.

PN157

ACTING PRESIDENT HATCHER: (xii)?

PN158

MR BORENSTEIN: (xii), sorry, yes. TCF representatives elected and the TCF national secretary, so contrary to what I said before about that person being elected only by TCF members, they are elected by everybody but they must be from the TCF sector. Rule 20.12, going back to the scheme, deals with the composition of the TCF sector council.

PN159

ACTING PRESIDENT HATCHER: What page, Mr Borenstein?

PN160

MR BORENSTEIN: This is on page 278 of the affidavit.

PN161

ACTING PRESIDENT HATCHER: Thank you.

PN162

MR BORENSTEIN: You will see that's drawn from the TCF sector and then at clause 20.13 there is a table set out of the officers to which people will be allocated upon the amalgamation. These are the officers in the manufacturing division and you will see that there are a range of officers at the national and divisional level which are allocated to TCFUA personnel and others to FFPD personnel.

PN163

ACTING PRESIDENT HATCHER: With those dates in column (c) such as 20 December 2020, does that mean there was a regular election within the amalgamating organisation?

PN164

MR BORENSTEIN: Yes, I think that was the date. The point of taking you to this is just to indicate that the TCFUA people didn't disappear on the amalgamation; that the division was restructured, not just renamed. It was restructured in significant ways which were designed to accommodate the incoming union. It was a whole union. It wasn't just bits and pieces as happened with others. It was a whole union that had to be accommodated in the former division.

PN165

The restructured division made provision for governing bodies that reflected the incoming union and also positions that reflected the fact that the incoming union was there, as well as provisions for some of its assets to be quarantined, if you like, and so on. We draw attention to that because we want to make a submission in due course that the significance of those changes to the previous division and which are present in the separately identifiable constituent part point to the fact that the separately identifiable part became part of the amalgamated organisation in the form that it is separately identifiable as a result of the amalgamation.

PN166

That is the purpose for drawing attention to these changes as indicated in the scheme and as reflected in the rules of the union, and the rules of the manufacturing division. They are the changes that took effect and the submission we want to make based on those changes is that because of those changes, as I've said, which came into effect as a result of the 2018 amalgamation, that the separately identifiable constituent part which is the manufacturing division became part of the CFMMEU as that constituent part as a result of the amalgamation, and that satisfies the requirements in section 94(1)(a). The manufacturing division, which is a separately identifiable constituent part, did not exist in its form prior to the amalgamation. It was not constructed or governed or comprised in the form that it is after the 2018 amalgamation, prior to that amalgamation.

PN167

The Full Bench in the Kelly case when dealing with the mining and energy division looked at this question of the significance of differences between the presentation, if you like, of the constituent part after the amalgamation and its presentation prior to the amalgamation. If you could turn to the Full Bench's decision, the relevant parts that I want to direct attention to is where the Full Bench was dealing with the idea of becoming part of the amalgamated organisation as a result of the amalgamation and it starts at paragraph 112.

PN168

I want to start the reading at paragraph 119, if I may. This is in response to the applicant's submissions about how 94(1)(a) should be construed and the Bench says:

PN169

The applicant's construction appears to us to be inconsistent with the ordinary meaning of the phrase 'as a result of' the particular amalgamation, which connotes the constituent part becoming part of the amalgamated organisation 'because or as a consequence of' the particular amalgamation and not merely to continue to exist unaltered in an organisation of which it was already a part.

PN170

Then at paragraph 120:

PN171

The relevant issue requiring determination is whether the M&E Division became part of the CFMMEU as a result of the 2018 amalgamation. Our earlier dissertation of the history of amalgamations involving the organisation now known as the CFMMEU shows that the M&E Division in its current iteration has been a part of the organisation now known as the CFMMEU since 5 May 1995.

PN172

The 2018 amalgamation was underpinned by a scheme for amalgamation which relevantly provided that: the name of the amalgamated organisation shall be the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU); the CFMEU is the proposed amalgamated organisation; the MUA and TCFUA will be merged with the CFMEU; the proposed deregistering organisations (the MUA and the TCFUA) will be de‑registered; a Maritime Union of Australia Division (MUA Division) will be created; MUA members would become members of the MUA Division; the TCFUA will merge with the Forestry Division of the CFMEU with that Division to be renamed the Manufacturing Division -

PN173

and we have seen that through the scheme which I have just taken you to.

PN174

TCFUA members would become members of the Manufacturing Division; the structure and rules of the Mining and Energy Division and the Construction and General Division will not be affected by the amalgamation; and the rules of the Mining and Energy Division and the Construction and General Division are not altered as part of the amalgamation.

PN175

Then they go on at paragraph 121:

PN176

Moreover, on 27 March 2018, the MUA and the TCFUA were de‑registered as organisations, the CFMEU became known as the CFMMEU through a rules alteration and continued as a registered organisation, and other rules were altered. However, there was no alteration to the structure or constitution of the M&E Division as it existed when the organisation was known as the CFMEU and before members of the MUA and the TCFU were admitted as members of the CFMMEU.

PN177

Then at paragraph 122:

PN178

It is clear that the M&E Division existed in its current form as part of the CFMEU before the amalgamation and now continues to exist, unaltered, after the amalgamation as part of the renamed CFMMEU.

PN179

There was, as you will have seen, a focus on whether or not in the M&E case � in Kelly's case � the proposed constituent part had altered at all as between pre‑amalgamation and after amalgamation. That was a significant part in the Full Bench's reasoning in refusing the application in that case on the basis that that indicated that it had not become part of the amalgamated organisation as a result of amalgamation.

PN180

The purpose of taking the Bench to the changes that have occurred in relation to the manufacturing division is to show that it stands in a stark contrast to the circumstances in the Kelly case. There are, as you have seen, a raft of significant and substantial changes in the structure, the constitution, the governance and really every aspect of the operation of the previous FFPD as a result of the amalgamation which created the manufacturing division.

PN181

We say that by reason of that, the reasoning of the Full Bench in the Kelly case, would lead you in this case to a finding that the manufacturing division did become part of the CFMMEU as a result of the 2018 amalgamation.

PN182

ACTING PRESIDENT HATCHER: I just want to explore that, Mr Borenstein. Let's say as a part of this amalgamation the construction and general division � it was decided to break it up into two new divisions, but it consisted of members who are always part of what was previously the CFMEU. Would those two new divisions have become part of the organisation in the course of the amalgamation even though they drew no members outside of the organisation?

PN183

MR BORENSTEIN: I'm hesitating because I'm reminded of a decision of Lee J in Gilchrist which has come up in the other matter where, as I recall it, something similar happened where a larger part of the organisation after amalgamation was converted into smaller units and there was a branch which had a narrower coverage, and his Honour was prepared to accept that that constituted a constituent part for the purposes of the legislation at the time.

PN184

It's therefore, we would submit, theoretically open to argue that where the constituent part is created, because a new part is created by the amalgamation which didn't exist prior to the amalgamation, that it would be arguable for that part to say that it is a separately identifiable constituent part, which became part of the amalgamated organisation as a result of the amalgamation.

PN185

ACTING PRESIDENT HATCHER: I think that speaks to what I was � speaking for myself, I think it's the critical issue and that is, in Section 94(1)(a) how do we construe the words, 'became part of?' That is, on one view it simply means, 'comes into existence', which I think is the approach you say, but on another view it might connote, 'becoming part of', in a sense of, becoming outside the organisation, into the organisation.

PN186

MR BORENSTEIN: My submission would be this, that you start with, firstly, identifying a constituent part, and so in the situation of paragraph (c) of the definition of, 'separately identifiable constituent part', you can look at the rules of the amalgamated organisation after amalgamation, to see whether there is an identifiable part that fits paragraph (c). And then, having identified that that part exists, the question would become whether that part exists as a result of the amalgamation, which in one form or another, must have reframed the registered organisation, because entities have come in and the organisation has been restructured.

PN187

And so, we say that where you have a constituent part, in your example, a constituent part which did not exist in the form which it's identifiable afterwards, but is identifiable afterwards because of what happened in amalgamation, then it would be open to say, and it would be consistent with the terminology to say, it became a constituent part of the amalgamated organisation as a result of, as a result of the amalgamation. Because there's no other basis by which it would become that.

PN188

ACTING PRESIDENT HATCHER: So, the addition of paragraph (c) to the definition meant that the need for any link with the deregistering organisation has gone?

PN189

MR BORENSTEIN: Yes. I think everybody accepted that in the Kelly litigation(?).

PN190

ACTING PRESIDENT HATCHER: But that may, in turn, affect how we interpret the words, 'Became part of.'

PN191

MR BORENSTEIN: I'm sorry, if your Honour said that the need for a link with the previous organiser was gone, I think in the Full Bench there was the suggestion that that didn't exclude situations where there was some link to the previous organisation, but it didn't have to be a link of the kind in (a) and (b).

PN192

ACTING PRESIDENT HATCHER: Yes.

PN193

MR BORENSTEIN: And I think that was in answer to some submissions that were made about the interaction between (a) and (b), and the definition in paragraph (c). So, and I can't turn up the paragraph now, but my recollection is clear that the Commission made some comments about that, that you can have (indistinct) essential in the way in which it is under (a) and (b).

PN194

But again, coming back to our situation which is somewhat different, we have a separately identifiable constituent part under the rules now, post amalgamation, which we say is significant to a different band, what was there before. And if the Commission was satisfied that it is different than the FFPD, for all the reasons that we've outlined, then it's not of use of the language to say that it became part of the amalgamated organisation as a result of the amalgamation which provided for the entry of a union, TCFUA, that came to be registered, and which was made part of the previous division in the way in which we've seen. That's an argument that's credible and open on the terms of the section.

PN195

Can I just briefly, without going to it, give the Bench a reference to two paragraphs of the judgment of the Full Court which echo the parts of the Full Bench judgment which I read. They are at paragraphs 138 and 139 of the judgment, and again, at paragraph 139 in particular, the Full Court addresses the same point that the Full Bench did, that the M&E Division was already part of the organisation and it remained unchanged after the amalgamation, and for that reason it wasn't able to be said that it became part of the CFMMEU as a result of the amalgamation.

PN196

Finally, I'd just like briefly to make some submissions in response to the CFMMEU's written outline. We have provided a written reply and we rely on that but I just want to highlight a couple of things. Firstly, at paragraph 12 of the union's outline it accepts that the Manufacturing Division is a separately identifiable constituent part under paragraph (c), and the gravamen of the objection is outlined at paragraph 14 of the submission, and it's basically that there was no change in the identity of the Manufacturing Division as compared to its predecessor prior to the amalgamation, and that as is said at paragraph 14, by the union, that the Manufacturing Division has been part of the CFMMEU, meaning the union, since the initial amalgamation between the BWIU and the ATIU back in 1992.

PN197

As we have outlined already, that submission gives no weight at all to the breadth and extent, and importance and the significance of the changes which were made to the FFPD as a result of the 2008 amalgamation which resulted in the constituent part being the Manufacturing Division after the amalgamation. The changes were of a kind which were noted in the Kelly decision, as being significant.

PN198

They were to the structure of the government's membership rules, et cetera, and as I've said already, they were designed to accommodate the coming in of the whole organisation to form part of the new division and that, we would submit, is significant in itself. And as I've said, we contrast that with the situation which led to the failure in the Kelly case.

PN199

I think that's really all I need to say at this stage, in response to the submissions. We say that it's quite unreal to say that the Manufacturing Division, as it is identified in the rules of the CFMMEU, form part of this registered organisation going back to 1992, and we say that the objection, based as it is on that erroneous analysis of the factual circumstances, should be dismissed.

PN200

ACTING PRESIDENT HATCHER: Mr Borenstein, just to be clear, you say that a constituent part can become part of the amalgamated organisation even though parts of the constituent part, differently described, existed?

PN201

MR BORENSTEIN: You have to give some premise to the changes that have occurred. You have to give attention to the fact that the part of the organisation that existed before the amalgamation is different. And it may be that there's an element of evaluating the significance of the differences, so if the differences were negligible and inconsequential, you might say, well, in substance this is the same part.

PN202

So if, let's say, going back to the Mining & Energy Division case in Kelly, there was some insignificant change about the way it's structured, so instead of having the rod(?) structure, they might have a different sort of structure, or something like that. You might say, well, that really doesn't change the character of the part as it was before, and as it is after.

PN203

But where you have a substantial and quite significant change in terms of the scope of coverage, government structures, accommodation for a whole new cohort of members coming in as a result of the amalgamation with governing bodies for them, offices for officials and so on, then we say that if you look at the entity which is the Manufacturing Division after the amalgamation, it is substantially different to the entity which was the FFPD before the amalgamation.

PN204

And it may or may not be significant but as part of the amalgamation the name of the new division has changed to drop references to the Forestry and forest products, et cetera, to recognise the new face of the division after amalgamation. But we say that the fact that it represents part of what was there before, doesn't mean that (indistinct) of the organisation.

PN205

Indeed, it's interesting. In the Full Court we made an argument about the interpretation of 91(a), and part of the argument was that the interpretation left nothing for paragraph (c) of the definition to do, because of the way 94.1(a) was interpreted, and their Honours put forward an example and you may recall this. They put forth the example of the union, union A, which amalgamated with union B and then with C, and as part of the amalgamation, union B and C were deregistered but the new union had a division called the B&C Division. And the court suggested that paragraph (c) would be able to cover that situation of Division B and C, being a separately identifiable constituent part under paragraph (c).

PN206

ACTING PRESIDENT HATCHER: So, are you talking about paragraph 135 of the judgment? Not the same example as - - -

PN207

MR BORENSTEIN: I think it's earlier than that but I'll just have a look.

PN208

ACTING PRESIDENT HATCHER: 132, yes. Thank you.

PN209

MR BORENSTEIN: I remember it because I stewed on it, a long time. So, the reason I mentioned it, Vice President, is because this is an example of entities that were in the organisation before, and that were, like restructured as part of the amalgamation to make a different entity. So, in answer to your question of whether the fact that they were in the organisation prior to the amalgamation must lead to some conclusion after the amalgamation, might be answered by this example.

PN210

ACTING PRESIDENT HATCHER: So that in that example, Division B&C was previously wholly outside the organisation?

PN211

MR BORENSTEIN: No. No. They were � well, I'm sorry, yes. They were unions that were amalgamating.

PN212

ACTING PRESIDENT HATCHER: Yes.

PN213

MR BORENSTEIN: But I don't think the example turns on the fact that they were actual unions. It may just as easily apply in circumstances where they were separate divisions which are combined in the new organisation.

PN214

ACTING PRESIDENT HATCHER: Is there any evidence about what effect the amalgamation had on membership numbers in the Manufacturing Division, as compared to the previous division?

PN215

MR BORENSTEIN: I don't think there's any evidence in the papers about it, I'm sorry. Unless there are any matters that I can assist with, they are the submissions for the applicants.

PN216

ACTING PRESIDENT HATCHER: Thank you. Mr Dowling?

PN217

MR DOWLING: Thank you, your Honour. Your Honour, can we start where our learned friends did, and that's Section 94.1(a). 94.1(a), as the Bench will be aware, is found within part 4 of chapter 3, and part 3 is entitled, 'Withdrawal from amalgamations.' So, we want to make clear the first and obvious but significant point. In our construction part 3 is directed at withdrawal from amalgamations. What is endeavouring to get out or withdraw, must have come in.

PN218

If has to have become part or the organisation as the result of the amalgamation, and here on the applicant's case, as the result of the 2018 amalgamation of the TCFUA and the MUA. It's not withdrawal at large, and it's not withdrawal that provides for a pre-existing part to get out. What went in, can get out. That, on our construction and we say is the only sensible construction, is the proper way that the part should be looked at, and it's interesting that our friend ended with the example from paragraph 132 of the judgment in respect of union A, B and C, because what is clear in that example, contrary to what our learned friend says, is that B and C came in.

PN219

You might recall in the example, it says union A merges with B and C. Now as that example demonstrates, B and C are coming in, B and C form a division, and then BC can get out. That is not our friend's situation. Our friend's situation is there is an existing division. That changes as a result of the TCFUA coming in. But our friend can't draw on that example. It's directly at odds with the proposition that he puts, and it is consistent with our statutory construction which is what comes in, must go out. And B and C came in, they can get out.

PN220

We should make clear, as we do in our written submissions, that we accept the effect of the Full Bench's decision and the Full Court's decision in Kelly, but the manufacturing division on whose behalf our friends act, is a separately identifiable constituent part within the meaning of subparagraph (c), but what that means is that here you are being asked that whether the Manufacturing Division, and entity that existed, we say, prior to the 2018 amalgamation, became part of the CFMEU as a result of that 2018 amalgamation.

PN221

One other thing we need to clarify, the one complication by the task that the Full Bench has to undertake is that, and this was made clear in both Kelly decisions, is the fact that the administrative units that we're looking at, the Manufacturing Division, has no legal personality of its own. And the reason that's relevant is because if it had some legal personality of its own it might be much easier to determine when it came into existence, or when it ceased existence.

PN222

But we accept on the basis of what the Full Bench and the Full Court had to say, that notwithstanding that, part 3 precedes on the basis that such administrative units that exist within unions may become part of the union as the result of amalgamation. That much was recognised by the Full Court in Kelly v CFMEU, and perhaps if we could take the bench to it just to make good this point, this notion about administrative units and pre-existing administrative units.

PN223

Could the Bench please go to paragraph 122 of the Court's decision, and there, their Honours Justice Katzmann, Rangiah and O'Callaghan said:

PN224

Part 3 of chapter 3, withdrawal from amalgamations, recognises that an amalgamated organisation generally be made up of constituent parts, including divisions and branches provided for under the rules of the amalgamated organisation.

PN225

The rules of organisations are dealt with under Chapter 5. Section 140 provides that an organisation must have rules that make provision as required under the RO Act. 141 contemplates that there will be branches, committees and officeholders that have powers and duties.

PN226

A branch of an organisation may be a reporting unit that has accounting and reporting obligations, but the RO Act does not suggest that a branch or division is an entity in itself.

PN227

It goes on:

PN228

Even where there is no amalgamation involved, the rules of an organisation may be altered, including rules concerning the organisation's name, organisational structure, and eligibility. Nothing in the RO Act suggests, however, that when the rules of an organisation are altered it somehow becomes a different entity organisation.

PN229

Skipping 123, and just again, to make good this notion of administrative units, at 124, there they were responding to Mr Kelly's argument that the amalgamation organisation is the organisation with its changed composition and governance structure, following amalgamation:

PN230

To do that is to conflate the branches and divisions, and parts provided for under the rules of the amalgamation organisation, with the amalgamation organisation itself. It may be seen from 92 and 94 in the definition of 'amalgamated organisation', and separately identifiable constituent part, that the RO Act distinguishes between an amalgamation organisation and the constituent parts of an organisation identifiable under its rules.

PN231

An organisation under the Act is a body corporate. The body corporate is not the sum of its branches, divisions and parts. Mr Kelly's argument that an amalgamation organisation refers to an amorphous organisation not corresponding to an organisation as defined in Section 6, cannot be accepted.

PN232

If the Bench would just leave open that judgment there, I want to come back to it in a moment, but the relevance of that is this. In circumstances where the Commission has to answer whether an administrative unit which has no legal personality of its own became a part of a legal entity, here is the result of the 2018 amalgamation of the TCFUA and the MUA, it is in our submission, necessary to ask, what objectively do the scheme and the rules from the 2018 amalgamation reveal was done?

PN233

It is the scheme and the rules you must look at because they are the documents that identify what the amalgamation was, and how it was given effect to. They reveal what administrative units were created, and what administrative units already existed. Now I'll come back to that notion but if we can just return to where I was in the Full Court's decision, this time to paragraph 126 to identify how the Full Court were dealing with non legal entities that were pre-existing parts of the CFMEU.

PN234

And at 126, the court there said:

PN235

Third, if Mr Kelly's construction were correct, whenever an amalgamation takes place, each division, branch or part of each amalgamating organisation would become part of the amalgamated organisation as a result of an amalgamation, and become eligible to withdraw after two years.

PN236

And emphasising this sentence:

PN237

That would be so, no matter how long a branch, division or part had been a part of a continuously registered organisation. One consequence of that construction is that any amalgamation, however great or small, could subject to a withdrawal ballot, any part of any of the amalgamation organisation's separately identifiable under the rules.

PN238

A period of up to five years in which to apply for a ballot would be re-set for every constituent part after each amalgamation.

PN239

In 127:

PN240

However, if each division, branch, or part of each amalgamating organisation becomes part of the amalgamation organisation as a result of any amalgamation, there would be no need for paragraph 94.1(a), at all.

PN241

That's the Section, of course, under which Mr O'Connor replies.

PN242

That result would be achieved by virtue of the amalgamation organisation being a body composed of every division, branch or part. A construction that allows for the provision to have a function is generally to be preferred. That's why we would start with 94.1(a) and we say our construction is the only sensible contextual construction.

PN243

So, in that context the question that this Bench is being asked to answer is, did the Manufacturing Division, which had no legal personality of its own and pre-existed the 2018 amalgamation, become a part of the CFMEU as the result of that 2018 amalgamation of the TCFUA and the MUA.

PN244

ACTING PRESIDENT HATCHER: I think that sentence has a premise in it which is not accepted by the applicant. It assumes continuity.

PN245

MR DOWLING: It does. We'll come to that. But what is important, what you cannot do, which is what the applicant urges, is start with the changes and say, if there has been a change you should assume that that division became a part of, as the result of an amalgamation. So, if in 2018 there was a change to the rules, an alteration, they say, if there was an alteration then you should assume it became part of, as a result of the 2018 amalgamation.

PN246

Now that, with respect to them, we say is wholly the wrong approach. What you need to do is look at the evidence you have, which is the scheme and the rules, and determine what was intended to be done by that scheme, not start at the back end and say, was there a change, was there an alteration? If there was, it must become part of it. And in doing that, they try and draw on the consequences of the application in the Mining & Energy Division where there was no change.

PN247

But what you can't take from the Full Court's decision or the Full Bench decision, is because there was no change in respect of the Mining & Energy Division it follows that if there is any change to the Manufacturing Division, you can conclude that it became a part of the organisation as the result of an amalgamation. To do it that way would be wholly erroneous, we say. You've got to look at, what was the scheme doing, what are the rules doing, what happened in the amalgamation, not start at the end.

PN248

We have in our written submissions, those date 21 November of this year, set out the facts leading to and including the 2018 amalgamation at paragraphs 2 to 9. I won't repeat them, save what we say are the most salient ones. The starting point is this. 23 September 1991 the Building Workers Industrial Union of Australia and the Australian Timber and Allied Industries Union amalgamated to form the ATAIU and the BWIU Amalgamated Union.

PN249

After that amalgamation the rules of that amalgamation organisation provided that there were to be two divisions, the ATAIU Division, and the BWIU Division. I just note at this point because I'll return to it, the ATAIU had the members that members that were eligible to join by virtue of Rule 2C. And the BWIU had those members that were eligible by virtue of rules 2A and 2B.

PN250

In February of 1992 that union, the ATAIU and the BWIU amalgamated union, amalgamated with the United Mine Workers Federation of Australia, and from this point there are three divisions:- the Mining Division; the ATAIU Division and the BWIU Division. It is also at this point in 1992 that the ATAIU Division becomes the Forestry, Furnishing, Building Products and Manufacturing Division, the shorthand referred to in both sets of submissions as the FFPD. But that ATAIU, in 1992, becomes the Forestry, Furnishing, Building Products and Manufacturing Division.

PN251

ACTING PRESIDENT HATCHER: So, when did Furnishing come into it?

PN252

MR DOWLING: In 1992.

PN253

ACTING PRESIDENT HATCHER: So, there was a separate - - -

PN254

MR DOWLING: Sorry, 1993, my apologies.

PN255

ACTING PRESIDENT HATCHER: There was a separate furnishing trades union, was there?

PN256

MR DOWLING: There was. Your Honour is quite right. In March of 1993, the Federated Furnishing Trade Society of Australasia amalgamate with what is then the CFMEU.

PN257

ACTING PRESIDENT HATCHER: All right, and that's 2F?

PN258

MR DOWLING: Correct. Yes. I should say to complete this picture, in 1993 there's a new division created, the FFTS Union Division, and it's in 2002 that that FFTS Division goes into what's been commonly referred to as the FFPD. So, from 2002 there are three divisions � sorry, 2005 or 2006, and you'll see this at paragraph 7 of our written submissions. The Mining & Energy Division, Construction & General Division, and the Forestry, Furnished Building Products and Manufacturing Division. And at that point, your Honour is quite right, the Forestry, Furnished Building Products and Manufacturing Division has 2C and 2F.

PN259

And you will see, and we'll come to it in a little more detail, that that pre-existing division that has 2C and 2F, the eligibility under those two rules, after the amalgamation � to the amalgamation, has 2C, 2F and 2R. And 2R is the - - -

PN260

ACTING PRESIDENT HATCHER: Wasn't there a Brick, Tile & Pottery Union at one stage?

PN261

MR DOWLING: There was.

PN262

ACTING PRESIDENT HATCHER: That came into the CFMEU, didn't it? As did the Pulp & Paperwork Union. Where do they all fit in?

PN263

MR DOWLING: I will clarify � I'm not sure that much will turn on that for today's purposes, but we'll find the answer, and I might be wrong. But what we want to emphasise is that that continuity between the ATAIU and 2C, that from 2006, becomes 2C and 2F; and then from 2018 it becomes 2C, 2F and 2A. But in our submission there's no doubt that there's a pre-existing division. The effect of the 2018 amalgamation is to add, we accept, a group of members, the two R members, but we'll come to the scheme in a bit of detail.

PN264

But ultimately what the scheme provides in its words is that the TCFUA will be merged into the existing CFMEU and shall form part of the Manufacturing Division, which is the renamed Forestry, Furnishing, Building Products in the Manufacturing Division. So, it's going to that division, and it's going to become part of that division which has existed, and which is being renamed under the scheme.

PN265

So, can we come to the scheme. The Bench was taken to it in GB4. I might, just to be difficult, take you to the version in Annex 2, Ms Dawson-Field's statement at JDF10. We noticed there were a couple of small markups in GD4, so this is a version without any markups. So, this is the version that begins immediately behind Annexure JDF10.

PN266

ACTING PRESIDENT HATCHER: What page? Not 103.

PN267

MR DOWLING: 282, I'm told.

PN268

ACTING PRESIDENT HATCHER: Right, okay.

PN269

MR DOWLING: Of the PDF, which is 1435 pages and it begins on page 282, and 283. I'm told, to go back to your Honour's question, the Pottery Workers came in in 1995. You won't find that in the material and we don't think anything relevant turns on it, but your Honour was right in your recollection.

PN270

ACTING PRESIDENT HATCHER: And there was the pulp (indistinct), Pulp & Paper Workers, as well? They've all ended up in this division, haven't they?

PN271

MR DOWLING: Yes. Now, the scheme. So, what is clear from the introduction, it is a scheme for amalgamation of the proposed amalgamation between the CFMEU, the MUA, and the Textile, Clothing & Footwear Union of Australia, and the parties are identified as being the CFMEU, the MUA and the TCFUA. And it is identified at paragraph 2 that the CFMEU is the proposed amalgamated organisation and both the MUA and the TCFUA will be merged with the CFMEU, and are the proposed deregistering organisations. They are what, in our words that we started with, are coming in.

PN272

Can we go to the overview on the second page, commencing at paragraph 6. Firstly, at paragraph 6.1 and 6.2, you can see there:

PN273

The amalgamation of the MUA and the TCFUA with the CFMEU will be principally affected by:- 6.1, the creation of the Maritime Union of Australia Division of the proposed amalgamated organisation; 6.2, the merger of the TCFUA with the Forestry, Furnishing, Building Products & Manufacturing Division of the CFMEU which will be renamed as the Manufacturing Division.

PN274

Now two things we want you to note. Firstly, that the distinction or the difference between 6.1 and 6.2. 6.1 makes very clear that there is to be the creation of the MUA Division. 6.2, by contrast, tells you that there's to be a merger of the TCFUA with the existing division, the Forestry, Furnishing, Building Products & Manufacturing Division. And secondly, as we've already identified, 6.2 tells you that that existing division, the Forestry, Furnishing, Building Products & Manufacturing Division is to be renamed.

PN275

ACTING PRESIDENT HATCHER: So, how decisive are those words? I mean, you could have equally characterised exactly the same thing as saying that the existing Forestry, Furnishing, et cetera, Division is abolished and there'll be a new manufacturing division consistent with the TCFUB(?) and the old division, and it could be exactly the same rules and outcome. That's a way of describing it, isn't it?

PN276

MR DOWLING: But many things could have been done. You're right, your Honour. But the way the parties are describing what it is they proposed to do in respect of the MUA, is the creation of a division. And in respect of the TCFUA, is to merge them into an existing division. They did not choose the words that your Honour hypothesised. They deliberately chose those words for 6.1 for the creation of a division, but they quite deliberately did not choose those words for 6.2. They chose an existing division to be renamed.

PN277

6.5, again, demonstrates the distinction between the two divisions. 6.5 starts with the words, 'The establishment of specific MUA divisional positions.' 6.6, again by contrast, 'TCFUA members becoming members of the proposed amalgamated organisation, and being attached to the Manufacturing Division within the proposed amalgamated organisation.' And 6.7, 'The current TCFUA branch has been integrated into the Manufacturing Division structures. Now, we'll come to the proposition by our friends about the difference between 'with' and 'into', but you can see at 6.7 that the TCFUA branch is being integrated into the Manufacturing Division structures.

PN278

That's all under the heading, 'Overview', as I identified. And then if the members of the Bench go ahead to the heading immediately before paragraph 18, you'll see the heading, 'Structures.' So, we're now dealing with what the parties to the amalgamation intended to be the structure of the organisation as the result of the amalgamation. And what 18 tells you, is that the MUA will be merged into the existing CFMEU, and shall form the MUA division of the proposed amalgamated organisation.

PN279

And, again, by contrast, 'The TCFUA be merged into the existing CFMEU and shall form part of the Manufacturing Division of the proposed amalgamated organisation.' And we say the parties have chosen their words carefully. One is to form a new division, and one is to form part of an existing division. Under the heading, 'Structures', 20.2 tells us the division is going forward, and they are to be the Mining & Energy Division; the Construction and General Division; the Manufacturing Division; and the Maritime Union of Australia Division.

PN280

ACTING PRESIDENT HATCHER: Mr Dowling, are you able to tell me whether rules of the Manufacturing Division at the time of the amalgamation were completely replaced, or were the - - -

PN281

MR DOWLING: They were amended.

PN282

ACTING PRESIDENT HATCHER: They were amended?

PN283

MR DOWLING: Yes. And that's the next thing that I want to take the Bench to, after I finish � because there is, helpfully, a version of the divisions rules that marks up the changes as the result of the amalgamation. So, yes, 20.2 tells us the four divisions. And what is clear from the scheme is that only one of those four divisions is created as a result of the amalgamation. The other three existed. And the third, the Manufacturing Division, is on the very words of the scheme itself, the renamed Forestry, Furnishing, Building Products & Manufacturing Division.

PN284

Just to make it clear how we get to the amended version of the rules, if the Bench goes ahead to item 24.3 in the scheme, you'll see there, there's a reference to the new Manufacturing Division rules, as set out in Annexure F of the scheme, and the next sentence, 'The particulars of the alterations to the Forestry, Furnishing, Building Products & Manufacturing Division are set out in Annexure G to the scheme.' And we want to take you to Annexure G, but we should be very clear, and we don't think there could be any serious contest about this, they were not a wholly new set of rules, they were an amended version of the existing rules of the Forestry, Furnishing & Building Products, in the Manufacturing Division.

PN285

The Bench will find those, again, behind Annexure JDF10 and starting on page 772 of the PDF, and so if it's not already clear, we should make very clear what this is. This is a version of the Divisions Rules, which identify to the Bench the formula which they were in, immediately before the amalgamation, and mark up the changes that were to take place as the result of the amalgamation. So, you can see on the very first page behind the sheet that says, 'Annexure G', it is the contents of the rules. And you'll see there, bar some page number changes, the only change is in the name. 'The rules of the CFMEU, Forestry, Furnishing, Building Products and Manufacturing Division', becomes, 'Rules of the Manufacturing Division.'

PN286

My friend is right, 9A is inserted to create the TCFUA Sector Council, and we'll come to it. If you go over the page you'll see there formally, the name change. You'll see under Rule 1, 'The name of the division shall be the Manufacturing Division.' And what is struck through, is the Forestry, Furnishing, Building Products & Manufacturing Division, FFPD', and the members of the Full Bench will recall the discussion we had earlier about the eligibility rules. You can see that reflected in the amended eligibility rule at Rule 2.

PN287

'Every member who is a member of the union by virtue of Rule 2, subrule (c), (f) and (r), of the National Rules shall belong to this division.' And as we identified earlier, (c) was the ATAIU; (f) was the FFTS; and (r) is now the FCFUA.

PN288

ACTING PRESIDENT HATCHER: What was (p)?

PN289

MR DOWLING: Yes. It was a state eligibility rule in respect of New South Wales. Perhaps a short circuit way, it has nothing to do with the present circumstances, and - - -

PN290

ACTING PRESIDENT HATCHER: But does it indicate that somebody was actually moved out of the division, or not?

PN291

MR DOWLING: No. It seems to be an error, as best we can tell.

PN292

ACTING PRESIDENT HATCHER: All right.

PN293

MR DOWLING: No one went out of the division. It had (c) and (f), subject to some state eligibility issues, but it had (c) and (f); then it had (c), (f) and (r). What follows is rule 4, and are some definitional changes and you will see on the third page of the definitions, that page marked 3 of 49, on the bottom right-hand corner. You'll see there's now a need to define the TCFUA amalgamation rules; the sector; the sector council and the amalgamation of (a) and the TCF itself.

PN294

If you then, and I think all members of the Bench are scrolling rather than turning, if you scroll ahead - - -

PN295

ACTING PRESIDENT HATCHER: I'm turning.

PN296

MR DOWLING: Thank you, that's two of us � you'll see at (5) there's a change in relation to the TCF sector, and we'll come to that; and then (6), there's no material change to the entrant's fees and contributions. Likewise, no material change to (7) and (8). But then you come to (9) and the Divisional Executive, and there is to be some new positions on the provisional executive. One of those is the TCF national secretary and Your Honour the Acting Vice President asked a question about this position and we should clarify one thing that our friends didn't tell you: that position is identified in rule 9 and identified in rule 9A and you were taken to rule 13 and I think Your Honour the Acting President identified the second sentence of rule 14(iv) where it says:

PN297

The national secretary may, subject to the provisions of subrule 13(ii) exercise any and all of the powers and duties of the divisional secretary in the absence of the divisional secretary.

PN298

We just add one additional bit of information: if you go back up you'll see that's said to be subject to rule 13(ii).

PN299

If you go to 13(ii) and the role of the divisional secretary and 13(iii) - - -

PN300

ACTING PRESIDENT HATCHER: What page?

PN301

MR DOWLING: Seventeen of 49, in the bottom right-hand corner. You'll see there in 13(iii) that the divisional assistance secretary may, subject to the provisions of rule 13(ii), exercise any and all of the powers and duties of the divisional secretary in absence of the divisional secretary. You'll see at the top of that same page:

PN302

In the absence of the divisional secretary the divisional assistant secretary and the TCFUA national secretary, divisional executive may do certain things.

PN303

Now, the way we say those rules should be properly read together is that the TCFUA national secretary is third in line.

PN304

ACTING PRESIDENT HATCHER: Is what?

PN305

MR DOWLING: Third in line � that you have the divisional secretary and in the absence of that role, the divisional senior assistance secretary will assume the role. In the absence of both of those roles, subject to rule 13(ii) as 13(iv) tells you, the TCF national secretary may assume the role. But those two people have to be absent.

PN306

ACTING PRESIDENT HATCHER: You accept it's a divisional office � it's not a TCF sector office.

PN307

MR DOWLING: Well, it is � we accept it is a member of the divisional executive. Can we take you ahead then � I think I had you at rule 13. Can I take you ahead to rule 14, which deals with the funds and property of the division?

PN308

ACTING PRESIDENT HATCHER: What page are we on now?

PN309

MR DOWLING: Page 18 of 49 in the bottom right-hand corner. You'll see that rule is largely unaltered, save for parts D and E, page 20 of 49 at the bottom right-hand corner, which provides for the special funds and the TCF special fund. Save that, the way that the funds and property of the existing division are to be dealt with, continue to be dealt with in the same way. If you then scroll or turn ahead you'll see the auditor (indistinct) report. Rules don't change.

PN310

ACTING PRESIDENT HATCHER: What page is that on?

PN311

MR DOWLING: That's 24 of 49, rule 15, dealing with the auditor and auditor's report � likewise the reporting unit at 15A.

PN312

ACTING PRESIDENT HATCHER: What's the PDF page?

PN313

MR DOWLING: Seven-nine-eight.

PN314

ACTING PRESIDENT HATCHER: Thank you.

PN315

MR DOWLING: I wanted to take the Bench next to rule 18, which provides for the districts of the division. You'll note two changes underlined, both in respect of the same issue: all members of the TCFUA sector resident in the state of Queensland, and you see that at 18(i)(a) and 18(i)(e) � save those changes, the districts of the existing division remain unaltered. For completeness, while we're dealing with the districts, rule 30 provides for district governance at 804 of the PDF.

PN316

ACTING PRESIDENT HATCHER: What's the greater green triangle description?

PN317

MR DOWLING: B � sorry, where is Your Honour?

PN318

ACTING PRESIDENT HATCHER: Eighteen (i)(b), last line.

PN319

MR DOWLING: Eighteen (i)(2)?

PN320

ACTING PRESIDENT HATCHER: Rule 18 districts (i) � it's referred to in little (b), little (c) � little (g) explains it. so it's South Australia, okay.

PN321

MR DOWLING: It does, yes. I think we can comfortably say that it's an existing greater green triangle and greater green triangle doesn't alter as a result. So I was at 804, providing for � we've looked at the districts and the only change to the districts and then the question of the district governance. You'll see the only change there - - -

PN322

ACTING PRESIDENT HATCHER: So is the point of this the TCFUA members went into the existing districts of the division?

PN323

MR DOWLING: Yes � save the question of Queensland. Secondly, the forms of district governance by way of district management committees save a TCFUA assistant secretary position, remained the same. Now, if you go ahead in the rules you'll see necessarily, of course � and we accept it � that at rule 31 there's the addition in the full-time paid officers' provisions for the TCF roles and likewise in the elections there is provision made for those roles. But if I can take you ahead to rule 35, which appears on 814 of the PDF, so you'll see there duties of members and defences are set out in some detail. Duties at paragraph A to J don't change, of course, and the offences from 1 through to 9 don't change.

PN324

There is � can I just note in passing � a change to rule 37 that deals with shop stewards and job delegates. But as best as can be discerned from the rules in what you have before you, that is not a change that is as the result of the amalgamation. It seems like someone has taken it upon themselves to make some amendments in respect of shop stewards at the same time but it's not clearly on its face an amendment that flows from the amalgamation with the TCFUA. Then the rules from 38, Victimisation, 39, Allowances, 40, Change of Residence, 41, Appeals of Members and 42, the special rule dealing with the paperworkers' district � none of those rules change.

PN325

Then I want to take you ahead to page 826 of the PDF, which is importantly the transitional provisions in respect of the TCFUA amalgamation. We make these three important points in respect of this transitional provision and I'll return to again in a little more detail. What the Bench will not find is any transitional provision providing for the re-allocation of the existing members of the forestry, furnishing, building products in manufacturing division to a new division known as the manufacturing division. There's no transitional provision providing for any need for reallocation, which you would expect to see, we'd say, if it was a whole new division. Secondly, 44(xiii), which is within the transitional rule, and appears on PDF page 837, provides that all other offices to continue. Starts with the words, 'For the avoidance of doubt', which we say and we've said in our written submissions is telling because it's indicating to you that there should be no doubt that all of the other offices identified existing in the division as at the date of the amalgamation were to continue:

PN326

For the avoidance of doubt, other than as provided for by rule 44(v), on and from the amalgamation day all offices within the division shall be held by the persons holding those offices immediately prior to the amalgamation day and those persons shall continue to hold office for the period that equals the unexpired term and surroundings by part of the term of office held by the person immediately before the amalgamation day.

PN327

So again for the avoidance of any doubt, we say � so the rules say. Thirdly, in respect of what is not present in the transitional provision, no transitional provision or allowances made for the transfer of the funds or any funds of the forestry, furnishing, building products in manufacturing division to the manufacturing division, unlike the need to provide for the special fund in respect of the TCFUA, which is the organisation coming in. There is no need and there has been � what is evident is there was considered no need to provide for the transfer of funds of the existing division and that is for the obvious reason that those funds continue to be the funds of the division as it existed.

PN328

What those amended rules tell us is that the existing management organisation of the divisions such as the divisional conference, the divisional executive remained subject to the addition of the new offices from the TCFUA. The existing districts of the division remain unchanged subject to the inclusion of the two R members and the manner in which those districts were to be governed remained unchanged. The existing officers, as we've seen by 44(xiii), of the divisions, continued in their position unaffected by the amalgamation. The existing duties of the divisional president and the secretary remain unchanged. The existing election provisions remained unchanged aside from the provision relating to the new TCFUA positions and the existing members allocated to the forestry, furnishing, building product membership division remained allocated to that division. Now, I should correct one thing in our written submissions � it's just a typographical error � at paragraph 15G of our submissions there is a reference there to the forestry division. Too much shorthand: that should be a reference to the forestry, furnishing, building products and manufacturing division. In respect of � as I said, in respect of the transitional provisions, what is telling against the applicant is what is not provided for, in respect of transition. No provision for transition of funds, no provision for transfer of members, no provision for transfer of assets in respect of an existing division.

PN329

What we say all of that reveals, the scheme and the rules, which is the only evidence that is before the Bench, in terms of what the parties intended, and what was to happen in respect of this amalgamation, is that the existing division was to continue with the addition of the TCFUA officers and members by virtue of 2R and it must be, we say, in those circumstances that the manufacturing division did not become a part of the CFMMEU as the result of the amalgamation. It was always a part of the CFMMEU. There were alterations as the result of 2018 but that we say is the mistaken way to approach it. You don't say, 'Ah, there's been a change, therefore it must have become part of it'.

PN330

What you do is you look at the scheme and you look at the rules to determine whether it became (indistinct). Don't work from the end. Our friends in writing in it seems today again rely on Kelly in the Full Court insofar as the Full Court referred to in its explanation as to why the mining and energy division was not � did not become part of � there's a passing reference to, 'The new manufacturing division', and they draw on that to say, 'Ah, well, there you go'. By way of contrast you've got mining and energy division didn't become part of but there's a reference by the Full Court to the new manufacturing division. What should be abundantly clear to this Bench is that it was no part of the Full Court's reasoning, the answer to the question that is before this Bench today.

PN331

No part of their reasoning concerned whether the manufacturing division became a part of this organisation, the organisation as the result of � as a result of � the amalgamation. The reasons shouldn't be construed to provide that. Can we then address some of the things that are said � we can do it briefly � in writing in the reply? Obviously we've not addressed the reply in writing because it postdates our written submissions. Can we summarise our Reponses in these ways: at paragraph 5 of the reply Mr O'Connor seeks to reduce the submissions that we put to one about the division being renamed. It is much more than that. The renaming is only one part of the exercise, that the applicant ignores � we say � what we say is the proper approach, which is objectively what do the scheme and the rules from the 2018 amalgamation reveal was done? Paragraph 6, 8 and 13 we say make the mistake that we've already identified � paragraph 7, 8 and 13 of the reply � and that is to erroneously start with the changes and say therefore you've got some changes, therefore it's okay, rather than an objective assessment of the scheme and the rules.

PN332

Paragraph 7 seeks to draw a distinction between, 'merge into', and, 'merge with'. In our submission it is a desperate distinction which doesn't survive the context. What is clear is that the TCFUA members in funds were to become part of an existing division; an existing division with existing rules as we've seen; an existing division with existing officers and existing duties, as we've seen; with existing management organs, with existing districts, with an existing governance mechanism in respect of those districts and an existing division that was named the forestry, furnishing, building products and manufacturing division, was to be renamed the manufacturing division.

PN333

Paragraph 9 of the reply seems to suggest that the new name of the division changed the � in the words of the written submission � changed the profile and coverage of the new division. We accept that only insofar as it added the TCFUA members because of course otherwise it kept all of the eligibility that it previously had � what we've seen, 2C and 2F. So of course nothing changed about 2C and 2F members. The only change in respect of eligibility was the addition of 2R. But at paragraph 12 of the written reply we say is where the applicant's argument is most acutely exposed because there the Commission is told that the fact that the former members of the forestry, furnishing, building products and manufacturing division continue to be members of the manufacturing provision is not to the point, so it is said, and the fact that the transition rule provides that all existing offices of the existing division will continue in office is also not to the point, it's said.

PN334

Why not? That is not explained. The transitional rule reveals what the parties actually did, what they intended the scheme would do and how it was to operate post-2018. How can it sensibly be said that you should just ignore the fact that there's no transfer provision in respect of the members or ignore the fact that the existing officers continue to hold offices? It's ignoring the transitional provision and it's ignoring what the scheme and the rules provide will happen on the amalgamation and simply saying, 'There's been some changes, therefore we've got a new division'. So it's in all of those circumstances, we say, that the application must fail but we should be clear about the consequences of the approach that we've identified. It does not mean that the parts of the manufacturing division could meet or withdraw. There were mechanisms open to the applicant: for example, the TCFUA membership could apply under section 94 as a constituent part � that is under paragraph B of the definition of constituent part � namely, the part of the membership of the amalgamated organisation that would have been eligible for membership of an organisation de-registered under (indistinct) or a predecessor law if the de-registration had not occurred.

PN335

ACTING PRESIDENT HATCHER: Is the TCF said to have separately identifiable constituent part under paragraph C of the definition?

PN336

MR DOWLING: No, but it could apply as part of the membership. And if it did so, for completeness, it wouldn't need to extend its time under 94A. The ATAIU membership could apply in the same way as a part of the membership under part B of 93B, that part of constituent part. But of course it would need to apply under 94A to have its application accepted after the (indistinct) period. The FFTS that we identified at the outset could apply under 94 as a constituent part but of course it also would need to have its time extended under 94A. So in respect of those three parts, the approach adopted by the applicant circumvents the need for those latter two membership parts, the ATAIU and the FFTS, to make application under 94A.

PN337

It could have withdrawn in that way in respect of the TCFUA and the ATAIU and the FFTS membership but it chose not to and the consequences of that decision, we say, are clear: that when you adopt the position that the manufacturing division as the renamed entity became a part of the amalgamation as the result of the TCFUA and the MUA in 2018. That's not borne out by the scheme and the rules and we say an application of that short must fail and should be dismissed.

PN338

ACTING PRESIDENT HATCHER: Mr Dowling, if instead of the course that was taken on its face and a new division was set up with the same coverage, is that the sole distinguishing feature? That is would 94(i)(a) apply if this was set up as � on its face � a new division?

PN339

MR DOWLING: Well - - -

PN340

ACTING PRESIDENT HATCHER: I was hoping to work out what the distinguishing criterion is here. Is it because the division - as your analysis scheme seeks to demonstrate � involve the continuation and an adjustment of existing division or is it simply because the division contains people who are already in the organisation?

PN341

MR DOWLING: Well, we say as it's revealed is fatal to the applicant but as to how an alternative arrangement might have worked that does unfortunately depend but it might not be as simple as saying, 'If a new division was created therefore its become a part of'. You would still have to undertake the exercise that we urge upon the Full Bench. What does the scheme tell you, what do the rules tell you, was it intended to create a whole new division? But certainly, establishing a new division would be greater evidence that there was an intention to create a whole new division but that's not what happens here. There's quite a deliberate attempt to use the existing division and to use the rules of the existing division.

PN342

ACTING PRESIDENT HATCHER: Does that involve an acceptance that 94(i)(a) might apply to a division which had members of the organisation predating the amalgamation � that that could in some circumstances occur or could never occur?

PN343

MR DOWLING: Well, our starting point, as you heard, Your Honour, was that 94(i)(a) is directed at something coming in, being able to go out. So the facts that Your Honour describes might not be consistent with that, even the ABC example that you've been referred to � that's consistent with our construction because B and C are coming in to form division BC. But if B is already there and C comes in to form division BC then that's not the example. That's not � we say 94(i)(a) doesn't operate in that way. I think there was a question asked about paper and pulp workers.

PN344

ACTING PRESIDENT HATCHER: I saw rule 42.

PN345

MR DOWLING: Yes, so amalgamated with the timber workers from the ATAIU pre the CFMMEU so when the ATAIU came in, the pulp and paper workers were already there. Unless there are any questions, they are the submissions of (indistinct).

PN346

ACTING PRESIDENT HATCHER: Thank you. Any reply, Mr Borenstein?

PN347

MR BORENSTEIN: May I start with the first proposition that Mr Dowling put forward, based on the heading for part 3, 'Withdraw from amalgamations', proposition that sets up the dynamic that you can only withdraw if you came in. Two things to be said about that: first of all, the heading of division 2 is ballots for withdrawal from amalgamated organisations, which might have a slightly different focus, that one that's more realistically aligned to the process by which these amalgamation applications occur, which is in the first instance to identify a constituent part and really what Mr Dowling's submission amounts to is the argument that was advanced in Kelly and was rejected in Kelly and which is based on the notions that are contained in paragraphs A and B of the definition of separately identifiable constituent parts, which the Bench will remember involved the parts being related to a pre-existing entity which was deregistered.

PN348

Now, the accepted interpretation of paragraph C is that the separately identifiable constituent part does not have to have any connection with any entity that came into the organisation as a registered organisational part of that and was deregistered in the way paragraphs A and B provide for. So there is no necessary link between the constituent part that seeks to withdrawn from the amalgamated organisation, and the entities that went into the amalgamated organisation. As I say, that is based on the erroneous idea that separately identifiable constituent parts under paragraph C have to have the same connection in terms of their registration as paragraphs A and B and that's been roundly rejected.

PN349

Once you then get past that false argument, the starting point as I said � and this again goes to Mr Dowling's suggestion that we are starting from the end and working backwards � the starting point is to identify a separately identifiable constituent part under the rules of the amalgamated organisation: that is the CFMMEU. We've done that. There is no argument about the fact that the manufacturing division as it is provided for in the rules of the amalgamated organisation is a separately identifiable constituent part. We then, contrary to the way in which Mr Dowling put it, sought to address the question under section 94(i)(a) not by saying � not by starting with the proposition of saying it has changed, therefore it became part of the organisation as a result of the amalgamation.

PN350

What we have sought to do is to identify the structure of the manufacturing division as it stands now to identify by reference to the scheme the changes that were made to the FFPD for the purpose of producing the manufacturing division, and not just producing the manufacturing division but to accommodate the amalgamation of another organisation: namely the TCFUA. We have done that to identify the nature and character of the manufacturing division, for the purpose of arguing that that is a division which became the manufacturing division as a result of the amalgamation. And in dealing with the effect of the amalgamation, in relation to the manufacturing division, it is necessary to look at what the amalgamation was designed to do, to the previous FFPD.

PN351

And it's for that purpose that we go to the scheme, to say the scheme is telling you what the effect of the amalgamation will be on the previous structures of the union and in particular on the previous structures of the FFPD. And it wasn't just to change its name. As we outlined � and I won't go through it again � but as we outlined it made significant changes to the coverage and extended the coverage to a new field which was not within the realms of the FFPD. It introduced new government structures such as the TCF sector. It introduced new offices for people coming from the TCF. It made arrangements for the accommodation of the assets and other matters coming from the TCF.

PN352

Now, at the end of his submissions Mr Dowling criticised us for saying that in our reply submissions it was not of significance that the transitional rules made no reference to the ongoing membership of the FFPD remaining in the new division or the continuation of the holding of offices by the new division. In our respectful submission, when you recognise what actually happened, which is that in the amalgamation, a new structure was superimposed on the existing structure so that there were new elements introduced into the existing division, the FFPD division, to create the manufacturing division. It is not significant that as part of that administrative rearrangement and restructuring that people who were in place and were not new people into the manufacturing division would retain their position, would retain their membership.

PN353

The point of the exercise is to identify what happened to that division as a result of the amalgamation and what happened to it is spelt out in the scheme and we've been through it and there are significant additions and changes that were made. We say that there is nothing improper in the way in which we've gone about conducting the analysis. Mr Dowling then made some submissions about the discussion in the judgment of the Full Court about administrative units and at paragraphs 122 through to 136 of the judgment. Now, in response we say that that discussion took place in a completely different context and it's not � and it's in a context where there was no change that was being made to the administrative unit and the court was seeking to explain the significance of the absence of any change. Now, in relation to our friend's survey of the scheme, we would submit that all of the matters which were referred to demonstrate that substantial changes were made to the FFPD as a result of the amalgamation and we rely on the submissions that were made in chief on that point.

PN354

Our friend criticised us for relying on a part of a passage in the Full Court judgment where reference is made to the new manufacturing division. It's clear � and we don't argue � that the Full Court ruled on that question. Our submissions in reliance on the Full Court's judgment and on the judgment of the Full Bench in the Kelly matter is this: that in analysing the issue that was before both of those tribunals they drew attention to the significance in that case of the lack of any change between the period before amalgamation appeared and after amalgamation in the constituent part that was being advanced. That was a matter which was of significance in the reasoning.

PN355

We seek to draw on the reasoning and seek to apply it here and seek to apply it by saying, contrary to the situation in Kelly, there are substantial changes here between what was in the union before the amalgamation and what is in the union as a constituent part after the amalgamation. We say that that was a significant matter in the Kelly case and we say it should be significant here. We say that the suggestion that these changes are insignificant, the suggestion that the manufacturing division which is the constituent part was there in its current form all the way through back to 1992, is just patently incorrect. The argument that the union advances seeks to completely diminish the significance of the change that took place.

PN356

We say that's an incorrect approach and we say that full value should be given to the changes that took place and we say that having regard to the way in which the Full Bench and the Full Court analysed the matter in the Kelly case, if you apply that same sort of analysis and same sort of reasoning here, it's clear that the manufacturing division is a separately-identifiable constituent part that came into the � that became part of the organisation as a result of the amalgamation. The effects of the amalgamation are in the scheme. We've seen the rules that give effect to that. In our respectful submission, those facts are determinative of the jurisdictional objection and we ask the Commission to reject the objection for those reasons. Just one last matter, Mr Bakri reminds me � Your Honour the Acting President asked this question about whether or not it would make a difference if rather than taking the FFPD and then putting another strata on top of that to accommodate the TCFUA, the amalgamation had simply said there will be no longer an FFPD, there will be a new division which will be the manufacturing division. In our respectful submission, one needs to recall that all of these divisions are administrative unions. As Mr Dowling said, they are not legal entities in their own right.

PN357

The organisation of course can ask rule changers to rearrange and restructure and what have you. So we say that whichever way the organisation goes about it, one should look at the substance of what's done and one shouldn't put form above the substance and if the substance � if for example the Commission took the view that if instead of the way in which the organisation did it here they had passed a rule in the amalgamation saying, 'No more FFPD, there will be a new division called the manufacturing division which will have everything that's in the FFPD plus the TCFUA provisions and that would make a difference'. We would say that would be � and if the Commission were of the view that in those circumstances there would be a constituent part which became part of the organisation as a result of amalgamation we would say that the same conclusion should apply in circumstances where the organisation is chosen with a different manipulation of its rules but to the same end.

PN358

If that's right then the same conclusion would be called for and the finding would still have to be made that the applicant had satisfied 1A in relation to the manufacturing division. Unless there are any other matters that I can assist the Commission with, they're our submissions.

PN359

ACTING PRESIDENT HATCHER: All right. We thank counsel for their submissions. We propose to reserve our decision. We'll now adjourn.

ADJOURNED INDEFINITELY�� [11.49 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 STATEMENT OF GEOFFREY BORENSTEIN DATED 24/10/2022 PLUS ANNEXURES........................................................................................................... PN84

EXHIBIT #2 STATEMENT OF JESSICA DAWSON-FIELD DATED 21/11/2022 PN92