WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT. Appeal No. 9 of 1980. In the matter of an appeal from the decision of the Full Bench of the Western Australian Industrial Commission, given in application No. 339 of 1980, dated 12th December, 1980. Between Metropolitan (Perth) Passenger Transport Trust, Appellant, and Erhard Gersdorf, Respondent. Before Mr Justice Wallace (Presiding Judge), Mr Justice Brinsden, Mr Justice Smith. Friday 27 th March, 1981. Order. HAVING heard Mr C. D. Steytler of Counsel for the appellant and Mr T. 0. Malone of Counsel for the respondent in the appeal herein from the decision of the Full Bench of the Western Australian Industrial Commission given on 12th December, 1980, the Court doth hereby order the appeal be allowed and that the questions posed before the Full Bench be answered in the negative. (Sgd.) K. SCAPIN, [L.S.] Clerk of the Court. IN THE WESTERN AUSTRALIAN INDUSTRIAL APPEAL.COURT. Appeal No. 7 of 1980. In the matter of an appeal from the decision of the Full Bench of The Western Australian Industrial Commission, given in application No. 614 of 1980, dated December 12, 1980. Between Hospital Salaried Officers Association of Western Australia (Union of Workers), Appellant, and The Hon. Minister for Health, Respondent. Before Mr Justice Wallace (Presiding Judge), Mr Justice Brinsden, Mr Justice Smith. Friday 27th March, 1981. Mr N. H. S. Clarke appeared for the appellant. Authorities cited— T.W.U. v. Hamersley Iron, 53 W.A.I.G. 1103 Australasian Temperance etc. v. Howe, 31 C.L.R. 294 Iron Ore Production & Processing (Hamersley Iron Pty. Ltd. v. T.W.U., 53 W.A.I.G. Part 2,1103 1976 56 Part 2A W.A.IG. 1597 (Amendment of Constitution). 27th May, 1981.J WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. TWU etc. v. Hamersley Iron 53 W.A.I.G. 1103. The Shorter Oxford English Dictionary. Australasian Temperance etc. v. Howe 31 CLR 294. Pearce "Statutory Interpretation" paras. 13-16. Geo. Bond & Co. Ltd. v. McKenzie (1929) A.R. 499 503-4. WALLACE J. The short point in this appeal involves the interpretation of the Constitution of the appellant. In proceedings before the Industrial Commission in 1976 at which representatives of all unions involved were heard, the appellant's Constitution was amended to provide cover of workers engaged in professional, administrative, technical, supervisory or clerical capacities employed by- (a) ... (b) ... (c) the Western Australian School of Nursing or any service ancillary to the practice of medicine . .. See 56 W.A.I.G. Pt.2,1597. On 29th August, 1978, the appellant made a claim to amend its award so as to operate throughout the State of Western Australia in the areas occupied or controlled by the Western Australian School of Nursing (the School). In short, the Commission refused the appellant's application because of the opinion that persons employed at the School were at that time eligible to belong to the Civil Service Association and, importantly, were_ government officers over whom the Commission had no jurisdiction. Section 23(3)(b)(i) Industrial Arbitration Act, 1979. On appeal to the Full Bench of the Western Australian Industrial Commission the appellant's argument that employees of the Minister in the School were not government officers, was upheld but unfortunately the appellant was again unsuccessful because of the opinion expressed that the employment of personnel by the School did not mean "in" that School and thus the amendment sought was not within the appellant's constitutional rule. There can be no doubt- that the intention of all parties concerned was that both the constitutional rule and proposed amendment of the appellant's award sought coverage of those employed by the Minister in the School. We are told that the School is not incorporated but no one has any doubt as to its existence in fact irrespective of the identity of the authority responsible for payment of its staff. It is difficult to understand how any confusion arose in light of the agreement of all parties concerned. One can only conclude by the very words used in the decision of the Full Bench that it has misunderstood the rules applicable to the manner in which constitutional coverage should be ascertained. The mere fact that such a matter involves a question of law does not compel the acceptance of an absurd result. Those members of the profession over whom constitutional coverage was sought, working for the School also worked at that School, were employed therein and paid by it through the Minister. The question being ... as to the constitutional coverage of each union, the answers to them must be found by ascertaining the criteria for membership of each union as expressed by the registered rules of each union, this being a matter of construction and a question of law, and then by finding whether the disputed classifications satisfy the criteria, this being a question of fact. See joint judgment of Burt C. J., Wickham and Wallace J. in Iron Ore Production and Processing (Hamerslev Iron Ptv. Ltd.) v. T.W.U.. 53 W.A.I.G. Pt. 2, 1103. The result of the Full Bench's decision is that those who have sought constitutional coverage against no opposition now cannot be covered by anybody. If one follows the rule of construction to seek the ordinary and natural meaning of the words employed in the constitutional rule one could not fail to conclude that in the context used the parties intended coverage of those employed by and in the School. Any ambiguity, if it arose, simply authorised those seeking the proper construction to have regard to the parties' conduct. For these reasons I would allow the appeal. BRINSDEN J. This matter is an appeal against the decision of the Full Bench of the Industrial Commission which dismissed unanimously an appeal by the appellant from the decision of Commissioner Johnson. The appeal to us raises the question of the interpretation of the appellant's constitutional coverage. The Constitution of the appellant was amended in 1976 and the Commission in Court Session pursuant to the powers vested in it by ss. 23 and 54 of the Industrial Arbitration Act 1912 and Amendments directed the Registrar to register an amendment to the Rules of the applicant Union. As amended r. 3 now provides (inter alia): (1) The Union shall consist of workers engaged in Professional, Administrative, Technical, Supervisory or Clerical capacities employed by— (c) The Western Australian School of Nursing or any service ancillary to the practice of medicine including institutions or facilities solely or substantially engaged in providing Medical Laboratory services, Radiological services, Physiotherapy services, Occupational Therapy services, Speech Therapy services or Social Work services. There are three provisos to r. 3 (l)(c), one of which provides that any person who is employed as an officer or temporary employee under and within the meaning of the Public Service Act 1904, or who is determined by the West Australian Industrial Commission to be a "government officer" shall not be eligible for membership of the Union. The immediate history relating to the amendment seems to be that prior to 1975 there were two schools of nursing—the Government School of Nursing and the Royal Perth Hospital School of Nursing. In 1975 these were combined into the West Australian School of Nursing. The people employed in these two earlier schools of nursing were all members of the appellant Union and when the new School of Nursing came into existence the amendment to which I have referred was introduced into the Constitution. The appellant by an application dated the 29th August 1978 made a claim upon the respondent in respect of particular callings of workers in that part of the public hospital industry substantially concerned with the provision of a school or schools of nursing. The application came on for hearing before Commissioner Johnson who reached the view that he did not have power to deal with the reference seeking an award covering persons at the West Australian School of Nursing for the reason that in his view the people so employed were government officers and by reason of s. 23(3)(b)(i) of the Industrial Arbitration Act 1979 ("the Act") he was prohibited from regulating their rates of salary or conditions of employment. The appellant then appealed and was successful in persuading the Full Bench that the Commissioner's view was wrong but that did not terminate the proceedings successfully for the appellant by reason that the Full Bench concluded that the appellant did not have constitutional coverage of the employees concerned. Shortly stated, the reasons of the Full Bench are these. The Constitution renders employees of the relevant 618 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. [27th May, 1981. description eligible for membership of the Union if they are employed "by the West Australian School of Nursing". It was common ground that the employees, over whom the coverage was sought, work at the West Australian School of Nursing which has no corporate status and is run by a committee of management. It was further common ground that the Minister for Health was the proper respondent in the proceedings as he was seen by the parties to be the real employer. The Full Bench took the view that it was necessary to construe r. 3 literally and strictly and noted that the word used was "by" and not "in". As the West Australian School of Nursing did not employ these employees therefore they were not within the constitutional rule of the appellant Union. Reference was made by the Full Bench to an earlier decision of this Court, namely Transport Workers Union v. Hamersley Iron Pty. Limited and Australian Workers Union 53 W.A.I.G. which was seen by the Full Bench to require it to construe the rule literally and strictly. In my view the ordinary and natural meaning of the words used in r.3(l)(c) designates the types of employees covered by the rule by referring to the capacities in which they are engaged at the West Australian School of Nursing rather than by reference to the legal employer. The history of the amendment to the rule supports that view. Indeed so do other parts of r.3. The same rule in subclause (l)(b) also covers workers engaged in the capacities referred to, employed by the Hospital Laundry and Linen Service, and employment by a service could scarcely be interpreted as a reference to the legal employer. I would therefore have no trouble in interpreting the rule to cover employees in the respective capacities employed in or at the West Australian School of Nursing unless I am compelled by authority to reach a contrary conclusion. I have re-read the decision referred to by the Full Bench but I am unable to conclude that it is an authority requiring the Full Bench or indeed this Court to construe the rules of a union literally and strictly. In that particular case the judgment of the Court referred to the reference the Commission had made in its reasons for judgment to an undertaking given by the A.W.U. to the T.W.U. concerning the application of the amendment to its rule governing constitutional coverage. The Commission having considered the meaning to be attached to that undertaking, and in the light of the subsequent conduct of each party, concluded that it was impossible to hold that the undertaking given was intended by either Union to be taken literally. The judgment of this Court then went on to say that that inquiry need not have been made and the conclusion reached was irrelevant to the question to be decided which was what was the proper legal interpretation to be placed upon the rule governing constitutional coverage of the A.W.U. The Court pointed out that the assumption upon which the inquiry before the Commission in Court Session proceeded was that in some way the undertaking could restrict the constitutional coverage created by the rules as registered but that assumption was mistaken. The rules of a registered union of workers can only be changed in the manner prescribed by the statute, and the rules as registered from time to time are final and the only expression of them. That seems to me to be the only point in the case. It says nothing about the necessity to interpret the rules of a union strictly and literally but simply makes the point that the rules alone are to be looked at and not any collateral undertaking. Subsequent conduct of the parties may only be considered if such rules are in truth ambiguous and then only to resolve the ambiguity. Generally speaking the correct approach to the interpretation of a union rule is to interpret it in the same manner as any otherr document. It must be remembered however that union rules are not necessarily drafted by skilled draftsmen. It is therefore necessary I think in construing a union rule not to place too literal adherence to the strict technical meaning of words but to view the matter broadly in an endeavour to give it a meaning consistent with the intention of the draftsman of the rule. This approach has been endorsed in relation to awards: see Geo A. Bond & Co. Ltd. (In Liq.) v. McKenzie (1929) A.R. 499 at 503-4 referred to in Federal Industrial Law by Mills and Sorrell 5th Ed. at p.522, I also said much the same thing in the unreported decision of Bradley v. The Homes of Peace 1005/1978, judgment delivered 21st December, 1978 at p.13-14. I would therefore allow this appeal. The proper construction of r.3 of the appellant Union's Constitution gives constitutional coverage of the persons referred to in Schedule B to the application of the 29th August, 1978 employed at the West Australian School of Nursing. SMITH J. I have had the advantage of reading the reasons for judgment handed down by Brinsden J. and I am in agreement with those reasons. I have nothing to add. IN THE