Association of Consulting Surveyors (Queensland) Limited [1999] ICQ 2 (1999) 160 QGIG 80

80 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE QUEENSLA.'-m INDUSTRIAL COURT Workplace Relations Act ]997 - s. 360(2)- appeal from decision of industrial commission A.,;sociation of Consulting Surveyors (Queensland) Limited (l\o. C87 of 1998) [5 February, 1999 20 January 1999 J (\JUSTICE WILLIAMS, PRESIDENT COMMISSIONER EDWARDS AND COMMISSIONER SW AN JUDGMENT The Association of Consulting Surveyors (Queensland) Limited ("the appellant''), a company incorporated under the Corpcntions Lav.f' as aicodmpanyl · f · · l association pursuant to the JJ[OV1s10ns o the n usma limited by guarantee, applied to the Industrial Commission or registrat10n as an emp oyer . . 28 o· b 1998 Ith Organisations Act 1997 (''the IO Act"). That application was refused by Chief Comm1ss1oner Hall for reasons which he. gave on cto er . as appealed to this Court from that decision. d d h C r law it was not an association Essentially Chief Commissioner Hall concluded that because the appellant was incorporate un er t e .orpora ions · capable of being registered under s. 8 of the 10 Act. Ultimately the question whether or not the appellant can be registered as an employer association depends upon the proper construction of s. 8 of the I~ Act, but an answer can only be reached after a consideration of a number of earlier Qu~ensland statutes. It will become obvious \Vhy our conclusion is dependenl upon the historical evolution of the law in Queensland rnlatmg to the reg1strat10n of employer associations. Th . . t . The 1·rade Un;on Act o,f 1915 which as its name implies d_ id not deal_ with employer organisations. Section 7 (1) thereof e commencmg pom 1s • ' · d th · l · 'th rovided that any seven or more members of a trade union could, upon subscribing theu names to the rules of the umon, an o erw1se comp ymg w1 ~e provisions of the Act, "register such union under this Act". Such registration did not make t~e association a body corporate. That came with the Industrial Arbitration Act 1916; s. 37(1) thereof provided that every industrial union upon beco~ng r~g1stered pursuant to thc_prov1s1ons of that Acft b .. b d . t by ·ts regi· ~tered name" Section 26 of that 1916 Act dealt with the registration ot an mdustnal assoc1at1on or trade umon o ecame a o y corpora e 1 ~ · - · sh ld b · d "b th employees. For reasons which will become evident later it should be noted that subsection (2) provided that .~he a.pphcation •. ou " e s1gne . y e secTetary and the president or chairman of the association or union". Tht:re was also reference ins. 27(b) to the president or chairman of the umon. The si nificance of the term "association" ins. 26 of the 1916 Act was considered by the High Court in Re Mclannet; ex parte Minister for Employmeni, Traini!g and Industrial Relations for the State of Quun.tland (1995) 184 CLR 620. Relevantly Brennan CJ, Deane and Dawson JJ said at 639 (a passage quoted by Chief Commissioner Hall):- "The view taken by the majority in the Federal Court was that the Queensland branch of the AT AEA, being an entity wh_ich was distinct from its members, was nm capable of registration under the Queensland Act or did not achieve corporate _personahty upon reg1strat10n uudef that Act. That · ot · opi·ni·on be siistai·ned Although the condition upon which reg1s_tratmn of an mdustnal umon could be granted under s. 26(1) of view cann , m our , · · , · l ' 'th f th t ms by the Queensland Act was that it answered the description of an 'industrial association' or a trade umon of emp oyees ,' nei _er o, ~se. er'., itself connotes the existence of a legal entity. The terms ·association' or ·union' t:onnote a rela.t1onsh1p among persons as_soc1ated or Uiuted for~ com~on purpose or to share a common interest. These are terms descriptive of a relationship (typically, a contractual relat1onsh1p) between persons, they are not descripfr,·c of entities invested with a legal personality.". th Q l d b , h f the ATAEA was not an entity having an existence separate from its members and therefore Whilst the High Court held that e ueens an ranc O " - • " " - ., bi f could not be registered as such under the Act, the members of the Queensland branch of the AT AEA were an association or umon capa e o registration under s. 26(1) and upon their registration a new body corporate was created. Until the passing of the Industrial Arbitration Amendment Act 1923 an industrial union of employers ~oul~ n?1 be regis~ered. Employe~_organisations - th · l · t b 13 fthel923Actwhichmsertedss ?7Aand27Bmtothel916A1.-t. Sect10n27Awasmtheseterms. were given e ng 1t to regis er y s. o · . · · - "The registrar may, on application made as prescribed, register as an industrial union of employers under this Act any person or. association of persons, or any incorporated company or association of incorporated companies, who or which has m the aggregate thr::l;,out the six months next preceding the date of the application for registration employed on an average, taken per month, not less than fifty employ · · That section expressly provided that a company incorporated under the companies law could become registered as an indu~trial umon ~f employers.,, On regi~tration s. 37 of the 1916 Act came into play and the registered industrial union of employers became "a body corporate_ by its r~gistered name . IH · · · l ( f Th Q C wthome- e:i parte Federatea Clerks Umon of Austra ia thus had dual corporate status but that was not unusual m tlus area of the aw _c • e ueen v a , , (South Australian Branch) (1979) 22 SASR 433 at 436,441 and 446). Section 27B reflected s.27 of the 1916 Act and referred to officers of the industrial union of employers as including "the president or chairman"• Followin a change in vovernment the Industrial Conciliation and Arbitration Act 1929 came into force_. Section 68 ther~of provided for the regi~ati~n of "an i!dustrial association or trade union of employees". Subsection (2) thereof referred_ to the "president or c.hairman ot th~ association or umon as did s. ~9(b) which dealt with the documentation to accompany an application for registration. Sect10n 70 provided _for the registration of an mdustrial · t· , 1 ·t fl t d 27A quoted above Section T)(b) of the 1929 Act again referr_ed to officers ot the mdustnal umon of employers umon o emp oyers; t re ec e s. · - h h f l employers was a body including "the president or chaffman". Section 81 of the 1929 Act provided that every industrial umon, w et er o emp oyees or , , · corporate hy its registered name. r. ll • th h f vernment the Industrial Conciliation and Arbitration Act 1932 was passed. For present purposes it did not_ significantly 1·0 owmg ano er c ange o go - . . . d - f l - and s 29(b) agam referred to 1 Q th l t l· w Section 28 provided for the registration of any industnal assoc1at10n or tra e umon o emp oyees'. • _ . . ~'.~r e r~ e~an : .rman" of such a union or a..~sociation. Section 30 provided for the registration of an industrial union of employers and it was m ~ e prlles1den .orlct a1 ·th 2.7A quoted ab•)ve Again s 31 (b) referred to "the president or chairman" of such a body. Section 41 provided that upon v1rtua y I ent1ca erms wt s. ~ · · · . - · d registratwn each of an industrial union of employees and an industrial union of employers was a body corporate by its reg1stere name. h h fl 1961 when the Jruiuvtrial Conciliation and Arbitration Act of that year was passed. SectJOn 44 thereof provided for the There was t en no c ange un 1 • • • · l d' "th ~- dent or chairman" - · f" t d · f employees" Section 44(1)(b) referred to the officers of such a umon me u mg e pre.,1 reg1strat10n o any ra c umon o • - . · · · f l . . d th O , • change in the wording which had existed from 1923 Section 45 of that Act dealt with the registration of an mdustnal umon o emp oyeu a,1 er,., was a until the passing of that Act. Section 45(1) was in these terms:- 5 February, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 81 "The registrar may, on application made as prescribed, register as an industrial union of employers under this Act any person or association of persons who or which has in the aggregate throughout the six months next preceding the date of the application for registration employed on average, taken per month, not less than fifty employees.". The significant change was the deletion of the specific reference to "any incorporated company or association of incorporated companies". But in effect there was no change in the law because of the use in s.45 of the term "person". ·•Person" was defined ins. 5 of that Act as including "a bcxiy coq,orate". If further support for that was needed s. 36 of the Acts Interpretation Act 1954, as it stood in 1961, included the definition of "person" as follows:- "Includes a body corporate." Given those definitions s. 45 applied to any incorporated company or association of incorporated companies as did the earlier provisions. Again it should be noted that s. 45(2)(h) referred to the officers of such an as~ociation as including "the president or chairman". Section 69 of that Act provided that a registered industrial union either of employees or employers should be "a body corporate by its registered name". It is appropriate at this point to note that a number of bodies corporate had become registered as a union of employers between 1923 and 1990. Prior to 1990 the only reported case dealing with such an application for registration is the decision of the Industrial Registrar dealing with the application by Motor Trade Association of Queensland Incorporated reported at (I 968) 68 QGIG 14. On that occasion other registered employer unions objected to the registration in question. Registrar Marshall referred to s. 45 of the 1961 Act and the definition of "person" ins. 5 thereof and said:- "When these two sections are read in conjunction with Regulation 2 of the said Acts it will he seen that the Registrar has jurisdiction conferred on him to register as an Industrial Union of Employers a person (being a singular employer), a body corporate or an association of persons, where, in each instance, the applicant employs the required number of employees. Therefore, an incorporated association, before it can be registered as an Industrial Union of Employers must employ, in the aggregate on the average, taken per month, not less than fifty employees. lt is not sufficient that the shareholders in a company or the individual members of an incorporated association collectively employ this number but the company, itself, as an entity must comply with this requirement.". Because the applicant failed to satisfy that necessary requirement of the legislation the application for registration was refused. That was the position which existed when the Industrial Relations Act 1990 (IR Act) was passed. That legislation was introduced after another change of government and also, significantly, after the report of the committee of enquiry into the Industrial Conciliation and Arbitration Act of Quunsland headed by Mr Ian Hanger QC; reference to that Report is found in the Minister's Second Reading Speech. The. Hanger report recommended some changes in the law relating to the registration of industrial unions of employers, hut no problem was then identified with respect to the registration of an incorporated body. Certainly no specific problem with the legislation which had existed from 1923 to 1990 providing for Sllch registration was then identified. Perhaps more significantly, the Minister in his Second Reading Speech did not indicate that the law relating to such registration was being changed, let alone give any explanation of justification for such a change. For convenience sake we will use the section numbering adopted in Reprint No 3 of the IR Act, and put in square brackets the section designation as it aweared in the original. Section ::127(11.2] provided that an "association·• may make application for registration as an industrial orgamsation; that covered bOlh an association of employers and an association of employees. lt is only necessary to refer in detail to those provisions which relate to an association of employers. Section 327(l)(a)[l3.l(a)] speaks of "an association of whose members all or .~ome arc employers, and, where some only are employers, the other memhers are (i) officers of the association; or (ii) persons who carry on business otherwise than as employees: or (iii) persons who were employers when admitted to membership of the association". 'Dle term "persons" therein carried the extended meaning attributed to that word by the Acts Interpretation Act definition referred to above. That Act was amended in 1991 but the new defmition of "person" ins. 36, and what was inserted ins. 32D, continued the effect of including a corporation in the term .. person" when used in a statute. Thus the association in question could clearly be an association of incorporated bodies. Section 328(3 )[ I 3 .2(2)] provided that an application to the Commission for registration as an industrial organisation of employers must be accompanied by certain particulars and documents. One of those requirements was that there should be a list of persons holding designated offices of the association, including the •·president" There was a similar requirement with respect to an application for registration as an industrial organisation of employees; again there was reference to the person holding appointmem as "president" thereof s. 328(4)l13.2(3)]. It will be noted that for the first time the applicable legislation referred ouly, in each case, to the "_JJ[esident"; previously, as would he obvious from the historical review outlined above the reference in each case had been to the president or chairman. Those sections also required the applicant association to submit two copies of its rules with the application. Section 328(3)(d)[l3.2(2)(d)) is also of some significance. It _JJ[ovides that the application for registration as an industrial organisation of employers must be accompanied by:- " ... in the case of an association consisting of more than l person - a copy of a resolution passed in accordance with the association's rules by a majority of the employers who arc members of the association ( or by other competent authority within the association) in favour of registration of the a<;sociation under this Act.". That could clearly apply where the members of the association were incrnporated bodies. Section 329[13.3] provides, mter alia, the aiteria for registration of an association of eiqJloyers. Relevantly "its members who are employers have, in the aggregate, employed on an average taken per month at least one hundred employees throughout the period of six months immediately preceeding the date of the application." That would appear to alter the JJ[evious criteria as explained in the decision with respect to the application by the Motor Trade Association of Queensland Incorporated. There is also provision in s. 330(13.4] for the continued registration of a small industrial organisation of employers; it is not necessary to refer in detail to that. Section 334{13.8] provided that an industrial organisation, in its registered name, is a body corporate. The court was not referred to any applications or decisions made with respect to those provisions of the IR Act. It is only necessary to refer 'lo s. 1.4(5) as it appeared in the originai version of the IR Act; it provided that the repeal of the 1961 Act, and other Acts, did not affect "the continuity of identity or registration of an industrial union registered as sudt undtT any Act in force at any time before the commencement of this Act". That dropped out of subsequent Reprints of the IR Act, but ss. 20 and 20A of the Acts Interpretation Art operated to continue the effectiveness of registration of in<lust.cial organisations under earlier Acts. Thus corporations registered as an industrial organisation of employers under the earlier legislation contmued to be registered after the IR Act came into force. 27997 -- 1 of 3 -- 82 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [5 February, 1999 h. h ·rca.1 for present purposes. Ins. 3 the · · of the IR Act and those in the IO Act w 1c are en I . . There was no dramatic change between the relevant prov1s1ons d f ·ation including the right of employers to join an orgamsahon or d f th m was to ensure free om O associ ' · · f ·st tion The obJ·ects of the 10 Act were stated an one o e 1 " ociation" may apply to the comrmss10n or reg1 ra . · 7 ·d d that an employee or emp oyer ass · · 1 tl ·t provided· association of their choice. Section _pro~1 e . " Section 8 dealt specifically with employer associations; re evan y l .- awlication had to be signed by "the applicant s president and secretary . · · l for registration as an employer organisation "(l)Only the following employer associations may app Y (a) an association whose members are all employers; (b) an association, some of whose members are employers, if - . r (i) the association effectively represents its members who are employers, o (2) Toe application must be accompanied by- (b) a li!-t of persons holding appointment as the following officers of the association - (i) president; (c) (d) (ii) secretary; 2· ~opies of the association's rules; and . . f f . strati on of the association passed under the association's for an association of more than 1 person - a copy of a resolution m avour o reg1 rules - . • (i) by a majority of the employers who are members of the association; or (ii) in another way allowed by the rules; (f) particulars of . (i) the control of_the associatiod~'s_prcto~rty;t~:dproperty and funds of the members of the association; ... ". (ii) investment ot its funds, as 1stm om , · · ·1-,... I0 A t f t "members" as distinct from • · · · ated bodies could apply for reg1strat10n. ue c re ers O .. • Again the consequence is that an association of mcorpor . S . 1-10 f th Acts Interpretation Act states that a reference to a person . h IR Act b t that makes no difference. ect1on - ,_ o e h Wh'l t the "persons", the term used m t e ' u - . d' .d l" It then gives illustrations· another, anyone, partv, someone, w oever. ls . f t nriration as well as an m 1v1 ua • · . . . • d t generally mcludes a re erence o a cor.--- . . d st be takert as encompassing both an md1v1dual an a corpora ion. word •·member" is not included specifically 1t is of the same genus an mu . . . ·ee associations and the wording is substantially identical with that found _in _s. 8. Again there is reference Section 9 deals with the registration of e~lo) · . . 1 f 8(2 )(f) referring to the property of the association. to the president and secretary of the association. There 1s no eqmva ent O s. . · t· The only parti·cular which need be noted for present purposes is the . • · · f employer assocta ion. the k Section 10 deals with the registration cntena or_ an hi avera e of at least twenty employees during the six months before ma mg requirement that "its employer members have m total employed a mont y g A t of the awlication". It therefore continues the change mtroduced hy s. 329 of the IR c. Section 1 g provides that an organisation, in its registered name, is a body corporate. Finally reference should be made to s. 296; relevantly it provides:- . · · I · mediate! before the commencement is continued under "(l) The registration of an industrial organisation registered under a former mdustna Act im y this Act. (2) The organisation is taken to be registered as an organisation under this Act at the commencement. (3) The name of an organisation under a focmer industrial Act is unchanged under this Act. . . . od c orate under this Act without any break in, or change to, its corporate identity.". (4) The organisation 1s and contmues to be the same h Y orp . . . • became re istered as industrial organisations between 1923 and 1990 contmue to be It is thus clear that corporate ~od1es represenung elJllloyers wh1c~de durin ! ument to five such organisations. Though that number may be regarded registered industrial orgamsattons of employers. Reference ;as ~ aff g teJ bv industrial legislation in this state, and they could well be regarded as as rather small, each of the five represents a large number o ernp oyers ec , some of the most significant employer organisations. . . . · loyer organisation an assoc1at10n wluch But the critical question is whether or not the current legislation permits the commission to register as a new emp is a body corporate. . . . a t to s. 258 of the 10 Act came before the court as an ex parte matter. _No_ notice had be:n At this point it is convement to state that tlus appeal pursu n h thPr party either to the hearmg of the apphcatlon before Chief nt t 15(4) and m consequence t ere was no o - .d d that the given to another ocganisation pursua o_ s. earin full oral argument from counsel for the appellant the court cons1 ere . Commissioner Hall or initially on the heanng of the appeal. After h d g h d . . stration of industrial law in this state and in consequence mvtted the appeal raised important questions of law and principle which impact~en~n t r::a::1 the provisions of s. 337 of the Workplace Relations Act 1997. The Minisler fO£ Employment, Training and Jndustnal Relations to 1:ter p.1 ~- on the second occasion submissions were heard from counsel representmg Minister elected to intervene and the matter was rehsted for furt er argumen ' the Minister and counsel for the awellant • . t be re istered as an employer association because it was a body corp~ate. In his Counsel for the Minister submitted that the appellant could no g t ftled to apply for registration. He advanced two arguments lll support of submission both under the IR Act and the 10 Act a body corporate was no en I that proposition:- . . ... h. eh ,. · or orated company or association of mcorporated compames w 1 1. The omission from the IR Act and the 10 A: i°t9te ;:::d ~e~::i~~~e ii1tent that an incorporated body could 11ot now become registered as appeared in the various Acts between 1923 an ID 1 an industrial organisation. . et1ectin what had appeared in the IR Act) indicated that a. corporate bod~ wa~ not The reference to "president" alone m s. 8(2) of the 10 Act (r " dg .b th h. Pf officer of such a body; that was said to be more s1gmf1cant 2. lly used the word "chauman to escr1 e e c 1- d 1990 being referred to because one usua . " d b . l d d . n the corresponding section between 1923 an . when it was appreciated that the term "chanman ha een me u e l 5 February, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 83 The appellant's argument was principally that the term "association" was broad enough to include a body corporate and that no reason had ever been advanced as a justification for altering the position which had existed from 1923 to 1990. Purther, he submitted that there was no significance in the use of the term "president" only in the current legislation; both the Macquarie Dictionary and the New Shorter Oxford Dictionary included in the definition of "president" the chairman of a company. He also relied ons. 8(2)(f) which suggested that, prior to registration, the applicant association held property in its own right, that is distinct from property of its members. There is force in each of the submissions addressed to the coUit by each party. It is unfortunate that, particularly in the Second Reading Speech with respect to the lR Act, the Minister did not indicate that the law which had stood for some 70 years was being altered, nor suggest that there was any reason calling for such an alteration in the law. To an extent that weakens the 1-ubmission that the omission of the words particularised above indicated a legislative intent to alter the law. But at the end of the day one must face up to the fact that those important words were omitted. There is no force in the submission that the use of the term "president" alone in s. 8(2) of the 10 Act indicates that the registration provision no longer applied to a corporate body. We have set out at some length in these reasons the use of the terms president and chairman relating to both employer and employee organisations since the l 916 legislation. As each of those terms was used in the 1916 Act in relation to trade unions no specific significance could be attached to the use of the word "chairman" after 1923 when an employer organisation which was a body corporate could become registered. Further, the word "chairman" has been dropped in both the IR Act and the I0 Act in relation to the registered employee organisation, and that confirms that the term "chairman" wa.~ not included previously because an employer organisation could be a body corporate. But in any event, as the references to the dictionary definitions quoted above establish, the term "president" includes the chairman of a body corporate. In the end that particular argument addressed by counsel for the Minister carries no weight at all. The meaning to be attributed to the term "association" will often be dependent upon the context in which it is used. There is no doubt that, as pointed out in the passage from Mclannet quoted above, ordinarily it connotes a relationship between persons sharing a common interest. Normally it does not connote a body corporate; the definition in the New Shorter Oxford Dictionary refers, inter alia, to "society", but makes no mention of a body corporate. That is not to say that context could never require placing an interpretation on the use of the term which would include a body corporate. But particularly given the reasoning in Mclannet, which predates the IO Act, it is difficult to give the term that extended meaning here. That is particularly so in the light of the legislative history; the deletion of the former reference to body corporate in the equivalent sections at least suggests that such an extended meaning should not be imputed here. Section 8(2)(f) is, to say the least, somewhat anomalous. It is obviously referring to a time before the association becomes registered and therefore a body corporate by virtue of s.18. But strictly in law the only organisation which could hold property separately from the proprietary rights of its members would be a body corporate. Undoubtedly the explanation for the anomaly was also recognised in Mclannet. Immediately following the passage quoted above Brennan CJ, Deane and Dawson JJ went on to say:- "Of course, when the law governs a relationship among persons, its operation (and sometimes its expression) may be mistaken for a law which presa-ibes the capacities of an artificial person. Thus we may speak of the assets and liabilities of a partnership, though legal personality is an attribute only of the members of the partnership, not of the partnership. The term 'partnership' connotes the relationship between the partners, not an entity different from them. Pollock observes that '[inl the case of an ordinary partnership the firm is treated by mercantile usage as an artificial person, though not recognised as such by English law; and other voluntary and unincorporated associations are constantly treated as artificial persons in the language and transactions of everyday life'. Unless the references of ordinary speech and the legal conception of a corporation are distinguished, confusion arises as to the meaning of terms such as 'association' or 'union'.". The dra.ftsman obviously enshrined in s. 8(2)(f) the error adverted to in that passage. The apparent recognition in that section of the capacity of the association 5eeking registration to own property or funds as distinct from the property or funds of its members does not clearly indicate (particularly given the whole of the historical context in which the subsection appears) that Parliament was permitting an incorporated body to become registered as an employer organisation. Section 8(2)( d) is also anomalous; it is difficult to comprehend an association consisting of one person unless the association is a body cocporate. Chief Commissioner Hail regarded that a.~ a carryover from earlier legislation and did not regard it as a sufficient foundation for a conclusion that a body corporate may register. The poor drafting does not engender confidence when one is seeking out the intent of the legislature, but in the end it must be said that the Chief Commissioner was ccr-rect in holding the provision was an insufficient foundation for interpretating the statute as contended for by the appellant At the end of the day the most telling argument is that the references to "any incorporated company or association of incorporated companies" which appeared in the legislation between 1923 and 1990 have been deleted from the IR Act and the IO Act. Despite the absence of any stated reason for altering the law, effect must be given to that change, and in consequence it follows that an incorporated body cannot apply to become registered as an employer organisation under the IO Act. That such was the intention is supported to some extent by a consideration of the forms prescribed to be used on the making of an application for registration by an employer organisation. The relevant forms from 1932 to 1987 were found in the Industrial Conciliation and Arbitration Regulations 1932. Form4 related to an application by "An Association of Persons or Incorporated Companies" and required copies of the Rules of the Association to be exhibited on the application. Form 5 related to an application by "An Incorporated Cofii>any" and required copies of the Articles of Association to be exhibited on the application. The new forms in the lndu,ttrial Conciliation and Arbitration Regulations 1987 made the same distinction; Form 3 related to an application by an "Association, Person" whilst Form 4 related to an application by a company. Form 47 in the Industrial Court Rules is now the only relevant form. The requirement therein is to exhibit the "association's rules". If anything that tends to confirm that a body corporate cannot now seek registration as an employer organisation. The conclusion is unsatisfactory. As noted above, many significant registered employer organisations are bodies corporate and continue to act as such under the current legislation. If there is good reason for preventing an incorporated body from becoming registered as an employer organisation, one would think that the very same considerations would justify denying continued registration to employer organisations which were incorporated. If there is no reason why an incorporated body should not be entitled to apply for registration as an employer organisation, and the members of this court are not aware of any such reason, then consideration should be given to amending the legislation to make it conform with the law as it stood between 1923 and 1990. TI1e position is made even clearer when it is remembered that an association of incorporated bodies may be registered, That must be the common situation because there would be few individuals in our modern society who were employers; most small businesses are conducted by COl1\panies. Where all, or most, of the members are incaporated it is difficuJt to see why the representative body cannot be incorpcrated before registration. 27997 -- 2 of 3 -- [5 1999 It tme, as noted hy Chief Commission<'r Hall, that 116 ,A Corp0fations l ,aw provide, that a trade union cannm be incorporatd ,hcrcm,dcr. Th:tt always ht·0n expressly ".tated; for example, ,here wa, no such provision in rompanies !961. Bnt the fact that trade unions can only gain corporak statue mid,sr industri;;J laws indicate that an employer organi~at,ou ca1mot incorporate<l befc,r.~ seeking registration as an industrial orgamsatlon. The po,1tion of tade ,mio;,; ,tnctly r.alled ha• h\stor,c:ally been tre,;ted sep,uatdy from uther 01ganisati,.,n:;, T!ic nntter impot1ant hecause thero a1e other app,ications pcn<ling which wi11 he aftecteJ bv this decision. As alrt:ady stakd, nc, cxphmalic,n was given ir. l fJ90 for the change in •hp la.w and the memhers of 1h,s emu, ;en, a w&.l·e of prr,bbms which have aris,m with rtlSpecl to incorporated bodies being regble1ed crcployer oig,mi.,atio;is H that is lh"" case, then urg,;,nl considcr.:.tion shoulo be gi,en to a.me10d\ng the law WlLLlAMS, f'!esid0n,. K,L EDWARDS, Commiss1ofosr. D.,.\.. s';VJ\N, Comrn1s~1cner. Reka.sed: 20 Ja11uary i 999 A.ppearance.v:- • \fr J, Logan (in"i:rm~ed hy Ehsworth and Ehswurth) for the Appellant. ~ M, C Murdoch, Crown Solicitcr, for the State nf (.,.)'.1eensland. 5 , 1999 GOVERNMENT lNDUSTRtAL GAZETTE 85 -- 3 of 3 --