APPLICATION PURSUANT TO S 66

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CHIEF COMMISSIONER

CITATION : 2022 WAIRC 00170

DELIVERED : FRIday, 29 April 2022

FILE NO. : PRES 1 OF 2022

Applicant

AND

The Coal Miners' Industrial Union of Workers of Western Australia

Respondent

Catchwords : Industrial law (WA) - Application under s 66 - Section 71 certificate not issued - Union proceeded on assumption that s 71 certificate in effect - Criteria for maintenance of s 71 certificate not met - Interim Delegate Board established  -  Order issued

Legislation :  Fair Work (Registered Organisations) Act 2009 (Cth)

Industrial Relations Act 1979 (WA) s 66, s 66(1)(a), s 71, s 71(5)(b)  

Result : Order issued

Representation:

Counsel:

Applicant : Mr C Fordham of counsel

Respondent : Mr C Fordham of counsel

Solicitors:

Applicant : Slater and Gordon

Respondent : Slater and Gordon

Reasons for Decision

1         This is an application under s 66 of the Industrial Relations Act 1979 (WA) brought by the applicant, Mr Gregory Busson.  Mr Busson is a member of the respondent, the Coal Miners' Industrial Union of Workers of Western Australia.  An affidavit in support of the application has been filed by Mr Busson.  Mr Busson, as a member of the respondent, has standing to make the present application under s 66(1)(a) of the Act.

Factual background

2         Mr Busson gave the following evidence in connection with the application:

(a) He is a member and is the Secretary of the Western Australian District of the Construction, Forestry, Maritime, Mining and Energy Union, Mining and Energy Division, which is the Western Australian branch of the CFMMEU, an organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth).

(b) Mr Busson replaced the previous WA Branch Secretary Mr Wood, who retired in March 2018.  Mr Busson has been the WA Branch Secretary since that time.

(c) Mr Busson said that on Mr Wood’s retirement, information was provided to the Registrar of the Commission in May 2018, advising of new office holders of the respondent.

(d) Despite Mr Busson and officers of the respondent understanding to the contrary, proceedings before the Full Bench of the Commission in December 1992, for declarations under s 71 of the Act, did not lead to the issuance of a s 71 certificate. This was so, notwithstanding an amendment to the respondent’s rules registered in February 1994, to facilitate the issuance of a s 71 certificate.

(e) It appears from Mr Busson’s research that the respondent did not notify the Registrar of the matters set out in s 71(5)(b) of the Act to obtain a s 71 certificate, as no record of this can be located.

(f) Both the respondent and the WA Branch have, since about 1994, proceeded on the assumption that a valid s 71 certificate was in effect. It was assumed  that all persons elected to positions on the WA Branch board of management, held the corresponding office in the respondent.  As a result, no separate elections have been held for office holders on the respondent’s board of management for many years.

(g) Mr Busson said that between 1993 and 2003, significant changes have been made to the WA Branch registered rules, including eligibility for membership and the abolition of the position of District Treasurer from the board of management. Additionally, within the respondent, the office of District Treasurer has fallen into disuse, because of the rule changes in the WA Branch.

(h) In late 2009, the Deputy Registrar informed the respondent that it appeared that the registered rules of the respondent and the WA Branch no longer aligned to meet the needs of a s 71 certificate. Mr Busson sought legal advice which confirmed that to be so.

(i) Additionally, the Deputy Registrar confirmed that there is no record held by the Registrar that a request was made for a s 71 certificate, or a s 71 certificate issued, after the Full Bench declaration was made in December 1992 and the amendment to the respondent’s rules was made in 1994.

(j) Because of this, Mr Busson said he believed that it appears very unlikely that a s 71 certificate was ever issued. In any event, even if so, given the significant changes to the WA Branch registered rules, such a certificate would have doubtful effect.

(k) As a result, Mr Busson expressed the view that those persons recently elected to offices in the WA Branch, were not also validly elected to the corresponding offices of the respondent.

(l) Furthermore, because of the above, the respondent has also been unable to validly constitute its Delegate Board under rule 8 of its Rules.  Mr Busson seeks orders from the Commission to rectify the above, on an interim basis, in order that the respondent’s rules can be validly amended and an election held.

3         I find accordingly.

4         The applicant submitted that despite best endeavours, the final step in the process for the issuance of a s 71 certificate was not undertaken by the respondent, to give effect to the declaration of the Full Bench referred to above.  The net effect of the present circumstance is that four executive positions that exist on the respondent’s Delegate Board are presently vacant. Given the terms of the respondent’s rules, casual vacancies in the offices of District President, District Vice-President, District Secretary or District Treasurer, can only be filled by a resolution of remaining members of the Delegate Board. Because of the vacancies, a quorum required under the respondent’s rules to fill casual vacancies on the Delegate Board, cannot be formed. 

5         In the absence of an effective and functioning Delegate Board, the respondent cannot hold regular meetings, appoint returning officers and conduct elections for office holders under its rules. Accordingly, the orders sought are for the formation of an Interim Delegate Board, so that appropriate resolutions can be passed, and the day-to-day business of the respondent can be conducted, until such time as Delegate Board vacancies can be filled through an election process.  Furthermore, in the interim, the respondent also seeks rules 12(c) and 14(b) that apply to the office of District Treasurer, not have effect, and that the functions and duties of the District Treasurer be performed by Mr Busson, as the WA Branch Secretary, whilst the necessary changes are made to the respondent’s rules. The orders are sought to operate until on or before 30 June 2024, to enable sufficient time for the necessary changes to be made and elections to be held.

Consideration

6         I am satisfied on the evidence before me that there is no valid s 71 certificate in effect, such that office holders elected to office in the WA Branch hold corresponding offices in the respondent.  Furthermore, and in any event, I am satisfied on the evidence that even if this were not so, it appears unlikely that the criteria for the maintenance of a s 71 certificate could be met.

7         In all the circumstances, there has been an unfortunate oversight in the procedures necessary to have issued a valid s 71 certificate, following the declarations made by the Full Bench in 1992.  Because of this, it is in the interests of the respondent and consistent with the objects of the Act that the affairs of the respondent be put in order and regularised, such that the respondent can properly and adequately represent the interests of its members.

8         Accordingly, for the foregoing reasons, I will make an order that an Interim Delegate Board of the respondent be established to conduct the affairs of the respondent, and to exercise all the powers, duties, and functions of a properly constituted Delegate Board and to take steps as soon as possible, to regularise its rules. Furthermore, I will order rules 12(c) and 14(b) of the respondent’s rules, regarding the office of District Treasurer not apply, and that in the interim, the duties, functions and powers of that office be exercised by the WA Branch Secretary, Mr Busson. Elections for office holder positions in the respondent are to be held before 30 June 2024.

9         The orders that I intend to issue will have effect until 30 June 2024, unless otherwise varied.  This should provide sufficient time for the respondent to effect the necessary changes and to regularise its affairs. Liberty to apply will be included in the order.  A minute of proposed order now issues.