ORDER PURSUANT TO S.66

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2022 WAIRC 00877

DELIVERED : Thursday, 22 December 2022

FILE NO. : PRES 12 OF 2022

Applicant

AND

The Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers - Western Australian Branch

Respondent

Catchwords : Industrial law (WA) - Application under s 66 - State union  Rules no longer aligned with federal WA Branch Rules - Section 71 certificate likely to be no longer effective - Interim Branch Executive established - Order issued

Legislation : Industrial Relations Act 1979 (WA) s 66, s 71    

Result : Order issued

Representation:

Counsel:

Applicant : Mr C Fogliani of counsel

Respondent : No appearance

Solicitors:

Applicant : Fogliani Lawyers

Reasons for Decision

1         The applicant brings these proceedings under s 66 of the Industrial Relations Act 1979 (WA) seeking orders for the establishment of an Interim Branch Executive.  I am satisfied that as a member of the respondent the applicant has standing to bring these proceedings. The proceedings were listed for directions on 9 December 2022. I made directions for the filing of affidavits and written submissions which were filed on 16 December 2022. The application is not opposed.

2         In short, the grounds for the application are that in November 1999 the Full Bench of the Commission made a declaration that prescribed offices of the respondent and the respondent’s counterpart federal body, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, were the same, as were the rules for eligibility for membership.  The declaration led to the grant of a certificate under s 71 of the Act by the Registrar.  Since that time, the federal WA Branch has had many changes made to its registered Rules.

3         In support of the application, evidence was adduced by affidavit from the applicant and Mr Andrew Dettmer, the National President of the federal union.  Mr Dettmer set out in his affidavit in some detail, the history of rule changes over the past 23 years or so, in the federal WA Branch and in the federal union generally. I do not need to traverse all the changes set out in Mr Dettmer’s evidence.  Suffice to say, some key changes which have been made to the federal WA Branch Rules now likely mean that the s 71 certificate no longer has any operative effect. Some of these include changes to the composition of offices within the federal WA Branch, which are inconsistent with the respondent’s office structure. For example, only one Assistant State Secretary position exists in the federal WA Branch under rule 5H3(1)(a) of its Rules.  However, by rule 9 of the respondent’s Rules, three Assistant State Secretary positions remain. 

4         Furthermore, the divisional structure of the federal WA Branch and the respondent is different. The respondent has a Technical and Supervisory Division and a Printing Division, along with relevant offices.  No such divisions exist in the federal WA Branch.  Also, the respondent retains a structure of State zones, from which officers from each zone were represented at the respondent’s State Conference.  No such zone structure exists in the Rules of the federal WA Branch.

5         As set out in Mr Dettmer’s affidavit, other significant changes have occurred to the structure of the federal WA Branch in relation to the constitution of its State Conference and its State Council.  The changes made to these decision making organs of the federal WA Branch have not been replicated in the same decision making organs of the respondent.  Furthermore, significant changes have been made to the Administrative Committee structure within the federal WA Branch, which is now different to the Administrative Committee of the respondent.

6         Additionally, as Mr Dettmer deposed, there are several offices within the federal WA Branch which do not exist within the respondent. These include Western Australian Branch Delegates to the union’s National Conference and Western Australian Branch Woman Delegates to the National Conference.  The numbers of these delegates are variable.

7         In addition to the significant changes to the offices within the federal WA Branch, not reflected within the respondent, as set out in Mr Dettmer’s affidavit, there have also been changes to the eligibility rules of the federal WA Branch. For example, by rule 1G(a) of the federal WA Branch eligibility rules, the union can enrol employees who are employed in or in connection with the food industry in Western Australia. There is no corresponding eligibility within the respondent. The same applies to employees engaged in the confectionery industry in Western Australia, and those engaged in work in preparing motor vehicles for sale and related activity. The federal WA Branch Rules also enable it to enrol as members, persons who are engaged as independent contractors who, if they were employees, would be entitled to become a member of the federal WA Branch.  No such rule exists within the respondent.

8         The applicant gave evidence that he has been a member of the respondent for many years and commenced employment as an organiser with the respondent and the federal WA Branch in February 2001.  It was his view that during his time with the respondent, both organisations operated as one entity.  The applicant subsequently became the President of the federal WA Branch and maintained his understanding that both the State and federal organisations operated as one.  In September 2008, the applicant became the Secretary of the federal WA Branch and assumed office in January 2009.  He has remained in that position and was most recently re-elected in July 2019.  Whilst by this stage the applicant said he understood that both the State and federal organisations were separate legal entities, he believed that the s 71 certificate, issued in 1999, enabled the organisations to be conducted jointly.

9         It was the applicant’s evidence that since taking up the position of State Secretary, and until recently, he understood that the effect of the s 71 certificate was that the elected office holders elected to office in the federal WA Branch became elected to corresponding offices within the respondent, and the business of the respondent was conducted on that understanding. The applicant’s evidence was that he had no reason to doubt the effectiveness of the s 71 certificate and assumed that it operated according to its terms.

10      In early 2022 queries were raised by the Registrar of the Commission in relation to annual returns filed by the respondent, including that the annual returns did not report on several positions which are contained within the respondent’s Rules.  The applicant gave evidence that he engaged the union’s National office in correspondence with the Registrar and took independent legal advice. The applicant’s evidence was that based on this legal advice, it now appears that the s 71 certificate issued in 1999, given the number of changes made to the federal WA Branch Rules, is likely to be no longer effective.  Accordingly, the applicant said that he has brought this application to create an Interim Branch Executive.  The orders sought by the applicant are in the following terms:

(1) An Interim Branch Executive of the AFMEPKIU is established and is constituted as follows:

(a) Steven McCartney;

(b) Glenn McLaren;

(c) Christopher Seivers; and

(d) Christopher Kirkby.

(2) While the Interim Branch Executive of the AFMEPKIU created by order 1 of this order exists, the provisions of rules 4, 5, 7, 9, 10, 11, 12, 19, 20 of the AFMEPKIU are varied to the extent that:

(a) the composition of the Administrative Committee is constituted by the Interim Branch Executive;

(b) the composition of the State Council is constituted by the Interim Branch Executive;

(c) the composition of the State Conference is constituted by the Interim Branch Executive;

(d) the duties of the State Officials will be carried out by the Interim Branch Executive; and

(e) there be no Technical & Supervisory Division, Printing Division, Zones or Zone Representatives, State Returning Officer, or Deputy Returning Officer.

(3) The members of the Interim Branch Executive:

(a) Shall have only one vote each being a deliberative vote.

(b) Shall not have a casting vote.

(4) If an issue is put before the Interim Branch Executive, which issue is phrased as a motion/resolution, and there is an even number of votes both for and against the motion/resolution, the motion is not to be considered defeated and the provisions of order 5 apply.

(5) In the event that there is a failure to reach agreement on any issue relating to the alteration of the rules of the AFMEPKIU, an application for a section 71 certificate, and/or the conduct of an election, which issue is phrased as a motion/resolution, required to be determined by the Interim Branch Executive, that motion/resolution shall be referred to the Registrar of the WAIRC who shall advise the Interim Branch Executive within 48 hours of having been referred the motion/resolution.

(6) Until further order, the Interim Branch Executive shall exercise all of the powers, function and duties of the Administrative Committee, State Council, State Conference, and State Officials under the AFMEPKIU rules, and without derogating from powers conferred the Interim Branch Executive shall:

(a) amend the rules of the AFMEPKIU so that they sufficiently align with the AFMEPKIU’s federal counterpart, the AMWU WA Branch, to enable the AFMEPKIU to obtain a section 71 certificate;

(b) apply for a section 71 certificate.

(7) There be liberty given to all of the parties on two days’ notice.

11      The applicant submitted that the Interim Branch Executive of the respondent would undertake tasks including:

(a) to exercise all the powers of the various governing bodies which exist in the respondent so that it can continue to function whilst the respondent’s Rules are amended;

(b) to effect alterations to the Rules of the respondent to ensure that they align as far as necessary with the federal WA Branch Rules; and

(c) to make an application to the Commission for a new s 71 certificate.

12      The applicant deposed that there is a degree of urgency in the present application. This is because the respondent can no longer effectively function as there are no persons with proper authority within the respondent to conduct its affairs.  Secondly, the federal union is holding its elections in the first half of 2023.  The applicant wishes, as far as possible, to make the necessary changes to the respondent’s Rules and to obtain a new s 71 certificate, prior to the declaration of the results of the federal union elections by the Australian Electoral Commission.

13      From the evidence before me I am satisfied that the relevant Rules of the respondent and the federal WA Branch are no longer in alignment.  The process of change which has occurred over many years means that it is highly likely that the s 71 certificate no longer has valid effect.  Further, the respondent, not having had separate elections for office holders under the Act, no longer has validly elected office holders capable of undertaking their duties in accordance with its Rules, to manage the business of the respondent.

14      Accordingly, I am satisfied that given the above circumstances, and based upon the evidence before me, that an order under s 66 of the Act, as sought by the applicant, should be made.  I am satisfied that the Interim Branch Executive as proposed, will enable the respondent to take prompt steps to amend its Rules to ensure they align with the federal WA Branch Rules, sufficient to provide a basis for a fresh application to be made under s 71 of the Act.

15      As the order to be made is interim in nature, to enable the affairs of the respondent to be conducted, it will operate until 30 June 2023, unless otherwise varied or revoked.  Liberty to apply will be granted.

16      An order now issues.