2025 WAIRC 00215
APPLICATION FOR A DECLARATION AND CERTIFICATE PURSUANT TO SECTION 71 IN ACCORDANCE WITH SECTION 52A(2)
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

COMMISSION IN COURT SESSION

CITATION : 2025 WAIRC 00215

CORAM
: CHIEF COMMISSIONER S J KENNER
SENIOR COMMISSIONER R COSENTINO
COMMISSIONER T KUCERA

HEARD
:
THURSDAY, 3 APRIL 2025

DELIVERED : FRIDAY, 4 APRIL 2025

FILE NO. : CICS 4 OF 2025

BETWEEN
:
THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING & KINDRED INDUSTRIES UNION OF WORKERS - WESTERN AUSTRALIAN BRANCH
Applicant

AND

(NOT APPLICABLE)
Respondent

Catchwords : Industrial Law (WA) – Application pursuant to s 71 – Declaration sought – Qualifications of persons for memberships of a State branch of a federal organisation and offices that exist within the State organisation – Declaration issued
Legislation : Industrial Relations Act 1979 (WA) s 52A, s 62, s 66, s 71(2), s 71(3), s 71(4)
Result : Declaration issued
REPRESENTATION:
Counsel:
APPLICANT : MR C FOGLIANI OF COUNSEL
Solicitors:
APPLICANT : FOGLIANI LAWYERS

Case(s) referred to in reasons:
Jones v Civil Service Association Inc [2003] WASCA 321; (2003) 84 WAIG 4
The Australian Workers’ Union, West Australian Branch, Industrial Union of Workers v (Not applicable) [2012] WAIRC 01004; (2012) 92 WAIG 1882
The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers – Western Australian Branch v (Not Applicable) [2024] WAIRC 00713; (2024) 104 WAIG 1593
Western Australian Police Union of Workers v (Not applicable) [2018] WAIRC 00725; (2023) 98 WAIG 1111

Reasons for Decision
THE COMMISSION IN COURT SESSION:
Background
1 The applicant is a registered organisation under the Industrial Relations Act 1979 (WA). It seeks declarations that the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers’ Union – Western Australian Branch, is its counterpart federal body for the purposes of s 52A of the Act. Such a declaration is sought to enable a certificate under s 71 of the Act to be issued by the Registrar. A certificate will mean that persons elected to office in the applicant’s Federal branch will be taken to be elected to the corresponding office in the applicant, without the need for a separate State election.
2 The matter was heard by the Commission in Court Session on 3 April 2025. At the conclusion of the proceedings the Commission indicated that for reasons to be published in due course, it was satisfied that the requirements of the Act were met and declarations were made. These are our reasons for so deciding.
3 The proceedings have some history. That history was set out in the July 2024 decision of the Commission in Court Session in The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers – Western Australian Branch v (Not Applicable) [2024] WAIRC 00713; (2024) 104 WAIG 1593. Those proceedings concerned an application under s 62 of the Act for an alteration of the applicant’s rules in relation to its eligibility for membership. Relevantly, in relation to the background, the Commission in Court Session observed at [6] as follows:
[6] The background to the present application was set out by Kenner CC in Steven McCartney v The Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers, Western Australian Branch [2022] WAIRC 00877; (2022) 103 WAIG 18. That matter was an application under s 66 of the Act, seeking orders for the establishment of an Interim Branch Executive to conduct the affairs of the applicant, pending the process of alteration of its Rules to update and align them with the relevant Rules of the AMWU, and to enable the obtaining of a new s 71 certificate under the Act. The Chief Commissioner set out the relevant background at [2]-[10] as follows:
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.
4 As a consequence of the Commission in Court Session’s decision and orders in the above proceedings, the present application was brought, seeking a fresh s 71 certificate. The application was accompanied by a statutory declaration made by the Secretary of the applicant, Mr Steven McCartney made on 5 February 2025. Mr McCartney’s declaration set out a comparison, in table form, of the offices of the applicant and the Federal branch. Additionally, both in that declaration, and in a supplementary statutory declaration made by Mr McCartney on 2 April 2025, and tendered as exhibit A1 in these proceedings, reference was made to the eligibility for membership rules of both the applicant and the Federal branch.
5 The effect of the eligibility for membership rules is that whilst the vast majority of callings and classifications in the applicant’s eligibility rule are also contained in the eligibility rule of the Federal branch, there are some callings and classifications that are unique to the applicant, and which were set out at annexure SM-3 to Mr McCartney’s supplementary declaration. Mr McCartney also said that the Federal branch is in the process of preparing rule alterations, to incorporate those few classifications and callings which are not presently contained in the Federal branch Rules, and that process will continue. Despite this, it was Mr McCartney’s evidence that there is no practical difference between the membership of the applicant and the Federal branch, and that every person who is a member of the applicant is also a member of the Federal branch. As at 31 December 2024, both the applicant and the Federal branch had 6,834 members.
Statutory scheme
6 For the purposes of these proceedings, ss 52A, 71(2) and 71(4) of the Act are relevant. They are as follows:
52A. Counterpart federal body
(1) In this section —
rules, of a branch of a federal organisation, means —
(a) rules relating to the qualifications of persons for membership; and
(b) rules prescribing the offices that exist within the branch.
(2) A Western Australian branch of a federal organisation is a counterpart federal body in relation to a State organisation if the rules of the branch are, or in accordance with section 71(2) or (4) are taken to be, the same as the rules of the State organisation relating to the corresponding subject matter.
…
(7) A State organisation may apply to the Commission in Court Session for a declaration that, for the purposes of subsection (2) or (3), a Western Australian branch of a federal organisation, or a federal organisation, is a counterpart federal body in relation to the State organisation.
71. Rules of State and federal organisations as to membership and offices
[(1) deleted]
(2) The rules of a State organisation and a counterpart federal body described in section 52A(2) are taken to be the same if the rules of the organisation and the body —
(a) relate to the qualifications of persons for membership; and
(b) are, in the opinion of the Commission in Court Session, substantially the same.
…
(4) The rules of a State organisation and a counterpart federal body described in section 52A(2) are taken to be the same if —
(a) the rules prescribe the offices existing in the body; and
(b) for every office in the organisation there is a corresponding office in the body.
…
Eligibility for membership
7 Section 71(2) requires that the eligibility rules of the applicant and the Federal branch be, in the opinion of the Commission in Court Session, substantially the same. There is no requirement under the Act for complete alignment. What is required, is that there exists significant similarity of coverage under the eligibility for membership rules of the applicant and the Federal branch: The Australian Workers’ Union, West Australian Branch, Industrial Union of Workers v (Not applicable) [2012] WAIRC 01004; (2012) 92 WAIG 1882. Furthermore, in the context of s 71(2), ‘substantial’, means ‘real or of substance as distinct from ephemeral or nominal’ or ‘considerable’ or ‘in the main or essentially’: Western Australian Police Union of Workers v (Not applicable) [2018] WAIRC 00725; (2023) 98 WAIG 1111 (citing and applying Re an application by the Civil Service Association (1993) 73 WAIG 2931 at [293] and also Re Bonny [1986] 2 Qld R 80 at [82]).
8 As a consequence of changes made to the eligibility for membership rule of the applicant in July 2024, as referred to above, the vast majority of classifications as set out in rules 3.1 to 3.5 of the Rules, are also contained in the eligibility rule of the Federal branch. There are a few exceptions. These were set out in a table at Annexure 1 to the applicant’s submissions. However, the fact that there are some classifications in the applicant’s eligibility rule which do not fall within the Federal branch’s eligibility rule, is no barrier to a declaration issuing. This is because by s 71(3) of the Act, it is open for the Commission in Court Session to find that the eligibility rules of the applicant and the Federal branch are substantially the same, despite some persons who are eligible to be a member of the applicant, not being eligible to be a member of the Federal branch.
9 On all of the material before the Commission in Court Session, we were satisfied that the rules of the applicant and the Federal branch in relation to qualifications of persons for membership are substantially the same. Accordingly, the requirements of s 71(2) of the Act were met.
Offices
10 Section 71(4) of the Act, dealing with offices in both the applicant and the Federal branch is satisfied if, for every office in the applicant there is a corresponding office in the Federal branch. Further, having regard to the functions and powers of the offices in both organisations, the content of the relevant rules of the applicant and the Federal branch are similar: Jones v Civil Service Association Inc [2003] WASCA 321; (2003) 84 WAIG 4 per Pullin J at [35].
11 Helpfully, both the first declaration made by Mr McCartney and Annexure 2 to the applicant’s written submissions, included a table setting out and comparing the offices of both the applicant and the Federal branch as follows:

AFMEPKIU Rules
AMWU - WA Branch Rules
State President
Office Holders: (1)
Rule 12.1
The State President shall:
a. preside at all meetings of the State Conference, State Council, State Administrative Committee and meetings convened by these bodies during his/her period of office and shall have the same voting and other rights as other delegates to the Council and Conference; and
b. take all necessary steps to ensure the proper conduct of the business of such meetings, upon adoption sign the minutes and initial all accounts passed for payment

Holds seats on: State Conference, State Council, State Administrative Committee
Office Holders: (1)
Rule 5H4.1
The State President shall:
(a) preside at all meetings of the State Conference, State Council, State Administrative Committee and meetings convened by these bodies during his/her period of office and shall have the same voting and other rights as other delegates to the Council and Conference; and
(b) take all necessary steps to ensure the proper conduct of the business of such meetings, upon adoption sign the minutes and initial all accounts passed for payment.

Holds seats on: State Conference, State Council, State Administrative Committee
State Vice President
Office Holders: (1)
Rules 12.2 to 12.5
12.2. The State Vice-President shall officiate at meetings of the State Conference, State Council, State Administrative Committee or any meetings convened by those bodies where the State President is unable or unwilling to be present.

12.3. In the absence of the State President the State Vice-President shall be responsible to ensure the proper conduct of the business of any meetings, upon adoption sign the minutes dealt with at such meetings.

12.4. The State Vice President shall place before each meeting all motions which personally concern the State President and assist the State President to carry out all duties quickly and efficiently.

12.5. When the State President and the State Vice-President are absent or unable to attend State Conference, State Council, State Administrative Committee and meetings convened by these bodies the members in attendance shall elect a chairperson from amongst their number to conduct the proceedings.

Holds seats on: State Conference, State Council, State Administrative Committee
Office Holders: (1)
Rule 5H4.2
The State Vice-President shall officiate at meetings of the State Conference, State Council, State Administrative Committee or any meetings convened by those bodies where the State President is unable or unwilling to be present.

In the absence of the State President the State Vice-President shall be responsible to ensure the proper conduct of the business of any meetings, upon adoption sign the minutes dealt with at such meetings.

He or she shall place before the meeting all motions which personally concern the State President and assist that Official to carry out all duties quickly and efficiently.


When the State President and the State Vice-President are absent or unable to attend State Conference, State Council, State Administrative Committee and meetings convened by these bodies the members in attendance shall elect a Chairperson from amongst their number to conduct the proceedings.


Holds seats on: State Conference, State Council, State Administrative Committee
State Secretary
Office Holders: (1)
Rules 12.6 to 12.15
12.6. The State Secretary shall be entrusted and authorised to act on all matters concerning the activities of the Union subject to these rules. The State Secretary shall be responsible for the co-ordination of the work of the State Organisers and shall for all purposes be the main Executive and Administrative Officer of the Union.


12.7. The State Secretary shall be entitled to attend and speak at any meeting of members, but shall have the power to move and second motions and cast a vote only at the State Conference and at meetings of the State Council, the State Administrative Committee and the State Steering Committee.


12.8. The State Secretary shall be responsible, in consultation with the State Council, for the engagement and supervision of the work of the staff at the State office, for the maintenance of all necessary records of the Union, for the maintenance of complete record of the names, addresses and financial standing of all members in the State, and he or she shall forward an account to each member at least quarterly.



12.9. The State Secretary shall report to each meeting of the State Council and the State Conference on the affairs of the Union in the State and on all matters of which he or she has information concerning the welfare of the Union and its members.

12.10. The State Secretary shall carry out such other duties as are allocated to him or her by the National Conference, National Council, State Conference or State Council.


12.11. The State Secretary shall deposit all money received for use by the Council to the credit of the Union in a Bank Account as directed by the National Council.

12.12. The State Secretary shall maintain a strict and accurate record of all moneys received and expended by the State Council and shall account for these to the National Council and State Council.

12.13. The State Secretary shall arrange for an audit of the books and records of the State Council annually and at such other times as directed.

12.14. The State Secretary shall submit to the State Conference and to the National Council an audited statement of the financial transactions of the State Council and shall publish this to members.

12.15. Subject to any policies determined by and/or decisions of National Conference or National Council relating to Union publications (including their content, timing, and manner of distribution) the State Secretary shall edit and arrange for the distribution of any publication to be issued by the State Council and State Conference.

Holds seats on: State Conference, State Council, State Administrative Committee, State Steering Committee
Office Holders: (1)
Rule 5H4.3
The State Secretary shall be entrusted and authorised to act on all matters concerning the activities of the Union in the State, subject to these Rules. He or she shall be responsible for the co-ordination of the work of the State Organisers and shall for all purposes be the main Executive and Administrative Officer of the Union in the State.

Power to Speak
He or she shall be entitled to attend and speak at any meeting of members in the State, but shall have the power to move and second motions and cast a vote only at the State Conference and at meetings of the State Council, the State Administrative Committee and the State Steering Committee.

Control of Staff
He or she shall be responsible, in consultation with the State Council and subject to rule 5B2 of these rules, for the engagement and supervision of the work of the staff at the State office, for the maintenance of all necessary records of the Union, for the maintenance of complete record of the names, addresses and financial standing of all members in the State, and he or she shall forward an account to each member at least quarterly.

Reports
He or she shall report to each meeting of the State Council and the State Conference on the affairs of the Union in the State and on all matters of which he or she has information concerning the welfare of the Union and its members.

He or she shall carry out such other duties as are allocated to him or her by the National Conference, National Council, State Conference or State Council.

Accounts
He or she shall deposit all money received for use by the Council to the credit of the Union in a Bank Account as directed by the National Council.

He or she shall maintain a strict and accurate record of all moneys received and expended by the State Council and shall account for these to the National Council and State Council.


He or she shall arrange for an audit of the books and records of the State Council annually and at such other times as directed.


He or she shall submit to the State Conference and to the National Council an audited statement of the financial transactions of the State Council and shall publish this to members.

Publications
Subject to any policies determined by and/or decisions of National Conference or National Council relating to Union publications (including their content, timing, and manner of distribution) the Secretary shall edit and arrange for the distribution of any publication to be issued by the State Council, State Conference, National Council or National Conference.

Holds seats on: State Conference, State Council, State Administrative Committee, State Steering Committee
Assistant State Secretary
Office Holders: (1)
Rule 12.16
The Assistant State Secretary shall generally assist the State Secretary and carry out such duties as are allocated to him or her by the State Council and State Conference.




Holds seats on: State Conference, State Council, State Administrative Committee, State Steering Committee
Office Holders: (1)
Rule 5H4.4
(a) Each Assistant State Secretary shall generally assist the State Secretary and carry out such duties as are allocated to him or her by the State Council, State Conference, National Council or National Conference.

Holds seats on: State Conference, State Council, State Administrative Committee, State Steering Committee
Rank and File Delegates to State Conference
Office Holders:
Rule 5.2(a)
i. if the Union has 5,000 financial members or fewer: 15 delegates;
ii. if the Union has more than 5,000 financial members: 15 delegates plus one additional delegate for each 1,000 additional financial members or part thereof.

Holds a seat on: State Conference
Office Holders:
Rule 5D1.2(a)
(i) In State Branches with 5,000 financial members or fewer: 15 Delegates;
(ii) In State Branches with more than 5,000 financial members: 15 Delegates plus one additional Delegate for each 1,000 additional financial members or part thereof;

Holds a seat on: State Conference
Rank and File Women Delegates to State Conference
Office Holders:
Rule 5.2(b)
Additional Rank and File women delegates – the Union shall be entitled to elect additional Rank and File women delegates such that the number of additional Rank and File women delegates shall be equal to either 10% of the Rank and File delegates entitled to be elected under sub-rule 5.2(a) or the proportion of women financial members to total financial members in the Union, whichever is the greater, rounded up to the nearest whole number.


Holds a seat on: State Conference
Office Holders:
Rule 5D1.2(b)
Additional rank and file women Delegates - each State shall be entitled to elect additional rank and file women delegates such that the number of additional rank and file women delegates shall be equal to either 10% of the rank and file delegates entitled to be elected under paragraph (a) of this subrule or the proportion of women financial members to total financial members in the State, whichever is the greater, rounded up to the nearest whole number.

Holds a seat on: State Conference
Rank and File Delegates to State Conference from Apprentices or Members under 30
Office Holders: (1)

Holds a seat on: State Conference
Office Holders: (1)

Holds a seat on: State Conference
Rank and File Female State Councillors
Office Holders:
Rule 6.2(b)
Rank and File female State Councillors – the Union shall be entitled to elect such Rank and File female State Councillors such that the number shall be equal to 10% of the Rank and File State Councillors in sub-rule 6.2(a) or the proportion of financial women members to total financial members in the State, whichever is the greater, rounded up to the nearest whole number

Holds a seat on: State Council
Office Holders:
Rule 5E1(1)(b)
Rank and file female State Councillors - each State shall be entitled to elect such rank and file female State Councillors such that the number shall be equal to 10% of the rank and file State Councillors in sub-rule (a) or the proportion of financial women members to total financial members in the State, whichever is the greater, rounded up to the nearest whole number

Holds a seat on: State Council
Employed State Councillors
Office Holders:
Rule 6.2(h)
members of the Union who are employed by the Union calculated at 20% of the number of Rank and File State Councillors entitled to be elected under sub-rule 6.2(a) and rounded up to the nearest whole number;


Holds a seat on: State Council
Office Holders:
Rule 5E1(1)(h)
Members of the Union who are employed by the Union calculated at 20% of the number of Rank and File State Councillors entitled to be elected under paragraph (a) of this subrule and rounded up to the nearest whole number except in Tasmania where the number shall be one

Holds a seat on: State Council
Rank and File Delegates to State Administrative Committee
Office Holders: (2)

Holds a seat on: State Administrative Committee (as well as State Conference)
Office Holders: (2)

Holds a seat on: State Administrative Committee (as well as State Conference)
Rank and File State Councillors
Office Holders:
Rule 6.2(a)
Rank and File State Councillors – the Union shall be entitled to elect such number of Rank and File State Councillors being half the number of the Rank and File delegates entitled to be elected to the State Conference rounded up to the nearest whole number.



Holds a seat on: State Council
Office Holders:
Rule 5E1(1)(a)
Rank and file State Councillors - each State with the exception of Tasmania shall be entitled to elect such number of rank and file State Councillors being half the number of the rank and file delegates entitled to be elected to the State Conference rounded up to the nearest whole number. In Tasmania, there shall be eight rank and file State Councillors

Holds a seat on: State Council
Rank and File Apprentice State Councillor or Member under 30 years
Office Holders: (1)

Holds a seat on: State Council
Office Holders: (1)

Holds a seat on: State Council

12 It is evident from the above table, that for each office in the applicant, there is a corresponding office in the Federal branch. Furthermore, the functions and powers of the respective offices are the same. For these reasons, we were satisfied that the requirements of s 71(4) of the Act were met.