The Chief Commissioner has waived a Union rule pertaining to the timetabling of elections for office bearers, ordering that the rule be complied with by a later date. In making orders, the Chief Commissioner dismissed an application from a member of the Union and the Registrar of the Commission to intervene in the matter.

Background

The applicant was a member of the respondent union. The respondent was an organisation registered under Division 4 of Part II of the Industrial Relations Act 1979 (WA) (‘IR Act’).

Rule 20 of the respondent’s rules related to the timetable for elections of office bearers and when due required that they be conducted between 1 July and 31 August. An election was due in 2022, however an election was not conducted within the prescribed period.

Contentions

The applicant brought an application under s 66(1)(a) of the IR Act for a waiver of rule 20 of the respondent’s Rules. The respondent did not oppose this application.

Applications to Intervene

A member of the respondent who intended to stand as an election candidate and the Registrar of the Commission each applied for leave to intervene in the proceedings under s 27(1)(k) of IR Act.

The member applying to intervene contended an election delay would mean existing officeholders would continue in office and make decisions affecting members, and that there was information the applicant was privy to relevant to their re-election, but that had not been received by members.

The respondent opposed the member’s intervening application. The respondent contended that; the member, though eligible to nominate, was not a candidate as the election had not commenced, and that they had no direct interest in the proceedings beyond any other member according to R v Ludeke; Ex parte Customs Officers Association of Australia (1985) 155 CLR 513.. The respondent submitted that all members would be informed regarding the timetable and nomination forms when the Electoral Commission provided that information. The respondent contended that granting the application would interfere with and slow elections when both parties were trying to expedite it.

The Registrar’s intervention application sought an order to the effect that existing officeholders not make any significant decisions binding the respondent beyond 30 September 2022, except those reasonably necessary to enable day to day running of the respondent. The Registrar contended this was to ensure that those remaining in office for any extended time ordered by the Commission do not take any advantage of this. The Registrar contended the order was consistent with the objects of the IR Act, particularly s 6(f) concerning democratic control of organisations and member participation.

The respondent opposed the Registrar’s application  noting that limited time to brief the respondent’s new secretary and consult with the respondent’s Council created difficulty.

Findings

The Chief Commissioner found the applicant had standing to bring the application and noted the application was not opposed by the respondent. The Commission found the Registrar had a sufficient interest for the purposes of 27(1)(k), and had standing, given the functions and powers conferred by s 66 of the IR Act. 

The Chief Commissioner found that the member seeking to intervene had not established a sufficient interest. The Chief Commissioern found the member did not have a direct interest in the outcome of the proceedings rather than merely being affected by them. The Commission noted it did not place much weight on the consideration that granting the application would delay the election process. 

The Chief Commissioner did not issue the order sought by the Registrar, considering its terms and possible impact on the members of the union, their legitimate interest in being heard, and whether the matters could be heard later, to enable fulsome argument and consideration, without unduly delaying the matter. The Chief Commissioner noted that the proposed order sought was a novel one, and there was no reason it could not be subject to a separate application. Given this was the basis for the Registrar’s application to intervene, the application was refused. 

Chief Commissioner noted that s 66 must be applied consistently with the objects of the Act, in particular encouraging democratic control of registered organisations and full member participation. The Chief Commissioner noted a crucial means by which this object is achieved is free, fair, and timely elections for officeholders. 

 Noting that s 66(2) of the IR Act confers a broad power on the Chief Commissioner to make such orders in relation to organisational rules the Chief Commissioner ordered the requirement to hold the election between 1 July and 31 August be waived, but that the election conducted and concluded by 30 November 2022. The Chief Commissioner ordered that until the Returning Officer declared the election result, the current office holders would be deemed to continue holding office and have authority to exercise their powers, duties, and functions. 

The decision can be read here.