The Chief Commissioner has dismissed an application to restore the former President of a Union to his elected position, finding that the applicant was no longer eligible to hold the position, and there was no power to reappoint the applicant in this instance.  The Commission found that subsequent Union elections had elected a new Executive and President democratically, and to intervene would be inconsistent with the principles governing the Commission’s powers.

Background

The applicant was a member of the Western Australian Police Union of Workers (respondent). In October 2018, the applicant was elected as a Director of the respondent’s Board of Directors, and in the same month, was elected to the position of President of the Union.

On 11 February 2021, in response to internal investigations being conducted, the Board of Directors informed the applicant that he was placed on leave with immediate effect, and that he was relieved of all his functions and duties as President of the respondent.

On 7 September 2021, the applicant made an application under s 66 of the Industrial Relations Act 1979 (WA) (Act). The primary relief sought by the applicant was restoration to his role as President and Director of the respondent. Preliminary directions hearings were held by the Commission.

In November 2021, the applicant stood for elections for the respondent’s Board of Directors. The respondent informed the Chief Commissioner that a new Board of Directors and President were elected, and that the applicant was not successful in his bid for election to the Board. On 17 March 2022, the applicant ceased to be a member of the Western Australian Police Force. The respondent filed an application to dismiss under s 27(1)(a) of the Act, raising jurisdictional issues.

Contentions

The respondent contended that the relief sought by the applicant would require the Chief Commissioner to interfere with a valid and duly held election, and that such relief was not available under s 66(2) of the Act, which limits the relief to orders and directions relating to observance and manner of observance of rules. The respondent further contended that the applicant, ceasing to be a member of the Police Force, had a direct bearing on the applicant’s claim under s 66 of the Act. This was because the applicant was no longer eligible to be a member of the respondent under its Rules, and therefore could not receive the relief that he was seeking.

The applicant submitted that his application clearly related to the respondent’s Rules and their observance and non-observance. In particular, the applicant, as the then President of the respondent, was denied the capacity to exercise his functions and powers, directly contrary to the Rules of the respondent and the Employment Agreement between himself and the respondent. The applicant submitted that relevant facts should be established, and the case before the Chief Commissioner should be heard. 

Findings

The Chief Commissioner noted that there was an inseparable link between a person’s status as a member of the Police Force under the Police Act and a person’s eligibility to be a member of the respondent and hold the office of President of the respondent. The Chief Commissioner found that the cessation of the applicant’s engagement as a police officer, deprived the Commission of the power to make an order to restore the applicant to the position of President.

Referring to Stacey v Civil Service Association of Western Australia [2007] WAIRC 00568 and the terms of s 66(2), the Chief Commissioner confirmed that the primary purpose of the power to be exercised is to ensure observance of an organisation’s Rules. The Commission noted that to restore the applicant to the position of President of the respondent, in circumstances where the applicant was ineligible for that office, would be a contravention of the respondent’s Rules, and such an order could not be made under s 66.

The Chief Commissioner further noted that as there was no dispute that the election was duly held and that the applicant was not successful, to restore the applicant to his former position by removing the subsequently democratically elected President and Board of Directors, would subjugate the will of the members and be at odds with the objects of the Act.

The decision can be read here.