100315865

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES GREGORY JOHN WAUHOP

APPLICANT

 -and-

 CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED

RESPONDENT

CORAM HIS HONOUR THE PRESIDENT P J SHARKEY

DELIVERED FRIDAY, 28 MARCH 2003

FILE NO/S PRES 2 OF 2003

CITATION NO. 2003 WAIRC 08021

_______________________________________________________________________________

Decision  Application granted in part.

Appearances

Applicant   Mr G J Wauhop, on his own behalf

Respondent   Mr J Dasey, Senior Industrial Officer

_______________________________________________________________________________

Reasons for Decision

INTRODUCTION

1         This is an application brought by the above-named applicant, Gregory John Wauhop, against the above-named respondent organisation, hereinafter called “the CSA”.  The application is brought pursuant to s.66 of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”).

2         Summarised, he alleges that the CSA, an organisation of which he is and was, at all material times, a member, has acted contrary to rule 3 of its rules, by failing to observe the following principal objects:-

“(a) encouraging and facilitating the democratic control of the Association by the membership and the participation of the membership in the development of the Association policy and action.

(b) conducting negotiations with employers, making applications to industrial tribunals, effecting industrial regulation of the conditions under which members of the Association shall be employed, securing fairness and equity in conditions of employment for all members and ensuring that industrial regulation is efficient and effective.

(c)       representing the industrial welfare of individual members.”

3         By the application, Mr Wauhop seeks an order or direction under s.66 of the Act requiring the CSA to fulfil its constitutional obligations to make “resources” available for his representation for a claim of unfair dismissal lodged in this Commission.

4         Mr Wauhop also seeks a further order or direction instructing the CSA to conduct a “transparent and independent inquiry into the actions of senior management in regards to my speaking out against the CSA’s inappropriate utilisation of fixed term contracts at a democratic meeting of CSA members”.

5         The application was amended, by leave, to allege the following:-

1. The applicant claims the failure of the Branch Secretary and Assistant Branch Secretary to declare their potential conflict of interest to Executive Council in regards to the applicants request resources be made available for representation in a unfair dismissal claim the applicant lodged in the Western Australian Industrial Relations Commission against the Civil Service Association, breached Rule 30 of The Rules of the Civil Service Association of Western Australia Incorporated.

7. The applicant claims the failure of the CSA to place before the Executive Council within a reasonable time the applicant’s request resources be made available for the representation in the applicants unfair dismissal claim is in breach of Rule 3 of The Rules of the Civil Service Association of Western Australia Incorporated.

8. The applicant claims the failure of the CSA to provide the applicant with an outcome to the decision of Executive Council and Council not to provide resources for representation in the applicant’s unfair dismissal claim within a reasonable time is in breach of Rule 3 of The Rules of the Civil Service Association of Western Australia Incorporated.

9.  The applicant claims the failure of the CSA to provide details of the applicant’s unfair dismissal claim to Executive Council is in breach of Rule 3 of The Rules of the Civil Service Association of Western Australia Incorporated and marred the democratic process and as a result as jeopardised the likelihood that any future decision, regards the applicant’s claim for representation, would be equitable.

THE APPLICATION OPPOSED

6         The application was opposed.  In particular, it was asserted that paragraph one of the particulars is introductory and does not disclose a reasonable ground of application, and further the CSA denies that is has breached its rules or acted in a tyrannical, oppressive, unreasonable or undemocratic way.

7         Further, it was alleged that the CSA has not taken a final decision not to provide funding to the applicant and further that its decision, in any event, was not tyrannical, oppressive, unreasonable or undemocratic.

8         Further, the CSA denied that the General Secretary, Ms Toni Walkington and Assistant General Secretary, Ms Joanne Margaret Gaines, had a conflict of interest in relation to the relevant decision of the CSA’s Council.

9         There was also alleged that paragraph three of the particulars of the application disclosed no reasonable ground of application, and the CSA also denied that it has acted contrary to its objects as set out in the rules.  Further, the claim for relief was denied.

JURISDICTION

10      It is not in issue that the Commission, constituted by the President, has jurisdiction in this matter, insofar as the applicant is and has been, at all material times, a member of the CSA, which is an organisation as that is defined within the meaning of s.7 of the Act.

BACKGROUND

11      In this matter, evidence was given on behalf of the applicant, Mr Wauhop, by himself and by Ms Dianne Margaret Robertson, the President of the CSA.

12      Evidence was given on behalf of the CSA by Ms Joanne Margaret Gaines, its Assistant General Secretary, and Ms Deana Maree Whitaker, a Lead Organiser.

13      So that there might be some understanding of the processes of the CSA, I observe that the management of the CSA is vested in a council elected from the financial membership of the CSA.  (See rule 12).

14      The Executive Committee is prescribed to consist of the President, the two Vice-Presidents, the Honorary Treasurer, the General Secretary, the Assistant General Secretary and six other members, elected by the Council, and, pursuant to rule 13, manages the CSA between meetings of the Council.

15      It was not in dispute that this was a matter which related to the State organisation, the CSA, and not to a federal organisation, the CPSU.

16      The applicant was employed by the CSA as a research officer in the research and advocacy team pursuant to a series of fixed term contracts from 29 November 2000 to 30 August 2002, and after that, until 30 September 2002.  On 17 July 2002, he was informed that his employment would be terminated on 30 September 2002.  (I would also add that Mr Wauhop, at one time, also sought reclassification of the position in which he was in).

17      On 3 September 2002, a meeting took place at his request, between Ms Sandy Newby, Co-ordinator of Industrial Services, and Ms Deana Whitaker, the Lead Organiser of the CSA, both members of management of the CSA.  It was held at his request and was said to be held in order to give feedback about an application he had made for a position in the CSA for a fixed term as a UnionLink organiser.  He also said that he required feedback about his application for that position.  (Exhibit 3 includes a record of the meeting, made by Ms Newby and Ms Whitaker).  The meeting dealt with the question of the “expiry” of his fixed term contract on 30 August 2002, including matters of termination and certain entitlements.  He was informed at the meeting that the contract expired on 30 August 2002 and that he had been selected to replace the substantive occupant of the position for separate periods.

18      Mr Wauhop’s application for the UnionLink position was discussed and he was told that at the first round interview he had not “met” all of the selection criteria.  Further, Ms Newby informed him “he appeared to be carrying a level of anger that could affect his interactions”, and he was given advice about this by Ms Newby.  Further, at the meeting, Ms Whitaker raised with the applicant “his interaction with a colleague at a union meeting”.  He himself denied that he had acted in any unsatisfactory manner at the union meeting.  It is difficult, of course, to see what that had to do with his employment.  He had at the union meeting been critical of fixed term contracts.  He complained about the criticism of the manner in which he had spoken to the chairperson at the union meeting, being raised in the course of the meeting of 3 September 2002.  He was also criticised for becoming agitated and raising his voice at the meeting, with Ms Newby and Ms Whitaker, of 3 September 2002.

19      On 16 October 2002, Mr Wauhop wrote to Ms Newby and Ms Whitaker about the meeting of 3 September 2002, defending himself and criticising Ms Newby and Ms Whitaker.  He reiterated his criticism of fixed term contracts in that letter.  A copy of that letter was forwarded to Ms Gaines, Ms Walkington, the CSA Executive Council and Ms Robertson, the President of the CSA.  (See exhibit 3).

20      Mr Wauhop wrote to the Assistant General Secretary, Ms Gaines, on 28 November 2002 requesting funding for legal assistance in proceedings which he had commenced in this Commission against the CSA claiming that the CSA had harshly, oppressively and unfairly dismissed him.

21      His request for legal assistance did not come to the Executive Committee presided over by the President until it met on 9 January 2003.  Present also at that meeting were Ms Toni Walkington and Ms Jo Gaines, as well as Ms Sandy Newby, the Co-ordinator of Industrial Services.

22      Ms Walkington and Ms Gaines are members of the Executive (see rule 13).  It is not clear in what capacity Ms Newby was present at the meeting (see the minutes of that meeting, exhibit 5A) .  As an employee she would not be permitted to stand for election to or be elected to the Executive Committee or to the Council because of the provisions of rule 6, forbidding such a course.

23      A resolution was carried at that Executive meeting on 9 July 2003, that Mr Wauhop, then an ex staff member, “should not receive legal funding”.  The resolution was in the following terms:

“That Executive resolve to reject the application by Mr Wauchope (sic) for legal funding for his unfair dismissal claim at this time and advise him that a request for reimbursement of representation costs may be may be (sic) made following the conclusion of the case”.

That resolution was passed with Ms Robertson, the President, and three other members voting against it. 

24      The matter then came before the full Council and Ms Robertson moved that the resolution of the Executive not be accepted.  However, it was accepted after a vote.  That occurred at the meeting of Council on 22 January 2002 (Exhibit 5B).  The President expressed the view that, in her opinion, legal assistance to any member of the union in time of need, despite the circumstances, should not be denied.  At that meeting, according to the minutes, the Assistant General Secretary (recorded in the minutes as Branch Assistant Secretary) “briefed” the Council on the employment history of Mr Wauhop during his term of employment by the CSA.

ISSUES AND CONCLUSIONS

25      Rule 3 is the objects rule of the CSA rules.  One of the three principal objects is that the interests of the membership be protected by representing the industrial welfare of members.  Mr Wauhop is a member.  There is no limitation expressed in the rules upon the participation of employees of the CSA, who are members, as Mr Wauhop was and is, in all the benefits of membership, save and except that they are not permitted to become members of the Executive Committee or the Council.  (See rule 6).

26      It is trite to observe that it is the duty of the Executive Committee and the Council to serve the members.  There is a fiduciary duty upon the members of the Executive and of the Council.  (See Luby v The Secretary of the Australian Nursing Federation (2002) 82 WAIG 2124 at 2130 (Sharkey P)).  In the normal course of events, in my opinion, the fiduciary duty of the Executive and the Council to its members would prevent someone being assisted by the CSA to make a claim against it.  That is somewhat obvious.  However, by its eligibility clause (rule 6) employees are eligible to become members and the CSA is put in the position by its rules where it is bound to look after the industrial welfare of its members even against itself.  That, of course, is the inherent vice in eligibility clauses which make employees of an organisation also eligible to be members of it.  They have no separate representation against their employer unless they are eligible to become and do become members of another organisation.  That was not said to be the case here.  The eligibility rule in a case like this renders the organisation of employees concerned, the industrial representative of employee members against itself.  It therefore binds itself to assist an employee against itself the employer, whilst also being their “union”. 

27      There could not be a breach of rule 3 because that is an “object” rule.  The “object” rule directs the CSA to the objects which it is required to achieve in its activities and by its decision for its members.

28      In relation to the rules of an “organisation” it is not permitted by its rules to frustrate the policy and main purposes of the Act (see Williams v Hursey [1959] 103 CLR 30 at 68).  Subject to this, the rules may not provide for any other matter contrary to law.

29      Further, the rules of an organisation will be read down so far as they purport to authorise the pursuance of objectives cast in very broad and general terms.  Thus, when rules are used to state “objects” in such general expressions as “the interests of the members”, such expressions must be read as referring to the interests of members as members of the union and in their occupation, and in relation to their welfare as members accordingly.  (See Williams v Hursey (op cit) per Fullagar J at page 57).  Fullagar J made it clear, however, that there was a great deal of latitude within that principle for construing the rules and that which could be done under them.  (See also per Fullagar J in Williams v Hursey (op cit) at page 57).

30      The CSA, through the Executive and Council, and in general meetings, is also required to act intra vires, in accordance with the general concept of an organisation organised on a democratic basis, also for a bona fide purpose (see Scott and Others v Jess (1984) 56 ALR 379 (FC FC)), and, further, fairly and reasonably to its members, as well as in their interests.  (Secretaries and other officers are also required to act impartially and fairly).  (See Luby v The Secretary of the Australian Nurses Federation (2002) 82 WAIG 2116 at 2121 (Sharkey P)).

31      An organisation must also act in accordance with rules which serve the object of the Act and by actions which further those objects.  These views are fortified in various ways and reinforced by such provisions as s.26(1)(a), s.26(1)(c) and s.110 of the Act.  Most cogent however, is s.61 of the Act which provides as follows:-

“Upon and after registration, the organisation and its members for the time being shall be subject to the jurisdiction of the Court and the Commission and to this Act; and, subject to this Act, all its members shall be bound by the rules of the organisation during the continuance of their membership”.

32      It is the duty of the Commission, constituted by the President, to exercise the directory power conferred by s.66 of the Act where there is a substantial failure to perform or observe the rules.

33      This discretionary power is well described in Park v WACJBSIU (1983) 63 WAIG 2230, (O’Dea P) which is quoted in turn in Singh v FMWU (1993) 73 WAIG 2674 (Sharkey P).

34      However, there must be confidence among members of an organisation that its government and administration will be carried out in accordance with the rules so that the policy of the act may be carried out effectively (see Ellis v Willis (1968) 12 FLR 60 at 71).  It is the duty of the Commission constituted by the President to so ensure.

35      The Commission, as constituted by the President, is, however, I emphasise, as I have often done, not the surrogate manager of a registered organisation.

36      What was really alleged, in this case, was that the CSA, through its Executive and Council, failed to act fairly, and in the interests of its member.

37      I need to consider the essential facts on which the applicant, who bears the onus of establishing his claim, brings it.  The applicant’s complaint is, boiled down, a simple one.  It is that he was not given legal assistance to bring and proceed with a claim for unfair dismissal against his former employer, of which he remains a member, namely the CSA.  He seeks that that assistance be ordered or directed to be given.  In the Executive, it is clear that the Executive considered the matter of pursuing “a legal action against itself, and the entitlements of members of the union” (see exhibit 5A).

38      In the Council (see exhibit 5B), the rejection of assistance by the Executive was endorsed by the Council and the employment history of Mr Wauhop was related by the Assistant General Secretary, Ms Gaines, to the meeting of the Council.

39      There is no evidence that the application for “legal assistance” was considered on its merits.  Indeed, it is clear from the minutes of both meetings that the claim was not considered on its merits by the Council or the Executive.

40      What should have been done by both the Executive and the Council was this.  The application by Mr Wauhop should have been treated the same as any other member who sought assistance in an industrial matter.  Then, of course, one would expect that the Executive and the Council would consider the chances of success of the claim.  That, in this case, and in many cases, would require an opinion from counsel or a solicitor.  (In some cases a CSA advocate might give an opinion).  Obviously, if there was, on that opinion, little chance of success, then assistance might not be given.

41      There might also be other valid reasons for refusing assistance, such as the cost, or the triviality of the matter, or a number of other reasons which might be valid in the circumstances of any given case.  Of course, matters such as the welfare of the member and what he or she might achieve by way of advancing his/her industrial interests would, amongst other things, be very relevant as would the welfare of the CSA and its members.

42      In this case, too, what his employment record was, which seems to have been considered, is entirely irrelevant and may, indeed, have been prejudicial.

43      I emphasise that this was not an application for legal assistance by an employee or former employee.  It was an application for assistance from the organisation to which he belongs and belonged, by a CSA member.  That he was also an employee is irrelevant to this application for legal assistance.  It was also irrelevant to consider that this was a claim by a former employee against the CSA, and that issue should not have been raised.

44      The fact of the matter was that there was a claim by a member whose industrial interests were required to be advanced by the CSA because he was, at all material times, a member.  This meant that his application had to be considered fairly and reasonably and consistent with the obligation of the CSA to advance his industrial interests.  There were, of course, competing factors such as whether it warranted, in the proper discharge of the fiduciary duty of the organisation and its governing bodies, a proper expenditure of funds, and I have already outlined some of the other relevant factors that would play a part in that decision.

45      I would observe that to postpone the grant of assistance until after the application of the applicant against the CSA succeeded or failed, with or without legal assistance paid for by him is, in fact, to deny the assistance which he seeks as a member.  It is, of course, not mandatory to give everyone who applies for legal assistance or industrial assistance, such assistance, nor can it or should it be.  There are factors of prudent expenditure, the chances of success and other matters, including the interests of the organisation of a legitimate nature, for organisations to consider.  (See Singh v FMWU (op cit)).

46      There is no doubt that the applicant’s claim was not given proper consideration, nor were his interests as a member.  There were substantial elements of unfairness resulting in Mr Wauhop being treated contrary to the duty of his organisation under the rules, as an employee, instead of as an applicant member.  His claim and his interests as a member were not considered on the merits.  The objects of the Act were not advanced by the decision to reject his application for aid, and, in that sense, the rules themselves and the objects in them were not advanced.

47      This was, as I have emphasised, a former employee seeking assistance from the CSA to claim against his employer, the CSA, and that he could do so, and that his application was entitled to be considered properly on the merits as a member, is unfortunately brought about by the eligibility rule by which an inherent conflict is created.  However, that is not a matter which should react to the prejudice of Mr Wauhop.

48      Further, the decision was reached in an entirely unfair manner, in that a member was treated in the manner in which he was.  Whether it was the case or not, the Executive’s reception of his employee history, which had nothing to do with his status as a member, might be properly perceived as tainting (with prejudice against him) a fair consideration of his application for assistance as a member.

49      I am satisfied and find that the decision to refuse him legal assistance was unfair and unreasonable and did not advance the objects contained in the rules.  It also represented a failure by Council and Executive to carry out their duties as required under Rules 12 and 13 respectively.  However, I do not propose to order that he be afforded legal assistance, save and except for the purposes of obtaining legal advice about the likely success of his claim.  I will so order and direct.  I will not go further because the decision in the matter is properly one not for the President, but for the organisation acting fairly and reasonably and seeking to advance the objects contained in the rules.  Thereafter, the matter should be dealt with by the Executive and Council, and, might prudently be dealt with, I suggest, upon the recommendation of an independent person whose appointment whom both parties might agree upon.  What will be required will be a proper consideration of all the usual and proper factors, such as chances of success, cost and others in deciding what, if any, assistance should be given.

50      I am not of opinion that either Ms Walkington or Ms Gaines acted in breach of rule 30 since they had no interest in the matter, save and except that arising out of their offices and the discharge thereof, and given that they are entitled to deal with the matter on Executive Council as ex officio members; however, the Executive’s requirements that Ms Gaines’ advise it of his employment history was essentially unfair, as I have found; nor am I persuaded that they acted partially.

51      In the absence of cogent authority, too, and for those reasons, I am not persuaded that they acted contrary to rule 30 of the rules.

52      As to the allegation that Ms Newby and Ms Whitaker acted oppressively to Mr Wauhop in the meeting of 3 September 2002, and, in particular, that Ms Whitaker was oppressive of him in criticising him for what occurred in a union meeting, I do not see how that at all constitutes a breach of any rules.  Whether it constitutes unfairness to him as an employee is not a matter which is relevant for me to consider in these proceedings.  If he was out of order at a meeting where some robust expression of opinion should normally be permitted, then that is a matter for the chairperson of the meeting and not his employer.  I would observe that criticism of Mr Wauhop for his conduct at a union meeting by his managers who were dealing with him as an employee was quite unsatisfactory and totally irrelevant to his situation as an employee.

53      It was not contended that this matter could have been taken further within the rules of the CSA (as s.110 requires but subject to s.66).  I do not, in any event, see how the resolution of the Council could be taken further within the internal structure of the CSA.  I also advise that I do not see the role of the President in matters under s.66 such as this, as that of a Court or Tribunal reviewing the discretionary decisions of a lower court or tribunal in accordance with the principles of House v The King [1936] 55 CLR 499.

54      In my opinion, the CSA acted unfairly in effectively refusing the means to Mr Wauhop to pursue his claim against it.  I would so declare.  I would order, too, that his application be reconsidered and that this be done only after an opinion is derived from a solicitor of his choice, of the chances of success in any claim by him against the CSA.  Such opinion should be funded by the CSA and I will so order.  It would also then require the consideration of other matters relevant to the usual decision as to whether legal funding should be approved for an employee by the CSA, as I have observed.

55      Such a decision as I have reached is borne out by s.26(1)(c), including the interests of Mr Wauhop and the interest of the organisation in its members being fairly dealt with, and in accordance with the objects contained in the rules.

56      I will issue minutes of such an order.

Order accordingly