100316120

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES NEVILLE JOHN JONES

APPLICANT

 -and-

 CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED

RESPONDENT

CORAM HIS HONOUR THE PRESIDENT P J SHARKEY

DELIVERED MONDAY, 31 MARCH 2003

FILE NO/S PRES 1 OF 2003

CITATION NO. 2003 WAIRC 08036

_______________________________________________________________________________

Decision  Application dismissed

Appearances

Applicant   Mr G McCorry, as agent

Respondent   Mr P L Harris (of Counsel), by leave

_______________________________________________________________________________

Reasons for Decision

1         This is an application by the above-named applicant, Neville John Jones, hereinafter called “Mr Jones”, made pursuant to s.66 of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”).

2         He is and was, at all material times, as I find, a member of the respondent, which is and was, at all material times, an “organisation” as that term is defined in s.7 of the Act.  In fact, the “CSA”, as I will refer to it hereinafter, is an organisation of employees.

3         For those reasons, there is jurisdiction in the Commission, constituted by the President, to hear and determine this application.

4         The application is and was opposed by the CSA.

5         The substance of the application is this.

6         On 22 January 2003, the CSA, it is alleged, by rejecting Mr Jones’ application for approval of a person external to the CSA to represent the CSA and Mr Jones before the Public Service Arbitrator (hereinafter called “the Arbitrator”), the CSA:-

(a)           Failed to observe its rules

(b)          Used its powers or observed its rules in a manner that was tyrannical, oppressive, unreasonable and inconsistent with the democratic control of the organisation by the members.

(c)           Invalidly used its power.

(d)          Failed to act in accordance with the fiduciary duty owed by it to Mr Jones.

(e)           Decided his application on a basis that was not honest and impartial, nor was it in accordance with the principles of natural justice, nor was it fair, reasonable or consistent.

(f)            The CSA, in applying the relevant policy, acted contrary to rule 3 and invalidly as not furthering the objects of the CSA.

(g)          The CSA failed to give account to adequate considerations which were recited in the particulars.

7         A number of particulars of the claim was provided.

8         By the CSA’s amended answer, in summary, the allegations are denied or characterised as embarrassing to plead to.

BACKGROUND

9         Evidence was given by the applicant, Mr Neville John Jones himself, and by Ms Diane Margaret Robertson, President of the CSA, on his behalf.

10      On behalf of the respondent, evidence was given by the General Secretary, Ms Toni Beverley Walkington and Mr John Noel Dasey, the Senior Industrial Officer.

11      Mr Jones was, at all material times, a permanent substantive level 6 officer in the “employ” of the Director General of the Department of Justice, presumably pursuant to the Public Sector Management Act 1994.

12      He had applied for and been interviewed for another position within the Department of Justice and recommended by the interviewing panel for the position.  However, this recommendation was questioned by the Director General and disputation arose about this matter.  As a result, Mr Jones sought the advice and assistance of the CSA.

13      Mr Jones had, having discussed his problem with officers of the CSA, eventually discussed the matter with the President of the CSA, Ms Diane Margaret Robertson, who gave him the names of three prospective representatives or firms thereof, one being Ms Megan in de Braekt.  Ms in de Braekt had formerly been an advocate employed by the CSA, but was, at the material times, in the employ of Kott Gunning Solicitors.

14      An application was filed in the Commission, No PSAC 51 of 2002, on 17 December 2002 (exhibit 4) seeking a conference pursuant to s.44 and s.80E of the Act concerning Mr Jones’ matter.  The application had been drafted by an industrial advocate with the CSA, Mr Brendan Cusack, under the supervision of the Senior Industrial Officer, Mr John Dasey.  Mr Dasey has held senior industrial officer positions since 1997.  He himself has a law degree and a commerce degree majoring in industrial relations and has experience in advocacy and advising in industrial relations going back to 1986.  He is the leader of a team within the CSA consisting of two advocates, four industrial officers, a workers compensation officer and an administrative assistant.  On all of the evidence of Mr Dasey and Ms Walkington, which I accept, these persons are all qualified and experienced (see pages 149-150 of the transcript).

15      The parties named in the application were and are, the Civil Service Association, applicant and the Director General, Department of Justice, respondent.  Application was made to the CSA that Ms in de Braekt have authority from the Council of the CSA to represent that organisation in an application to the Arbitrator in relation to Mr Jones’ matter.

16      On 21 December 2002, Mr Jones wrote a letter (exhibit 5) to the CSA complaining about the alleged inadequacy of the application which had been lodged on his behalf by the CSA on 17 December 2002, complaining, too, about advice given by CSA officers to him and requesting that his “lawyer”, Ms in de Braekt, be given approval to represent him.  In that letter, he also required that a conference in the matter listed by the Arbitrator for 30 December 2002 be adjourned and that a new application be lodged on his behalf.  Mr Cusack, the advocate dealing with the matter sought and obtained an adjournment of the conference and gave notice to the Arbitrator of an intention to seek amendment of the application by letter dated 10 January 2003 with enclosure.

17      Relevantly, the Council had previously authorised Ms in de Braekt to represent the CSA in another matter.  However, her employers, Kott Gunning, advised that they were not willing to comply with one of the criteria set out in the policy formulated by the CSA to deal with requests to be provided with outside information, in that she would not undertake to comply with instructions and maintain the confidentiality required in the relationship between the CSA as the client and herself as the advocate (see letter dated 30 October 2002, exhibit 11).

18      The Council had therefore determined that a request for outside representation would not be considered until legal advice had been obtained concerning this aspect of CSA policy, it having been challenged as unlawful by Kott Gunning Solicitors, where Ms in de Braekt worked.

19      On 24 December 2002, the General Secretary of the CSA, Ms Toni Walkington wrote to Mr Jones advising inter alia:-

a) That the adjournment which he instructed the CSA to seek had been sought and “solely at your direction”, it being implicit in that that the CSA advocates concerned did not necessarily think that it was a good idea that such an adjournment should be sought.

b) That the matter had been competently dealt with and the application, as drafted, was not inadequate.

c) That the person whom he sought to represent him, namely Ms in de Braekt, was unable to agree to the representation policy of the CSA in respect of one “criteria (sic)”.  That was:-

“The Advocate will not advise the co-client of communications between the CSA and the advocate/representative unless specifically authorised to do so.”

20      Accordingly, the Council advised through Ms Walkington, that it had resolved to suspend deliberations on further requests to be represented, other than by the General Secretary or other officers or employees of the Association, pending the taking of legal advice in the matter.  That advice had not been received, Ms Walkington said in her letter, as at the time of writing.  At no time was I taken to that advice, in any event.

21      On 10 January 2003, Mr Cusack advised the Associate to Commissioner Harrison, the Arbitrator in the matter, of proposed amendments to the application, based to some extent on suggestions which had been made by Ms in de Braekt.

22      This matter came before the Council on 22 January 2003.  Mr Jones was present and put his case.  He agreed in evidence that the minutes substantially reflected what was said.  What was raised by the Vice-President, Mr Brian Ellis, during the discussion of this matter was that regardless of Ms in de Braekt’s willingness or otherwise to comply with the policy about disclosure, the first criterion which Mr Jones was required to satisfy was the need for an advocate outside the CSA to be engaged.  In fact, Mr Ellis asserted that Mr Jones had not provided (see exhibit 2) adequate reason for not wishing to utilise the CSA’s internal services.  Mr Jones told the Council that although his case was strong, a legally trained advocate would only strengthen it and he stressed that he wished to maximise his chances of winning the case.  The President, Ms Robertson, spoke against the motion which was eventually passed in the following terms:-

“That Council having assessed the request in accordance with the criteria set out in our policy decline Mr Jones’ request that Ms In de Braekt be authorised to represent the CSA”.

23      On 24 January 2003, Mr Jones attended with Mr John Dasey, the senior industrial officer with the CSA, at a conference before Commissioner Harrison, the Arbitrator, at which were present also, representatives of the employer.  (Mr Dasey took notes of what occurred (exhibit 21)).  The employer raised, at the conference, the question of whether the Arbitrator had jurisdiction.

24      Mr Dasey was applying for interim orders at the time because of fears that the position was going to be abolished by the employer, and the employer would not give an undertaking that that would not be done.  The Arbitrator said that she would not deal with the matter, but would list it for a half day hearing so that the question of jurisdiction might be determined.  Mr Jones was critical of Mr Dasey’s inability to obtain interim orders to prevent the abolition of the position.  However, it is difficult see how such an application could either be entertained or succeed when jurisdiction was squarely put in issue (see Springdale Comfort Pty Ltd t/a Dalfield Homes v BTA 67 WAIG 325 at 330 per Rowland J (IAC)).  The Arbitrator’s duty in such a case was clearly to determine jurisdiction, as the Industrial Appeal Court said.  The criticism does not appear at all valid therefore.

25      On 28 January 2003, Mr Jones sent an email to Ms Walkington complaining again about the advice and representation.

The Relevant Policy and Other Matters

26      The policy which was applied was approved by the Council on 28 August 2002 (see the minutes, exhibit 8).  The factors to be considered are, according to the policy, as follows:-

“Proposed Policy

“The CSA has a preference for an integrated approach to organising, campaigning and provision of services to our members.  The CSA considers this is most efficient and effective where members utilise the facilities and services provided by the CSA.

In those circumstances where members request that a person other the General Secretary, other officers or employees of the Association represent the CSA in proceedings related to their circumstances the CSA will consider and determine each request on a case be case basis and each action will be authorised discretely.

The CSA will consider the following factors in determining such requests:

1. Determination to Commence a Claim

The following factors will be considered and assessed by the CSA Council when making a determination to commence proceedings before the Industrial Relations Commission:

a) Any request for an advocate, not appointed by the CSA, to represent a member, be accompanied by that members rationale of the perceived issues that prevent that member being represented by a CSA appointed advocate”

b) Benefit to the individual and the union at large;

c) Merits of the claims and prospects of success;

d) Prospect of appeals;

e) Prospect of recovery of costs;

f) Resources and funding;

g)  Relevant CSA Policies;

h) Willingness of members to meet the obligations;

i) The maintenance of a lay jurisdiction.

2. Representation

The CSA will authorise a person other than the General Secretary, other officers or employees of the Association to represent the CSA in proceedings subject to the advocate/representative undertaking the following:

a) The Advocate agrees to be instructed by the General Secretary or a person nominated by the General Secretary;

b) The advocate will provide an update of any matters on fortnightly basis or more frequently;

c) The advocate will advise the dates and places of negotiations, conferences, hearings and decisions;

d) The advocate will not advise the co-client of communications between the CSA and the advocate/representative unless specifically authorized to do so.

e) The advocate will comply with CSA policies concerning the representation of the union and assistance provided to members”

3. Authorisation

Where an Advocate does not comply with the proposed policy then the authorisation for that Advocate to act on behalf of the CSA will be withdrawn.”

I do accept that the policy of the CSA which was relevant was at all material times as it appears above (see exhibit 8).

27      By letter dated 22 July 2002, Ms in de Braekt sought permission to represent the CSA in relation to a matter relating to one Mr Alan Jones.  There were other matters where applications had been made for assistance and assistance was granted for Ms in de Braekt to be the representative.  For example, Mr Peter Healey, a member, received that assistance as approved by Council on 23 October 2002 even though Kott Gunning was not prepared to accept the “disclosure condition” (see the minutes of that meeting, exhibit 9).

28      On 25 September 2002, the Council unanimously carried a resolution that UnionLink and CPSU/CSA staff only provide advice to members (exhibit 10 minutes).

29      At the same time, complaints by a member, Mr Stephen Kelly, about the CSA’s industrial services were not accepted by the Council.  There was also discussion of the CSA’s role as the client in certain proceedings in the Commission.

30      On 30 October 2002, Mr Laurie James, the Chairman of Partners at Kott Gunning, wrote to Ms Toni Walkington, the General Secretary, advising that his firm could not agree not to disclose communications with the CSA to “co-client” members.  I was not informed what advice had been given by Ilberys about this opinion.

31      It was the evidence, and it obviously occurred, that after Ms in de Braekt left the employ of the CSA she continued to represent the CSA in some matters, which she had been dealing with before she left that employment, with the consent of the CSA.  There was a degree of controversy in evidence and submissions about the relative ability and experience of Ms in de Braekt and the advocates and industrial officers employed by the CSA.  Direct evidence was given about the latter by Mr Dasey and Ms Walkington and about their abilities and experience.  There was unrefuted evidence, for example, that Mr Dasey and others had argued points of jurisdiction and Mr Dasey was obviously, on the evidence, an experienced advocate and advisor.  It was not submitted otherwise.

32      The evidence of Mr Jones was the main evidence about Ms in de Braekt’s ability and experience and that was hearsay evidence of what she had told him of her abilities and experience.  She herself did not give evidence.  I am not at all persuaded that I should accept Mr Jones’ evidence of the comparative experience or competence of Ms in de Braekt and the industrial officers and advocates of the CSA, because the evidence of her experience and competence is for the most part, given through Mr Jones.  I do accept the direct evidence of Ms Walkington and Mr Dasey, of the competence and experience of Mr Dasey and other advocates and industrial officers of the CSA because this was direct evidence and was not shaken.  I accept that evidence and find that Mr Dasey and the other officers have the requisite experience and competence to deal with Mr Jones’ matter. 

33      There is little dispute about the evidence generally and I accept that the chain of events described occurred for the most part as they have been described in evidence by both sides and I accept for the most part that what is said to have been said was, in fact, said.

ISSUES AND CONCLUSIONS

34      The primary complaint was that the CSA acted contrary to rule 3 of its rules in refusing to allow Ms in de Braekt to represent it in the matter relating to Mr Jones, and at his expense.

35      First let me say that rule 3 of the CSA rules (exhibit 1) is the object rule.  One of the objects is rule 3(b) which reads as follows:-

“(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;”

36      Rule 3(c) reads as follows:-

“(c)  representing the industrial welfare of individual members;”

37      Rule 3(h) reads as follows:-

“(h)  To raise funds by means of contributions, subscriptions, levies or such other means as necessary, to acquire and/or dispose of all means of property or other assets and to efficiently administer and account for the property and other assets to achieve the objects of the Association;”

38      There is a catch all object and that is (see rule 3):-

“… to do all manner of things which are right and proper to further the objects of the Associations.”

39      It is noteworthy, too, that the Executive, by rule 13(8)(c) is required to do the following:-

“The Executive Committee shall be responsible for the management and proper conduct of the business and the carrying out of the policy of the Association between meetings of the Council, subject to the resolutions and decisions of the Council and to the Constitution and these Rules and in particular shall …”

40      The Management of the CSA, is, of course, vested in the Council (see rule 12).

41      A great deal of argument related to the question whether the condition with which Kott Gunning and Ms in de Braekt disagreed ((ie) the obligation not to disclose matters passing between the CSA and the solicitors) was lawful and binding.

42      In my opinion, PSAC 51 of 2002 was an “industrial matter” brought before the Commission by an organisation of employees pursuant to s.44 and s.80E of the Act.  At the heart of the industrial matter was a dispute between the Ministry of Justice and the CSA about the alleged treatment of Mr Jones, a member of the CSA, by his employer.  That is, it is a dispute between an employer and an organisation of employees.

43      First, it is necessary to say that a necessary consideration, according to the relevant policy, was that which required matters to be referred to the CSA’s own employed advocates and industrial officers.  It is clear that they are employed to represent the organisation and its members and their services as provided are part of the services provided to the members in the proper pursuance of the objects contained in rule 3.

44      It is trite to observe that this service is provided by organisations of employers and employees to their members in this Commission by officers, advocates and industrial officers on a daily basis.  To provide that this would occur would seem to me to be quite normal and reasonable in the absence of any evidence to the contrary.  It is quite clear that there needs to be a genuine exception to that part of the policy, and such exception seems available, where legal representation or where there should be for other reasons, “outside representation”, required to be provided, in any individual instance, but that, in the end, is a matter for the CSA to judge, since the President is not their surrogate manager.  This was a matter, it was not in dispute, which could only be referred to the Arbitrator by an organisation and not by an individual, and it is done pursuant to s.80E, and, in particular, also, s.80F of the Act.  It was so referred.

45      The CSA was a party and Mr Jones was not.  Since he was not and could not be a party I am of the view, on what was submitted to me on this occasion, that Mr Jones was not and could not be a co-client.  He has himself no standing in the proceedings before the Arbitrator, and is, as was submitted, only a witness.  Of course, the CSA as a party to the proceedings representing Mr Jones, is the representative of Mr Jones in the industrial sense and is required to represent his interests and advance them as a member of its organisation in accordance with its rules and its duty as the organisation of which he is a member.  There is no evidence that it is not doing so or that it will not do so properly in accordance with the rules.  There was a side issue in this, and this was whether the solicitors involved, Kott Gunning, would agree to act for the CSA and in acting for the CSA would agree not to disclose communications between them to Mr Jones presumably without the consent of the CSA.

46      I do not understand why Kott Gunning had difficulty with this matter because it would seem, in the absence of cogent argument to the contrary, for the reasons which I have found, that they were seeking to act for the CSA and would be acting for the CSA and that the CSA was their sole client as the sole party apart from the employer in the proceedings before the Arbitrator.  Mr Jones would not then be the client of those solicitors.

47      This complaint is really that the CSA, through the Council, has acted unfairly and contrary to the welfare of Mr Jones in making the decision to not allow Ms in de Braekt to represent the CSA.

48      First, it would seem to me that the judgment of who should represent the CSA is a matter for that organisation primarily, having regard to the welfare of the member concerned, but having regard as well to the welfare of the CSA, and all of its members.  The welfare of the members and the CSA should also be considered in the light of a number of factors including cost.  Potentially the CSA, if it assigned the matter to someone inexperienced within or without the organisation, or someone incompetent to represent a member in a particular matter, would prima facie be failing to act in the member’s interests and would be acting unfairly and unreasonably.  That was not established for the reasons which I have advanced and which I express hereinafter in this case, and indeed the opposite as I clearly find in this case.

49      The CSA’s duty is to represent Mr Jones’ interests and advance them, too, as a member.  It is noteworthy that Kott Gunning seeks to represent Mr Jones and cannot do so because he is not a party in the proceedings before the Arbitrator.  If they are required to represent the CSA and wish to be instructed by the CSA, then they do so on the CSA’s terms, since Mr Jones is not their client and would cease to be their client in those proceedings, for the reasons which I have advanced.  In this case, it is, insofar as it is relevant, clear that Mr Dasey has the requisite experience and expertise to competently represent Mr Jones, as do the other advocates.  There is no evidence to which I can attach weight that Ms in de Braekt, until recently an advocate under Mr Dasey’s supervision and junior to him, has any greater experience than Mr Dasey.  However, those considerations are largely irrelevant.

50      The CSA is entitled to represent itself, and by doing so to represent its members.  S.31 of the Act, expressly, recognises the right of officers of an organisation to represent it in the Commission.

51      Singh v FMWU (1993) 73 WAIG 2674 at 2677 is of assistance.  There is no requirement under the rules to support or give legal assistance to every claim which a member wishes to make.  Indeed, it is obvious that to do so would be impossible.  There is no requirement under the rules express or implied, (or the policy), nor should there be, that the CSA should be represented by another person other than one of its officers or employees.  Indeed, it might in particular circumstances, be a proper and prudent thing to do otherwise in matters requiring legal expertise, or experience, or particular experience or for other good reason.  However, that is a matter of judgment for the CSA which it is required to make in deciding whether to grant assistance or not or what sort of assistance to grant.  There is no requirement that a member should be represented, either, by any particular advocate or industrial officer of the CSA save and except on the grounds of necessary expertise or experience, or because that advocate or industrial officer has been allocated to a particular area of the CSA’s activity.  I would also observe that proper financial management may well require that most or almost all representation should occur “in-house”.  Again that is not a matter for my judgement.

52      I should add that such factors did not exist in this case.

53      There is no evidence but that the CSA is not properly pursuing Mr Jones’ claim.  How it does so should not be dictated by any external body, such as the Commission constituted by the President, nor can it be by Mr Jones, provided the CSA acts properly in his interests, and consistent with its own legitimate interests and those of its membership.  There is no evidence that it is not.

54      In my opinion, as long as Mr Dasey continues to appear in this matter, which would have the added benefit of Mr Jones not being put to unnecessary expense, because he would not be paying anyone if the CSA’s officers represent him, the CSA’s and, through it, Mr Jones’ best interests are best dealt with by this matter being expedited.

55      For those reasons, as I find, it has not been established that there is any rule, express or implied, which has been breached or not performed.

56      It has not been established within the principle laid down in Park v WACJBSU (1983) 63 WAIG 2230 at 2231 applied in Singh v FMWU (op cit) that any order or direction should be made, even if there were a breach of the rules.

57      Thus, the power under s.66 of the Act is discretionary, and it should only be used where it is necessary to ensure that some wrong is avoided or necessary to ensure that someone who has a clear obligation to do something under the rules or by a previous order of the Commission does it.  There is no such clear obligation here, and, indeed, it is clear and I find that the obligation to advance the interests of the CSA and its members, including that of Mr Jones, is being effected currently by his representation by Mr Dasey.  No order is necessary to ensure that any wrong is avoided since no wrong has been or is likely to have been committed in relation to the rules in this instance.

58      It is not the role of the President in these matters to deal with the decision of the Executive or the Council of the CSA in cases such as this, as if the President was reviewing an administrative decision according to the principles laid down in House v The King [1936] 55 CLR 499.

59      Having regard to s.26(1)(a) and s.26(1)(c) of the Act the merits of the matter and the equity and good conscience of it, lie with the respondent.  The applicant, in any event, has not established otherwise.  In addition, the interests of the members, the CSA itself, and, indeed, Mr Jones (on the basis of necessary expedition), require that this application be dismissed.  Even if that is not so, Mr Jones has not established otherwise, for the reasons which I have advanced.

60      For all of those reasons, the case for the applicant has not been established, the merits lie with the respondent CSA, and I will dismiss the application.

      Order accordingly