WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2009 WAIRC 00666

DELIVERED : Tuesday, 15 september 2009

FILE NO. : FBM 1 OF 2009

Applicant

CatchWords:

Industrial Law (WA) – s54(1) Application for registration of organisation of employers –  Compliance with statutory criteria – Compliance with elections criteria -Whether Fair Work Act 2009 (Cth) applies where members of association may be ‘constitutional corporations’ – Application falls within ‘non-excluded matters’ – Application granted

Legislation:

Industrial Relations Act 1979 (WA) – s54(1), s55, s55(1)(a), s55(1)(b), s55(1)(c), s55(2), s55(3), s55(4), s55(4)(a), s55(4)(b), s55(4)(c), s55(4)(c)(i), s55(4)(d), s55(4)(e), s55(4)(e)(i), s55(4)(e)(ii), s55(5), s56(1)(a), s56(1)(b), s56(1)(c), s56(1)(d), s56(1)(d)(ii)(III), s56(1)(d)(ii)(IV), s56(1)(d)(ii)(V), s56(1)(d)(ii)(VI), s56(1)(d)(iii), s56(1)(e), s56(1)(f), s56(2), s56(3)

Fair Work Act 2009 (Cth) – s13, s14, s26(1)-(3), s27(1)(c), s27(2), s27(2)(l)(ii), s27(2)(l)(iii).

Result:

Application granted

Representation:

Counsel:

Applicant: Mr B Jackson

Solicitors:

Applicant: DLA Phillips Fox

Case(s) referred to in reasons:

The Electrical and Communications Association of Western Australia (Union of Employers) (2007) 87 WAIG 2899

In the Matter of an Application by The Western Australian Principals’ Federation for Registration (2008) 88 WAIG 1812

Case(s) also cited:

Re Postal Delivery Officers Union (Unreported, AIRC, Print 3192, 18 February 2000)

Reasons for Decision

RITTER AP:

Introduction

1          This is an application to the Full Bench to provide its authority for the registration of an organisation of employers under Part II, Division 4 of the Industrial Relations Act 1979 (WA) (the Act).  The power of the Full Bench to authorise such registration is provided for in s54 of the Act.

Basis of the Application

2          Specifically, the applicant relies upon s54(1) of the Act which provides:

“54. Qualifications for and basis of registration of organisations of employers

(1) Subject to this Act, an unregistered organisation consisting of 2 or more employers who — 

(a) have, in the aggregate throughout the 6 months immediately preceding the date of application for registration employed on an average, taken per month, not less than 200 employees; and

(b) are associated for the purpose of protecting or furthering the interests of those employers,

may be registered by authority of the Full Bench.”

Lodged Documents

3          Section 55 of the Act sets out “Requirements attaching to organisation seeking registration”.  Section 55(1) provides for documents which an organisation seeking registration “shall lodge in the office of the Registrar”.  These requirements are amplified by reg 66 of the Industrial Relations Commission Regulations 2005.

4          In accordance with s55(1)(c) the applicant has lodged with the Registrar the prescribed form of application.  This is Form 19 in Schedule 1 to the regulations as provided by reg 66(1). 

5          In accordance with s55(1)(a) and reg 66(2)(a) the applicant has lodged three copies of a list containing the full names of the officers of the organisation with their respective addresses.  That list contains the name of the officer, the employer member who employs the officer and the address of the officer.  The list includes the president of the applicant, Mr Anthony Pietropiccolo, the secretary Mr James Hall and seven named board members. 

6          In accordance with s55(1)(b) and reg 66(2)(b) the applicant has lodged three type written copies of its rules which are certified as being correct by Mr Pietropiccolo as president. 

7          Also lodged with the application were affidavits of Mr Pietropiccolo and Mr Hall both sworn on 11 May 2009.  A supplementary affidavit of Mr Hall, affirmed on 22 August 2009, was later lodged with the Registrar on 24 August 2009.  As will be later discussed, these affidavits together satisfy the requirements of reg 66(2)(c) and (d) respectively, for the lodging of three copies of the notice given to members in accordance with s55(4)(b) of the Act and three copies of the resolution of the applicant authorising the application. 

Publication of Notice

8          When an organisation has complied with the requirements of s55(1), s55(2) requires the Registrar to publish notice of the application in the following way:

“(2) When the organisation has complied with the requirements of subsection (1) the Registrar shall publish in the required manner — 

(a) a notice of the application;

(b) a copy of such rules of the organisation as relate to the qualification of persons for membership of the organisation and, without limiting the generality thereof, including any rule by which the area of the State within which the organisation operates, or intends to operate, is limited; and

(c) notice that any person who objects to the registration of the organisation and who, having given notice of that objection within the time and in the manner prescribed, satisfies the Full Bench that he has a sufficient interest in the matter, may appear and be heard in objection to the application.”

9          The Registrar has acted in accordance with s55(2) by the publication in the Western Australian Industrial Gazette of a notice dated 23 June 2009 at (2009) 89 WAIG 863.  The Gazette was published on 22 July 2009. 

10       Section 55(3) of the Act provides that an application shall not be listed for hearing before the Full Bench until the expiration of 30 days from the date on which there is publication of the matters referred to in s55(2).  This requirement has been satisfied as the hearing of the application did not take place until 31 August 2009. 

Statutory Requirements

11       Sections 55(4) and (5) of the Act contain additional requirements which must be satisfied before the Full Bench can authorise the registration of an organisation.  These subsections are as follows:

“(4) Notwithstanding that an organisation complies with section 53(1) or 54(1) or that the Full Bench is satisfied for the purposes of section 53(2) or 54(2), the Full Bench shall refuse an application by the organisation under this section unless it is satisfied that — 

(a) the application has been authorised in accordance with the rules of the organisation;

(b) reasonable steps have been taken to adequately inform the members — 

(i) of the intention of the organisation to apply for registration;

(ii) of the proposed rules of the organisation; and

(iii) that the members or any of them may object to the making of the application or to those rules or any of them by forwarding a written objection to the Registrar,

and having regard to the structure of the organisation and any other relevant circumstance, the members have been afforded a reasonable opportunity to make such an objection;

(c) in relation to the members of the organisation — 

(i) less than 5% have objected to the making of the application or to those rules or any of them, as the case may be; or

(ii) a majority of the members who voted in a ballot conducted in a manner approved by the Registrar has authorised or approved the making of the application and the proposed rules;

(d) in relation to the alteration of the rules of the organisation, those rules provide for reasonable notice of any proposed alteration and reasons therefor to be given to the members of the organisation and for reasonable opportunity for the members to object to any such proposal; and

(e) rules of the organisation relating to elections for office — 

(i) provide that the election shall be by secret ballot; and

(ii) conform with the requirements of section 56(1),

and are such as will ensure, as far as practicable, that no irregularity can occur in connection with the election.

(5) Notwithstanding that an organisation complies with section 53(1) or 54(1), the Full Bench shall refuse an application by the organisation under this section if a registered organisation whose rules relating to membership enable it to enrol as a member some or all of the persons eligible, pursuant to the rules of the first‑mentioned organisation, to be members of the first‑mentioned organisation unless the Full Bench is satisfied that there is good reason, consistent with the objects prescribed in section 6, to permit registration.”

Facts and Rules

12       The facts relied upon to establish that the requirements of these subsections have been met are contained in the affidavits of Mr Pietropiccolo and Mr Hall and the supplementary affidavit of Mr Hall.  Each of these affidavits was received as an exhibit at the hearing of the application. 

13       Mr Pietropiccolo is the director of Centrecare Inc which is a member of the applicant.  Mr Pietropiccolo deposed that the applicant “has been established to strive to improve the pay and conditions of employees and not for profit community and welfare sector in Western Australia and to protect and further the interest of members regarding industrial and employment issues”.  Annexed to his affidavit is a list of the employer organisations who are current members of the applicant.  This list is also annexed to the affidavit of Mr Hall.  In his supplementary affidavit Mr Hall says that the membership has not changed.  The list consists of 28 employer members.  They may, as the applicant’s counsel submitted, be generally described as being “within the not for profit community and welfare sector in Western Australia”.  The members include, for example, Anglicare WA Inc, Association for Services to Torture and Trauma Survivors, Good Samaritan Industries, Holyoake the Australian Institute for Alcohol and Drug, Red Cross WA, Relationships Australia (Western Australia) Inc and Western Australian Council of Social Service Inc. 

14       In his affidavit Mr Pietropiccolo says that Centrecare employs 250 people in Western Australia.  Mr Hall, who is the Chief Executive Officer of UnitingCare West (a member of the applicant) states that UnitingCare West employs approximately 150 people in Western Australia.  Based on this information and their “review” of the employer members of the applicant, Mr Pietropiccolo and Mr Hall depose that the applicant consists of two or more employers who have in aggregate, throughout the six months immediately preceding the date of the application, employed on average, taken to a month, not less than 200 employees.  There is no reason to doubt this evidence.  It is relevant to the requirement of s54(1)(a) quoted above.

15       In his supplementary affidavit Mr Hall set out the background to the establishment of the applicant.  He explained that initially a steering committee was formed to discuss the establishment of an organisation of employers in the not for profit community and welfare sector in Western Australia.  Annexed to his supplementary affidavit are the minutes of a meeting of the steering committee on 23 July 2008.  The minutes reflected that there was discussion about the establishment of an employers’ organisation. 

16       Also annexed to Mr Hall’s supplementary affidavit are minutes of a meeting on 11 November 2008.  At this meeting it was agreed to establish the applicant.  The minutes also reflect discussion about the registration of the applicant under the Act.  The minutes provide that it was also agreed that the foundation board of the applicant was to consist of the “current members of the steering group with formal elections in the future”.  The meeting also discussed that the launch of the applicant was to take place on 21 November 2009 and agreed on the form of a logo.  The minutes said that the “rules and constitution” should be available to all members later that week or early the following week. 

17       At a meeting on 16 January 2009 the applicant adopted and approved draft rules which had been previously circulated to board members.

18       As stated in the supplementary affidavit of Mr Hall, notice of that meeting was given to members together with a copy of the draft rules.  The notice said that the purpose of the meeting was to make a resolution approving the rules.  In his first affidavit Mr Hall said that the draft rules had been circulated to board members at least seven days prior to the meeting.  The minutes of the meeting of 16 January 2009 provide that the meeting was attended by Mr Pietropiccolo and four board members.  It also records that a majority of the board member attendees adopted and approved “the draft Rules of Community Employers WA, those draft Rules having been circulated to the Board Members at least seven (7) days prior to the meeting and they become herefrom [sic] the Rules of the Community Employers WA”.  A copy of the rules which were adopted was annexed to the affidavits of Mr Pietropiccolo and Mr Hall.  As earlier mentioned a copy was also lodged with the Registrar at the same time as the present application. 

19       Rule 5 sets out the objects of the applicant as follows:

“5 OBJECTS

5.1 The objects for which the Association is established are to:

(a) Strive to improve the pay and conditions of employees in the not for profit community and welfare sector in Western Australia.

(b) Protect and further the interests of Members regarding industrial and employment issues.

(c) Promote consultation and co-operation between employer organisations in the not for profit community and welfare sector in Western Australia.

(d) Liaise with the State and Federal Governments regarding relevant industrial, financial and community issues affecting the Association.

(e) Act as an employer organisation in regard to matters of a general industrial, employee and/or award nature for which purposes the Association will, among other things take such steps as are necessary to enable it to represent its Members before the Western Australian Industrial Relations Commission and other tribunals, boards or bodies according to law.

(f) Assist Members to have the resources to provide excellent, respectful and caring services to the not for profit community and welfare sector in Western Australia. .

(g) Strive to promote community awareness and knowledge of the needs of persons requiring welfare and community-based services.

(h) Collect, circulate and publish information about community, welfare and associated issues.

(i) Strive to ensure that Members have sufficient resources to assist vulnerable members of the community.

(j) To register the Association as an organisation of employers under the Industrial Relations Act 1979 (WA) or under any Commonwealth or State industrial Relations, Co-operative or like legislation [sic].

(k) To exercise all available powers, privileges and advantages provided under the Industrial Relations Act 1979 (WA) or under any Commonwealth or State industrial Relations, Co-operative, Property or like legislation [sic].

(l) Take such actions as are related to the achieving the above objects and further development of welfare and general community objectives.”

20       The expression “not for profit” is defined in rule 3.1 to mean “an object or a purpose which is charitable or for the public benefit which does not entail the making of profit”.  I note that rule 5.1(j) includes as one of its objects the registration of the applicant as an organisation of employers under the Act. 

21       Rule 6.1 provides that membership of the applicant “shall consist of such organisations which are employers within the not for profit community and welfare sector in Western Australia who shall be approved for membership by the Board”.

22       Rule 13 refers to the “Board”.  This is defined in rule 3.1 to mean the “body duly elected to govern the affairs of the Association”.  Rule 13.1 provides that the “supreme control” of the applicant is vested in its members but the “day to day management of the business and control of” the applicant “shall be vested in the Board”.  Also set out in rule 13.1 are the office holders to serve as “foundation Board members”. 

23       Rule 14 sets out the powers of the board.  Relevantly rule 14.1(i) provides the board with the power to “take all steps necessary to register the Association as an organisation of employers” under the Act.

24       Rules 14.2-14.7 provide for the way in which meetings of the board shall be called and take place.  Rule 14.2 provides that the board shall meet at least four times every year.  Rule 14.3 provides that additional meetings of the board may be convened by the president or three members.  Rules 14.4 and 14.5 contain notice provisions which are relevant to the present application.  They provide as follows:

“14.4 Written notice of a meting shall be given by the Secretary to each member of the Board and together with agenda and any supporting documents shall be despatched to members not later than seven (7) days prior to day appointed for the meeting.

14.5 The notice shall specify the general nature of the business to be transacted and no business other than that business shall be transacted at meeting unless the President or the members present unanimously determine that supplementary business is of such an urgent nature that it should be dealt with at the meeting.”

25       Rule 14.6 provides that five members of the board shall constitute a quorum for the transaction of business at a meeting, which shall be decided in the affirmative if a majority of members present are in favour of the resolution put.  Rule 14.7 provides that no business shall be transacted unless a quorum is present.

26       In his supplementary affidavit, Mr Hall deposes that on 23 January 2009 Ms Karen Blyth, his executive assistant, sent by email to the applicant’s board members, the notice of a meeting to occur on 4 February 2009.  Also sent was a copy of the minutes of the board meeting on 16 January 2009.  The notice was signed by Mr Pietropiccolo and dated 22 January 2009.

27       The notice of meeting set out the date, time and location of the meeting.  It also provided:

“The purpose of the meeting is as follows:

1. Make a Resolution that Community Employers WA will apply to the Full Bench of the Western Australian Industrial Relations Commission for registration of Community Employers WA as an Organisation of Employers under the Industrial Relations Act 1979 (WA).”

28       The minutes of the meeting on 4 February 2009 were annexed to both the affidavits of Mr Pietropiccolo and Mr Hall.  As deposed by each of them, at the meeting it was resolved that the applicant apply to the Full Bench for registration as an organisation of employers and for registration of the rules of the applicant in accordance with the Act.

29       The minutes include a note that a quorum of six board members was present at the meeting.  The minutes record that the president put the motion that the applicant apply to the Full Bench for registration as an organisation of employers.  The minutes also record that it was resolved by a majority of board members to apply for registration.  The minutes also set out the reason for the resolution as being “to be able to represent employer organisations in the not for profit non-government community and welfare sector in Western Australia”. 

30       The minutes record that there was no additional business.  The minutes are apparently signed by Mr Pietropiccolo as president and dated 4 February 2009. 

31       Also on 4 February 2009 Mr Pietropiccolo signed a letter to members of the applicant informing them of the intention to apply for registration.  Annexed to the affidavits of Mr Pietropiccolo and Mr Hall was a sample of the letters which were sent by email and ordinary post.  In summary the letters:

(a) Informed members of the intention to apply for registration.

(b) Provided a copy of the proposed rules of the applicant if registered.

(c) Advised members that they may object to the making of the application for registration or the rules or any of them by forwarding a written objection to the Registrar of the Commission.

(d) Advised that the application was anticipated being made “in the next few weeks”.

(e) Advised that the Registrar would publish in the Western Australian Industrial Gazette a notice that any person who objects to the registration and who having given notice of the objection satisfied the Full Bench that they have a sufficient interest in the matter, may appear and be heard.

(f) Advised members that at that point they had a separate and additional opportunity to make an objection to the registration.

32       Also annexed to the affidavits of Mr Pietropiccolo and Mr Hall were a bundle of emails from members of the applicant confirming receipt of the letter and rules just referred to.

Compliance with Statutory Criteria

33       The applicant contends that the facts deposed in the affidavits which I have referred to satisfy the requirements of s54 and s55 of the Act. 

34       In my opinion the requirements of s54(1) of the Act, quoted above, have been satisfied.  The evidence establishes the requirement of not less than 200 employees.  The evidence from Mr Pietropiccolo and Mr Hall, the rules of the applicant and the list of members satisfies me that the respondent consists of two or more employers who are associated for the purpose set out in s54(1)(b) of the Act.

35       Section 55(4)(a) of the Act requires that the application for registration has been authorised in accordance with the rules of the organisation.  In The Electrical and Communications Association of Western Australia (Union of Employers) (2007) 87 WAIG 2899 I set out, with the agreement of the other members of the Full Bench, the requirements of s55(4)(a) at [38] and [39] as follows:

“38 Section 55(4)(a) of the Act requires the Full Bench to be satisfied the application ‘has been authorised in accordance with the rules of the organisation’.  In my opinion authorisation in accordance with the rules involves compliance with the process required by the rules to pass a motion to apply to alter the rules.  This includes all aspects of the process including relevant notice requirements.

39 Put slightly differently, in the context of an application to alter the rules, s55(4)(a) of the Act requires the Full Bench to analyse and determine:-

(a) What is required under the rules to authorise an alteration application.

(b) What actions have been taken to purportedly comply with these requirements.

(c) Whether compliance has occurred.”

36       These observations were applied to the registration of an organisation, with appropriate modifications, In the Matter of an Application by the Western Australian Principals’ Federation for Registration (2008) 88 WAIG 1812.

37       The authorisation for the application occurred at the meeting on 4 February 2009.  I am satisfied that the authorisation occurred in accordance with the rules.  The meeting on 4 February 2009 was constituted by a quorum of board members.  Notice of the meeting was given to members in accordance with rules 14.4 and 14.5.  As notice of the meeting was given on 23 January 2009, it satisfied the seven day requirement in rule 14.4.  Rule 14.4 provides that the notice of the meeting shall be given by the secretary.  This occurred because Ms Blyth sent the notice of the meeting to members at the direction of Mr Hall.  The notice was signed by Mr Pietropiccolo, as president, in accordance with rule 14.3.  Rule 14.4 also provides that the notice of the meeting shall be provided “together with agenda and any supporting documents”.  I note that there was no separate piece of paper provided to the board members which set out an agenda for the meeting.  In my opinion however this is not problematic.  The notice itself set out the “purpose of the meeting” which was sufficient to satisfy the agenda requirement.  In addition the minutes of the meeting establish that no business in addition to the resolution to apply for registration was transacted at the meeting.  The notice also complied with rule 14.5, in that it set out “the general nature of the business to be transacted”. 

38       Accordingly the requirements of s55(4)(a) have been satisfied. 

39       I am also satisfied that the requirements of s55(4)(b) have been met.  Compliance occurred by the sending of the letter dated 4 February 2009 to the members of the applicant.  As set out earlier the letter advised of the intention to apply for registration, enclosed a copy of the proposed rules and advised of how an objection may be made to the Registrar.  Additionally I am satisfied having regard to the structure of the applicant that the members have been afforded a reasonable opportunity to make an objection.  The members, who are all employers, were advised of their entitlement to make an objection in February 2009 and the application was not heard until 31 August 2009. 

40       I am also satisfied that the contents of s55(4)(c) of the Act do not prevent registration.  No members of the applicant have objected to the making of the application or to the rules and so therefore the requirements of s55(4)(c)(i) have been met.

41       Section 55(4)(d) is about the alteration of the rules of an organisation.  There is a requirement for the rules to provide for reasonable notice of any proposed alteration, the reasons for the alteration and for reasonable opportunity to object.  The alteration of the rules of the applicant is provided for in rule 21.  Rule 21.1(1) states that alteration of the rules must be approved at a general meeting held for that purpose.  The meeting must authorise the making of an application to the Commission to register an alteration.  The rule says that the alteration will not become effective until the Registrar of the Commission has given the applicant a certificate that the alteration has been registered.  Rule 21.1(2) provides for the applicant to forward a notice to members at their “registered address”, providing the following information:

(a) The intention of the applicant to apply for registration of the proposed alteration of the rules;

(b) the terms of the proposed alteration and the reasons therefore; and

(c) that members may object to the making of the application for alteration by forwarding a written objection to the Registrar of the Commission, to reach the Registrar no later than 21 days after the date of receipt of the notice.

42       Rule 21.1(2) does not contain a time, prior to the meeting, by which the notice must be provided.  However rule 11.1 sets out the notice procedure for general meetings.  This requires the secretary, at least 14 days before the date fixed for the holding of a general meeting, to send to each member or representative, a notice specifying the place, date and time of the meeting and the nature of the business proposed to be transacted at the meeting.  This requires the notice referred to in rule 21.1(2) to be provided at least 14 days prior to the general meeting.  Accordingly I am satisfied that the rules provide for a “reasonable notice” of the things described in s55(4)(d).

Compliance with Elections Criteria

43       Section 55(4)(e) contains requirements about the rules of an organisation relating to elections for office.  The election of board members of the applicant is provided for by rule 23.  The rules comply with s55(4)(e)(i) in providing that an election shall be by secret ballot.  Rule 23.22 provides that the election “shall be by means of a secret postal vote using the first past the post system”.  Rules 23.15-23.21 provide the details of how the ballot is to be conducted.  In summary, these rules set out that:

(a) A returning officer must print sufficient ballot papers for the purpose of the election.

(b) Ballot papers are to be printed on watermark paper and initialled by the returning officer before distribution.

(c) The returning officer is to fix dates when the ballot is opened and closed.  The period of the ballot being open is to be not less than 21 days nor more that 28 days.

(d) The returning officer shall forward by pre paid post to each member the ballot paper to reach the member not less than 14 days before the closing of the ballot.  The ballot paper and other ballot material is to be in a sealed envelope and the return of the ballot paper is to be provided for without expense to the member.

(e) The ballot paper is to be returned in the envelope provided, addressed to a post office box rented in the name of the applicant and the applicant shall provide the key of the post office box to the returning officer before the ballot papers are sent out.

44       Accordingly the election is by secret ballot and there is compliance with s55(4)(e)(i) of the Act.

45       Section 55(4)(e)(ii) provides that the rules of an organisation relating to elections for office must conform with the requirements of s56(1) of the Act.  The content of s56(1) of the Act is as follows:

“56. Rules to provide for secret ballots etc.

(1) The rules of an organisation — 

(a) shall provide for the conduct of every election to an office within the organisation (including the acceptance or the rejection of nominations) by a returning officer, not being the holder of any other office in, and not being an employee of, the organisation;

(b) shall provide that, if the returning officer conducting such election finds a nomination to be defective, he shall before rejecting the nomination, notify the person concerned of the defect, and where it is practicable to do so, give him the opportunity of remedying the defect within such period as is applicable under the rules, which shall, where practicable, be not less than 7 days after his being so notified;

(c) shall provide for the election of the holder of each office within the organisation, such election to be either by — 

(i) a direct voting system; or

(ii) a collegiate electoral system being, in the case of an office the duties of which are of a full‑time nature, a one‑tier collegiate electoral system;

(d) shall, in relation to any election for office — 

(i) provide that the election shall be by secret ballot;

(ii) make provision for — 

(I) absent voting;

(II) the manner in which persons may become candidates for election;

(III) the appointment, conduct and duties of returning officers;

(IV) the conduct of the ballot;

(V) the appointment, conduct, and duties of scrutineers to represent the candidates at the ballot; and

(VI) the declaration of the result of the ballot;

and

(iii) ensure, as far as practicable, that no irregularity can occur in connection with the election;

(e) shall not permit a person to be elected to hold an office within the organisation for a period exceeding 4 years without being re‑elected; and

(f) shall not permit a person to be elected to fill a casual vacancy in an office for a period exceeding the unexpired portion of the term of the person who has vacated the office.”

46       The other subsections of s56(2) and (3) are not relevant to the applicant.  This is because they apply to organisations who were registered prior to the coming into operation of s56 of the Act.

47       Section 56(1)(a) of the Act provides for the conduct of an election to be by a returning officer, not being an office holder or employee of the organisation.  This requirement is met by rule 23.6.  It requires the board to appoint a returning officer who is not the holder of any office in and not an employee of the applicant for the purpose of conducting the election.  The appointment is to be made not later than 31 May in each election year.  Rule 23.5 provides that 2009 and every fourth year thereafter is an election year.

48       Section 56(1)(b) of the Act provides for the returning officer to give notification of a defective nomination for office.  This is specifically provided for in rule 23.12 of the rules.

49       Section 56(1)(c) of the Act contains a requirement about the method for election of the holder of an office.  One of the options is for a “direct voting system”.  That expression is defined in s52 of the Act.  Relevantly a direct voting system is a “method of election by secret postal ballot at which all financial members … are, subject to reasonable provisions with respect to enrolment, eligible to vote”.  This requirement is satisfied by rule 23.10.  It provides that every member of the applicant as at the day on which the returning officer calls for nominations, shall be eligible to vote.  Rule 23.9 provides that a returning officer shall obtain from the secretary a list of the members eligible to vote through their nominated representative.  Rule 23.18, referred to above, requires the returning officer to provide a ballot paper to each member of the applicant.

50       I am also satisfied that the rules comply with the requirements of s56(1)(d) of the Act.  As I have already said the election is to be by secret ballot.  The rules make provision for absent voting in rule 23.19.  By that rule a representative of a member who is to be absent from the state or in some remote area of the state so as to prevent a member from casting a vote may apply in writing to the returning officer for an absentee vote.  The rules also provide for the manner in which persons may become candidates for election.  This is contained in rules 23.3, 23.4, 23.7, 23.8, 23.11 and 23.12.  In summary, the returning officer is to call for nominations by written notice circulated to representatives of members no later than 31 July of each election year.  Rule 23.8 provides for the dates of commencement and closing of nominations.  Rule 23.11 provides that nominations must be in writing and signed by the representative of the member and made at the time, place and manner specified in the notice to members calling for nominations.  As set out earlier rule 23.12 provides for the acceptance or rejection of nominations. 

51       Section 56(1)(d)(ii)(III) and (IV) of the Act require the rules to provide for the appointment, conduct and duties of returning officers and the conduct of the ballot.  This is set out in comprehensive form in rule 23. 

52       Section 56(1)(d)(ii)(V) of the Act require the rules to provide for the appointment, conduct and duties of scrutineers to represent candidates at the ballot.  This is provided for in rule 23.23.  A candidate in a ballot may nominate to the returning officer at the time of their nomination one scrutineer to represent the candidate.  Rule 23.24 provides that the returning officer shall give every facility to the scrutineers to examine the count and attend and represent the interests of the candidate who nominated them at every stage of the ballot. 

53       Section 56(1)(d)(ii)(VI) of the Act requires the rules to provide for the declaration of the result of the ballot.  This is provided for in rule 23.29 of the applicant.  The returning officer is to declare the result of the election at a general meeting.  At the meeting the returning officer is also to provide a report of the election showing the number of votes cast for each candidate, the number of informal votes and the number of ballot papers issued but not returned up until the time the ballot closed.  Rule 23.17 provides that the count of ballot papers shall be completed not later than 30 October in each election year. 

54       Section 56(1)(d)(iii) provides that the rules shall ensure, as far as practicable, that no irregularity can occur in connection with an election.  I am satisfied that the comprehensive contents of rule 23 satisfy this criteria.  (“Irregularity” is defined in s7 of the Act).

55       The requirements of s56(1)(e) of the Act are met in that every fourth year is an election year under rule 23.5.  This means that a person is not permitted to be elected to hold office for a period exceeding four years without being re-elected.

56       Section 56(1)(f) is about the filling of a casual vacancy.  Such a person is not to fill a casual vacancy for a period exceeding the unexpired portion of the term of the person who has vacated the office.  Casual vacancies in office are provided for by rule 24 of the rules of the applicant.  This makes it plain that the term of a casual vacancy is not to exceed the unexpired portion of the term of the person who has vacated the office.  Rule 24.1 provides for the office of a member of the board becoming “vacant or is required to be filled between the date of periodical elections”.  Rule 24.2 provides that in such circumstances a casual vacancy shall exist for the purposes of the rules.  The balance of rule 24 provides for the method by which casual vacancies are to be filled.

57       Accordingly, all of the rules of the applicant relating to elections conform with the requirements of s56(1) of the Act and therefore comply with s55(4)(e)(ii) of the Act. 

58       In addition as I have said the rules do ensure, as far as practicable, that no irregularity can occur in connection with an election, thereby satisfying the concluding words of s55(4)(e).

Section 55(5) of the Act

59       I am also satisfied that the contents of s55(5) of the Act do not prevent the registration of the applicant.  There is no evidence nor other material before the Full Bench which suggests that if registered the applicant’s rules relating to membership will enable it to enrol as a member some or all of the persons eligible to be members of another registered organisation.

60       Accordingly, all of the statutory requirements for registration of the applicant have been met.

Fair Work Act 2009

61       During the hearing of the application an issue was raised as to whether the contents of the Fair Work Act 2009 (Cth) created any complications for the applicant given that at least some of its members are incorporated.  This is because, in general terms, the Fair Work Act excludes “constitutional corporations”, including “trading corporations” from the operation of the Act.  Relevantly this occurs where the Fair Work Act applies to an employer and because of the content of s109 of the Constitution.  This is the result of s26(1)-(3) of the Fair Work Act, together with s13 and s14 which define a “national system employee” and “national system employer”.  A national system employer includes a “constitutional corporation”.  Section 26(1) of the Fair Work Act says that act is intended to apply to the exclusion of a State or Territory industrial law (which includes the Act, see s26(3)), “so far as they would otherwise apply” in relation to a national system employee or employer.  However, s27(1)(c) of the Fair Work Act provides that s26 does not apply to a law of a State or Territory so far as the law deals with any “non excluded matters”.  Section 27(2) provides a definition of “non excluded matters”.  This includes in s27(2)(l)(ii) and (iii) “employer associations” and “members of employee associations or of employer associations”.  Due to this I am satisfied that the Fair Work Act does not apply to the present application.  That is the Fair Work Act does not prevent the Full Bench from dealing with the application to authorise the registration of the applicant.

Exercise of Discretion

62       Apart from what is set out above, there are no other statutory criteria to guide the Full Bench in deciding whether or not to authorise the registration of an organisation.  By the use of the word “may” in s54(1) of the Act, the power of the Full Bench to authorise is discretionary.  In my opinion, in exercising its discretion the Full Bench should act in accordance with s26(1)(a); that is “according to equity, good conscience, and the substantial merits of the case…”. In addition, in my opinion, the authorisation of registration should be consistent with the principal objects of the Act contained in s6.

63       I am satisfied that, given the objects of the applicant as quoted above, registration will be consistent with the principal objects of the Act.  Examples provided by counsel for the applicant, which I accept, are the principal objects of providing a “system of fair wages and conditions of employment” (s6(ca)) and to “facilitate the efficient organisation and performance of work according to the needs of an industry and enterprises within it, balanced with fairness to the employees in the industry and enterprises” (s6(af)). 

64       In my opinion the members of the applicant are employers with a distinct area of operation, being the non for profit and community welfare sector of employment in Western Australia.  It is in my opinion consistent with the Act to authorise the registration of the applicant.  It will enhance the prospect of providing for fair wages and conditions of the employees of the applicant’s members and the efficient performance of work in the relevant industry.

65       Accordingly, given the statutory requirements are met and there is good reason to authorise the registration of the applicant, the authority of the Full Bench should be provided. 

66       Section 58(2) of the Act provides that the Full Bench may authorise the Registrar to register an organisation unconditionally or subject to some direction.  In my opinion there is no reason to authorise the Registrar to do other than register the applicant unconditionally.

Minute of Order

67       In my opinion a minute of proposed order should be published in the following terms:

1. The Full Bench authorises the registration of the applicant organisation under Division 4 of Part II of the Industrial Relations Act 1979 (WA).

68       If the applicant wishes to provide any written submissions on the form of the order, by way of a speaking to the minute, they may do so within seven days. 

69       Once the order of the Full Bench is made then the Registrar must register the applicant in accordance with s56 of the Act.

BEECH CC:

70       I have read the decision of his Honour in this matter.  I agree with his decision and have nothing to add.

WOOD C:

71       I have read the Reasons for Decision of his Honour, the Acting President and I agree with those reasons and have nothing to add.