2010 WAIRC 00176

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PRESIDENT

CITATION : 2010 WAIRC 00176

CORAM
: THE HONOURABLE J H SMITH, ACTING PRESIDENT

HEARD
:
WEDNESDAY, 3 FEBRUARY 2010, THURSDAY, 4 FEBRUARY 2010

DELIVERED : THURSDAY, 1 APRIL 2010

FILE NO. : PRES 9 OF 2009

BETWEEN
:
ANTHONY D MULLEN, CHRISTOPHER C SHARPE
Applicants

AND

ANNE GISBORNE, PRESIDENT OF THE STATE SCHOOL TEACHERS UNION OF WESTERN AUSTRALIA (INC)
Respondent

AND

THE STATE SCHOOL TEACHERS' UNION OF WA (INCORPORATED)
Intervener

CatchWords : Industrial Law (WA) – Application pursuant to s 66 of the Industrial Relations Act 1979 (WA) – Construction of the rules of an organisation – Nature of jurisdiction and powers of President under s 66 – Interpretation of rules of the Union – Whether an elected delegate to State Council who is an employee is required to resign employment from the Union – Declaration made that the true interpretation of r 25(f) is the term 'office' includes the office of delegate to State Council.
Legislation : Industrial Relations Act 1979 (WA) s 6(ab), s 6(f), s 7, s 7(1), s 26, s 27, s 27(1)(l), s 27(1)(v), s 62, s 62(2), s 66
Result : Declaration made
REPRESENTATION:
Counsel:
APPLICANTS : IN PERSON
RESPONDENT : MS N MCGUINESS (AS AGENT)
INTERVENER : MR R C KENZIE QC AND MR S MILLMAN (OF COUNSEL)


Reasons for Decision
Background
1 This is an application by Mr Anthony D Mullen and Mr Christopher C Sharpe. The applicants seek orders pursuant to s 66 of the Industrial Relations Act 1979 (WA) (the Act) in relation to a dispute that arose in 2007 in relation to the interpretation of r 25(f) of the rules of The State School Teachers' Union of WA (Incorporated) (the Union).
2 This matter raises an interpretation of r 25(f) of the rules of the Union. In particular whether the terms of the sub-rule applies to the position of delegate to State Council or only to the 'offices' specifically referred to in r 25, that is whether the prohibition contained in r 25(f) applies only to the office and officers of President, Senior Vice-President, Ordinary members of the Executive, the Aboriginal or Torres Strait Islander representative and the General Secretary. Rule 25 provides:
25 - OFFICERS
(a) (i) Subject to the provision of sub-rules (b) and (c) of this rule, the Executive shall consist of the President of the Union, Senior Vice-President, Vice-President, and such other number of additional members to be known as Ordinary members, as determined from time to time by State Council.
(ii) There shall be a designated position on the Executive for an Aboriginal or Torres Strait Islander representative. This position shall be elected by and from the Aboriginal and Torres Strait Islander members of the Union.
(iii) The term of office of the President, Senior Vice President and Vice President and Executive Members shall be for a period of two years commencing on the first day of January in the year following the election.
(b) Should a member of Executive be an applicant for a position on the staff of the Union, that member of Executive shall not have the right to vote or discussion upon any resolution for the purpose of selecting such employee.
(c) The position of General Secretary shall be filled by an election of all members.
(d) The term of office of the General Secretary shall be for a period of four years.
(e) All full financial members shall be eligible to nominate for the position of General Secretary.
(f) Any employee of the SSTUWA who is elected to an office of the Union shall resign their employment with the Union by no later than the day that that person commences his or her term of office.
(g) Any elected Officer of the SSTUWA who is appointed as an employee of the Union shall cease to hold their position of Office on and from the day that that person commences employment with the Union.
3 The dispute arose in 2007 when the applicants who were at that time both employed by the Union were elected to positions as delegates to State Council. After the applicants attended and participated in one meeting of State Council, the Executive took steps to dismiss them from the positions as delegates to State Council.
4 The parties and the intervener filed a statement of agreed facts which records the following material facts:
1. In January 2007 nominations were called for district delegates to SSTUWA State Council and for various SSTUWA Committees.
2. On 2 March 2007 nominations closed for SSTUWA State Council and various SSTUWA Committees. Vacancies remained for some State Council districts, including the district of Perth.
3. In April 2007 Industrial Staff employee members of the SSTUWA Tony Mullen and Chris Sharpe nominated for two of the remaining vacancies as delegates for the Perth district to the SSTUWA State Council. The SSTUWA Returning Officer declared Tony Mullen and Chris Sharpe to be duly elected as delegates on 1 May 2007. A total of thirteen delegates were elected to represent the Perth district out of an entitlement of fifteen.
4. At this time, Tony Mullen and Chris Sharpe maintained their employment status with the SSTUWA.
5. The tenure of delegates under the Rules of the SSTUWA is twelve months, Customarily State Council meets in June and November of each year.
6. No objections were lodged following the declaration of State Council delegates by the Returning Officer.
7. On 31 July 2007 the SSTUWA President wrote letters to Tony Mullen and Chris Sharpe indicating his intention for SSTUWA Executive to consider dismissing them as State Council delegates and inviting them to respond. The President cited in particular Rule 25(f) as the basis for his intended action.
8. At its next meeting on 14 September 2007 the SSTUWA Executive resolved that Industrial Staff employee members Tony Mullen and Chris Sharpe were ineligible to hold office as district delegates to the SSTUWA State Council and dismissed them as delegates, The Executive directed the SSTUWA President to report this resolution to the next meeting of State Council in November 2007. The minutes record that debate and decisions on this matter were taken in camera, meaning that the employees in question were not able to participate in Executive's deliberations.
9. On 16 November 2007 the SSTUWA President wrote a letter to employee members Tony Mullen and Chris Sharpe advising them that as a result of the Executive decision of 14 September they were no longer State Council delegates and would not be recognized as such at the State Council meeting on 17 and 18 November.
10. On 17 November 2007, as the second item of business, SSTUWA State Council endorsed the SSTUWA Executive's decision dismissing employee members Tony Mullen and Chris Sharpe as delegates. The State Council decision was put into immediate effect and Tony Mullen and Chris Sharpe took no further part in proceedings.
11. Tony Mullen remains an employee of the SSTUWA and Chris Sharpe retired as an employee of the SSTUWA on 31 July 2009.
5 The orders sought by the applicants pursuant to s 66 of the Act are as follows:
1. That the true interpretation of the Rules of the SSTUWA being that Industrial Staff Employee members of the SSTUWA are eligible to be elected as delegates to the SSTUWA State Council, SSTUWA State Council is ordered to rescind the decision of 17 November 2007 (SC 2), namely,
'That the Executive decision be endorsed.'
2. That the true interpretation of the Rules of the SSTUWA being that Industrial Staff Employee members of the SSTUWA are eligible to be elected as delegates to the SSTUWA State Council, SSTUWA Executive is ordered to rescind the decision of 14 September 2007 (E 491), namely,
'That Executive
(a) notes that Chris Sharpe and Tony Mullen did not resign from their employment with the Union before the commencement of their terms of office as district delegates to State Council.
(b) find that under the rules of the Union that failure to so resign renders Chris Sharpe and Tony Mullen ineligible to hold office as district delegates to State Council.
(c) hereby dismisses Chris Sharpe from office as a district delegate to State Council.
(d) hereby dismisses Tony Mullen from office as a district delegate to State Council.
(e) directs the Union President to report this resolution to the next meeting of State Council.'
6 The central issue in this matter is whether the true interpretation of the rules of the Union is that employees of the Union who are members of the Union and elected as delegates to the State Council are able to continue to hold office as delegates of the State Council whilst they continue to be employed by the Union.
7 It is conceded by the respondent and the intervener that pursuant to the rules of the Union the applicants as employees of the Union were eligible to be elected as delegates to State Council but prior to commencing a term office in each case they were required to resign their employment.
8 Whilst the respondent was represented by counsel in this matter the intervener took up the running of the defence to the application, and the respondent adopted the submissions made on behalf of the intervener.
Relevant SSTU Rule Change Decisions
9 In these reasons for decision the following reasons for decision of the Full Bench which deal with relevant applications to register variations of the rules of the Union are considered and referred to as follows:
(a) Re State School Teachers Union of WA (Inc) (1993) 73 WAIG 1471 (the 1993 Rule Change Case).
(b) Re State School Teachers Union of WA (Inc) (1994) 74 WAIG 1731 (the 1994 Rule Change Case).
(c) Re State School Teachers Union of WA (Inc) (1998) 78 WAIG 1123 (the 1998 Rule Change Case).
10 These decisions deal with applications to register changes to the rules to allow employees of the Union to become members of the Union. Another application of relevance is APPL 409 of 1994 which was an application to the Registrar to register changes to the rules which once registered inserted r 19(h) and r 19(i) (which are now r 25(f) and r 25(g)) of the rules of the Union. After the evidence was heard in this matter, the Commission file containing APPL 409 of 1994 was made available to the parties and the intervener for inspection and the parties and the intervener were invited to make written submissions about documents contained on the file.
The Evidence
11 Anthony Mullen gave evidence on behalf of both of the applicants. Mr Mullen and the other witnesses who gave evidence, gave their evidence partly in writing in witness statements. They also gave oral evidence.
12 Mr Mullen has been a member of the Union since 1979. Since 1990 he has been employed by the Union continuously. During this time he has held appointed industrial staff positions. He is currently the Union's training officer which is a position he has held since 2005. From 1979 until 1990 he was a 'Full Member' of the Union. From 1990 to 1992 he was an 'Appointed Member' and from 1992 to 1998 he was an 'Associate Member'. In 1998 he again became a 'Full Member' as a result of a change to the rules of the Union.
13 In Mr Mullen's witness statement he set out the history of an alteration to the rules of the Union in 1998 which led to industrial officers employed by the Union being entitled to obtain full membership. In 1998 r 4(a)(vii) was made. Rule  4(a)(vii) states:
The State School Teachers' Union of W.A. (Incorporated) shall consist of an unlimited number of persons employed or usually employed in the following categories:-
(a) FULL MEMBERS:
…
(vii) Any employee of the SSTUWA (Inc) provided that such persons are not eligible for membership of the Australian Municipal, Administrative, Clerical and Services Union of Employees, W.A., Clerical and Administrative Branch.
14 Mr Mullen pointed out that the new r 4(a)(vii) replaced the old r 5(g) which applied to Union members employed by the Union. Rule 5(g) stated:
(g) Appointed members shall be entitled to all rights, privileges and benefits of membership of the Union, except
(i) the right to attend State Council as a delegate, and
(ii) the right to stand for office.
15 Mr Mullen says that this rule change was achieved after years of struggle by members of the Union and staff of the Union to have the rights of industrial staff employees restored as Full Members of the Union.
16 Since the time Mr Mullen has been a Full Member of the Union he has nominated for and been elected to various Union Committees, including Psychology Services, Editorial, UnionsWA/Trades and Labour Council as well as State Council. He also testified that other industrial staff employees of the Union have also nominated for and were elected to State Council since 1998. In particular, in 1999 Matt Farrell, who was an industrial advocate employed by the Union, was elected as a State Council delegate for the Perth District. He attended and participated fully in State Council meetings in June and November of that year. Mr Mullen also said there was another employee of the Union who participated fully as a State Council delegate without objection. In 2006, Lydia Cavallaro was elected as a State Council delegate for the Fremantle district. At that time she was employed as a teacher by the Department of Education and Training but was subsequently employed by the Union as an Organiser/Field Officer for three months from October to December 2006. Whilst employed by the Union she attended and participated fully in State Council as an elected delegate in November 2006.
17 Attached to Mr Mullen's witness statement are documents marked TM4, TM5 and TM 6. TM4 records that in 2003, four employees of the Union were members of Union Committees and eight employees were delegates to UnionsWA Council. TM5 records that in 2004, seven employees were members of Union Committees, 10 employees were Union delegates to UnionsWA Council and two employees were proxy delegates to UnionsWA Council. TM6 records that in 2007, seven employees were members of Union Committees and nine employees were delegates to UnionsWA Council.
18 In late January 2007, nominations were called for various Union Committees, namely Aboriginal Education Committee, B-Legits Committee, Country Matters Working Party Committee, International Committee, Psychology Services Committee and Women's Committee. Seven employee members nominated and were elected to those committees. Mr Mullen says that no objections were lodged following the declaration of the results by the Returning Officer in accordance with r 32(i) and (j).
19 In April 2007, Mr Mullen and Chris Sharpe nominated for two vacancies in State Council as delegates from the Perth District. They nominated after nominations had closed for State Council for that year because there were still vacancies for some State Council districts including the District of Perth and the Union Returning Officer had reopened nominations for these positions in accordance with r 32(m)(iv). On 1 May 2007 the Union Returning Officer declared Mr Mullen and Mr Sharpe to be duly elected as State Council delegates pursuant to r 32(j). A total of 13 delegates were elected in 2007 to represent the Perth District out of an entitlement of 15. Two delegate positions representing the Perth District remained unfilled and there were no nominations for the two alternate delegate positions from the Perth District. No objections were lodge under r 32(i) to either Mr Mullen or Mr Sharpe being elected as State Council delegates.
20 Prior to a meeting of the State Council on 16 and 17 June 2007, Mr Sharpe and Mr Mullen were named in the State Council agenda papers as being delegates representing the Perth District. The agenda papers were distributed to all branches and worksites about three weeks before the State Council meeting. Mr Sharpe and Mr Mullen attended the State Council on 16 and 17 June 2007 as delegates. No objection was raised during proceedings about their election or participation in the State Council. They both fully participated in that State Council meeting as delegates and the decisions of State Council were subsequently published by the Union with their participation recorded.
21 On 18 July 2007, Mr Sharpe and Mr Mullen received a generic letter addressed to all State Councillors signed by the then President of the Union, Mike Keely, Senior Vice President Anne Gisborne and Mr Kelly, the General Secretary. In the letter all Councillors were thanked for their participation in the June 2007 State Council.
22 Shortly after receipt of that letter the Executive deliberated on the issue whether the applicants were entitled to hold the office as delegate whilst employed by the Union. At that time the applicants were unaware that the issue was being considered by the Executive. At a meeting of the Executive on 3 and 4 August 2007 the Executive received a report which was titled 'Union Employees as Delegates to State Council'. The report stated as follows:
Background
1. Members of Executive will recall that, at the most recent meeting of State Council, two members of the union who are also members of the union's industrial staff, participated as district delegates to Council.
2. Questions have arisen as to the validity of those staff members serving the union in both capacities at the same time. Legal advice has been sought.
Advice
3. The advice that has been received concludes that the holding of an elected office in the union is incompatible with continuing service as an employee of the union.
4. This conclusion arises from rule 25(f), which states
Any employee of the SSTUWA who is elected to an office of the Union shall resign their employment with the Union by no later than the day that that person commences his or her term of office.
5. We are advised that the effect of this rule is that it is permissible for a member of staff to nominate for election, and it is valid for a member of staff to be declared elected while remaining an employee. However, if the employee has not resigned such employment before commencing his or her term of office, then as soon as that term of office commences, the person concerned ceases to be eligible to hold that office.
The rule does not affect the employment relationship. In other words, the election to office as a district delegate to Council does not, we are advised, operate to 'automatically' (or otherwise) terminate the employment relationship.
6. State Council has a power to dismiss from office any person elected to an office within the Union who has ceased according to the rules of the Union to be eligible to hold the office. That power comes from rule 23(b)(iv). We are advised that this power affords the appropriate remedy under the rules to deal with the present circumstance.
7. Executive has a general authority under the rules to exercise State Council's powers (with some exceptions, none of which are presently relevant). Executive's power in that regard comes from rules 24(a) and 24(d).
8. It follows that Executive has a power to dismiss from office any person elected to an office within the Union who has ceased according to the rules of the Union to be eligible to hold the office.
Correspondence
9. I have written to the two members concerned. Copies of those letters are attached to this report. In summary, I have drawn their attention to the issues discussed above, and informed them that I intended to raise the matter at Executive. The members were invited to provide a written submission that could be considered by Executive at the same time as it received this report.
10. [say whether any response received, and if so, attach copy/copies]
Options
11. There appear to be three options available to Executive:
(A) Resolve to dismiss the two members concerned from their offices as district delegates to State Council.
(B) Refer the matter to the next meeting of State Council for State Council to determine.
(C) Direct that draft rule changes be prepared which would authorise the simultaneous holding of
i. an elected office in the union (or at least, the office of district delegate to State Council); and
ii. a position of employment with the union.
Recommendation
12. Option (A) is recommended to Executive, and the following resolution is offered for consideration:
That Executive
(a) notes that Chris Sharpe and Tony Mullen did not resign from their employment with the union before the commencement of their terms of office as district delegates to State Council;
(b) finds that under the rules of the union the failure to so resign renders Chris Sharpe and Tony Mullen ineligible to hold office as district delegates to State Council;
(c) hereby dismisses Chris Sharpe from office as a district delegate to State Council;
(d) hereby dismisses Tony Mullen from office as a district delegate to State Council; and
(e) directs the Union President to report this resolution to the next meeting of State Council.
23 On 8 August 2007, four days after the Executive meeting on 3 and 4 August 2007, the President of the Union, Mr Keely delivered letters to Mr Sharpe and Mr Mullen raising this issue. The letters were dated 31 July 2007. Each letter stated as follows:
Re: Eligibility to hold office as delegate to State Council
I note that, in the most recent district elections for the office of delegates to State Council, you nominated for and were declared elected to the office of delegate to State Council for the Perth district. At all relevant times, you have been and remain an employee of the Union.
The position of delegate to State Council is an "office" of the Union within the meaning of rule 25(f). By operation of that rule, you were required to resign from your employment with the Union before your term of office as State Council delegate commenced. You did not tender your resignation before your term commenced.
I have received advice to the effect that, in circumstances where rule 25(f) applies and you have not resigned from your employment, you ceased to be eligible to hold office as a State Council delegate from the day on which your term commenced.
State Council is empowered to dismiss from office any person who has ceased to be eligible to remain in that office under the rules of the Union. See rule 23(b)(iv). Executive is entitled to exercise that power, between meetings of State Council.
Please note that I intend to report the above circumstances to Executive at its meeting on 14 September 2007. Executive may, in its absolute discretion, resolve to dismiss you from your position as delegate to State Council pursuant to the powers noted above.
If you wish to make any submission in relation to the above matters which you would wish to have Executive take into account, please let me have those submissions prior to Executive by Friday 31st August 2007.
24 After the applicants received the letter they requested a copy of report provided to the Executive which dealt with this matter. A copy of the report was provided to them on 31 August 2007.
25 Both Mr Mullen and Mr Sharpe responded to the letters dated 31 July 2007 on 5 September 2007. In each letter they stated:
I am in receipt of your letter dated 31 July 2007, which you handed to me on 6 August, and a copy of the report you presented to the SSTUWA Executive titled 'Union Employees as Delegates to State Council' which you gave to me on 31 August 2007.
I am not, however, in receipt of a copy of the legal advice from Slater and Gordon commissioned by the SSTUWA, which I requested from you on 31 August 2007.
I note that the report refers to three options available to Executive and that you are intending to recommend Option A.
This is premised on Rule 25 and in particular Rule 25(f). Rule 25 relates to 'Officers' and defines these as the President of the Union, Senior Vice President, Vice President, General Secretary and ordinary members of Executive, including an Aboriginal & Torres Strait Islander representative. Rule 25(f) refers and applies solely to these Officers.
As such it is my view that this rule does not apply to me or my situation as a State Council delegate. Rather, Rule 25(f) applies to those Officers and Executive members specifically referred to in Rule 25 and as such requires those Officers and Executive members, upon their election, to resign from their employment with the Union prior to the commencement of their term of office.
It has been the practice of the SSTUWA in recent years when employees of the Union have been elected as State Council delegates for them to maintain their employment with the Union and be accredited as elected State Council delegates.
Given that there is clearly a dispute about the eligibility of Union employees to be State Council delegates and the interpretation of Rule 25, and that Rule 12 proposes that such disputes are referred to a Dispute Resolution Committee, I suggest this is the proper course of action in this circumstance. Under the provisions of Rule 12(a)(ii) I request that a Dispute Resolution Committee be convened to consider this matter and that Rule 11 be applied in respect to hearing the dispute.
In the event that you discuss this matter further with Executive I will be pleased to make a more detailed submission for Executive's consideration.
26 The matter was not referred to a Dispute Resolution Committee. At the next meeting of the Union Executive on 14 September 2007, the Executive passed the following resolution:
1. That the President report.
2. That the report be received.
3. That Executive
(a) notes that Chris Sharpe and Tony Mullen did not resign from their employment with the Union before the commencement of their terms of office as district delegates to State Council.
(b) find that under the rules of the Union that failure to so resign renders Chris Sharpe and Tony Mullen ineligible to hold office as district delegates to State Council.
(c) hereby dismisses Chris Sharpe from office as a district delegate to State Council.
(d) hereby dismisses Tony Mullen from office as a district delegate to State Council.
(e) directs the Union President to report this resolution to the next meeting of State Council.
27 The minutes of the Union Executive of 14 September 2007 record that debate and decisions on this issue were taken in camera.
28 Despite the fact that the Executive of the Union dismissed the applicants from office as district delegates to State Council in September 2007, three weeks prior to a State Council meeting planned for 17 and 18 November 2007, the Union distributed agenda papers to all branches and worksites which listed the names of the applicants as delegates for the Perth District.
29 The applicants were not informed of the decision of Executive until just before the meeting of State Council. On 16 November 2007, Mr Keely wrote letters to Mr Sharpe and Mr Mullen in which they were informed of the decision of Executive made on 14 September 2007. The letter also stated that they would not be recognised as State Council delegates at the State Council meeting on 17 and 18 November 2007.
30 Notwithstanding advice by Mr Keely, both Mr Sharpe and Mr Mullen registered as delegates to State Council on 17 November 2007 and took their places at the table with other delegates from the Perth District.
31 The dismissal of the applicants as delegates was dealt with as the second item of business. Following debate the State Council carried the following resolutions:
1. That a senior officer report.
2. That the report be received.
3. That the Executive decision be endorsed.
32 Mr Mullen gave evidence that they were not given an opportunity to address State Council about the issue before the matter was voted on. However, Mr Sharpe did address the State Council after the resolution was passed and thereafter Mr Sharpe and Mr Mullen took no further part in the proceedings of State Council as delegates.
33 The applicants contend that r 25 which provides that an employee of the Union is required to resign if they are elected to an office, only applies to an office of the Union that are specifically named in r 25, that is the offices that comprise the Union Executive, being the Union President, Senior Vice President, Vice President, ordinary Executive members, an Aboriginal or Torres Strait Islander representative and the General Secretary.
34 Mr Mullen raised a number of occasions since 1998 when the applicants say r 25(f) and r 25(g) have been invoked. In 1998 Mr Kelly, the present Union General Secretary, was employed as an Organiser by the Union. He relinquished his employment with the Union upon being elected as General Secretary at the beginning of 1999 as he was required to do so pursuant to r 25(f). There have been two occasions when r 25(g) has been properly invoked. In about 2004, Trevor Vaughan who was an elected Executive Officer of the Union was appointed to a position as an employee of the Union. He resigned his elected position as an Officer of the Executive upon taking up employment. Sometime in 2007, Bronwyn Croghan who was an elected officer of the Executive was appointed to a position as an employee of the Union and she too resigned her elected position as an officer of the Executive upon taking up her employment.
35 Mr Mullen testified that when he participated in the State Council as a delegate in 2007 he participated in debates and moved a motion on the second day which he says would assist management in putting a view across to the members of State Council. He also pointed out that his dismissal as a delegate, created an extraordinary vacancy in the Perth District but no steps were taken to replace him.
36 When cross-examined Mr Mullen was asked to explain why he did not bring an application to the Commission immediately after he was dismissed as a delegate in November 2007. In response he said that in 2008 there was a major industrial campaign run by the Union which meant that they did not have any energy to take up the issue until 2009.
37 Mr Matt Farrell gave evidence on behalf of the applicants. He was a member of the Union from 1968 until his retirement in 2004. He is currently a member of the SSTUWA's Retired Teachers' Association. From 1996 until 2004 he was employed by the Union as an industrial advocate. Whilst employed he was a Full Member of the Union except for the period between 1996 and 1998 when he was an associate member. In 1999 he nominated for election as a delegate to State Council to represent the district of Perth. No objections were lodged in respect of his candidature and he was notified by the Union's Returning Officer that he had been duly elected. He participated fully in State Council meetings as a delegate without restriction in June 1999 and November 1999.
38 Mr Geoffrey Davis also gave evidence on behalf of the applicants. He has been the Returning Officer of the Union since 1999. Mr Davis conducts all internal elections in the Union including the annual election of delegates to State Council of the Union. He is a Life Member of the Union. He first joined the Union in February 1954 and served for a long period in various Union positions. He has held the positions of Branch Officer, Executive Member, delegate to conferences of the Australian Teachers' Federation and has represented the Union on such bodies as the Public Examinations Board of the University of WA and the Board of Secondary Education.
39 Mr Davis testified that nominations for delegates to State Council are called at the beginning of the school year through advertisements in the Union magazine, The Western Teacher. Nominations are made by the completion of a nomination form requiring a proposer and seconder as well as details of the nominee. All of whom must be from the same district. Nomination forms are checked to ensure that the nominee, the proposer and seconder are all from the appropriate district and are all financial members of the Union.
40 In April 2007, Mr Davis received nominations from Mr Mullen and Mr Sharpe to be delegates from the Perth District. He checked their nomination forms and found that they were Full Members of the Union and their proposers and seconders were all financial. He satisfied himself that the Union rules had been properly followed in respect to the election process and there had been no objections. He then declared Mr Mullen and Mr Sharpe duly elected as State Council delegates. Following publication of a list of delegates to State Council he met with Ms Anne Gisborne, the Acting President of the Union and the General Secretary, Mr Kelly and was asked to explain why he had accepted the nominations of Mr Mullen and Mr Sharpe. He explained that, in his view, r 5 entitled Mr Mullen and Mr Sharpe to be elected as they were Full Members of the Union. He says his explanation appeared to be accepted.
41 Some weeks before the November 2007 State Council meeting Mr Davis was advised by the President, Mr Michael Keely that the Union had had legal advice that Mr Mullen and Mr Sharpe were not eligible under r 25(f) to be delegates to State Council and that the Executive had decided to move a motion at the November Council meeting to remove them from their positions of delegates. When the matter came before the State Council in November 2007 Mr Davis explained his actions as Returning Officer in accepting the nominations.
The Intervener's Submissions
42 Senior Counsel on behalf of the intervener, Mr R C Kenzie QC points out that the central point in this case concerns the scope of r 25(f) of the Union rules which provides:
Any employee of the SSTUWA who is elected to an office of the Union shall resign their employment with the Union by no later than the day that that person commences his or her term of office.
43 The intervener contends that at the time the Executive and State Council made the resolutions in question Mr Mullen and Mr Sharpe held the 'office' of delegate to State Council of the Union. The intervener also points out it is not disputed by the applicants that at all material times they were employees of the Union who had not resigned their employment by the day that they assumed the office of delegate to State Council.
44 The intervener says that this proceeding is of historical note. They say that the applicants did not have the energy to take this on in 2007. Consequently the application is moot. The intervener points out that pursuant to r 23(a)(xiii) the election of delegates to State Council is conducted annually. Accordingly, the issue raised by the applicants concerning the holding of an office is in relation to a term that has long since expired. In relation to the applicants' claim that they were denied natural justice, the intervener points out no remedy can be provided to them, even if their term of office was truncated by the dismissal, as any right to hold office has long since expired. The intervener also contends that in the absence of any suggestion that there is anyone currently purporting to occupy both the position of delegate to State Council and hold employment within their Union, the issues raised by the applicants are theoretical only and moot.
45 In addition they point out orders which are directed to the rectification of asserted historical breaches of rules which are not directed to secure the performance of an existing obligation are beyond the purview of s 66: Stacey v Civil Service Association of Western Australia (Inc) (2007) 87 WAIG 1229 [273] - [274], [291], [295] - [300], [302] - [303].
46 Consequently the intervener says that pursuant to s 27 of the Act the Commission should exercise its discretion to refrain from further determining this matter on grounds that further proceedings are not necessary or desirable in the public interest as the question before the Commission in this matter is hypothetical. The intervener says that for these reasons it is not appropriate to make an order that the decisions of the Union Executive and State Council be rescinded. However, it is conceded that if the Commission is of the view that the application should not be dismissed and if there is a finding made in favour of the applicants, then it would be open to the Commission to make a declaration declaring the true interpretation of r 25(f) where the Commission was satisfied that there was a need to do that for the purposes of resolving an active conflict in the organisation: Stacey [273] - [274].
47 The intervener points out that r 4(a) is a rule about acquiring membership of the Union. Pursuant to r 4(a)(vi) if the applicants resign whilst they are employees of the Union they would still be members of the Union because they would be a person elected to an office in the Union.
48 The central issue in this matter is what is encompassed by the prohibition in r 25(f) by the use of the word 'office'. It appears to be suggested by the applicants that there is some relation between r 25(f) and the nominated officers who appear specifically in r 25(a)(i). In response the intervener says it is manifest that r 25 is designed to embrace persons holding office other than those identified by r 25(a)(i). The provision contemplates other people who are not in those positions. In particular r 25(f) also deals with the aspects of the 'office' of General Secretary. They also say there is nothing within r 25(f) that confines its operation to the particular offices identified in r 25(a)(i). It would be paradoxical if r 25(f) covered only those offices identified in r 25(a)(i) and not the position of General Secretary. They also say that where the drafters had intended an aspect of r 25 to be confined in its operation to members of the Executive, this has been made clear (see, for example, r 25(b) which is specifically confined to the position of 'a member of the Executive'). Rule 25(b) stands in contrast in its operation to r 25(f).
49 It is submitted that it is clear that the term 'office' used in r 25(f) should be applied more broadly than the applicants contend and should be considered in the context of the rules as a whole. It is at least broad enough to embrace the position of any person who is elected as a delegate to State Council. There are many provisions within the rules that identify persons not included in r 25(a)(i) who are regarded as the holders of an 'office' – these include r 23(a)(xv) which specifically identifies 'the office of delegates to State Council'. This sub-rule is part of r 23 – State Council which, inter alia:
(a) constitutes the State Council as 'the governing body of the Union' and 'the supreme decision–making authority of the Union' subject to membership referendum;
(b) specifically provides that State Council consists of designated positions and delegates elected from each District, in accordance with the provision of the rules; and
(c) constitutes State Council as the body capable of making, amending or rescinding the rules and determining such other fundamental matters identified within r 23(b).
50 In construing r 25(f) the Commission should look at the way in which the rules as a composite whole use the term "office". In particular r 23(a)(xv) refers to the office of a delegate. Rule 23(a)(xv) provides:
In the event of a casual or extraordinary vacancy arising in the office of delegate to State Council, the casual vacancy shall be filled by an election in as far as practicable the same mode as is prescribed by these rules for the election of that State Council delegate and any person so elected shall hold office for the unexpired portion of the term of the State Council delegate he or she is elected to replace.
51 The intervener contends that as the rules specifically identify in their text the position of delegate of State Council as an 'office', it is also important to have regard to the fact that State Council is the supreme decision-making body of the Union and it makes, and/or is capable of making all of the big decisions for the Union including decisions which obviously have the potential to come into conflict with the interests of employees of the Union. The rules also specifically provide that members of the Council be elected from the District in accordance with the rules that apply to the election of offices. Consequently it follows that the members of Council are elected to an 'office' pursuant to the provisions of the rules which provide for an election to office.
52 They also point out that in identifying the office of delegate to State Council in r 25(a)(xv), this is contrary to the process for taking up a position on the sub-committees identified in the applicants' evidence. For example, the sub-committees which relate to the Trades and Labor Council of WA, are positions not mandated to be elected under the rules. The intervener says that it is clear that r 25 is not confined in its operation to any particular office but should be construed to mean if you are elected to an office you have to give up your position as an employee. They say that r 25 is textually designed to address the potential for conflict which exists in relation to delegates to State Council just as much as it does to any position in the Executive because decisions that can be made by State Council are as fundamental as any decision that can be made by the Executive.
53 The interveners say that the definition of 'office' in s 7(1) of the Act is not relevantly controlling in this matter. Section 7(1) of the Act defines 'office' in relation to an organisation as meaning, inter alia:
(a) the office of a member of the committee of management of the organisation;
…
(d) an office within the organisation for the filling of which an election is conducted within the organisation; and
…
but does not include the office of any person who is an employee of the organisation and who does not have a vote on the committee of management of the organisation;
54 Whilst the intervener acknowledges that in Dornan v State School Teachers Union of WA (Inc) (1991) 72 WAIG 998, Sharkey P approached the matter before the Commission on the basis that the rules of the Union should not be read to conflict with the meaning of 'office' in s 7 of the Act, it is clear that the rules must be given their full effect according to their terms.
55 The intervener says that you should not read the definition of 'office' into the rules of an organisation like r 25(f), as to do so would require every reference to the word 'office' in an organisation's rules to read as referring only to an 'office' as defined in s 7 of the Act. There are many Federal and State decisions that demonstrate that the notion of what is an 'office' within an organisation is not straightforward. Nor is an issue that is able to be addressed simply by identification of the title of an office or indeed whether the office is one that requires the holding of an election. In Landeryou v Taylor (1969) 15 FLR 147 (154-157) (applied in The Australian Workers' Union, West Australian Branch, Industrial Union of Workers v BHP Iron Ore Limited [2001] WAIRC 3420; (2001) 81 WAIG 2633.[20] and Burswood Resort (Management) Limited v Federated Liquor and Allied Industries Employees' Union of Australia, West Australian Branch, Union of Workers (1999) 80 WAIG 308), the Federal Court made it plain that the definition of an 'office' or an 'officer' in a statute did not assist in determining whether a holder of the particular position in an organisation was the holder of an 'office'. The task of a court of a tribunal is to construe the rules of the organisation and that the statutory provisions must be read in light of the ordinary meaning of the word 'office'. The mere holding of an election is not an absolute test, the position must carry with it some administrative or executive duties or some substantial degree of responsibility: Landeryou at 154. Whether a person can be so described as an officer or a holder of an office is dependent on the duties and responsibilities of the position held: see Australian Workers' Union, West Australian Branch, Industrial Union of Workers [20] and the cases therein.
56 In this matter the rules specifically identify that a delegate to State Council is the holder of an office (r 23(a)(xv)). The rules are to be considered in context and the reference in a rule such as r 25(f) to an 'office' is to be read in a manner consistent with the entire rules of the Union, including r 23(a)(xv). Similarly, the concept of 'office' in the rules plainly applies to positions other than those identified in r 25: see r 20(c), r 32(a)(ii) referring to 'any office to be filled by election', r 32(e)(vi) and r 32(k)(ii). Rules 23(a)(xv) and 25(f) are to be read in context and consistently. They are not to be read on the basis that the concept of 'office' is different as between the two sub-rules. If the draftsman has determined that, for the purposes of the rule, a delegate to State Council is identified as the holder of an office, r 25(f) is not to be approached on the basis that the word 'office' is artificially to be determined simply by reference to its statutory meaning.
57 Consequently the intervener argues that in the face of r 23(a)(xv) the question of whether a delegate to State Council is the holder of an 'office' within the meaning of r 25(f) is not dependent on a finding that the definition of 'office' in s 7 of the Act is attracted. In particular, it is not dependent on a determination that a delegate to State Council is a 'member of the committee of management of the organisation' within the meaning of the definition of subparagraph (a) of the definition of 'office' in s 7(1). It may be noted that a delegate to State Council is a holder of an office within the organisation 'for the filling of which an election is conducted within the organisation'. The question of whether the exclusion within s 7 of the Act providing that the definition of 'office' does not include the office of any person who is an employee of the organisation and who does not have a vote on the committee of management of the organisation, is not in point.
58 The intervener says their submissions are consistent with the decision of the Full Bench in the 1998 Rule Change Case. In a dissenting judgment, Sharkey P specifically construed r 25 (which was then r 26) as requiring a person elected as a delegate and a member of State Council to resign. President Sharkey set out the history of the two previous applications to alter the rules of the applicant organisation to allow employees of the Union to be eligible for membership, which were the 1993 Rule Change Case and the 1994 Rule Change Case. Sharkey P had regard to the concerns raised about conflicts of interest in the 1993 Rule Change Case. In particular he said (1126):
In the first case, the Full Bench observed that it would be contrary to the democratic control of the applicant organisation by its members to permit their employees to be eligible for membership (per Sharkey P at page 1475). The Full Bench also observed that the independence of the union's Executive would be potentially compromised by persons attempting to be both master and servant with the resultant legal and operating difficulties (per Fielding C (as he then was) at page 1476).
59 His Honour, Sharkey P then went on to observe that even if he was to allow the change in rules that (1127):
If rule 4 is authorised to be altered in terms of the application herein, then an employee will be able to hold office and will be able to be an officer if elected as a delegate and a member of State Council, the governing body of the applicant organisation, provided that he/she resigns if elected (see rule 26).
60 The intervener contends there is nothing to suggest that the majority considered that Sharkey P's construction of the rule was erroneous. The intervener argues that Fielding SC (with whom Parks C agreed), confined his comments about the effect of r 26(f) (now r 25(f)) to the potential for conflict involving the person who was both an employee and a member of the management committee of the Union and that it is open to draw this conclusion from the opening paragraph from Fielding SC's reasons for decision in which he said:
I have had the advantage of reading in draft form the reasons for decision prepared by the President in this matter. The nature of the application and the supporting arguments and counter-arguments are set out in those reasons. No useful purpose is to be gained from repeating them again.
Not without some diffidence I have come to the view that the application should, on this occasion, be granted in its amended terms. I confess that there is much to be said for the arguments advanced by the President for rejecting the application. In particular, I consider it important that a person should not be both an employee and a member of the management committee of the union. The potential for conflict of interest in such circumstances is obvious. In this respect the formula adopted in the membership rule of the Civil Service Association approved by the Full Bench in The Civil Service Association of Western Australia v The Federated Clerks' Union of Australia, Industrial Union of Workers, WA Branch (1971) 71 WAIG 1780 has much to commend it.
However, in this case if the application is granted in its amended form, the rules of the Applicant will operate in much the same way as do those of the Civil Service Association and prevent a member from being both an employee and an executive officer of the union. Sub-rules 26(f) and 26(g) of the Applicant's rules require an employee to resign no later than the date on which he or she takes up office as a member of the executive committee and vice versa. Thus, the position is unlikely to arise where there is a conflict of interest of the kind which the Full Bench has said on a number of occasions, most notably in Re an application by the State School Teacher's Union of WA (Inc) (1993) 73 WAIG 1471, is undesirable (1127).
61 The intervener says there is nothing in Fielding SC's judgment to suggest that he was expressing a view contrary to Sharkey P about the effect of r 26(f) and r 26(g) (now r 25(f) and r 25(g)). What Fielding SC was saying was that the rule change can be made because there is no problem with conflict. One of the alterations to the rules that was requested in that matter was the deletion of r 5(g) which applied to employees of the Union who were at that time Appointed Members. Rule 5(g) provided: 'Appointed Members shall be entitled to all rights, privileges and benefits of membership of this Union, except (i) the right to attend State Council as a delegate, and (ii) the right to stand for office.' This provision was deleted in 1998 by the decision of the majority in the 1998 Rule Change Case. The impact of the deletion of that provision is that the right to stand for office was given but no right to attend State Council was provided by the removal of r 5(g) because of the command in r 25(f) that requires a person who is elected to an office to resign their employment with the Union.
62 The intervener says that it is important to contrast the effect of r 25(f) and r 25(g). In contrast to r 25(g), r 25(f) is constituted as a command and does not stipulate the consequences of a failure to comply. Rule 25(g) makes it clear that, if an officer of the Union is appointed as an employee, they will cease to hold their position on and from the date of commencement of employment. Obviously, r 25(f) is not to be read as impacting on employment in the event of an election to office. Both provisions are part of a scheme designed to avoid the incompatibility of holding office with employment. The provisions introduce notions designed to deal with incompatibility of a nature seen in cases such as Egan v Maher (No 2) (1978) 35 FLR 252, 258, 260, 262,  264; Mellor v Horn (1988) 25 IR 157, 160 161 and Johnson v Beitseen (1989) FCA 80 [44]-[46].
63 In the event of a refusal to resign by an officer who is an employee, the effect of r 25(f) is that the holding of the office is impliedly terminated ipso facto because the rules say that the existence of employment and the holding of an office is incompatible. Alternatively, the intervener contends the person holding the office is rendered ineligible to continue to hold the office, opening the way for the Executive or State Council to make a decision to that effect. The intervener says that it does not matter which construction is accepted, if at the end of the day the Executive acts to dismiss the person in question from office. It is said that there can not be any doubt that the Executive was empowered to act pursuant to r 23(b)(iv), as the Executive has power to dismiss from office any person elected to an office within the Union who has ceased according to the rules of the Union to be eligible to hold office.
64 The intervener also contends that the applicants' complaint that they were denied procedural fairness cannot be made out. The applicants complain that they were not able to participate in the deliberations of Executive at the meeting of Executive on 3 and 4 August 2007. The intervener relevantly points out that no decision was made in relation to the termination of the holding of office by either applicant at that meeting. The applicants were provided with a letter addressing the issue to the Executive and afforded an opportunity to advance submissions as to why they did not fall foul of r 25(f) prior to the Executive making a decision to dismiss them from office. The applicants clearly availed themselves that opportunity and made written submissions.
65 The applicants also complain that the debate and the decision of the Executive was taken in camera so that the applicants were unable to participate. The applicants were, however, not members of the Executive and in circumstances where they were invited to provide written submissions in relation to that matter and did so, there can be no suggestion that procedural fairness was lacking.
66 As to the State Council's endorsement in November 2007 of the decision to dismiss, the evidence of Mr Mullen establishes that the issue was debated by State Council and an opportunity was given for State Council to be addressed by the applicants in relation to the issue. Mr Sharpe availed himself of this opportunity but there is no evidence that Mr Mullen was denied such an opportunity.
67 The fact that the Union did not accede to request to have the matter dealt with by a dispute resolution committee is entirely irrelevant. The question was one of compliance with the rules. An organisation cannot be called to account for taking action required by its rules on the basis that some other course of action might be considered appropriate.
The Applicants' Submissions
(a) The Applicants' Oral Submissions
68 At the conclusion of the evidence both applicants made oral submissions in this matter. Mr Mullen on behalf of the applicants made an opening submission in which he addressed a number of rules of the Union which the applicants say are of some importance in interpreting r 25(f) of the Union's rules. The applicants contend that r 3(a) is arguably is the most important objective which states that it is an object of the Union to watch over and protect the interests of its members without reservation or exclusion.
69 Mr Mullen stated without objection that the Union is made up of approximately 14,500 members and those members form branches. The branches are usually elected in February of each year and at any one time there can be up to 700 branches within the Union. Each branch usually consists of a Convener, Secretary, Treasurer, Union Representative, Women's Contact Officer, other Deputies and other positions. Each Branch is based at a worksite. The Branches are divided into geographical districts and each Branch has one delegate to their local District Council. District Councils meet twice a year in terms 1 and 3. In 2009 there were 16 District Councils. Members of Executive are elected by the entire membership for a two-year term. Elections take place in about October. Any financial member can nominate and the Executive consists of three senior officers, 14 ordinary members and one Aboriginal and Torres Strait Islander member, who is elected from amongst Aboriginal and Torres Strait Islander members. Nominations open in February each year for State Council. Any member can nominate and elections are conducted within the districts only. Delegates are elected within each district to State Council. In 2009 the State Council consisted of approximately 138 delegates and a total of 19 officers. The Executive consists of 18 officers which consists of the three senior officers, 14 ordinary members and one Aboriginal and Torres Strait Islander member. In addition, there is the General Secretary who is not a member of the Executive. The position of General Secretary is an elected position. The holder of that office is elected for a fouryear period. The Executive constitutes the committee of management within the meaning of the definition of 'office' in s 7 of the Act. The Executive is elected across the membership by a process involving the Australian Electoral Commission, whereas any other election for any office in the Union is conducted by the Union's Returning Officer.
70 The applicants point out that they are enrolled as Full Members of the Union under r 4(a)(vii). Pursuant to r 4(a)(vii) any employee of the Union is entitled to enrol as a Full Member provided they are not eligible for membership of the Australian Municipal, Administrative, Clerical and Services Union of Employees, WA, Clerical and Administrative Branch. The effect of this rule is that the industrial employees of the Union as opposed to clerical and administrative employees are eligible to be Full Members of the Union. Mr Mullen also stated without objection that there are currently 19 industrial employees of the Union. In 1998 there was a change in the rules to enable industrial employees of the Union to enrol as Full Members of the Union. Prior to this rule change, industrial employees were eligible to enrol as Appointed Members. Since 1998 when the rule change came into effect, industrial employees have as Full Members paid the same scale of membership fees as other Full Members. The applicants argue because r 5(a) provides that Full Members shall be entitled to all rights, privileges and benefits of membership of the Union, the effect of the decisions of the Executive in September 2007 and State Council in November 2007 to dismiss the applicants as delegates to State Council is to deny all rights, privileges and benefits of membership of the Union within the meaning of r 5(a).
71 Rule 11 – Breach of Rules provides for the procedure for breaches of rules and creates offences with which a member may be charged. Pursuant to r 11(a)(ii), it is an offence if a member breaches or fails to comply with any provision of the rules. Further, under r 11(a)(v) it is an offence if a member wrongly holds out as occupying any office or position in the Union or as being entitled to represent the Union in any capacity (to which charge it shall be a defence that the member believed bona fide and on reasonable grounds that she/he was entitled to act). The applicants point out that no allegation of a breach of rules against either of them has been made in relation to their status as State Council delegates and employees.
72 The applicants also say that r 12 – Dispute Resolution Committee is relevant to this matter. Rule 12 establishes a Dispute Resolution Committee, whereby under r 12(a)(ii) a Dispute Resolution Committee consisting of three members is empowered to consider and to make recommendations to the Executive in relation to any dispute a member or members may have concerning the application or interpretation of any rule. The applicants point out that no Dispute Resolution Committee was convened as requested by the applicants to deal with the issue in dispute.
73 Both Mr Mullen and Mr Sharpe contend that they should have been given an opportunity to participate in the Executive's deliberations about their status as State Council delegates. They say that they were not afforded natural justice, as they were not allowed to participate in the deliberations. They also say that in failing to do so the Union breached its Administrative Instruction 800.33 which is titled 'Union as a Model Employer'. Administrative Instruction 800.33 provides:
That the SSTU act as a model employer and exemplar with the SSTU management body ensuring that all staff are treated professionally, with respect and that the SSTU Code of Ethics and democratic decision making processes are acted upon, namely:
(iii) that when decisions are being made those parties who will be affected be directly involved.
74 Rule 23 establishes the State Council. The applicants say that throughout r 23 the term 'delegates' is used consistently and can be distinguished as being separate from 'officers' and 'offices' of the Union. The applicants point out that r 23(a)(iii) defines the composition of State Council as the President, Senior Vice President, Vice President, Ordinary Executive Members, General Secretary and delegates elected from each district, in accordance with the provisions of r 23 and r 32 – Elections for Office. The applicants say that there is a distinction between officers who are elected members of the Executive and delegates to State Council who are elected within a district. Delegates from districts have a one–year tenure on State Council. Officers who are elected to the Executive have a two–year tenure on State Council, whilst the officer elected as General Secretary has a tenure of four years on State Council.
75 The applicants point out that there is no requirement in r 23 for employee members of the Union who are elected as delegates to State Council to resign their employment with the Union. This they say is in clear contrast to the provision of r 25 which deals with 'officers'. Rule 23(b)(iv) gives State Council the power to dismiss any State Council delegate who has been found guilty in accordance with the rules of the Union or who has ceased according to the rules of the Union to be eligible to hold office. The Executive in this matter found no guilt on behalf of the applicants as no allegations were made against them under r 11 and there was no Dispute Resolution Committee convened under r 12. The Executive determined that the applicants ceased to be eligible to hold office because they failed to resign from their employment with the Union. They say if they had resigned their employment with the Union they would have ceased to be eligible to be members of the Union under r 4 as they would have been unemployed and ineligible to retain their membership as they would not be officers and they would not be able to rely upon the proviso in r 4(a)(viii) which provides that:
(viii) … Notwithstanding the above, any person who is not registered with the relevant employer as available for work, and has not worked as a teacher for at least two years and who no longer has a contract of employment with the relevant employer shall not be eligible for membership under this subrule.
Hence they say they would have been ineligible to be delegates at State Council to represent the Perth district in 2007 if they resigned from their employment.
76 The applicants argue that the State Council meeting in November 2007 assumed without proper justification that it had the power to endorse the dismissal of the applicants by the Executive. The State Council acted without finding if the applicants were guilty of any substantial breach of the rules of the Union and without proving that the applicants had ceased being eligible to hold 'office' according to the rules of the Union.
77 The applicants point out that pursuant to r 24(a) and r 24(b) the Executive has power to control the affairs of the Union between meetings of State Council. The Executive assumed on 14 September 2007 it could exercise the power of State Council to dismiss from office any person elected to an office within the Union who have ceased according to the rules of the Union to be eligible to hold office. The minutes of that meeting indicate the decisions were made in camera. Consequently the applicants say it follows therefore no process employing natural justice was used to assist the decision-making.
78 The applicants made a submission that their dismissal from office constituted an irregularity in the election process. During the course of proceedings I informed the applicants that I did not see that this was a matter that could be properly raised as it is not in dispute that they were entitled to stand for and be elected as delegates to State Council.
79 The applicants argue that the restrictions in r 25(f) and r 25(g) are solely confined to members of the Executive and the General Secretary is supported by custom and practice in relation to employees of the Union who have been elected to the position of General Secretary or as State Council delegates. They point to the evidence given by Mr Farrell and by Mr Mullen which establishes that Mr Farrell whilst an employee of the Union was elected a delegate to State Council in 1999 and Ms Cavallaro attended State Council as a delegate in November 2006 when she was an employee of the Union. On neither of those occasions was any issue raised with those persons participating in State Council meetings as a duly elected delegate. The applicants also point to the fact that the current General Secretary who was employed as an organiser by the Union in 1998 stood for the elected position of General Secretary in January 1999 and upon being elected to office, resigned as an employee of the Union in accordance with the requirements of r 25(g) of the rules.
80 The applicants also make a submission that their application is supported by a number of provisions in the Act including the objects in s 6(ab) and s 6(f) of the Act. They rely upon s 26 of the Act which requires the Commission to act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms and have regard for the interests of the persons immediately concerned whether directly affected or not and, where appropriate, for the interests of the community as a whole. The applicants also rely upon s 27(1)(l) and s 27(1)(v) of the Act which enable the Commission to amend applications and give directions and do all such things as are necessary or expedient for the expeditious and just hearing and determination of the matter.
81 The applicants say that the construction of the rules of an organisation should be construed in according to the principles discussed by Ritter AP in Stacey at [93]. The applicants' view of the rules of the Union is that the document is essentially evolutionary. They contend the rules have internal inconsistencies but it is notable that there is a requirement of the rules that any changes be endorsed by members. Consequently they say the rules are very much the manifestation of the wishes of the members. They say the rules should be read as they stand and are designed to provide direction in relation to regulation of discrete areas of the operation of the organisation. The applicants also point out in Stacey at [331] and [332] Ritter AP adopted the principle that the rules of the Union cannot be supplemented by implied terms as distinct from permitting the ascertainment of the meaning of the rules upon their true construction. Consequently the applicants argue that where rules state matters expressly that should determine the application of those rules.
82 The applicants say the most significant decision that the Commission must consider in this matter is the 1998 Rule Change Case. They say that the reasons for decision of Fielding SC with whom Parks C agreed, was the view of the majority which at the end of the day prevails over the views of Sharkey P. However the applicants say they acknowledge that the views of Sharkey P are nevertheless important and significant because he was a member of the Full Bench. Mr Sharpe who made submissions on behalf of both of the applicants in respect of this issue conceded that the principles or notion of conflict of interest or undue power and influence are matters which properly occupied the mind of the Full Bench in the 1998 Rule Change Case.
83 The applicants say that the reasons for decision of Fielding SC with whom Parks C agreed, were distinguishable to the reasons for decision given by Sharkey P. They point out at page 1127 Sharkey P made the following observation:
If rule 4 is authorised to be altered in terms of the application herein, then an employee will be able to hold office and will be able to be an officer if elected as a delegate and a member of State Council, the governing body of the applicant organisation, provided that he/she resigns if elected (see rule 26).
84 The applicants say that when one analyses the language used by Fielding SC in his decision he used quite different language, in particular he said that it is important that a person should not be both an employee and a member of the management committee of the Union. He did not use the words "governing body" which was the term used by Sharkey P. At pages 1127-1128 Fielding SC stated:
Not without some diffidence I have come to the view that the application should, on this occasion, be granted in its amended terms. I confess that there is much to be said for the arguments advanced by the President for rejecting the application. In particular, I consider it important that a person should not be both an employee and a member of the management committee of the union. The potential for conflict of interest in such circumstances is obvious. In this respect the formula adopted in the membership rule of the Civil Service Association approved by the Full Bench in The Civil Service Association of Western Australia v. The Federated Clerks' Union of Australia, Industrial Union of Workers, WA Branch (1991) 71 WAIG 1780 has much to commend it. However, in this case if the application is granted in its amended form, the rules of the Applicant will operate in much the same way as do those of the Civil Service Association and prevent a member from being both an employee and an executive officer of the union. Sub-rules 26(f) and 26(g) of the Applicant's rules require an employee to resign no later than the date on which he or she takes up office as a member of the executive committee and vice versa. Thus, the position is unlikely to arise where there is a conflict of interest of the kind which the Full Bench has said on a number of occasions, most notably in Re an application by the State School Teacher's Union of WA (Inc) (1993) 73 WAIG 1471, is undesirable.
85 The State Council is not the management committee of the Union. The State Council comprises 157 members and is a State Council. It only meets twice a year. The applicants point out that Fielding SC talks about his reservations about employees being members of the management committee of the Union and that the potential for conflict of interest in such circumstances is obvious. They say in this respect Fielding SC agreed with Sharkey P, but significantly, it must be assumed that Fielding SC's choice of words was deliberate. Senior Commissioner Fielding was concerned about a conflict of interest arising where a person was a member to the committee of management and an employee. He did not raise any issue of conflict in relation to State Council and he could have done so. He could have talked about governing bodies plural, as Sharkey P had done. The applicants point out that Fielding SC then goes on to discuss if the application is granted the rules of the Union will operate much the same way as do those of the Civil Service Association Incorporated Western Australia and prevent a member from being both an employee and an executive officer of the Union and to r 26(f) and r 26(g) will establish a prohibition on being both an employee and a member of the Executive.
86 The applicants say the plain interpretation of the findings made by Fielding SC is that the provisions of r 25 (which was r 26) prevent a person from being both a member of the management committee and an employee, but not a member of the governing body, the State Council. They contend r 25 is solely focussed on a prohibition on members of the Executive and the Secretary of the Union. They also say there is no need to make a reference to State Council in r 25 because there is nothing in the rule that establishes State Council prevent or limit employees being delegates to State Council in the same way that r 25 does in respect of the Executive and there is nothing in relation to any of the other rules that establish the representative bodies of the Branches, District Councils, State Councils, and Committees in relation to which all of those positions require elections which prevents employees from nominating for those positions and being elected to them.
87 The applicants agree with the argument put forward on behalf of the intervener that the definition of 'office' in s 7 of the Act does not have any application in this matter as that statutory provision is not consistent with the use of the word 'office' in the rules of the Union.
(b) The Applicants' Written Submissions
88 The applicants filed written submissions in reply to the intervener's submissions on 25 February 2010. In their written submissions they also made submissions about the effect of APPL 409 of 1994 which was an application by the Union to the Registrar to register variations to the rules of Union to create the State Council as a body and insert r 19(f) and r 19(g) (now r 25(f) and r 25(g)) into the rules. The applicants say that notwithstanding their contention that the rules of the Union should be read as a whole, r 25 only applies to specified designated 'officers' of the Union. These are the 'officers' that comprise the Union Executive, that is the President, Senior Vice President, Vice President, and Ordinary members, including an Aboriginal and Torres Strait Islander representative and the General Secretary who is not a member of the management committee, the Executive, but is specifically mentioned in r 25.
89 The applicants also say that r 25(f) and r 25(g) safeguard against an employee being a member of the Union's management committee, the Executive, and address a concern that was repeatedly expressed by the Full Bench on several occasions during the 1990s. Rule 25(f) is express in requiring an employee who is elected as an officer of the Executive or General Secretary to resign his or her employment with the Union and r 25(g) is express in requiring an officer of the Executive or General Secretary who is appointed as an employee to resign as officer of the Executive or General Secretary. The action required of an employee by r 25(f) in resigning his or her employment before taking up an elected officer position on the Executive or General Secretary position is mandatory and the action required of an officer of the Executive or General Secretary by r 25(g) in resigning prior to taking up employment with the Union is also mandatory.
90 The applicants submit that this construction is consistent with the discussion of the meaning of 'officer' in Landeryou. Spicer CJ observed at page 148: "True it is that the words 'office' and 'officer' are words of indefinite content, but they do, I think, indicate a position or the holder of a position which carries with it some administrative or executive duties or some substantial degree of responsibility." Dunphy and Joske JJ said at page 154: "'The word office is of indefinite content', but as the most relevant for the purposes of this case the following – 'A position or place to which certain duties are attached especially one of a more or less public character'." The applicants submit these observations are consistent with the intent and purpose of r 25  Officers as the officers expressly referred to in r 25 have administrative and executive duties which carry substantial authority and represent the public face of the Union to members and the wider community. In contrast they say that other Union positions, such as each Branch, District Council, State Council and other Union committees and representative bodies do not carry the same weight of responsibility, authority and profile that the designated officers referred to in r 25 do.
91 In response to the issue raised on behalf of the intervener that there are many provisions within the rules of the Union that identify persons not included in r 25 as 'officers' and that r 23(a)(xv) uses the term 'the office of delegate to State Council', the applicants say that the term 'office of delegate to State Council' is used just once (in r 23(a)(xv)). The dominant term used in r 23(a) is 'delegate(s) to State Council' which is used seven times. In addition derivative terms such as 'State Council delegate' and 'district delegate to State Council' are also used in r 23(a). These are the terms which are consistently used in r 23(a), rather than the aberration 'office of delegate to State Council' which appears in the final and most recently added, subrule of r 23(a).
92 The term 'office' occurs at various places in the rules of the Union. Rule 32  Elections for Office refers to the various offices of the Union for which elections are conducted internally by the Union Returning Officer and that the offices in r 32(a)(i), are listed as being its Branches (r 21), District Council (r 22), State Council (r 23) and committees and bodies that are filled for a oneyear term. The applicants contend these 'offices' should be contrasted with the term 'officers' defined in and covered by the provisions of r 25 and which are elected positions for terms of between two and four years for which elections are conducted externally by the Electoral Commission Western Australia.
93 The applicants agree with the intervener's submission that through r 23(a)(i), that State Council is 'the governing body of the Union'. They also agree that State Council pursuant to r 23(a)(iii), consists of two categories of members, they are those that make up the Union Executive Committee and the General Secretary referred to in r 25 and delegates elected from each district referred to in r 23. Whilst employees are expressly prohibited from holding elected officer positions designated in r 25 whilst maintaining their employment, the applicants say there is no such express or implied prohibition in r 23 or in any other rule.
94 The applicants submit that the meaning of r 25 and the past practice of:
(a) allowing employees to carry out the duties and functions as delegates to State Council;
(b) only requiring employees to resign when elected to an Executive position or the position of General Secretary; and
(c) requiring a person who is an Executive officer to resign from office when taking up a position as an employee;
is consistent with the 'doctrine of incompatible offices' referred to by the intervener and considered in Egan v Maher (No 2); Mellor v Horn and Beitseen v Johnson (1989) 29 IR 336, 336 - 338.
95 The applicants submit the doctrine of incompatible offices was addressed under r 19 in 1994 (currently r 25). That is, there is a conflict of interest between duties as an employee and duties as an Executive member. Rule 19 (currently r 25) is explicit about incompatible offices. The incompatible offices are President, Senior Vice-President, Vice-President, Ordinary Executive members, including an Aboriginal or Torres Strait Islander representative, General Secretary and employees of the Union who are eligible to be members. Should any member holding one of these 'offices' be elected or appointed to another of these 'offices', that member is required to vacate the first by resignation. That is the scope of r 25 and it is the result of careful and deliberate amendments to the rules overwhelmingly supported by Union members.
96 The applicants say that when the history of amendments made to the rules since 1994 is examined there is no mention in any of the proposed and actual rule changes or reasons for amendment that the position of elected delegate to State Council is incompatible with the position of an appointed employee. The applicants also make a submission without objection, that like all delegates to State Council, employee delegates to State Council attend State Council outside normal work hours and conduct their duties as delegates as unpaid volunteers. They also contend that like all delegates to State Council, employee delegates to State Council perform duties which are not incompatible with their paid work. Consequently, they say that the scope of r 25 does not extend to, nor include State Council delegates.
97 In relation to the submission made on behalf of the intervener that the application is of historical interest only and has no currency at the present time the applicants say that submission has been overtaken by the fact that Mr Mullen has recently nominated for election as a delegate to State Council in 2010 prior to the close of nominations on 26 February 2010. The applicants say that given that this matter raises a current controversy the Commission is required to make a determination on the true interpretation of relevant rules in this matter.
98 The applicants point out that the intervener's submissions make no objection to an employee nominating for an office within the Union, including Branch positions, delegates to District Council, delegates to State Council and membership of Union committees and other representative bodies, on the basis that the employee is required to resign his or her employment upon being elected. Such a requirement, the applicants submit, would be patently absurd and would be a breach of s 6(f) of the Act which has as one of its objects to encourage the democratic control of registered unions and the full participation by members of such a union in the affairs of a union.
99 The applicants say that the net effect of the intervener's position is that an employee who did nominate and became elected to a Branch position, or delegate to District Council, or delegate to State Council, or member of a Union committee and other representative body would have to resign his or her employment with the Union. In the event the employee was to resign, he or she would, on the face of it, no longer be eligible for membership of the Union, and would, therefore, not be eligible to take up the elected position. This proposition, the applicants say is patently not supported by the rules of the Union, save and except for the express requirement that an employee cannot be elected as an officer on the Union's management committee, (the Executive), or to the officer position of General Secretary and maintain his or her employment at the same time, and vice versa, under the provisions of r 25(f) and r 25(g).
100 APPL 409 of 1994 was an application by the Union to register changes to a large number of rules of the Union which were considered and endorsed by the SSTUWA Conference in 1993. The rule changes brought about major changes to the Union's democratic and decision making processes and structures; the most significant of which was the replacement of the annual conference by the bi-annual State Council.
101 In a document attached to APPL 409 of 1994 and titled 'The 95th Annual Conference Decisions' published in The WA Teachers' Journal in December 1993 the amendments to the rules were explained.
(a) Under the title 'WHY THE CHANGE?' at page 222:
Delegates to Conference will appreciate that over the years Conference has increasingly been unable to complete its business. In 1991, for instance, Conference failed to address more than half the business on its agenda. What is more unfortunate is that most of the items not considered were branch initiated.
Clearly this does little for engendering interest at rank and file level.
There are a number of reasons why this might be the case. Not the least of these is the unwieldy size of Conference. Conference generally has about 400 delegates in attendance out of a potential 700. It meets only once a year which also makes it impossible to be as responsive from a policy position as the Union should be.
It means, in fact, that members have very little say in what actually occurs in our Union and how it should be run.
As a result, last year's Conference resolved that 1992 should see a trial of a Council structure, once in Term 2 and once in Term 3.
The Council structure to be trialled is different to previous trials. Its clear intent is to democratise the Union in both its structure and processes. If successful it will make the Union more responsive, more pro-active and, above all, more accessible to the members.
(b) Under the title 'TRIAL STRUCTURE' the Council structure is described at page 222:
State Council will meet twice a year, rather than the current only once a year for Conference. It will also be smaller than Conference, comprising about 150 delegates.
Delegates will be district delegates. Anyone can nominate to be a delegate from their district.
(c) Under the title 'COUNCIL STRUCTURE' on page 221:
Following on from the Council Structure report to the 1992 Conference (attached as Background Paper 1), work continued on the further development and trialling of the proposed structure. This included direct membership input to formulation of the Council Structure as articulated in the proposed new Rules 17, 18 and 19, the input being provided at both District and State Council levels.
(d) Under the title 'STATE COUNCIL' on page 224:
5.1 That State Council consist of the Executive and elected Delegates from each district.
5.2 The Delegates to State Council be elected by and from the members in the District to which the Delegate's Branch is aligned.
102 The applicants submit that the development of the State Council structure was supported by members of the Union in the interest of facilitating and promoting the democratic processes of the Union and to provide a forum where all members were entitled to have a voice through their respective districts and branches. A number of related rule changes were endorsed to enable the intent to be reflected in practice.
103 Two rule changes endorsed with the requisite two-thirds majority and a quorum present at the 1993 Conference were also published in The WA Teachers' Journal in December 1993 and were in respect to r 19 titled 'Officers'. Rule 19 is now r 25. At page 127 of the document titled 'The 95th Annual Conference Decisions' it was stated:
PROPOSED AMENDMENT:
That Rule 19 – OFFICERS – be amended by the addition of a new paragraph (h) as follows:
(h) Notwithstanding the provisions of any other rule, the persons eligible to nominate for the position of General Secretary shall be:
(i) all financial Members, and/or
(ii) any employee of the SSTUWA, and /or
(iii) for the purposes of the first such election only, the person holding the appointed position of the General Secretary immediately prior to that election.
REASON OR [sic] AMENDMENT:
Paragraph (h) permits all financial members and employees of the SSTUWA to stand for election for the position of General Secretary and also gives the incumbent General Secretary the right to stand for election for that position.
This amendment will assist in providing the best possible field of candidates for the position of General Secretary.
104 The applicants point out that the effect of this amendment was to make the previously appointed General Secretary's position an elected position, with the first election being held in 1994 and the elected officer commencing his four-year term of office at the beginning of 1995.
105 The second change sought to r 19 was to add two new paragraphs (h) and (i) as follows:
(h) Any employee of the SSTUWA who is elected to an office of the Union shall resign their employment with the Union by no later than the day that that person commences his or her term of office.
(i) Any elected Officer of the SSTUWA who is appointed as an employee of the Union shall cease to hold their position of Office on and from the day that that person commences employment with the Union.
106 Under the heading 'REASON FOR AMENDMENT', at page 127-128 of the document titled 'The 95th Annual Conference Decisions' it was stated:
Executive wishes to ensure that any appointed employee who nominates for Executive office and (vice-versa) does not face a conflict of interest between their duties as an employee and their duties as an Executive member.
107 The applicants submit the intention of members of the Union in supporting the amendment to r 19 by adding paragraphs (h) and (i) was clear, namely that the Union was anxious to ensure that any conflict of interest that would likely result from employees being officers of the Executive at the same time would not be able to arise by virtue of employees not being permitted to be Executive officers and Executive officers not being permitted to be Union employees. They contend that this is consistent with the discussion by Full Benches of the Commission in respect to applications made by the Union in the 1993 Rule Change Case and in the 1994 Rule Change Case which in each matter the Union sought to amend the rules of the Union to enable Union employees to be Full Members of the Union.
108 In June 1996 the Union in The WA Teachers' Journal published a document titled 'CONSTITUTIONAL AMENDMENTS PASSED AT JUNE 1996 STATE COUNCIL' which stated as follows:
SC.15 Rule 4 – Membership
PROPOSED AMENDMENT:
That Rule 4 – MEMBERSHIP – be amended by the deletion of paragraph (g) and the insertion of a new paragraph (a)(vi) as follows:
(a) (vi) Any employee of the SSTUWA (inc.) provided that such persons are not eligible for membership of the Australian Municipal, Administrative, Clerical and Services Union of Employee, W.A., Clerical and Administrative Branch.
REASONS FOR AMENDMENT:
This amendment permits employees of the SSTUWA (inc.), other than those eligible to be members of the other Union identified, to become full members.
The provision of full membership rights to employees of the SSTUWA (inc.) is believed to be a desirable Union objective. It will permit the full participation of those employees in the affairs of the Union, thereby eliminating the current restrictions that apply.
109 The Full Bench in the 1998 Rule Change Case removed any potential conflict of interest by inserting provisions in the rules of the Union similar to those in the rules of The Civil Service Association of Western Australia Incorporated which made it impossible for employees of the Union to be Executive officers and vice versa. The applicants also contend that the inclusion of parts (h) and (i) above in r 19 (subsequently re-numbered r 25(f) and r 25(g)) were sufficient for the majority in the Full Bench decision in the 1998 Rule Change Case to be satisfied that any potential conflict of interest had been successfully addressed and to approve the amendment to the rules of the Union to permit industrial employees to be eligible to be Full Members of the Union.
110 The applicants say that the intention of the changes to the rules approved by the majority of the Full Bench in 1998 was (with the exception of the restrictions set out in r 25(f) and r 25(g) which prevented employees from holding Executive office), to enable the full and equal participation of employees in the affairs of the Union. That as Full Members, employees of the Union were entitled to all rights, privileges and benefits of membership of the Union (r 5(a)).
111 The applicants in their written submission filed on 25 February 2010 also sought to provide a document signed by the General Secretary of the Union and dated 15 February 2010. The document sets out allegations in relation to an act of suspected misconduct by Mr Mullen. Having reviewed the document I am of the opinion that the matters stated therein are not relevant to this application before the Commission.
The Intervener's Further Submissions
112 The intervener filed its submissions in respect of the significance of the contents of the application made by the Union in APPL 409 of 1994 on 10 March 2009. This was the application that resulted in the insertion of parts (h) and (i) of the rule that was subsequently renumbered as r 25(f) and r 25(g).
113 The intervener accepts that extrinsic material may assist in relation to the interpretation of rules of an organisation where necessary to remove ambiguities. However, they say the authorities emphasise that great care must be taken in relation to the use of extrinsic material and that the weight which can properly be attached to it depends on its nature: Electrical Trades Union of Australia v Waterside Workers' Federation of Australia [No 2] (1982) 59 FLR 78 (83). The views of persons drafting an application as to the intentions of members, or the reasons why such changes were advanced are not in the same category as considered decisions of industrial tribunals as to the meaning of rules: Electrical Trades Union of Australia (83). The intervener contends evidence as to what the drafters of the application considered to be 'the intention of the members' in advancing an amendment to the rules, or what was published in the Union journal, are not probative and certainly not a substitute for the text of the rule considered in the context of the rules as a whole. If any significance at all is to be placed on the nature and text of APPL 409 of 1994, it is submitted that what is significant is that the relevant subrules were inserted as part of a complex of rules which saw the insertion of a State Council structure on a trial basis for the first time.
114 The intervener submits that the materials in question provide absolutely no basis for drawing a distinction, for the purposes of r 25(f), between members of the State Council who make up the Union Executive Committee (together with the General Secretary) and other members of State Council who are elected as delegates pursuant to r 23. All of these persons, regardless of whether they are on State Council by virtue of r 23 or r 25, are members of 'the governing body of the Union' and the supreme decisionmaking body of the Union.
115 They also contend that the text of the application provides absolutely no basis for a departure from an interpretation of the rules based on their text  a text which must accommodate the reference to officers in r 25(f) and the acknowledgment that a delegate to State Council is an officer as stipulated in r 23(a)(xv).
116 In response to the applicants' advice that Mr Mullen has nominated for the State Council in 2010 and that he has no intention of resigning his employment in order to participate as a delegate, the intervener says it does not resile from its submissions that in reliance on Stacey, s 66 is not a vehicle for adjudicating on matters which are only of historical significance within a union. The intervener also submits that, even if the applicants' new assertion as to Mr Mullen's nomination and intentions is taken into account to substantiate the proposition that the interpretation of r 25(f) is of more than historical interest, it provides absolutely no foundation for the claim for relief in respect of the rescission of decisions taken in respect of office holding that has been overtaken by subsequent elections.
Conclusion and Findings
(a) Structure of the SSTUWA
117 Pursuant to r 23 – State Council of the rules of the Union, the supreme governing body of the Union is the State Council (r 23(a)(i)). Under r 23(a)(ii) subject to any referendum of members, State Council is the supreme decision-making authority of the Union and policy directives issued by State Council are required to be adhered to by all members. State Council consists of the President, Senior Vice President, Vice President, ordinary Executive Members, General Secretary and delegates elected from each District, in accordance with the provisions of r 23 and r 32 – Elections for Office (r 23(a)(iii)). State Council is required to meet at least twice per year as determined by the Executive (r 23(a)(xiv)). The powers of State Council are set out under r 23(b) which provides as follows:
State Council shall have power to control and manage the business and affairs of the Union subject always to these Rules and without limiting the generality of this power shall have power to:
(i) Subject to the requirements of these rules, make, amend or rescind these rules.
(ii) Determine entrance fees and subscriptions for members and persons eligible to be members of the Union and impose levies on such members.
(iii) Appoint or remove a qualified auditor, for any purpose for which an audit is required in connection with the accounts of the Union.
(iv) Dismiss from office any person elected to an office within the Union who has been found guilty in accordance with the Rules of the Union of misappropriation of the funds of the Union, a substantial breach of the Rules of the Union, serious and wilful misconduct or gross neglect of duty in relation to his/her office or who has ceased according to the rules of the Union to be eligible to hold the office.
(v) Refer any question to a referendum of members of the Union. The decision of a referendum is binding on State Council.
(vi) Do all things necessary or convenient to the exercise of the foregoing power or any powers conferred by the rules of the Union.
118 Between meetings of State Council, the Executive exercises all powers of the State Council subject to a number of conditions. This was provided for in r 24 – Powers of Executive. Rule 24(a), r 24(b) and r 24(d) provides as follows (now r 24(a) and r 24(b):
(a) Subject to sub-rule (b) of this Rule the Executive shall control the affairs of the Union in accordance with this Constitution.
(b) (i) Executive shall abide by and conform to all decisions and directions of State Council.
(ii) That should any circumstances arise in the post-State Council period which, in the opinion of Executive, may have resulted in a State Council Decision other than that arrived at, a Referendum of the full Union membership must be held before the original State Council Decision can be varied.
…
(d) Between meetings of the State Council, the management of the Union shall be vested in the Executive which shall have all the powers necessary to administer the Union including the authority to transfer funds from one Union account to another. No power to impose a levy, or determine entrance fees and subscriptions [excepting as provided in Rule 7(iv)], or expressly reserved for itself by State Council, shall be exercised by the Executive.
119 Under r 25 – Officers, the Executive is composed of the President of the Union, Senior Vice-President, Vice-President, and another number of additional members to be known as Ordinary members, as determined from time to time by State Council (r 25(a)(i)).
120 As set out in r 23, State Council is composed of a number of delegates from each District. Pursuant to r 22 – Districts/District Council, the State is divided into Districts as determined by State Council. Each District also comprises a number of Branches (r 22(a)).
121 At a level below Districts are Branches. Pursuant to r 21 – Branches, members of each worksite constitutes a Branch (r 21(a)). Each Branch has a committee.
122 Rule 4 – Membership, provides for the categories of persons who are eligible to be members of Union. Pursuant to r 4(a)(vii) employees of the Union are entitled to be members provided that they are not eligible for membership of the Australian Municipal, Administrative, Clerical and Services Union of Employees, W.A., Clerical and Administrative Branch. There are other categories of members under r 4 which are Honorary Life Members, Honorary Members, Special Category Membership, Retired Teachers Members and Associate Members. The entitlement of each of the categories of members is provided for in r 5 – Entitlements. Rule 5(a) provides in respect of Full Members that they are entitled to all rights, privileges and benefits of membership of the Union. It is notable that r 5 expressly provides that Honorary Life Members are also entitled to all rights, privileges and benefits available to Full Members except that they shall not stand for office. Honorary Members are also entitled to the same rights and privileges as Full Members except they are not entitled to be represented at State Council or to hold Union office or to vote in elections for Union office. Special Category Members also have the same rights and privileges as Full Members except that they are not entitled to form a Branch, hold Union office, or vote at elections for a Union office. Retired Teacher Members are not eligible to stand for election to any office of the Union or to vote at such an election but shall be entitled to all other rights, privileges and benefits of membership except as otherwise provided by the rules and provided that the use of the facilities at Union headquarters shall be by decision of the Executive. In relation to Associate Members, they are not entitled to be represented at conference, nor be eligible to stand for election to an office of the Union, nor to vote at such elections, nor receive industrial assistance but shall be entitled to use the facilities at Union headquarters and have other social benefits as decided by Executive from time to time.
123 Pursuant to r 27 – Duties of President, Senior Vice-President and Vice-President, the President and Senior Vice-President are full-time paid officers of the Union.
124 It is also notable that pursuant to r 32 – Elections for Office, nominations for all offices of the Union, its Branches, delegates to District Council and State Council are required to be in writing, signed by the nominee and endorsed by two financial members proposing and seconding the nomination (r 32(a)(i)). Rule 32 also deals with the election of offices in the Branches and District Council.
(b) Is the application moot?
125 The extent of its jurisdiction and powers of the President under s 66 of the Act was reviewed and considered at length by Ritter AP in Stacey. In Stacey his Honour had regard to two cases which considered the question whether s 66 can be used to secure performance of making orders for the purpose of remedying past breaches of rules. The first was WALEDFCU v Schmid (1996) 76 WAIG 639. In that matter an order had been made pursuant to s 66 that the union through its general committee order the trustees to institute legal proceedings to recover sums paid by the respondent to a number of officers of the union in previous years. It was submitted in an appeal to the Industrial Appeal Court against that decision that the order was beyond the power of the President when exercising jurisdiction under s 66 of the Act as the power to compel observance of rules could only be exercised to secure performance of existing obligations under the rules of a union and did not extend to the making of orders for the purpose of remedying past breaches of the rules. The Industrial Appeal Court found that the relevant rule of the organisation did impose a continuing obligation upon the general committee of the union generally to protect its property and funds from misappropriation and specifically to direct the general trustees to take legal proceedings against any officer or member of the union guilty of misappropriating any of its funds. Consequently the order was within power conferred by the President by s 66(2) of the Act. The second case was a decision of Sharkey P in Luby v Secretary, The Australian Nursing Federation, Industrial Union of Workers, Perth (2002) 82 WAIG 2124. In that matter Sharkey P expressed an opinion that orders can be made relating to past nonobservance of a rule where the purpose is to secure the performance of an existing obligation. In Stacey, Ritter AP had regard to these decisions and concluded 'that the purpose of s 66 is not to correct long ago breaches which now have no relevance to how an organisation is running' [274].
126 In Stacey [279] Ritter AP also set out the relevant principles that can be distilled from the authorities in respect of the nature of the jurisdiction and the type of orders that can be made under s 62(2) of the Act:
(a) An order for the purposes of the section must involve a command to someone to do something. (CMEWUA v UFTIU (1991) 71 WAIG 563)
(b) Section 66(2)(d) empowers the President to interpret a rule for the purpose of deciding whether to make an order or direction (UFTIU at page 569). Further or alternatively in the case of controversy an interested party may seek a declaration about the true interpretation of a rule. (Robertson re CSA (2003) 83 WAIG 3938; [2003] WASCA 284 at paragraph [54])
(c) The President may exercise jurisdiction under s66 where there has been an improper exercise of powers, contrary to the rules. (Carter v Drake (1991) 72 WAIG 2501 at 2504)
(d) Sections 66(2)(e) and (f) contain the only powers which the President may exercise under s66 in connection with election irregularities. (Harken v Dornan and Others (1992) 72 WAIG 1727)
(e) Declarations about the validity of meetings by an organisation are outside the power of the President under s66 unless as a matter of law the meetings were invalid. (Carter v Drake (1993) 73 WAIG 3308 at 3311, and see below). Therefore the President may declare invalid resolutions passed at meetings where the meetings were conducted in breach of the rules and the breach had the legal effect of invalidity. (WALEDFCU v Schmid (1996) 76 WAIG 3380 at 3382)
(f) An order for the purpose of requiring an organisation to act in accordance with its rules is within power. (WALEDFCU v Schmid (1996) 76 WAIG 639)
(g) If the grounds have been established for the making of an order under s66, the President does not have a discretion to refuse to make such an order. (Robertson)
(h) The purpose of the power given in s66(2) is to ensure that the persons identified in s66(1) have a means of enforcing the rules of an organisation. (Robertson)
(i) Due to s26(2) the President in considering what order to make under a s66 application is not restricted to the specific claim made. (Robertson)
127 When regard is had to these principles, even if a finding is made that the applicants were eligible to hold office as district delegates to State Council in 2007, it is clear that it is not open under s 66 to make the orders in the form sought by the applicants as the breaches of the rules of the Union relate to events which have long passed and the terms of office have long expired. However, the President in considering what order to make under a s 66 application is not restricted to the specific claim made. As Mr Mullen has sought nomination to be elected as a delegate to State Council in 2010, I do not agree the subject matter of the application is moot as there is presently a live controversy as to whether Mr Mullen can hold office as a delegate to State Council whilst he is employed by the Union. Consequently it is open in this matter to make a declaration of a true interpretation of the rules of the Union, in particular whether r 25(f) applies to an employee of the Union who is elected to the position of delegate to State Council.
(c) Interpretation of Rules
128 It is established at law that the rules of an organisation should not be interpreted strictly and literally but broadly. In Hospital Salaried Officers Association of Western Australia (Union of Workers) v Minister for Health (1981) 61 WAIG 616, Brinsden J said:
The rules of a registered union of workers can only be changed in the manner prescribed by the statute, and the rules as registered from time to time are final and the only expression of them. That seems to me to be the only point in the case. It says nothing about the necessity to interpret the rules of a union strictly and literally but simply makes the point that the rules alone are to be looked at and not any collateral undertaking. Subsequent conduct of the parties may only be considered if such rules are in truth ambiguous and then only to resolve the ambiguity.
Generally speaking the correct approach to the interpretation of a union rule is to interpret it in the same manner as any otherr [sic] document. It must be remembered however that union rules are not necessarily drafted by skilled draftsmen. It is therefore necessary I think in construing a union rule not to place too literal adherence to the strict technical meaning of words but to view the matter broadly in an endeavour to give it a meaning consistent with the intention of the draftsman of the rule. This approach has been endorsed in relation to awards: see Geo A. Bond & Co. Ltd. (In Liq.) v. McKenzie (1929) A.R. 499 at 503-4 referred to in Federal Industrial Law by Mills and Sorrell 5th Ed at p.522. I also said much the same thing in the unreported decision of Bradley v. The Homes of Peace 1005/1978, judgment delivered 21st December, 1978 at p.13-14 (618).
129 Whilst Brinsden J made these observations in 1981, the approach to the interpretation of rules of registered organisations has remained unchanged. In Stacey, Ritter AP observed [92] – [93]:
A similar approach has been adopted by the High Court in the construction of union eligibility rules. In Re Anti-Cancer Council of Victoria; Ex Parte State Public Services Federation (1992) 175 CLR 442 at 448, Mason CJ, Brennan and Gaudron JJ said it 'is well settled that union eligibility rules are to be interpreted liberally and according to their ordinary and popular meaning'. Their Honours cited a number of decisions in support of this proposition including The Queen v Isaac; Ex Parte Transport Workers' Union (1985) 159 CLR 323 decision, where Wilson J at 340 said:-
'In construing the eligibility clause in the constitution of an organization, it is necessary to bear in mind the nature of the instrument in which the words appear and the purposes that it is intended to serve. The rule now in question bears ample indication on its face that it has been prepared without the assistance of a skilled draftsman. It has been amended from time to time, probably in response to the exigencies attending the industrial affairs of the union and without regard to the effect of the amendment on the internal consistency of the clause as a whole. It follows that the words of the rule should be given a wide meaning and interpreted according to their ordinary or popular denotation rather than by reference to some narrow or formal construction: Reg. v Cohen; Ex parte Motor Accidents Insurance Board ; Reg. v McKenzie; Ex parte Actors and Announcers Equity. Nevertheless, notwithstanding this generosity of approach, the meaning of the words remains a legal question to be determined by the application of the ordinary rules which govern the construction of written documents: Reg. v Aird; Ex parte Australian Workers' Union; McKenzie.' (Footnotes omitted)
French J in Re Election for Office in Transport Workers' Union of Australia, Western Australian Branch (1992) 40 IR 245 at 253 said that the "preferred approach to the construction of union rules which requires them to be construed not technically or narrowly but broadly and liberally and not "subjected to the same meticulous scrutiny as a deed carefully prepared by lawyers."". His Honour cited R v Holmes; Ex Parte Public Service Association (NSW) (1977) 140 CLR 63 per Gibbs J at 73 and Re An Election in the Australian Collieries Staff Association (NSW Branch) (1990) 26 FCR 499 per Lockhart J at 502. The reasons of French J were cited with approval by Mansfield J in Thomas v Hanson [2001] FCA 539 at [20]. Authorities cited by the applicant set out a similar method of approach. (Delron Cleaning Pty Ltd T/A Delron Hospitality Management (2004) 84 WAIG 2527 at [40] and FMWU v GW Smith and KJ Rose (1988) 68 WAIG 1010.
130 In construing the rules of a union a Court or Tribunal may have regard to prior amendments to the rules. In Community and Public Sector Union v EDS Australia (2003) 129 IR 7 it was accepted that the words of an eligibility clause should be given a wide meaning, being interpreted to the ordinary and popular denotation and for regard being had to the history of amendments to a rules [62]; [74] (see the discussion in Electrical Trades Union of Australia (Bowen CJ, Evatt and Deane JJ) (82 - 83)). Notwithstanding that it is permissible to have regard to any relevant history of amendments to the rules of an organisation and to the fact that the rules are usually drawn by union officials who are not trained in the drafting of legal instruments, the question of the meaning of the terms used in a rule remains a legal question (R v Aird; ex parte Australian Workers' Union (1973) 129 CLR 654, 659 (Barwick CJ).
(d) The Scope of Rule 25(f)
131 A submission is made by the applicants that if during 2007 they had resigned their employment they would not be entitled to retain membership of the Union and thus retain their positions as delegates. If the position of delegate to State Council can be regarded as an 'office' within the meaning of r 4(a)(vi) then their contention is not correct. Once elected to a position as a delegate to State Council each would be regarded as a 'person elected to an office in the State School Teachers' Union of Western Australia' within the meaning of that phrase in r 4(a)(v) and as such would retain their rights as a Full Member of the Union pursuant to r 4(a)(v) and r 5(a) of the rules of the Union. It is clear that the proviso to r 4(a) would not apply to employees of the Union or to persons holding 'office' in the Union as it is apparent from the terms of the proviso that it is intended to apply to persons who are registered for work with the Department of Education and Training or any other institution referred to in r 4(a)(i). In addition, if the proviso was to be construed to apply to r 4(a)(vi) it would mean that only employees of the Union who are registered with the Union for work are eligible to be members which would have the effect that members of the Executive would not be eligible to be members of the Union.
132 The central question in this application is quite simple and it is whether the requirement in r 25(f) that a person who is an employee of the Union who is elected to an office of the Union is required to resign their employment with the Union before commencing the term of office applies only to the Executive and the General Secretary of the Union or whether it extends to other persons who are elected to an office of the Union. In determining this issue the first and perhaps most important or determinative issue that must be considered is the meaning of the word 'office of the Union'. The parties agree that the definition of 'office' in s 7 of the Act should not be applied to ascertaining the meaning of the term 'office' in r 25(f) of the rules. It is clear to me that proposition is correct. Under s 7 of the Act offices of an organisation covered by the definition of 'office' in s 7 of the Act are subject to specific statutory duties which are imposed on industrial organisations under Division 4 of Part 2 of the Act. For example, elections must be conducted in accordance with the provisions of the Act only in relation to an 'office' as defined in s 7 of the Act. In my opinion the decision of Sharkey P in Dornan is distinguishable as the issue considered in 1992 in that matter was whether the General Secretary of the Union was eligible to be a member of the Union, which turned on whether he was elected or appointed to an office in the Union. In making the finding the General Secretary was not the holder of an 'office' within the meaning of the rules and s 7 of the Act of the Union Sharkey P had regard to the fact that at that time the position of General Secretary was not a position filled by election.
133 It is apparent when regard is had to the rules of the Union in their entirety that many 'offices' are created in the rules beyond the 'offices' and 'officers' that form part of the committee of management of the Union (the Executive). It is only 'offices' that form part of a committee of management of an organisation that are regulated by the Division 4 of Part 2 of the Act.
134 Rule 23(a) establishes the constitution of State Council. The applicants' contention that a State Council delegate is referred to holding an 'office' only once in r 23(a) is not correct. In fact the reference to holding 'office' occurs in two sub-rules. Rule 23(a)(iii) refers to delegates holding office until successors are re-elected. Rule 23(a)(xv) also has a similar requirement in relation to a casual vacancy. Whilst a State Council delegate is referred to as the holder of an 'office' twice in these clauses, I do not consider this to be material. However, it is material that r 23(a)(iii) requires that delegates to State Council be elected in accordance with the provisions of r 23 and r 32 – Elections for Office. Whilst it could be said that under r 32(a)(i) that there is a distinction between 'offices of the Union' and 'delegates to District Council and State Council and other committees or bodies as require elections', it is plain that pursuant to r 32 the nomination for election to the position of a delegate to State Council is regarded as an election to an office within the meaning of an election to an office within r 32. For example, r 32(a)(ii) provides:
(ii) Subject to Rule 21 - Branches, Rule 22 - Districts/District Council and Rule 23 - State Council all financial members of the Union shall be eligible to nominate for any Office to be filled by election.
135 Similar references to nominating for an 'office' in r 32(a)(iii), (iv) and (v) also apply to delegates to State Council. In addition the process to be adopted for the election of delegates to State Council, r 32(e)(iii) requires that the ballot paper is to list the title of the office for which an election is to be held and following each title shall list the names of candidates in sequence determined by lot by the Returning Officer.
136 There are also other references in the rules of the Union to rights and obligations in respect of an 'office' of the Union which clearly would cover the position of delegate to State Council. This includes r 5 and the entitlements of Honorary Life Members, Honorary Members, Special Category Members, Retired Teacher Members and Associate Members. In relation to each of those categories, none are entitled to stand for office or hold office. The wording in relation to each of those categories is not exactly the same. For example, Honorary Life Members are prohibited from standing for office, whereas Honorary Members are not entitled to be represented at State Council or to hold Union office or to vote in elections for Union office. Special Category Members are prohibited from holding Union office or voting at elections for a Union office. Retired Teacher Members are not eligible to stand for election to any office of the Union or to vote at such an election. Associate Members are not entitled to be represented at conference nor are they eligible to stand for election to an office of the Union or vote at such elections.
137 When the duties and powers of State Council under r 23 are analysed it is clear that duties of a delegate to State Council carries a substantial degree of responsibility. The duties and powers are not diluted by the fact that State Council only meets twice a year or by the fact that there are a large number of delegates to State Council. State Council is a body that is not only the supreme decision making authority of the Union but also has a specific power to make decisions and give directions to the Executive. Pursuant to r 24 – Powers of Executive the Executive is required under r 24(b)(i) to abide by and conform to all decisions and directions of the State Council. State Council under r 23(b) has the power to control and manage the business and affairs of the Union. In participating as a member of State Council a delegate as part of State Council, has the power to exercise collectively with other delegates and other members of State Council significant powers. In contrast, there are no provisions of the rules of the Union that expressly use the term 'office' as referring only to a member of the Executive or to the General Secretary. From these provisions a strong inference can be drawn that a delegate to State Council can be described as the holder of an 'office'. In considering this issue it is also of assistance to have regard to the history of the making of r 25(f) and r 25(g) together with the making of r 4(a)(vi).
138 Prior to the making of r 19(h) and (i) (which is now r 25(f) and r 25(g)) in 1994 an alteration to the rules of the Union was endorsed at the Union's annual conference in 1991 to create a special category of membership for employees called 'Appointed Members'. Appointed Members included those who were employed by the Union but who were restricted from being able to attend conferences, to become delegates or from being allowed to stand for office. In the 1993 Rule Change Case, the Union sought to register an alteration to the rules to delete the Appointed Members clause which would have the effect of giving full membership rights to persons employed by the Union as a General Secretary, an advocate, an organiser, a research officer, a librarian or a women's officer. When this application was considered by the Full Bench r 19(h) and r 19(i) had not been registered. The Full Bench in the 1993 Rule Change Case refused the application to delete the Appointed Members clause. Commissioner Fielding observed that one of the reasons for refusing the application was that the proposed change gave rise to the potential for a conflict of interest. In particular he said:
Rule 28 of the Applicant's Rules effectively gives the General Secretary responsibility, 'subject to the authority of Executive', to manage the day to day affairs of the Applicant, including the right to appoint and dismiss employees, other than those appointed by conference or elected by the membership. If, as seems possible, the General Secretary and certain other employees, some of whom by virtue of their job have a high profile in the Union, could theoretically form the majority of the Executive, there could well be difficulties in managing properly the affairs of the Applicant. As the Objector puts it, 'the independence of the Union's Executive will be potentially compromised by persons attempting to be both master and servant with resultant legal and operating difficulties' for the Applicant (1476).
139 In the 1993 Rule Change Case the Full Bench rejected the application because there were no safeguards to protect the Union from being controlled by the employees; that Full Member entitlement would extend only to a few selected employees; and there was potential for membership overlapping with other organisations. The following year the Union brought a second application to amend the rules in a similar, but not identical, vein. In the 1994 Rule Change Case, the Union sought to register a variation to the rules of the Union that would delete the Appointed Members clause and to exclude from membership those employees eligible for membership of the Federated Clerks' Union of Australia, Industrial Union of Workers, WA Branch. The application failed on procedural grounds as the Full Bench was not satisfied that the application was authorised in accordance with the rules of the Union.
140 On 12 August 1994, a Deputy Registrar of the Commission registered alterations to the rules pursuant to s 62 of the Act in APPL 409 of 1994. Among the alterations registered were the additions to the rules in r 19(h) and r 19(i) and the creation of State Council.
141 It is notable that at the time r 19(h) and r 19(i) were made employees of the Union could not stand for office as a member of the Executive or State Council because at that time Appointed Members were defined under r 4 of the rules as 'any employee of the SSTUWA appointed to a position as General Secretary, Industrial Advocate, Industrial Organiser, Librarian, Industrial Research Officer or Women's Officer'. Pursuant to r 5(g) – Entitlements, Appointed Members whilst entitled to all the rights, privileges and benefits of the membership of the Union had no right to attend State Council as a delegate or to stand for office. At that time no employees of the Union could stand for office as a member the Executive as the only employees of the Union who were able to be members of the Union were Appointed Members. When r 19(h) and r 19(i) came into effect in 1994, the only office for which an Appointed Member could nominate would have been the position of General Secretary because at that time r 26(e) expressly provided:
Notwithstanding the provisions of any other rule, the persons eligible to nominate for the position of General Secretary shall be:
(i) all financial Members, and/or
(ii) any employee of the SSTUWA, and/or
(iii) for the purposes of the first such election only, the person holding the appointed position of the General Secretary immediately prior to that election.
142 As set out in the applicants' submissions this sub-rule of r 26 was created by the registration of the amendments of the rules in APPL 409 of 1994. Importantly, this amendment was made at the same time as the alterations to the rule which brought into effect r 19(h) and r 19(i) (now r 25(f) and r 25(g)). It is of interest that the reason given for the creation of r 19(h) and r 19(i) was that the Executive wished to ensure that any employee who nominated for Executive office and vice versa could not face a conflict of interest between their duties as an employee and their duties as an Executive member. A General Secretary is not a member of the Executive and was not a member of an Executive at that time. Consequently, the reasons given to the annual conference in 1993 did not with respect make a great deal of sense because at that time r 5(g) prohibited employees of the Union who were members of the Union, to stand for office. Consequently, it could not be said that r 19(h) would operate in the way contemplated in the reasons given to the membership when those amendments were considered by the members of the Union. For this reason the stated reasons for the amendment to create r 19(h) and r 19(i) are not of assistance in this matter.
143 It is also notable that in the 1994 Rule Change Case the Full Bench had regard to the application before the Registrar in APPL 409 of 1994. At page 1731 of the 1994 Rule Change Case the Full Bench observed that an application had been made to the Registrar to vary r 19 which governs the rights and obligations of officers so as to stipulate that an officer of the Union cannot also be an employee of the Union. In respect of that proposed change to r 19, the Full Bench whilst it rejected the application to register the amendments to delete the category of Appointed Members, observed in relation to the proposed changes to r 19:
Although we continue to doubt the wisdom of members of a union being employees of that union, the Full Bench in The Civil Service Association of Western Australia Incorporated v. Federated Clerks' Union of Australia, Industrial Union of Workers, WA Branch and Another (1991) 71 WAIG 1780 sanctioned such an arrangement with safeguards of the kind now proposed and in the interests of consistency the Full Bench should not, without good reason, adopt a different course on this occasion. The proposed change to Rule 19 would, if made, effectively achieve the same safeguards, albeit it somewhat obtusely, as those found to be acceptable by the Full Bench in The Civil Service Association of Western Australia Incorporated v. Federated Clerks' Union of Australia, Industrial Union of Workers, WA Branch and Another (supra). Thus if and when the Registrar registered the alterations to Rule 19, the grounds of the objection based on employees holding office in the Union would lose its force (1732).
144 The decision given by the Full Bench in The Civil Service Association of Western Australia Incorporated v Federated Clerks' Union of Australia, Industrial Union of Workers, WA Branch (1991) 71 WAIG 1780 is not of assistance in this matter. When the reasons of the Full Bench are reviewed it appears the Full Bench did not deal with or consider whether employees could hold any office in the Civil Service Association of Western Australia Incorporated other than President, Senior Vice President, Junior Vice President, Honorary Treasurer or Executive Committee member. The objection made in that case and the issue of concern discussed in that matter was whether an employee could interfere in an election as an employee.
145 In the 1998 Rule Change Case, Sharkey P, who was in the minority, considered the history of the applications made by the Union to alter the rules to allow for employees of the Union to become Full Members. After considering the passage referred to by the Full Bench in the 1994 Rule Change Case, Sharkey P observed:
By virtue of rule 4(g), any employee of the applicant organisation who is appointed to a position as general secretary, industrial advocate, industrial organiser, librarian, industrial research officer or women's officer becomes an appointed member of the applicant organisation.
By virtue of rule 5(g), there is no limitation on the rights, privileges and benefits of that membership, except that they have no right to attend State Council as a delegate, and they have no right to stand for office.
Those rules are in conflict with rule 26(f) and (g). Under rule 26(f), an employee who is elected to an office of the "union" is required to resign his/her employment by no later than the day that that person commences his/her term of office. However, as rule 4(g) reads, an employee cannot stand for office. By virtue of rule 26(g), any elected officer of the "union" who is appointed as an employee ceases automatically to hold office on and from the day when he/she commences that employment. Again, the sub-rule has no effect currently because an employee cannot stand for office, let alone occupy office.
If rule 4 is authorised to be altered in terms of the application herein, then an employee will be able to hold office and will be able to be an officer if elected as a delegate and a member of State Council, the governing body of the applicant organisation, provided that he/she resigns if elected (see rule 26).
However, employees would also remain as appointed members with the restrictions placed on that membership until rule 4(g) and/or rule 5(g) are altered. That by itself is an unsatisfactory state of affairs causing uncertainty and ambiguity which militate against me finding for the applicant organisation.
I am persuaded that weight should be attached, as it was in Re an application by the CSA (op cit) (FB), and as it was expressed in Re an application by the SSTUWA 73 WAIG 1471 at 1475-1476 (FB), to the undesirability of employees as distinct from officers being made ineligible for membership. The misgivings expressed in those cases by the Full Bench arise from the facts similar to those in this case. I do not think that it contributes to the democratic control of the applicant organisation that employees should be able to find a path in their employment to office in the applicant organisation, nor that they should have any role but to serve the applicant organisation. There are undesirable potential conflicts for employees who might be eligible for and might be intent on seeking office. Having the employees as members of the State Council, which they are bound to serve, is illustrative of this. That this problem was recognised by the Full Bench in Re an application by the CSA (op cit) (FB) is significant. Nothing was said to distinguish that decision from this as a matter of principle, or to persuade me that it should not be applied.
Not all sets of rules to which I have referred or been referred provide for the organisation's employee membership is of interest. Indeed, some are more exclusive of the membership of employees than the current rules of the applicant organisation. That the applicant organisation has been pursuing this alteration consistently is relevant, but not significant in the light of the factors to which I refer. The number of employees involved presently does not detract from the obvious significance of organisers and advocates as employees in the scheme of things, and the potential influence which such employees can wield.
The current rules, unaltered, enable employees to enjoy the benefits of membership now. Employees are precluded from standing for office. However, there is nothing to prevent their resigning, becoming full members, and being elected to office. (That situation is a situation which I said might obtain) (see Re an application by the SSTUWA 73 WAIG 1471 at 1475 (FB)). The status quo is not unfavourable to employees. They have a right to vote in elections, for example.
I am not, having regard, as I do, to all of the evidence, all of the submissions and all of the authorities, and having regard to s.6(a), (c), (e) and (f) of the Act, including the welfare of the applicant organisation from the direct evidence and the inferences which I have drawn, persuaded by the applicant organisation that its case for alteration, by the insertion of the new rule 4(a)(vi), is made out.
I am satisfied that an appropriate form of membership for employees is that which is contained in the CSA's rules and which in another and similar form seems to be contained in the applicant organisation's rules. I would, for those reasons, dismiss the application (1127).
146 The essence of Sharkey P's reasons for decision seems to be that he was of the view that it was undesirable that employees of the Union have a career path which took them from being employees to being an officer of the Union. This was not an issue that Fielding SC was concerned with. Senior Commissioner Fielding took a different view in his reasons which formed the majority view of the Full Bench as Parks C agreed with the reasons given by Fielding SC. Senior Commissioner Fielding was concerned as to whether it was important that a person should not be both an employee and a member for management committee of the Union as a potential for conflict of interest in such circumstances was obvious. He was of the opinion that r 26(f) and r 26(g) of the rules made it plain that a conflict of interest that the Full Bench had been concerned with previously would not arise. Whilst Fielding SC made observations about r 26(f) and r 26(g) in respect of prohibition in respect of becoming a member of the Executive committee and vice versa, he did not consider the position of whether an employee would be prohibited from holding office as a delegate to State Council whilst being an employee. Senior Commissioner Fielding's reasons for decision were largely concerned with the desirability of whether employees of the Union should be able to join and become members of the Union who is their employer. For this reason I am of the view that the reasoning of Fielding SC in the 1998 Rule Change Case can be confined to a finding that r 25(f) only applies to employees of the Union who stand for and are elected to office as members of the Executive and did not consider the issue whether r 26(f) (now r 25(f)) requires an employee elected to the position of delegate to State Council to resign by no later than the day that person commences his or her term of office.
147 What, however, is the effect of the amendments made in the 1998 Rule Change Case? Is it open in any event to infer from the effect of the amendments made by the registration or the alterations of rules in the 1998 Rule Change Case that r 25(f) only applies to the Executive and to the General Secretary? After carefully considering the whole of the rules of the Union together with the history of amendments to r 25 and r 4, I have concluded that the answer to that question is no. I am not persuaded that the applicants' contention that r 25(f) should be construed as confined to the 'offices' of the Executive and the General Secretary. Whilst it is agreed that each holder of a position in the Executive and the General Secretary is the holder of an 'office' within the meaning of r 25(f) it is clear that r 25(f) is not restricted in application to these 'offices'. If it were otherwise r 25(f) could have been expressed to say so in the same way that the prohibition in r 25(b) is expressed only to apply to the member of the Executive. Rule 25 is not a rule that can be said in any sense to establish and deal with all of the rights and duties of the Executive and the General Secretary. Their powers and duties are contained in a number of rules outside of r 25.
148 When regard is had to the whole of the rules of the Union, I am satisfied that the position of delegate to State can be characterised at common law as an 'office'. The applicants' contention that State Council delegates do not carry the weight of responsibility, authority and profile that members of the Executive and the General Secretary do, may be correct in one sense, in that the Executive is a smaller body that meets more often than State Council. However, it does not follow that members of State Council do not have a substantial degree of responsibility. A State Council as a body is able to direct the members of the Executive and the members of the Executive are required by the rules to carry out those directions. Consequently a conflict of interest is likely to arise if an employee of the Union is able as part of a collective body to direct the management body of the Union. In such a capacity the employee delegate to State Council would be both employer as part of a collective body and employee.
149 The application of r 5(a) – Entitlements of Full Members does not assist the applicants' argument as the 'rights, privileges and benefits of membership' is subject to the conditions set out in the rules that attach to those rights, privileges and benefits. Rule 25(e) and r 25(f) applies to all Full Members and is a condition to a right of all Full Members to hold office, or to become an employee of the Union.
150 By deleting r 5(g) – Appointed Members in 1998, employees of the Union gained the right to stand for office but they did not obtain the right to attend State Council as a delegate whilst they remained an employee because of the operation of r 25(f).
151 It is also apparent the rules should not be read in the manner contended by the applicants as such a narrow construction would lead to an odd construction of r 23(b)(iv), if pursuant to r 23(b)(iv) State Council could only dismiss persons elected to office as a member of the Executive and the General Secretary and not delegates to State Council. To construe the rules to read the term 'office' as not applying to delegates to State Council would mean that State Council and the Executive acting through r 24(d) (now r 24(b)) could not dismiss a delegate to State Council where that delegate had been found guilty of misappropriation of the funds of the Union, or a substantial breach of the rules of the Union, or a serious and wilful misconduct or neglect of duty.
152 It is immaterial that employees of the Union had attended State Council as delegates without objection prior to 2007, as past practice cannot stand as a bar to the plain and ordinary meaning of a rule. There is no provision in the rules from which an inference can be drawn that the concept of 'office' in r 25(f) is to be read more narrowly than the concept of 'office' in r 32(a)(ii) as r 32(a)(ii) applies to the office of State delegate. There is nothing in this sub-rule or in r 25 or any other rule of the Union that expresses an intention that the meaning of the word 'office' in r 25(f) should be different to the meaning of the word 'office' in r 32(a)(ii).
153 In addition it is not material that this dispute was not referred to a Dispute Resolution Committee convened under r 12 of the rules of the Union as there is a specific power in r 23(b)(iv) and r 24(d) (now r 24(b)) to dismiss a person from office where that person is not eligible to hold office.
154 Sections 6(ab) and s 6(f) of the Act do not assist the applicants in their argument as s 6(ab) and s 6(f) can not be construed to entitle employees of an organisation to participate in decisions of decision-making bodies of an organisation without regard to the principles that apply to conflicts of interest.
155 Given that little if any evidence was given about the duties and functions of the positions that constitute various committees of the Union, it is not open in these proceedings to determine whether the holder of any of these positions on the various committees could be considered to be a holder of an 'office' within the meaning of the rules.
(e) Procedural Fairness
156 The minutes of the meeting of the Executive on 3 and 4 August 2007 record that the Executive received the report which set out a summary of advice about holding of an elected office by an employee. It is apparent from the minutes and from the evidence given in these proceedings that no decision was made at that meeting other than to receive the report as the interest of the applicants were not affected by the mere provision of the report.
157 In these circumstances, it is not until a decision maker proposes to act on the report that a duty to provide procedural fairness arises. The applicants were provided with a copy of the report prior to the Executive making a decision about the matters raised in the report. The applicants were also provided with an opportunity to provide a written submission to the Executive prior to the Executive making its decision which they took up and provided a written submission to the Secretary by letter dated 5 September 2007 (Exhibit 4, document TM14).
158 A duty to act fairly does not extend to any duty to allow the applicants to participate in any meeting of the Executive, only to allow the applicants to be heard. At common law a duty to be heard can be satisfied by an opportunity to provide a written submission. The SSTUWA Administrative Instruction 800.33 does not extend the duty to act fairly and be heard, as a right to be directly involved in a decision, to participating in the making of a decision by the Executive. In any event the SSTUWA Administrative Instruction 800.33 arguably did not apply to the decision made by the Executive, as the Instruction only applies to the organisation in its capacity as an employer. The decision in question was not a dismissal of an employee by an employer.
159 The applicants also take issue with the decision made by State Council to endorse the decision made by the Executive on grounds of a failure to accord procedural fairness. This argument with respect is also groundless as the decision made by the Executive to dismiss the applicants from office by its terms took effect on 14 September 2007. All that occurred at the November meeting of State Council in 2007 was that State Council received a report that the decision had been made. The fact that State Council passed a resolution to endorse the decision of the Executive had no effect in law as the Executive was expressly empowered by r 24(d) and r 23(b)(iv) of the rules of the Union to exercise the power of State Council to dismiss the applicants from office.
160 For these reasons I will make a declaration that the true interpretation of r 25(f) is that the word 'office' includes the office of delegate to State Council.