2010 WAIRC 00373

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PRESIDENT

CITATION : 2010 WAIRC 00373

CORAM
: THE HONOURABLE J H SMITH, ACTING PRESIDENT

HEARD
:
FRIDAY, 18 JUNE 2010

DELIVERED : FRIDAY, 25 JUNE 2010

FILE NO. : PRES 3 OF 2010

BETWEEN
:
WARREN DE PRAZER
Applicant

AND

WESTERN AUSTRALIAN RAILWAY OFFICERS' UNION
Respondent

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 - Scope of power to make an order or give directions relating to non-observance of rules - The effect of Branches of the Union ceasing practically to exist - Council and Delegate Conference unable to convene a quorum - Declaration of interpretation of rules made - Order made to rectify non-observance of rules to enable organisation to function - Turns on own facts. Industrial Relations Act 1979 (WA) s 6(f), s 66, s 66(2), s 66(2)(d).
Result : Declaration and Order made
REPRESENTATION:
APPLICANT : MR D H SCHAPPER (OF COUNSEL)
RESPONDENT : MS P BYRNE (AS AGENT)

Reasons for Decision
THE ACTING PRESIDENT
1 This is an application by Warren de Prazer (the applicant) made pursuant to s 66 of the Industrial Relations Act 1979 (WA) (the Act). The applicant is the General President of the Western Australian Railway Officers’ Union (the Union), the respondent to this application. Pursuant to r 22(a) of the rules of the Union the General President is the recognised head of the Union.
2 The Union and the Australian Municipal, Administrative, Clerical and Services Union of Employees, W.A. Clerical and Administrative Branch (State registered Branch of the ASU) made an application on 19 April 2010 to amalgamate and form a new organisation to be known as the ‘Western Australian Municipal, Administrative, Clerical and Services Union of Employees’. The application is listed for hearing before a Full Bench on 2 July 2010 (FBM 2 of 2010). Part of the procedural and substantive requirements for amalgamation is that the governing bodies of each organisation must convene meetings to make particular resolutions and approve new rules for the new organisation. As part of that process members of the Council and Delegate Conference of the Union met on 31 March 2010 to consider and make a number of resolutions. Following the meeting an issue arose as to whether the meeting was validly held and whether the resolutions passed were valid. The issue of validity in this matter is whether the officers of the Union present at the meeting of Council and the Delegate Conference constituted a quorum as required by r 8(b) and r 12(o) of the rules of the Union. A quorum for Council is, notwithstanding any vacancy, no less than five members, exclusive of members of the Executive (r 12(o)). A quorum for Delegate Conference is the ‘representatives of not less than 75 per cent of the Branches’ (r 8(b)). Rule 33 of the rules of the Union provides for 14 Branch Districts until such time as Council otherwise determines (see also r 32(a)). Other than the Administrative Branch District, all Branch Districts ceased to exist some time prior to May 1997. However, the 'defunct' 13 Branches of the Union were not formally closed by Council pursuant to its power to form and close Branches of the Union under r 32(a). Although the Branches had not been formally closed, in 2009 when the last election of officers occurred it was only practically open to elect one Branch Conference Delegate and one Council Delegate.
3 The applicant seeks a declaration that the true interpretation of the rules of the Union pursuant to s 66(2)(e) of the Act that the words ‘Branch’ and ‘Branches’ in r 8 and r 11 be construed as a Branch or Branches that are as a matter of fact extant and not to all of the 14 Branch Districts referred to in r 33. The applicant contends that r 32 and r 33 cannot operate to continue Branches of the Union that as a matter of practicality have ceased to exist.
4 The application also seeks the following declarations and orders:
1. A declaration that the meeting of the Respondent's Officers held on 31 March 2010 was a valid meeting of the Respondent's Conference and Council and the resolutions passed at that meeting are valid.
2. Alternatively, the applicant seeks an order that the meeting of the Respondent's Officers held on 31 March 2010 be deemed to be a valid meeting of the Respondent's Conference and Council and the resolutions passed at that meeting are deemed to be valid.
5 Pursuant to the rules of the Union, officers of the Union hold office for a period of two years. Prior to 2009, office holders of the Union were last elected to office in 1996. The failure of the Union to comply with its rules and the provisions of the Act seems to have occurred as the Federal registered body of the ASU had coverage of railway officers and the ‘business’ of the Union has been largely conducted by the ASU under the provisions of the Industrial Relations Act 1988 (Cth) and the Industrial Relations Act 1996 (Cth) which later was renamed the Workplace Relations Act 1996 (Cth).
6 The Union through its General Secretary filed a counter proposal stating it agrees with and consents to the claim. The agent for the Union, Ms Byrne, informed the Commission that the Union supports the application and submissions made by counsel on behalf of the applicant, Mr Schapper.
7 In an affidavit sworn by the applicant on 3 June 2010 the applicant deposes that elections for all offices within the Union were recently conducted by the WA Electoral Commission. Annexed to the affidavit and marked WDP1 is a train of correspondence showing the process of calling and conducting an election. On 6 August 2009, a request was made by the Union to the Registrar of this Commission for the conduct of an election under s 69 of the Act. In documents annexed as WDP1, evidence is produced that the current holders of office of the Union were declared to be duly elected unopposed by a Returning Officer of the Western Australian Electoral Commission on 16 September 2009. The positions elected were as follows:
General President
General Vice-President
General Secretary
General Treasurer
Conference Delegate
Council Delegate
8 At the request of the Union the election of a single Council Delegate and a single Conference Delegate was held. The Union currently only has 218 members. In the affidavit of the applicant he states that for many years the affairs and business of the Union have been conducted on the basis that all members of the Union are within one Branch. This has occurred because the overwhelming majority of members of the Union are employed by the Public Transport Authority Centre in East Parade, East Perth and the practice of treating all members as belonging to one Branch has evolved as the Union’s membership evolved with changes in Westrail occurring over a period of years. These changes included privatisation of the non-metropolitan services and restructuring within the organisation which was Westrail, now the Public Transport Authority.
9 It appears from documents produced at the hearing of the application that the Union and the Federal registered body of the ASU effected a de facto amalgamation in 1992. On 15 October 1992 in a formal deed of agreement executed by the Australian Municipal, Transport, Energy, Water, Ports, Community and Information Services Union (the then Federal registered body of the ASU) and the Union, the parties to the deed agreed to amalgamate and admit all members of the Union as members of the Federal registered body of the ASU (Exhibit 1). Arrangements were also made in the deed, among other matters, for the Federal registered body of the ASU to employ staff of the Union, for the collection of subscriptions and the transfer of property from the Union to the ASU. It was also agreed in the deed that all current Branches of the Union would be established as Sub-Divisions of the Federal registered body of the ASU (clause 17, Exhibit 1). However, the Federal registered body of the ASU underwent restructuring and by June 1997 all Branches of the Union except the Administrative Branch in East Parade, East Perth ceased to exist.
10 Part of the history of the move towards formalising the amalgamation is reflected in minutes of a meeting of the Branch Executive of the ASU on 17 June 1997 where the following report and recommendations were made (page 6, Exhibit 2):
RECOMMENDATIONS:
1 THAT THE WESTAUSTRALIAN RAILWAY OFFICERS UNION
THE METROPOLITAN TRANSPORT TRUST OFFICERS ASSOCIATION
THE FEDERATED CLERKS UNION (need to check full names)
(a) AMALGAMATE WITH THE METROPOLITAN TRANSPORT OFFICERS ASSOCIATION AND THE FEDERATED CLERKS UNION
(b) AMALGAMATE WITH THE WEST AUSTRALIAN RAILWAY OFFICERS UNION AND THE FEDERATED CLERKS UNION
(c) AMALGAMATE WITH THE WEST AUSTRALIAN RAILWAY OFFICERS UNION AND THE METROPOLITAN TRANSPORT TRUST OFFICERS ASSOCIATION
2. THE NEW AMALGAMATED UNION BE KNOWN AS THE AUSTRALIAN SERVICES UNION (WESTERN AUSTRALIA)
3. THAT A BALLOT OF MEMBERS BE CONDUCTED BY THE WA ELECTORAL COMMISSION
4. THAT THE AMALGAMATION PROCESS BE FINALISED, IF POSSIBLE BY DECEMBER 1997
The amalgamation of State Unions with the Federal ASU has been controlled on an administrative basis by the National Office of the ASU.
The amalgamation of the WA Railway Officers Union and the MTT Salaried Officers Association was subject to a ballot of members conducted by the Electoral Commission. All members of the State Registered Unions are members of the Federal Union.
Prior to the amalgamation ballot the amalgamating parties entered into a memorandum of agreement which dealt with such things as property, finances and method of operation.
In terms of the Federated Clerks Union, it is understood that the State Registered union had applied many years ago under Section 71 of the W.A. Industrial Relations Act to allow the State Union to operate under the Federal Unions rules. Section 71 allows the State Union to provide the information of the Federal Union to comply with the Act. The compliance is in terms of office bearers, numbers of members as at the 1st of January in each year and financial obligations.
No such request was made on behalf of the WA Railway Officers Union or the MTT Salaried Officers Union.
The breach has occurred in the financial reporting obligations of these two unions. The deputy registrar advises that the financial arrangements entered into at the time of amalgamation does not provide sufficient defence in not making a report. The MTTSOA and the WAROU by virtue of the memorandum of agreement have limited monies allocated to them to operate the specific needs of the State Registered Unions and although it was submitted to the Deputy Registrar that this reflects the arrangement made at amalgamation the two state registered unions are in breach of the act.
The other problem arises in the area of election of office bearers for the WAROU. Elections were called in September 1996 and the only position that was filled was the position of General President. Norm Pearson was elected unopposed to the position. The positions of General Vice President and General Treasurer were not filled.
A decision was made by the WAROU at the time of the redundancy of Tony Borger as General Secretary of the WAROU and the Assistant Secretary (Rail) of the Rail Industry Division not to fill the position of General Secretary but to delete that position as a paid position and amend the rules to reflect the position as honorary. The records show that Grant Whiteaker assumed the position of Honorary General Secretary until his resignation from the union earlier this year. Paul Burlinson has since been appointed as the Honorary General Secretary. The only problem is that the rules do not appear to have been amended to reflect this change.
The WAROU rules appear to be silent as to the filling of the Committee members representing the various Branches. Our records show that there has not recently been an election for the Committee members.
The Branch Committees for the State Unions need to resolve to take steps to ensure compliance with the State Act. The recommended path is for the state unions to resolve to amalgamate with each other and thereafter make application to the State Commission under s71(5) and subsequently s71(8).
The Deputy Registrar has been very helpful in assisting the Branch to sort out what could be potentially a difficult problem for the State Unions. The relevant Statutory Declarations have been made to the State Commission to the best of our knowledge. The Deputy Registrar is aware that we are not able to comply with the financial reporting obligations for the WAROU and the MTTSOA.
A copy of the Statutory Declarations is attached this report, along with a covering letter sent to the Commission.
I have advised the National Office of the difficulties the amalgamations have caused in ensuring compliance under the state Act. Their response is not yet available but will be forwarded to the Committees when received. It would not appear that the National Union will have a great deal of authority when it comes to the decision of the State Unions to amalgamate but as a courtesy they should be advised.
A copy of section s71(5) and s71(8) are attached to this report.
11 Despite the report being considered by the ASU in 1997, no formal steps were taken to effect and complete the amalgamation process at law until 2009, when the Union sought to take steps to comply with the provisions of the Act by calling an election. It is apparent, however, that from 1992 the Union had amalgamated with the Federal registered body of the ASU on a ‘de facto’ basis.
12 After officers of the Union were elected in 2009, the Union took steps to complete the procedural steps necessary to regularise the amalgamation. On 3 March 2010, the General Secretary of the Union caused to have posted to every member of the Union at their home address a notice to members. The notice is annexed as WDP2 to the affidavit of the applicant. The notice informs members that a meeting of Council and Delegate Conference of the Union was to be called to consider and decide upon a proposal for the Union to amalgamate with the State registered Branch of the ASU. The notice states as follows:
WESTERN AUSTRALIAN RAILWAY OFFICERS' UNION
NOTICE TO MEMBERS
PROPOSED AMALGAMATION WITH THE AUSTRALIAN MUNICIPAL,
ADMINISTRATIVE, CLERICAL AND SERVICES UNION OF EMPLOYEES,
W.A. CLERICAL AND ADMINISTRATIVE BRANCH
Take notice that on 31st March 2010 the Council and the delegate conference of the Western Australian Railway Officers' Union ('the Union") is to consider and decide upon a proposal for the Union to amalgamate with the Australian Municipal, Administrative, Clerical and Services Union of Employees, W.A. Clerical and Administrative Branch
The proposed name of the proposed amalgamated union is the Western Australian Municipal, Administrative, Clerical and Services Union of Employees.
The proposed rules of the proposed amalgamated union are attached.
The reason for the proposed amalgamation is to, as far as possible, bring the arrangements of the union within the WA State jurisdiction into line with those that apply in the Federal jurisdiction and to increase efficiencies in the operation of the union.
Members are advised that they may object to the proposed amalgamation or to the proposed application to the WA Industrial Relations Commission to register the proposed amalgamated union or to the proposed rules or any of them by forwarding a written objection to:
1. the Secretary of the Union at Kenafick House 102 East Parade East Perth; and/or
2. the Registrar of the WA Industrial Relations Commission at 111 St Georges Terrace Perth
to reach either or both of them no later than 21 days after receipt of this notice
13 In accordance with the notice to members, the elected members of Delegate Conference and Council met on 31 March 2010. At the meeting a number of resolutions were considered and carried. The minutes of the meeting of the Delegate Conference and Council are annexed to the affidavit of the applicant and marked WDP3. The minutes state as follows:
WESTERN AUSTRALIAN RAILWAY OFFICERS' UNION
MEETING OF WAROU COUNCIL and WAROU DELEGATES' CONFERENCE.
Minutes of Council and Delegate Conference meeting held at 12.00pm, 31st March, 2010 at the PTA Building, West Parade, Perth.
ATTENDANCE: Warren De Prazer (General President), Mudji Nielsen (General Secretary), Doug Burrows (General Vice President,) Margaret Stuart (General Treasurer), Mark Madden (Council Delegate), Grace Perrozzi (Conference Delegate).
Pat Byrne from the ASUWA was also in attendance as an observer.
The Council Meeting/Delegate Conference opened at 12.00 with the General President in the chair.
1. PROPOSED AMALGAMATION:
i) That this union do amalgamate with the Australian Municipal, Administrative, Clerical and Services Union of Employees, WA Clerical and Administrative Branch.
(Burrows, Madden)
CARRIED UNANIMOUSLY.
ii) That the rules of the amalgamated union be those circulated to members and attached hereto.
(Burrows, Madden)
CARRIED UNANIMOUSLY.
iii) That an application to the WA Industrial Relations Commission to register the proposed amalgamated organisation be authorised.
(Burrows, Madden)
CARRIED UNANIMOUSLY.
The Delegate Conference closed at 12.20pm.
The Rules of the Union
14 Branches of the Union consist of all members of the Union as defined under Branch Districts in r 33 (r 32(b)). Pursuant to r 33, until Council otherwise determines, Branch districts are defined as:
Administrative:- All officers employed in the offices of the Secretary for Railways, Director Rail Operations, Chief Civil Engineer, Director Marketing, Chief Mechanical Engineer (excluding Artisan Officers), Communications and Signals Engineer, Manager Human Resources and Director Urban Rail Development.
Finance and Accounting:- All officers employed at Westrail Centre in the office of the Director Finance, Accounting and Supply.
C.M.E.; Supply:- All officers (not elsewhere provided for) attached to the Chief Mechanical Engineer, Finance, Accounting and Supply Directorate and C.C.E. Branches in the Midland area.
Mechanical:- All artisan officers attached to the Mechanical and Stores Branches, Metropolitan area and C.E. Branch, Midland area.
Forrestfield:- All officers stationed at Forrestfield and Artisan Officers employed at Kewdale.
Fremantle:- All officers employed at stations and depots Claremont (inc.) to Mundijong (exc.) via Fremantle.
Kewdale:- All Traffic and Marketing Director's officers employed at Freight Terminal Kewdale.
Perth:- All officers (except those elsewhere provided for), employed at stations and depots Subiaco to Moora (inc.) Perth to Pinjarra, Toodyay west to Miling and Road Service Depots, East Perth, and Union head office staff.
Northam:- All officers employed at stations and depots - Avon Yard to Hines Hill, and Mukinbudin, Goomalling to Dallwallinu and Kalannie. Great Southern line Avon Yard to York and Quairading.
Merredin:- All officers employed at stations and depots - Merredin to Southern Cross (inc.); Merredin to Narembeen (inc.); Merredin to Bruce Rock; Merredin to Trayning.
Kalgoorlie:- All officers employed at stations and depots - east of Southern Cross.
Narrogin:- All officers at stations and depots - Beverley to Albany including all branches except as shown in Bunbury and Merredin.
Bunbury:- All officers employed at stations and depots - Bunbury to Northcliffe; Boyanup to Busselton to Nannup: Donnybrook to Kojonup; and all officers employed at stations and depots - Pinjarra (exc.) to Collie via Brunswick Junction.
Geraldton:- All officers at stations and depots - Watheroo to Geraldton and Geraldton to Wubin (inc.).
Members transferred from within the limits of one Branch to within boundaries of another shall thereupon become members of latter Branch.
15 The formation and closing of Branches is entirely at the discretion of Council (r 32(a)).
16 Pursuant to the rules of the Union, the committee of management of the Union is the Council. The powers of the Council are contained in r 12 of the rules of the Union. The Council is constituted by the General Officers who are the Executive Officers of the Union (r 11). Executive Officers are the General President, General Vice-President and the General Treasurer. The ordinary members of Council are Delegates who are elected from each Branch of the Union (r 11(c)(i)) and the Union member on the Railways Classification Board (r 11(e)). It is common ground that as only one Branch of the Union exists in practice in 2010 that Council could not and cannot convene a quorum as r 12(o) requires that five members of Council be present in addition to the Executive Officers. As there is no elected and appointed member on the Railways Classification Board and only one Delegate to Council, a quorum of Council cannot be convened, as five ordinary members of Council or four ordinary members of Council and the member on the Railways Classification Board must attend to constitute a quorum.
17 Pursuant to r 8(a) of the rules of the Union, Delegate Conference is composed of a delegate from each Branch of the Union, together with the Executive Officers, and Union member on the Railways Classification Board. The Executive Officers and the Union member on the Railways Classification Board have no entitlement to vote at a meeting of Delegate Conference, except the General President, who has a casting vote (r 8(e)(iv)). A quorum of Delegate Conference is pursuant to r 8(b) not less than 75 per cent of the representatives of the Branches.
18 No procedure for the approval of rules of a proposed amalgamated organisation is prescribed by the rules of the Union. Nor is any specific procedure prescribed for the approval of a proposed amalgamation.
19 Delegate Conference is the supreme governing body of the Union whilst the Council is the committee of management of the Union. The whole arrangements of the business and control of the Union is vested in the Council under r 12. In addition, it also has specific powers in relation to specific matters in r 12(a) to r 12(n). Delegate Conference can exercise any of the powers of Council and among other matters, it has the power to amend, rescind and make rules (r 9(a) and r 10). However, the power to amend, rescind and make rules must be a power that relates to the rules of the Union and not the rules of a new organisation. In any event, the applicant says that the process for alteration of rules prescribed in r 10 was followed by the Union when Council and Delegate Conference considered the proposed amalgamation on 31 March 2010.
20 Rule 10 provides:
ALTERATION OF RULES
10. (a) (i) The Union shall have the right to makes Rules for its own use and guidance. Rules may be amended, add to, varied or repealed by notice of any proposed alteration to the Rules been given by any member to the Branch Secretary in writing. The same shall be forwarded to General Secretary and laid before the next meeting of the Council and before a Conference of the Union which may amend, add to, vary or rescind the Rules or any part of them in accordance with the proposal in the said notice of any reasonable amendment of same.
(b) (ii) No amendment, addition to, variation, repeal or substitution of these Rules shall be made unless a notice of the proposed alteration, and the reasons therefore is:
(a) sent to each work place for the attention of all members; or
(b) published in a Union publication which shall be distributed to all members.
(c) (iii) In the notice referred to in Sub rule (2) members are to be informed that they or any of them may object to the proposed alteration by forwarding a written objection to the Industrial Registrar to reach him no later than 21 days after the date of issue of the notice in (2) (a) above or 21 days after the date of issue of the publication as in (2) (b) above, as the case may be.
21 It is notable that r 10 only requires an amendment, addition to, variation or repeal of any rules to be laid before a meeting of Council. Council is not required to pass any resolutions in respect of such changes. Such changes to the rules can only be made by Delegate Conference.
Interpretation of rules – Whether the resolutions made on 31 March 2010 are valid or can be deemed valid
22 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 (618):
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.
23 Although Brinsden J made these observations in 1981, the approach to the interpretation of rules of registered organisations has remained unchanged. In Stacey v Civil Service Association of Western Australia (Inc) (2007) 87 WAIG 1229, 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.
24 When interpreting rules of an organisation regard should be had to the rules in their entirety. The applicant contends that when considering whether Council and Delegate Conference had sufficient officers and representatives at the joint meeting of Council and Delegate Conference on 31 March 2010 to constitute a quorum, regard should be had to the fact that only one Council Delegate and Conference Delegate could attend as only one Branch of the Union exists in fact. He also says that when regard is had to this fact, it follows that the requirement of 75 per cent of representatives of the Branches be present to constitute a quorum of Delegate Conference was met as there is only one Branch and the representative of that Branch was present and voted at the meeting.
25 The difficulty with this argument that was ably put by counsel for the applicant is that this construction of r 8(b) would have the effect that the whole of the business of the supreme governing body of the Union is vested in one representative of the Union. The General President could have no casting vote where only one representative is only entitled to vote. Further this construction does not assist the functioning of Council as the Council can not itself convene a quorum. Further, vesting the decision making process of the Union in one sole officer is inconsistent with the principle of democratic control of an organisation registered under the Act. Importantly, the construction put forward by the applicant, would if accepted, be contrary to the express words of r 32 and r 33. The opening words of r 33 and the requirements of r 32(a) make it clear that there are 14 Branches of the Union which can only be closed by Council pursuant to r 32(a). One of the reasons why Council could decide to close a Branch is where a Branch no longer has a sufficient number of members or any members and for all practical purposes has ceased to exist. However, the Branches established under r 33 until closed by Council remain extant at law under the rules.
26 Therefore a true interpretation of:
(a) r 8(b) is that while the 14 Branches defined in r 33 remain unclosed by Council, to constitute a quorum of a meeting of Delegate Conference, representatives of 11 Branches must attend and participate in a meeting of Delegate Conference;
(b) r 12(o) is that to constitute a quorum of a meeting of Council, exclusive of the members of the Executive, five ordinary members of Council or four ordinary members of Council and the Union member on the Railways Classification Board must attend and participate in a meeting of Council.
27 It also follows that the resolutions made by Council and Delegate Conference were not validly made. However, the question that must now be resolved is whether it is open under s 66 of the Act to make an order that the resolutions made by Council and Delegate Conference are deemed to be valid.
28 In Construction, Mining and Energy Workers’ Union of Australia – Western Australian Branch v The United Furniture Trades Industrial Union of Workers WA (1991) 71 WAIG 563 the Industrial Appeal Court considered whether a declaration made by the President of the Commission pursuant to s 66(2)(d) of the Act, in respect of the constitutional right of the Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers to enrol persons as members, could be enforced under s 84A(1) of the Act. In determining this issue the majority of the Court considered the scope of the power of the President to make orders and directions under s 66(2) when a declaration is made under s 66(2)(d). Importantly Kennedy J observed at 565:
Section 66 of the Act, with which this appeal is primarily concerned, confers power on the President to deal with complaints made against an organization by, inter alia, members of the organization, or by the Registrar. On an application pursuant to the section, the President is empowered by sub-s (2) to ‘make such order or give such directions relating to the rules of the organization, their observance or non-observance, or the manner of their observance, either generally or in a particular case, as he considers to be appropriate’. Without limiting the generality of those powers, the subsection goes on specifically to authorise certain decisions on an application for an order or direction under s 66(1), including the declaration of the true interpretation of any rule (para (d)) and the declaration of any act done in connection with certain elections to be void (para (f)(iii)).
What appears to me to be of significance in s 66(2) is the power which it expressly confers on the President, not only to make a declaration as to the true interpretation of a rule, which is what occurred in the present case, but also to give directions relating to the observance of the rules of the organization as he considers appropriate. The learned President, it would seem, could have directed the respondent in the earlier proceedings not to enrol ineligible persons as members; but no directions were given by him.
29 Justice Franklyn also said at 569-570:
In my opinion the effect of s 66(1) and (2)(d) is that if for the purposes of an Application for an order or direction under the section it becomes necessary for the true interpretation of a rule to be determined, then (2)(d) empowers the President to declare that interpretation, thereby properly grounding any order he might make or direction he might give under his power to ‘make such order or give such directions relating to the rules of the organization … etc’. It is also significant that the power conferred on him to make declarations is limited to those conferred by subparas (d) and (f)(iii). That conferred by subpara (d) would seem to be conferred to put it beyond argument, as a preliminary step to the making of an order or the giving of directions relating to the rules of an organization, that the President is authorised, on the application before him, to declare the true interpretation of that and any other rule of ‘the organisation’ having bearing on its interpretation or on the order and/or directions to be made, thereby avoiding a proliferation of proceedings. It also seems clear that in authorising him to make such orders and directions ‘either generally or in the particular case as he considers appropriate’ subpara (2) contemplates that, having declared the true interpretation of the rule or rules in question, he might make an order and/or give directions in relation thereto in such terms that it or they be either of general application and so of general enforceability under s 84A, or limited to the particular matters in the application being dealt with.
30 Consequently, the ambit of the power in s 66(2) to make an order or give such directions relating to the observance or non-observance, or the manner of observance, of rules of an organisation, either generally or in a particular case, must arise out of one of the particular powers of s 66(2). In this matter the power to make an order or give directions under s 66(2) arises out of s 66(2)(d).
31 This is an unusual matter. The Union has through its de facto amalgamation with the Federal registered body of the ASU ceased many years ago to function in accordance with its rules. It has also been placed in the unfortunate position of being unable to reinstate many, if not all, of its Branches bar one because of the restructuring of the main employer of members of the Union over time and the privatisation of the freight service and other services of the employer.
32 Because of these circumstances the Union is unable to observe the requirements of its rules to validly convene a meeting of Council and Delegate Conference to approve the steps necessary to formally effect the proposed amalgamation with the State registered Branch of the ASU. Nor can Council convene a quorum to abolish the defunct Branches. The Union is unable to function. In these circumstances the question arises whether following the making of a declaration is it open to the President under s 66(2) to make an order or give directions relating to the non-observance of the rules of the Union to:
(a) waive the observance of r 8(b) and r 12(o);
(b) deem that the attendance and participation of the members of the Executive and the Council Delegate constitute a quorum of Council and as constituted have the authority to exercise all of the powers and functions of Council (except as varied and modified by this order) pursuant to the rules of the Union;
(c) deem the meeting held on 31 March 2010 attended by the members of the Executive and the Council Delegate to be a valid meeting of Council and the resolutions passed at that meeting to be valid;
(d) deem that the attendance and participation of the members of the Executive and the Conference Delegate constitute a quorum of Delegate Conference at which all are entitled to vote and as constituted have the authority to exercise all the powers and functions of Delegate Conference (except as varied and modified by this order) pursuant to the rules of the Union; and
(e) deem the meeting held on 31 March 2010 attended by the members of the Executive and the Conference Delegate to be a valid meeting of Delegate Conference and the resolutions passed at that meeting to be valid.
33 It is my opinion that such an order can in the unusual circumstances of this case be made and should be made. Firstly, it can be said to be consistent with the object in s 6(f) of the Act which in part requires the Commission to encourage the democratic control of registered organisations. Secondly, as Ritter AP recently aptly observed in Stacey [273]:
A significant touchstone of the general power under s66(2) is the concept of the ‘observance’ of an organisation’s rules. This demonstrates in my opinion that a key part of the s66 jurisdiction is, to put it colloquially, to keep an organisation ‘on track’ – running in accordance with its rules. This also suggests some contemporary connection between a s66 application, any conduct said to give rise to it, and any orders or directions to be made. The parties named in s66(1) can via s66(2) seek the assistance of the President to disallow/alter prohibited rules, to declare the interpretation of rules, inquire into election irregularities and make other orders to assist or require an organisation to observe its rules. The text and context suggests that any corrective orders are limited to those which have some present connection with the activities of the organisation and the observance of its rules.
34 Whilst most applications that have come before the President under s 66 of the Act which relate to the non-observance of the rules of an organisation, orders and directions to require actual compliance with the rules, it is part of the central duty and power of the President when acting under s 66 of the Act to rectify the consequences of non-observance of the rules of an organisation if it is necessary to do so to enable the organisation to move forward and function properly. In this matter an order is necessary to put the organisation back on track and enable it to observe its rules and the provisions of the Act that require compliance by the Union to properly complete the proposed amalgamation. Without such an order the Union can not function or regularise it activities.
35 For these reasons I will make a declaration declaring the true interpretation of r 8(b) and r 12(o) in the terms set out in paragraph [26] of these reasons. I will also make an order in the terms set out in paragraph [32] of these reasons.