WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2010 WAIRC 00417

DELIVERED : THURSDAY, 8 JULY 2010

FILE NO. : FBM 2 OF 2010

Applicants

AND

(Not applicable)

Respondent

CatchWords : Industrial law (WA) - Application pursuant to s 72 of the Industrial Relations Act 1979 (WA) - Amalgamation of two registered employee organisations - New organisation registered. 

Industrial Relations Act 1979 (WA) s 27(1)(m), s 53, s 54, s 55(1), s 55(2), s 55(3), s 55(4), s 55(4)(d), s 55(4)(e), s 56, s 56(1), s 56(1)(a), s 56(1)(b), s 56(1)(c)(i), s 56(1)(d)(i), s 56(1)(d)(ii)(I), s 56(1)(d)(ii)(II), s 56(1)(d)(ii)(III), s 56(1)(d)(ii)(IV), s 56(1)(d)(ii)(V), s 56(1)(d)(ii)(VI), s 56(1)(d)(iii), s 56(1)(e), s 56(1)(f), s 56A, s 57, s 59, s 64D, s 66, s 69, s 71, s 71(5), s 72, s 72(1), s 72(2), s 72(3).

Result : Order made.

Representation:

Applicants : Mr D H Schapper (of counsel)

Reasons for Decision

THE FULL BENCH:

Introduction

1         This is an application by the Western Australian Railway Officers’ Union (ROU) and the Australian Municipal, Administrative, Clerical and Services Union of Employees, WA Clerical and Administrative Branch (ASU).  The application seeks orders to amalgamate two employee organisations that are registered employee organisations under the Industrial Relations Act 1979 (WA) (the Act).  Each organisation makes application under Part II of Division 4 of the Act for registration of a new organisation pursuant to s 72 of the Act called the Western Australian Municipal, Administrative, Clerical and Services Union of Employees.  At the time of hearing this matter the ROU had 218 members and the ASU had approximately 900 members.

2         The ROU and ASU have for many years acted on a ‘de facto basis’ as one organisation within the structure of the Federally registered body which is now known as the Australian Municipal, Administrative, Clerical and Services Union.  The background to this application is in part set out in some detail in a recent decision made by the Acting President in an application under s 66 of the Act in de Prazer v Western Australian Railway Officers’ Union [2010] WAIRC 00373.  In the following passages the organisation referred to as the ‘Union’ is the ROU.  At [9], [10] and [11] of the reasons for decision it is recorded:

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.

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 WEST AUSTRALIAN 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.

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.

3         However, it was not until 2009 that steps to enable the amalgamation to be regularised were taken.  In 2009, the following officers of the ROU were elected:

4         However, not all officers of the ROU were able to be elected.  Pursuant to r 33 of the rules of the ROU, 14 Branch Districts were established and from those Branches the rules required that Branch Conference delegates and Council delegates be elected from each Branch.  However, for many years the affairs and business of the ROU were conducted on the basis that all members of the ROU were within one Branch.  This occurred because the overwhelming majority of members of the ROU are employed by the Public Transport Authority in East Parade, East Perth and are members of the administrative branch of the ROU.  This also came about because of the declining number of members of the ROU which was caused by the privatisation of the non-metropolitan services and restructuring within the organisation which was Westrail, now the Public Transport Authority.  This resulted in 13 Branches of the ROU becoming defunct and only one Conference delegate and one Council delegate being elected in September 2009. 

5         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 ROU met on 31 March 2010 to consider and make a number of resolutions.  Following the meeting an issue arose as to whether a quorum had been convened and whether the resolutions passed were valid. 

6         To resolve this issue, an application was brought pursuant to s 66 of the Act seeking a declaration and orders to the effect that the meeting of the ROU officers held on 31 March 2010 was a valid meeting of the ROU Conference and Council and the resolutions passed at that meeting were valid or were deemed to be a valid.  After hearing from the parties in de Prazer v Western Australian Railway Officers’ Union [2010] WAIRC 00388 on 29 June 2010, it was declared that the true interpretation was that:

(i) rule 8(b) of the rules of the Union is that while the 14 Branches defined in r 33 of the rules of the Union 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; and

(ii) rule 12(o) of the rules of the Union 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.

An order was also made that:

(i) the observance of r 8(b) of the rules of the Union and r 12(o) of the rules of the Union is waived;

(ii) that the attendance and participation of the members of the Executive and the Council Delegate constitute a quorum of Council and as constituted is deemed to 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;

(iii) the meeting held on 31 March 2010 attended by the members of the Executive and the Council Delegate is deemed to be a valid meeting of Council and the resolutions passed at that meeting are deemed to be valid;

(iv) 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 is deemed to 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

(v) the meeting held on 31 March 2010 attended by the members of the Executive and the Conference Delegate is deemed to be a valid meeting of Delegate Conference and the resolutions passed at that meeting are deemed to be valid.

7         Until recently the ASU also had not conducted elections for its officers.  Until early 2010, the ASU had not carried out elections because it had held the view that it was exempt from doing so pursuant to a s 71(5) of the Act certificate issued on 24 June 1985 by the Registrar of the Commission.  The certificate exempted the ASU from holding elections for offices under provisions of the Act.  This certificate followed a declaration being made on 6 June 1985 by the Full Bench that the rules of the West Australian Branch of the Federated Clerks’ Union of Australia Industrial Union of Workers relating to the qualifications of persons for membership of the Branch and prescribing the offices which exist within the Branch were deemed for the purposes of s 71 of the Act, to be the same as the rules of the ASU relating to the corresponding subject matter.

8         However, by at least sometime in 2003 not all offices of the ASU corresponded in fact with the offices in the counterpart Federal body.  This was brought to the attention of the ASU sometime in 2009 and as a result, the ASU formed the view that the certificate issued under s 71 of the Act was no longer operative and there were no validly elected officials of the ASU holding office. 

9         The ASU faced a similar problem with compliance with its rules as the ROU.  An election was unable to proceed in accordance with the requirements of the rules of the ASU as the rules required the election of officers of Branch Councillors from Sections of the ASU that had ceased to exist.  An application was then made under s 66 of the Act for orders to enable the election of the offices of the ASU to proceed as if an election had been called in accordance with the provisions of the Act and the ASU rules.  An order was made by the President under s 66 of the Act on 7 December 2009 that the election of the offices was to proceed as if a request in writing had been duly made to the Registrar under s 69 of the Act.  The order also enabled a fixed number of Branch Councillors to be elected.  The terms of the order made it clear that once elected, each Branch Councillor was to exercise all the powers and carry out all of the functions of office pursuant to the rules of the ASU as if each were elected from a Section of the Branch or by the whole of a membership pursuant to the rules of the ASU.  The reason why this order was made was because the rules of the ASU required that Branch Councillors be elected from Sections which had over time ceased to exist.  As discussed in reasons for decision given in Beatts-Rattray v Australian Municipal, Administrative, Clerical and Services Union of Employees, W.A. Clerical and Administrative Branch on 15 December 2009 (2009) 90 WAIG 9, to rectify this difficulty and enable the ASU to generally act within the requirements of its rules, the parties agreed that an order should be made to set the number of Branch Councillors at eight to enable election of positions of Branch Councillors proceed and to enable a quorum for Branch Council to be convened. 

10      After hearing the parties the following order was made on 7 December 2009:

1. Elections are to be held forthwith for the following offices in accordance with the rules of the respondent (except as varied or modified by this Order) as if a request in writing had been duly made to the Registrar in accordance with s 69 of the Act:

President;

Vice-President;

Treasurer;

Secretary;

3 Executive Councillors;

8 Branch Councillors;

2. Each person elected to the office of President, Vice-President, Treasurer, Secretary and Executive Councillor in accordance with this Order shall have the authority to exercise all the powers and carry out all the functions of their office pursuant to the rules of the respondent;

3. Each person elected to the office of Branch Councillor in accordance with this Order shall have the authority to exercise all the powers and carry out all the functions of office pursuant to the rules of the respondent as if each were elected from a Section of the Branch or by the whole of the membership pursuant to the rules of the respondent;

11      After the order was made the Registrar arranged for the conduct of the election and the officers of the ASU were elected at an election conducted by the Western Australian Electoral Commission in January 2010.  The returning officer of the Western Australian Electoral Commission declared the following office and office holders to be elected on 27 January 2010:

Statutory Requirements for Amalgamation

12      Pursuant to s 72 of the Act two or more organisations registered under the Act may apply for the registration of a new organisation.  Section 72 of the Act provides as follows:

(1) Where 2 or more organisations (in this section referred to as the amalgamating organisations) apply for the registration of a new organisation and the rules of the proposed new organisation are such that the only persons eligible for membership of the new organisation will be persons who, if the amalgamating organisations had remained in being, would have been eligible for membership of at least one of the amalgamating organisations, the new organisation may be registered by authority of the Full Bench.

(2) An application under this section shall be made under the respective seals of the amalgamating organisations and shall be signed by the secretary and principal executive officer of each of those organisations.

(3) The provisions of this Division applying to and in relation to the registration of organisations under section 53(1) or 54(1), other than section 55(5), shall apply with such modifications as are necessary, to and in relation to the registration of an organisation under this section.

(4) Subsection (1) does not prevent the alteration, pursuant to this Act, at any time after an organisation has been registered under this section, of the rules referred to in that subsection.

(5) On and from the date on which an organisation is registered under this section — 

(a) the registration of each of the amalgamating organisations is cancelled;

(b) all the property, rights, duties, and obligations whatever held by, vested in, or imposed on each of those organisations shall be held by, vested in, or imposed on, as the case may be, the new organisation;

(c) actions and other proceedings already commenced by or against any of those organisations may be continued by or against the new organisation and the new organisation is substituted for each of those organisations as a party; and

(d) actions and other proceedings that could have been brought by or against any of those organisations may be brought by or against the new organisation.

13      The first requirement that must be satisfied under s 72 is that the rules of the proposed new organisation must be such that the only persons eligible for membership of the new organisation must be persons who, if each of the amalgamating organisations had remained in existence, would have been eligible for membership for at least one of the amalgamating organisations (s 72(1)).  When regard is had to the rules of the proposed new organisation it is clear that s 72(1) of the Act is complied with.  It is apparent that the proposed r 5 of the rules of the proposed new organisation replicates r 4(a) of the rules of the ROU and r 5 of the rules of the ASU. 

14      The application complies with s 72(2) of the Act as the application is signed by the Presidents and Secretaries of both the ROU and the ASU and the common seals of both organisations are affixed to the application. 

15      Turning to s 72(3) of the Act, s 53 relates to the qualifications for and basis of registration of organisations of employees and s 54 provides the criteria for the qualifications for and basis of registration of organisations of employers.  It is clear, however, that s 53 and s 54 of the Act do not apply because the organisations applying for registration as a new organisation are already registered. 

16      Other than s 55(5) of the Act, s 55 applies.  Section 55(1), s 55(2), s 55(3) and s 55(4) of the Act provide:

(1) An organisation seeking registration under section 53 or 54 shall lodge in the office of the Registrar — 

(a) a list of the officers of the organisation with their addresses;

(b) 3 copies of the rules of the organisation; and

(c) the prescribed form of application.

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

(a) a notice of the application;

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

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

(3) An application under this section shall not be listed for hearing before the Full Bench until after the expiration of 30 days from the day on which the matters referred to in subsection (2) are first published.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

17      In compliance with s 55(1) of the Act, the ROU and the ASU have made the application in the prescribed form, and have filed a list of officers of the new organisation with their addresses and three copies of the rules.  Pursuant to s 55(2) of the Act, the Registrar has published in the Western Australian Industrial Gazette the notice of the application and a copy of the rules of the organisation as they relate to the qualification of persons for membership and a notice that any person who wishes to object should file a notice of objection.  The notice was published in the gazette on 26 May 2010 ((2010) 90 WAIG 458).

18      The application was listed for hearing on 2 July 2010, which was the date notified in the gazette, and was therefore listed after the expiration of 30 days from the date on which the notice was published as required by s 55(3) of the Act.

19      In relation to the requirement in s 55(4)(a) of the Act that the application be authorised in accordance with the rules of both organisations, it was observed in de Prazer v Western Australian Railway Officers’ Union in relation to the rules of the ROU that no procedure for the approval of the rules of a proposed amalgamated organisation is prescribed in the rules of the ROU.  Nor is any specific procedure prescribed for the approval of a proposed amalgamation [18].  However, the ROU says it followed the procedure set down in its rules to amend, rescind and make rules prescribed in r 9(a) and r 10 of the rules of the ROU.  The power to do so is vested in Delegate Conference which is the supreme governing body of the ROU (r 9(a)).  The process of alteration of rules is prescribed in r 10 of the rules of the ROU.  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.

20      Pursuant to r 10 of the rules of the ROU, an amendment, addition to, variation or repeal of any rules are to be required to be laid before a meeting of Council.  Council is not required to pass any resolution with respect to such changes as such changes to the rules can only be made by Delegate Conference.  In any event, the affidavit of Mudji Nielsen establishes that on 31 March 2010, the Delegate Conference met and determined to proceed with the proposed amalgamation.  Further, the proposed rules for the amalgamated organisation were approved by a meeting of Council and Delegate Conference on 31 March 2010.  The affidavit of Mr Nielsen also establishes that all members of the ROU were sent a notice of the proposed amalgamation together with a copy of the proposed rules of the amalgamated organisation on 3 March 2010.  They were also advised in the notice that they may object to the proposed amalgamation or to the proposed application to the Commission to register the proposed amalgamated organisation or to the proposed rules or any of them by forwarding the written objection to the Secretary of the ROU and/or to the Registrar of the Commission no later than 21 days after receipt of the notice.  Members were also advised in the notice that the Council and Delegate conference of the ROU was to sit on 31 March 2010 to decide upon the proposal for the ROU to amalgamate with the ASU.  The notice stated that the ‘reason for 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’. 

21      The affidavit of Mr Nielsen deposes that on 16 March 2010 a general meeting of the members of the ROU was held for the purpose of providing members with an opportunity to obtain information and provide their input into the proposed amalgamation.  Approximately 10 to 15 members attended and an informal question and answer and information session was held.  Mr Nielsen also states in his affidavit that no objections to the proposed amalgamation or the rules or the application to register the proposed amalgamation organisation had been received by the ROU. 

22      There are also no specific procedure prescribed in the rules of the ASU for the approval of a proposed amalgamation.  Nor is there any procedure prescribed for the approval of rules of a proposed amalgamated organisation.  The Branch Council is the supreme governing body of the ASU.  Pursuant to r 6.e of the rules of the ASU, 15 members of the Branch Council shall form a quorum.  Like the ROU the ASU followed the procedure prescribed in the rules for the alteration of rules.  Rule 43 of the rules of the ASU prescribes the procedure for the alteration of the rules of the ASU as follows:

43 - ALTERATION OF RULES

The Branch Council may add to, amend, alter or rescind these rules:

a. at any meeting of Branch Council; or

b. by decision of Branch Council made in accordance with the provisions of Rule 7d. of these Branch Rules.

c. Members shall be informed by notice, in writing, of any proposal to add to, amend, alter or rescind these rules, and of the reasons therefore and that the members, or any of them, may object to the proposed addition to, amendment, alteration or recision of these rules by forwarding a written objection to the Registrar of the Western Australian Industrial Relations Commission to reach the Registrar no later than 21 days after the date of the issue of the notice.

23      The evidence of the Secretary of the ASU, Robert George Bates in an affidavit annexed to the application and attached documents establishes that on 22 February 2010, the Branch Executive (who are the management committee of the ASU pursuant to r 9 of the rules of the ASU) resolved to convene a meeting of the Branch Council to be held on 9 March 2010. 

24      Notice of the Branch Council meeting was sent to all Branch Councillors on 26 February 2010.  Annexed to a copy of the affidavit of Mr Bates is a copy of the notice.  A copy of the proposed rules of the proposed amalgamated organisation was also sent to each Branch Councillor with the notice. 

25      The Branch Council met on 9 March 2010.  Pursuant to r 7.d of the rules of the ASU, members of the Branch Council are not required to personally attend to vote on a motion if they are sent by letter or telegram questions that are to be considered at the meeting of Branch Council.  Although r 7.d does not expressly state that members are required to provide to Branch Council their views as to whether those questions should be answered in the negative or positive such a requirement appears to be implied as r 7.d contemplates a decision of Council composed of votes taken in person and in writing.  Rule 7.d provides:

Questions may be submitted by the Branch Executive to the members of the Branch Council by letter or telegram, and the decision of the majority of the members of the Branch Council so taken shall be as valid and binding for all purposes as though taken at a duly assembled meeting of the Branch Council. Provided that if within a period of seven days from the dispatch of the letter or telegram the motion has not been determined in accordance with the foregoing provision the motion shall be determined in accordance with the majority of opinions expressed, and shall thereupon become a resolution of the Branch Council as though it has been passed at a duly constituted meeting.

26      The decision of the majority of the members of Branch Council so taken is deemed to be valid and binding for all purposes as though taken at a duly assembled meeting of the Branch Council.  The minutes of the meeting of the Branch Council records on 9 March 2010 that a quorum was constituted by seven members providing their vote in writing prior to the meeting and the other eight members in person.  The minutes record that it was resolved unanimously by all 15 members of Branch Council in accordance with r 7.d and r 43.c of the rules of the ASU that:

(a) notice of the proposed amalgamation with the ROU;

(b) the proposed rules for the amalgamated organisation; and

(c) the members’ rights to object to the proposal by forwarding a written objection to the Industrial Registrar to reach him no later than 21 days after the date of issue of the above notice,

be communicated to all members as soon as practicable. 

27      On 10 March 2010, notice of the proposed amalgamation and the proposed rules of the proposed amalgamated organisation were posted to each member of the ASU to their home address as shown on the records of the ASU.  The notice informed the members that on 6 April 2010 the Branch Council of the ASU would consider and decide upon a proposal to amalgamate with the ROU.  Attached to the notice was copy of the proposed rules of the proposed amalgamated organisation.  The notice also contained the reason why the amalgamation was sought.  Like the notice to the ROU sent to its members, the ASU notice stated ‘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 were also advised in the notice that they may object to the proposed amalgamation or to the proposed application to the Commission to register the proposed amalgamation or to the proposed rules or any of them by forwarding written objection to the Secretary of the ASU and/or to the Registrar of the Commission to reach either or both of them no later than 21 days after the receipt of the notice.

28      In accordance with the notice given to members of the ASU, the Branch Council of the ASU met on 6 April 2010.  On that occasion 10 members of Branch Council provided their votes prior to the holding of the meeting in writing pursuant to r 7.d of the rules of the ASU and the other five members of the Branch Council attended and voted in person.  The minutes record the following resolutions were made and declared unanimously:

(1) That the ASU amalgamate with the ROU;

(2) That the rules of the amalgamated union be circulated to members; and

(3) That an application to the Commission to register proposed amalgamated organisation be authorised.

29      In his affidavit, Mr Bates attests that the proposed rules of the proposed amalgamated organisation referred to in his affidavit and annexed to the application are the same as the rules which were adopted by the Branch Council meeting held on 6 April 2010.  Mr Bates also states that no objections to the proposed amalgamation or to the rules or the application to register the proposed amalgamated organisation have been received by the ASU. 

30      The Commission’s records also reveal that no objections to the application to register the proposed amalgamated organisation or to the proposed rules of the amalgamated organisation have been received by the Registrar.

31      For these reasons, after careful consideration of the evidence and the orders made pursuant to s 66 of the Act, we are satisfied as required by s 55(4) of the Act that:

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

(b) reasonable steps have been taken to adequately inform their members:

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

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

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

32      The Act also prescribes a number of matters that must be set out expressly in the rules of an organisation for an organisation to be registered.  Firstly, s 55(4)(d) of the Act requires that the rules provide for reasonable notice of any proposed alteration and reasons therefore to be given to the members of the organisation and for reasonable opportunity for members to object to any such proposal.  The procedure in compliance with this statutory requirement is set out in proposed r 29.d of the rules of the proposed amalgamated organisation. 

33      There are also a number of provisions which must be complied with and procedures that must be provided for in the rules of an organisation that relate to elections.  Section 55(4)(e) of the Act requires that the rules of an organisation must provide for elections to be by secret ballot and conform with the requirements of s 56(1) of the Act and are such to ensure, as far as practicable, that no irregularity can occur in connection with an election.  In relation to the first requirement r 28.a of the proposed rules provides that the method of election of Executive Officers and Divisional Members to the committee of management shall be by secret postal ballot of all financial members entitled to vote in such elections. 

34      Section 56 of the Act provides:

(1) The rules of an organisation — 

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

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

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

(i) a direct voting system; or

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

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

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

(ii) make provision for — 

(I) absent voting;

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

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

(IV) the conduct of the ballot;

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

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

and

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

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

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

35      Counsel at the hearing of this matter took the members of the Full Bench to each of the rules that comply with the provisions in s 56 of the Act.  These are as follows:

* In relation to the requirement that the rules of an organisation shall in relation to election for any office make provision for the declaration of the result of the ballot as required by s 56(1)(d)(ii)(VI).  Counsel for the applicants point out there is no express reference in relation to requiring the returning officer to declare the result of a ballot.  However, it is apparent from the provisions of the rules that such a declaration would be required to be made.  In particular r 28.d of the proposed rules provides that whenever any member has been declared elected to any office, the member declared to be elected to such office shall hold office notwithstanding anything else in these rules. 

** Insofar as s 56(1)(d)(iii) requires that the rules shall ensure, as far as practicable, that no irregularity can occur in connection with the election, it is clear that when one has regard to the requirements of the proposed rules set out in the table, and in particular r 28 of the proposed rules, that the process for the procedure to be followed in all elections should as far as practicable ensure no irregularity can occur. 

36      The proposed rules also comply with s 56A and s 57 of the Act.  Section 57 of the Act requires that every election by a direct voting system be by secret postal ballot.  This requirement is provided for in proposed r 28.a.  Section 56A of the Act sets the terms by which casual vacancies are to be filled and r 19 contains the terms which are prescribed by that provision of the Act.

37      We are also satisfied that s 64D of the Act which requires that the rules of an organisation shall provide for the register of members to be purged on not less than four occasions in each year has been complied with as r 11.b of the proposed rules requires the Secretary of the proposed amalgamated organisation to carry out this task on not less than four occasions each year.

38      Finally, the name of the proposed organisation does not contravene s 59 of the Act as the name of the proposed amalgamated organisation does not resemble the name of any other registered organisation and the proposed registered name clearly indicates that the organisation is to be an organisation of employees.

39      For these reasons we are satisfied that the application ought to be granted.  There is, however, one minor typographical error in r 26.a of the proposed rules.  We are of the opinion that this error should be corrected pursuant to the power to correct in s 27(1)(m) of the Act, by inserting the letter ‘e’ after the letter ‘b’ in the second line, so that r 26.a reads ‘Only members of the Union who are financial at the date on which nominations close, and have been continuously financial for twelve months immediately preceding that date, shall be eligible to be nominated for any Office within the Union.  For the purposes of this rule, financial membership of an organisation whose members have, by means of an amalgamation, become members of the Union, shall be counted in the calculation of any period of membership.’  We are also of the view that an order should be made that:

(a) The Registrar register the new organisation known as the ‘Western Australian Municipal, Administrative, Clerical and Services Union of Employees’, in accordance with s 72(1) of the Act, being the product of the amalgamation of the Western Australian Railway Officers’ Union and the Australian Municipal, Administrative, Clerical and Services Union of Employees, WA Clerical and Administrative Branch.

(b) The rules attached to the application filed herein on 19 April 2010, (subject to the amendment referred to above) are authorised pursuant to s 58(3) of he Act and hereby declared to be the rules of the ‘Western Australian Municipal, Administrative, Clerical and Services Union of Employees’.