WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2011 WAIRC 00111

DELIVERED : FRIDAY, 11 FEBRUARY 2011

FILE NO. : FBM 1 OF 2011

Applicant

AND

(Not applicable)

Respondent

CatchWords : Industrial Law (WA) - Application pursuant to s 71 for a declaration relating to qualifications of persons for membership of a State branch of a Federal organisation and offices which exist within the branch - Application granted - Industrial Relations Act 1979 (WA) s 7(1), s 71, s 71(1), s 71(2), s 71(3), s 71(4); Workplace Relations Act 1996 (Cth) s 1, sch 1, sch 10; Fair Work (Registered Organisations) Act 2009 (Cth); Interpretation Act 1984 (WA) s 16(3); Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) s 3 of sch 22; Industrial Relations Act 1988 (Cth); Industrial Relations Commission Regulations 2005 (WA) reg 72, reg 72(e).

Result : Declaration issued

Representation:

Applicant : Mr D H Schapper (of counsel)

Reasons for Decision

THE FULL BENCH:

Introduction

1          This is an application made under s 71(2) of the Industrial Relations Act 1979 (WA) (the Act) for a declaration that pursuant to s 71(2) of the Act that the rules of a counterpart Federal body prescribing the offices which exist in a Branch of an organisation of employees registered under the Workplace Relations Act 1996 (Cth) are deemed to be the same as the rules prescribing the offices which exist in the State organisation in accordance with s 71(1) and s 71(4) of the Act. 

2         Pursuant to s 71(1) of the Act, the counterpart Federal body, in relation to a State organisation, means the Western Australian Branch of an organisation of employees registered under the Commonwealth Act, the rules of which:

(a) relating to the qualifications of persons for membership; and

(b) prescribing the offices which shall exist within the Branch,

are, or, in accordance with this section, are deemed to be, the same as the rules of the State organisation relating to the corresponding subject matter.

3          Obtaining a declaration is the first step towards the applicant being able to obtain a s 71 certificate to enable the offices that exist in its rules to be held by persons holding corresponding offices in its counterpart Federal body.  A certificate will also enable it to make an agreement with its Federal organisation relating to the management and control of funds. 

4          The application was unopposed by any of the organisation’s members.  At the conclusion of the hearing on 31 January 2011, the Full Bench informed counsel for the applicant that the grounds of the application had been made out and that a declaration would be made.  On 31 January 2011, the following order was made and then corrected on 3 February 2011 to reflect the correct name of the applicant:

(a) The Australian Municipal, Administrative, Clerical and Services Union is the counterpart Federal body of the Western Australian Municipal, Administrative, Clerical and Services Union of Employees;

(b) The rules of the applicant and its counterpart Federal body relating to the qualifications of persons for membership are deemed to be the same, in accordance with s 71(2) of the Act;

(c) The rules of the counterpart Federal body prescribing the offices which exist in the Branch are deemed to be the same as the rules of the applicant prescribing the offices which exist in the applicant, in accordance with s 71(4) of the Act.

5          The reasons for making the declaration are as follows.

6         The counterpart Federal body of the applicant is the Australian Municipal, Administrative, Clerical and Services Union.  The counterpart Federal body is registered as an organisation of employees under the Fair Work (Registered Organisations) Act 2009 (Cth).  Whilst the provisions of s 71(1) of the Act and the definition of ‘Commonwealth Act’ in s 7(1) of the Act require that the counterpart Federal body of the applicant be registered under the Workplace Relations Act, by operation of s 16(3) of the Interpretation Act 1984 (WA) the meaning of the Workplace Relations Act can be construed as a reference to the Fair Work (Registered Organisations) Act.  Pursuant to s 16(3) of the Interpretation Act, a reference in a written law of the State to a Commonwealth Act, is to be construed so as to include a reference to such Act or provision as it may from time to time be amended.  Prior to the enactment of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) the provisions of the Workplace Relations Act provided for the registration of organisations of employees and employers were provided for in sch 1 and sch 10 of the Workplace Relations Act.  The Workplace Relations Act is Act No 86 of 1988 and was named the Industrial Relations Act 1988 (Cth) when first enacted.  On the coming into operation of s 3 of sch 22 of the Fair Work (Transitional Provisions and Consequential Amendments) Act, the whole of the Workplace Relations Act was repealed except for sch 1 and sch 10 and s 1.  Section 1 of the Workplace Relations Act contained the name of the Act.  Section 3 of sch 22 of the Fair Work (Transitional Provisions and Consequential Amendments) Act amended s 1 of the Workplace Relations Act by renaming the Workplace Relations Act the Fair Work (Registered Organisations) Act 2009.  The Fair Work (Registered Organisations) Act 2009 remains as Act No 86 of 1988.  The headings to sch 1 and sch 10 of the Workplace Relations Act were also amended by the Fair Work (Transitional Provisions and Consequential Amendments) Act by renumbering.  Given that the provisions of sch 1 and sch 10 of the Workplace Relations Act were not repealed but amended, s 16(3) the Interpretation Act is enlivened so as to enable the definition of the ‘Commonwealth Act’ in s 7(1) of the Act to refer to the Fair Work (Registered Organisations) Act. 

7         By operation of s 71(2) of the Act, the rules of the State organisation and its counterpart Federal body relating to the qualifications of persons for membership are deemed to be the same if, in the opinion of the Full Bench, they are substantially the same.  In addition, s 71(3) provides:

The Full Bench may form the opinion that the rules referred to in subsection (2) are substantially the same notwithstanding that a person who is — 

(a) eligible to be a member of the State organisation is, by reason of his being a member of a particular class of persons, ineligible to be a member of that State organisation’s counterpart Federal body; or

(b) eligible to be a member of the counterpart Federal body is, for the reason referred to in paragraph (a), ineligible to be a member of the State organisation.

Are the qualifications of persons for membership substantially the same?

8         Substantial means what is ‘real or of substance as distinct from ephemeral or nominal’ or ‘considerable or in the main or essentially’:  Re an application by the Civil Service Association (1993) 73 WAIG 2931; Re Bonny [1986] 2 Qd R 80 (82).

9         Under r 5 of the rules of the applicant, local government employees, clerical employees, Western Australian government railway employees and social and welfare workers are all eligible to be members of the applicant.  Each of these categories of persons eligible for membership under r 5 are also eligible to be members of the counterpart Federal body.  However the counterpart Federal body has many other categories of persons who are eligible to be members of the Branch in Western Australia who are not eligible to be members of the applicant unless they are engaged in clerical occupations.  These include business machine employees, shipping industry employees, health insurance industry employees, independent contractors, energy industry employees, Edison Mission employees and National Rail employees.

10      Persons employed as HRL Group employees, employees of other energy industry employers and GPU PowerNet employees are also eligible to be members of the Federal body but none of the employers of these categories operate in Western Australia.  Consequently, this part of the eligibility rules of the counterpart Federal body has no current application in Western Australia.

11      The applicant filed a statement indicating the number of persons currently members of the applicant and the number of persons currently members of the Branch of the counterpart Federal body as required by reg 72 of the Industrial Relations Commission Regulations 2005 (WA).  The statement states that the number of persons currently members of the applicant is 4719 and the number of persons currently members of the counterpart Federal body is 5459.  Counsel for the applicant informed the Full Bench that these numbers are estimates.  The applicant also filed a statement pursuant to reg 72(e) of the Industrial Relations Commission Regulations indicating that as at 31 December 2010 there were no members of the applicant who were not eligible to be a member of the Branch and as at 31 December 2010 there were approximately 740 employees who were eligible to be a member of the counterpart Federal body who were not eligible to be a member of the applicant.  Of the 740, approximately 600 were non-clerical employees who work in the energy industry and approximately 140 were non-clerical employees who work in the transport industry outside of Westrail and the Public Transport Authority. 

12      It is clear from the statements filed by the applicant and the rules of the applicant and the counterpart Federal body that there is substantial similarity of coverage between both organisations.  In particular, it is relevant that all persons who are eligible to be members of the applicant are eligible to be members of the counterpart Federal body.  For this reason, we were of the view when the order was made that the evidence established that the eligibility rules of both organisations are substantially the same as required by s 71(2) and s 71(3) of the Act. 

Are the offices that exist in the Branch the same as the offices of the applicant?

13      When determining whether the offices that exist in the Branch are the same as the offices of the applicant, it is necessary for the Full Bench to consider the functions and powers of each office based on a consideration of the similarity or otherwise of the content of the rules:  Jones v Civil Service Association Inc (2003) 84 WAIG 4 (Pullin J [35]).

14      Pursuant to s 71(4) of the Act, the rules of a counterpart Federal body prescribing the offices which shall exist in the Branch are deemed to be the same as the rules of the State organisation prescribing the offices which shall exist in the State organisation if, for every office in the State organisation there is a corresponding office in the Branch. 

15      Pursuant to r 14 of the rules of the applicant, the offices of the union are the President, Deputy President, Secretary, Assistant Secretary and one financial member for each 600 financial members or part thereof from the Administrative, Clerical and Customer Services Division, one financial member for each 600 financial members or part thereof from the Transport Division and one financial member for each 600 financial members or part thereof from the Social and Community Services Division.

16      Pursuant to r 20(d) of the rules of the applicant, the Executive Officers are the honorary positions of President, Deputy President, Secretary and Assistant Secretary.  Under r 20(c) of the rules of the applicant, the Committee of Management consists of the Executive Officers and the honorary members elected by and from the Administrative, Clerical and Customer Services Division, and the members elected by and from the Transport Division, and the members elected by and from the Social and Community Services Division.  Pursuant to r 21 of the rules of the applicant, the powers and duties of the Committee of Management are the management and control of the union between General Meetings of the members.  It also has the power under r 21 to do all such acts and things as may be exercised or done by the union and which are not hereby required to be exercised and done by a meeting of members.  In addition, the Committee of Management has a number of specific powers to carry out other matters. 

17      Pursuant to the rules of the counterpart Federal body, the offices of the Branch are set out in r 4 of Division Five of the rules of the counterpart Federal body.  These are the Branch President, the Deputy Branch President, the Branch Vice-President (Women), the Branch Secretary, the Assistant Branch Secretary and the Branch Treasurer.  Each of these offices is established as the Branch Executive Committee under r 5 of Division Five.  The Branch Executive Council consists of the Branch Executive Committee and Branch Executive Councillors representing Divisions, the number of whom is required to be calculated in accordance with r 8 of Division Five and the number of Branch Executive Councillor (Women) as may be required pursuant to r 19 of Division Five.  Under r 8(d)(ii) of Division Five, each Division is entitled to one Branch Executive Councillor for each 600 financial members or part thereof.  The Divisions are allocated under r 3 of Division Five of the rules of the counterpart Federal body.  Pursuant to r 3 of Division Five, each member attached to the Branch shall be allocated to one of the following Divisions by the Branch Executive Council:

(a) Administrative, Clerical and Customer Services Division

(b) ASU Municipal Employees Division

(c) Energy/Information Technology Division

(d) Local Government Division

(e) Transport Division

(f) Social and Community Services Division

18      Under r 6 of Division Five of the rules of the counterpart Federal body, the powers and duties of the Branch Executive Council are that they are required to do all such things as are necessary for the control and management of the affairs of the Branch.  It also has a number of specific powers, which whilst not the same as the rules of the applicant it is apparent that the functions and powers of each of the offices are sufficiently similar so as to be said to be corresponding offices.  It is notable that s 71(4) of the Act does not require that the offices that exist in the Branch are required to each have a corresponding office in the State organisation.  In this matter it is apparent that for each of the offices of the applicant there is a corresponding office in the Branch.  In particular, it is clear that for each of the offices prescribed under the rules of the applicant not only is there a directly corresponding office, the duties and functions are substantially similar in that each one of the offices of the applicant is an office of the committee of management and the office that corresponds in the Branch is also part of the management committee of the Branch.