Application Pursuant to s.62 - Alteration of Registered Rules - Rule 16 - Executive and Organisers

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2011 WAIRC 01174

DELIVERED : WEDNESDAY, 21 DECEMBER 2011

FILE NO. : FBM 6 OF 2009

Applicant

AND

(Not applicable)

Respondent

Catchwords : Industrial Law (WA) - Application pursuant to s 62(2) and s 71(5) of the Industrial Relations Act 1979 (WA) for the Full Bench to authorise registration of alterations to registered rules - Holding of office by persons who hold office in the applicant's counterpart Federal body - Statutory criteria satisfied.

Legislation : Industrial Relations Act 1979 (WA) s 55(4), s 55(4)(b), s 55(4)(c), s 55(4)(d), s 55(4)(e), s 55(5), s 56(1), s 62, s 62(2), s 62(4), s 66, s 71, s 71(2), s 71(3), s 71(4), s 71(5), s 71(5)(a).

Result : Order issued

Representation:

Counsel:

Applicant  : Mr S Millman (of counsel)

Solicitors:

Applicant  : Slater & Gordon Lawyers

Case(s) referred to in reasons:

Mcjannet v Reynolds [2009] WAIRC 01282; (2009) 89 WAIG 2395

Re application by The Construction Forestry Mining and Energy Union of Workers [2011] WAIRC 00422; (2011) 91 WAIG 1034

Reasons for Decision

THE FULL BENCH:

Introduction

1         This application by The Construction Forestry Mining and Energy Union of Workers was filed on 18 November 2009 and is made pursuant to s 62(2) and s 71(5) of the Industrial Relations Act 1979 (WA) (the Act).  The applicant, as a registered organisation under the Act, seeks the authorisation of the Full Bench for the Registrar to register an alteration to its rules to add a new paragraph (4A) to r 16 in accordance with s 71(5) of the Act as follows:

Each office in the Union may, from such time as the Executive may determine, be held by the person who, in accordance with the rules of the Construction and General Division, Western Australian Divisional Branch of the Construction, Forestry, Mining and Energy Union, holds the corresponding office.

2         The purpose of the rule change is that the applicant seeks to obtain a s 71 certificate to enable the offices that exist in this rule to be held by the persons holding the 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. 

3         Prior to the issuance of a certificate, the applicant’s rules must be altered and the Full Bench issue a declaration pursuant to s 71 of the Act.  The first step will be completed when the Full Bench on 21 December 2011 issues a declaration in FBM 7 of 2011 pursuant to s 71(2) and s 71(4) of the Act declaring that:

(1) 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 Industrial Relations Act 1979 (the Act).

(2) The rules of the counterpart Federal body prescribing the offices which exist in the Branch are hereby 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.

4         The second step to obtain a s 71 certificate is prescribed in s 71(5)(a) of the Act and requires the rules of the applicant to be altered pursuant to s 62 of the Act to provide that each office in the State organisation may, from such time as the committee of management of the State organisation may determine, be held by the person who, in accordance with the rules of the State organisation's counterpart Federal body, holds the corresponding office in that body. 

5         After hearing submissions on behalf of the applicant the Full Bench was satisfied that the requirements of the Act were met.

6         These reasons set out why we formed the opinion that the proposed r 16(4A) should be registered by the Registrar.

History of the Application

7         This application, FBM 6 of 2009, was filed in contemplation of a counterpart application being made for a declaration in accordance with s 71(2), s 71(3) and s 71(4) of the Act and heard concurrently.  This application was made prior to the applicant making an application for a declaration.  On 2 February 2010, the applicant made an application that FBM 6 of 2009 be adjourned sine die until an application for a declaration could be filed and heard and on 8 February 2010, the Full Bench made an order that the hearing listed for this application on 18 February 2010 be adjourned sine die.  An application for a declaration was brought under s 71(2) and s 71(4) of the Act in FBM 15 of 2010.  FBM 6 of 2009 was brought on for hearing on 7 April 2010 and FBM 15 of 2010 was also listed for hearing on that day.  On 11 April 2011 (after hearing counsel for the applicant and Mr Mcjannett, an objector, in person on 7 April 2011), the Full Bench made an order that the objector file and serve an affidavit on 7 April 2011 and the applicant file and serve its response by 21 April 2011.  The Full Bench also made an order that the objector file and serve its reply within seven days of receipt of the applicant’s response.

8         In accordance with the orders made by the Full Bench on 11 April 2011, Mr Mcjannett filed an affidavit made by him on 7 April 2011.  The applicant filed its submissions in response to the affidavit filed by Mr Mcjannett on 21 April 2011 and Mr Mcjannett filed his reply on 4 May 2011.  This application was not relisted for hearing at that time as the Full Bench after hearing submissions in relation to the application for a declaration in FBM 15 of 2010 had reserved its decision.  On 16 June 2011, the Full Bench issued its decision in FBM 15 of 2010 and dismissed the application: Re application by The Construction Forestry Mining and Energy Union of Workers [2011] WAIRC 00422; (2011) 91 WAIG 1034.  The applicant filed a fresh application for a declaration under s 71(2), s 71(3) and s 71(4) of the Act on 24 October 2011: FBM 7 of 2011.  The hearing of FBM 7 of 2011 was listed for hearing on 16 December 2011 at 10:30 am and this application was listed for hearing on the same day at 11:30 am.  Prior to the hearing of this matter, Mr Mcjannett sought to withdraw his objection to this application by filing a Form 14 Notice of withdrawal or discontinuance on 9 December 2011.

The Applicant’s Rules about Alteration

9         Section 62(2) of the Act prohibits the Registrar from registering any alteration to the rules of an organisation that is a matter referred to in s 71(5) of the Act unless so authorised by the Full Bench.  Pursuant to s 62(4) of the Act, the requirements of s 55(4) of the Act must be complied with before the Full Bench can approve a rule alteration application.  Section 55(4) of the Act provides that the Full Bench shall refuse an application by the organisation 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.

Statutory Requirements Met

10      The first matter about which the Full Bench must be satisfied is the proposed rule alteration must be authorised by the organisation in accordance with its rules.  The authority to alter the rules of the applicant is found in r 36 – Alteration of Rules.  Rule 36 provides:

Subject to the provisions of the Industrial Relations Act (WA) 1979 or any Act relating to the alteration of these Rules the following provisions shall apply:

(1) The Rules of the Union may be amended, added to, varied, repealed or substituted by such proposed alteration(s) to rules being approved by a Special or Ordinary General Meeting, and by such meeting authorising the making of an application to the Western Australian Industrial Relations Commission to register the said alteration(s) to rules, provided such alterations(s) shall not be or become effective until the Registrar of the Western Australian Industrial Relations Commission has given to the Union a certificate that the alteration(s) has been registered.

(2) The Union shall forward a notice by either posting to each member of the Union at their registered address or publishing in a Union magazine (which shall be distributed to all members) providing the following information to members:

(a) The intention of the Union to apply for registration of the proposed alteration(s) of the Rules of the Union;

(b) The terms of the proposed alteration(s) of the Rules of the Union and the reasons therefore;

(c) That the members or any of them may object to the making of the application for the proposed alteration(s) and/or object to the proposed alteration(s) or any of them by forwarding a written objection to the Registrar of the Western Australian Industrial Relations Commission and that objections should reach the Registrar no later than twenty-one (21) days after the date of the receipt of the notice.

11      Pursuant to r 36(1) of the rules of the applicant, alterations to a rule must be approved by a special or ordinary general meeting of the applicant.  Pursuant to r 26 the applicant is required to hold general meetings at least each calendar month and under r 26(6) the quorum for any special general or ordinary meeting of the applicant is 30 members.  The procedure for general meetings is provided for in r 27.  Rule 27(5) requires that any member, at any meeting of the applicant or executive, is to give notice by way of motion of a resolution to be discussed at a future meeting by handing a copy to the president, who shall at once read it to the meeting.  The notice of motion is then placed in the minute book pursuant to r 27(3) of the rules of the applicant. 

12      The facts supporting the application to authorise the addition of a new r 16(4A) are set out in a statutory declaration made in November 2009 by Kevin Noel Reynolds, the secretary of the applicant.  The evidence of Mr Reynolds in the documents attached to his statutory declaration establishes the following relevant matters:

(a) As required by r 27(3) and r 27(5) of the rules of the applicant a meeting of the executive was held on 12 August 2009.  In his statutory declaration, Mr Reynolds says at paragraph 3 that a notice of motion containing the proposed amendment was handed to the president and read out in accordance with r 27(5).  However, when the minutes of the meeting are examined it is apparent that the minute of the proposed amendment was not given to the president but to vice president Glenn Hawkins who reported the proposed motion to the executive.  It appears from those minutes that the president of the applicant, Mr Cam McCullough, and the senior vice president, Mr Ian Hawkins, were not present at meeting of the executive held on 12 August 2009.  This error in the statutory declaration of Mr Reynolds is not material, as pursuant to r 25(1)(d) of the rules of the applicant, when the president is absent his or her duties are required to be performed by the senior vice president and in the absence of both the president and the senior vice president the vice president is required to perform the duties of the president. 

(b) In accordance with r 27(3) the motion was entered into the minute book for the general meeting.

(c) A general meeting was held on 12 August 2009.  A list of attendees of the general meeting that is attached to the statutory declaration of Mr Reynolds shows that more than 30 members of the applicant were present at the meeting. 

(d) The minutes of the general meeting record that the following motion was carried unanimously:

A. This meeting approve the following amendment to the Rules of the Union (the Proposed Amendment):

(1) The following rule l6(4A) be inserted in the rules –

‘(4A) Each office in the Union may, from such time as the Executive may determine, be held by the person who. in accordance with the rules of the Construction and General Division. Western Australian Divisional Branch of the Construction, Forestry, Mining and Energy Union, holds the corresponding office;’ (the New Rule).

B. This meeting authorise the Union making an application to the Full Bench of the Western Australian Industrial Relations Commission (the WAIRC) :

(1) for a declaration under section 71 of the Act that The Construction and General Division, Western Australian Divisional Branch of the Construction, Forestry, Mining and Energy Union (the Branch) is the Union's counterpart Federal body; and

(2) for an order under section 62 of the Act authorising the Proposed Amendment.

C. The Union post to each member of the Union at their registered address a notice containing the following information in accordance with section 55(4)(b) of the Act and Rule 36 - Alteration of Rules :

(l) The intention of the Union to apply for registration of the Proposed Amendment;

(2) The terms of the Proposed Amendment and the reasons therefore; and

(3) That the members or any of them may object to the making of the application for the Proposed Amendment and/or object to the Proposed Amendment by forwarding a written objection to the Registrar of the WAIRC and that objections should reach the Registrar no later than twenty-one (21) days after the date of the receipt of the notice.

D. This meeting authorise the Union making an application to the Registrar of the WAIRC under section 62 of the Act to register the Proposed Amendment.

E. Subject to the successful alteration of the Rules referred to in paragraph A, this meeting authorise the Executive of the Union to notify the Registrar of the WAIRC under section 71(5)(b) that from a date decided by the Executive all offices in the Union will be filled in accordance with the New Rule.

F. This meeting authorise the Union making an application to the Registrar of the WAIRC for the issuing of a certificate under section 71(5) of the Act.

(e) On or about 27 August 2009, Mr Reynolds authorised the distribution, to all members, of correspondence that advised members of the results of the general meeting and that the executive of the applicant was unanimous in its support for the proposed amendment.  The correspondence also advised that an application will be made to the Commission and that any objections to the proposed alterations to the rules should be received by the Registrar of the Commission no more than 21 days after the members received the notification. 

13      Having regard to this evidence, we were satisfied that the application to alter the rules of the applicant had been authorised in accordance with its rules.

14      No objections were received to the proposed amendment by the applicant.  However, three objections were received by the Registrar from members of the applicant.  On 8 September 2009, the Registrar received an objection from Mr Robert Mcjannett.  Mr Mcjannett has now withdrawn his objection.  On 14 September 2009, the Registrar received an objection from Mr Paul Schultz and on 13 September 2009, the Registrar received an objection from Mr Brian Churchill.  In each of the objections an issue is raised about assets being controlled by the applicant and each objector stated that the rule change should not be allowed until a decision in PRES 5 of 2009 has been reached and possibly not after that.  PRES 5 of 2009 was an application made under s 66 of the Act by Mr Mcjannett against Mr Reynolds and others.  A decision was delivered in that matter by Ritter AP on 9 December 2009:  Mcjannet v Reynolds [2009] WAIRC 01282; (2009) 89 WAIG 2395.  In that matter irregularities in an election of officials of the applicant were alleged to have occurred, however, a substantive hearing of the matter did not proceed as the application was summarily dismissed.

15      As at 4 October 2011, the applicant’s membership records record that the applicant had 13,797 members.  Consequently as there are now only two objectors, we are satisfied that the number of members of the applicant who have objected comprise substantially less than 5% of the total number of members. 

16      For these reasons we were satisfied that s 55(4)(b), s 55(4)(c) and s 55(4)(d) of the Act had been complied with.  We were also satisfied that the requirements of s 55(5) of the Act do not arise as the proposed rule changes do not change or seek to alter in any way the eligibility of persons eligible to be members of the organisation.  Section 55(4)(e) and s 56(1) of the Act relate to procedural rules for election for office, including secret ballots.  The applicant's rules currently provide for the procedures required by these provisions of the Act and the alterations sought in this matter do not deal with the matters specified in those provisions of the Act.  Consequently, no issue arises in this application in relation to the requirements of s 55(4)(e) and s 56(1) of the Act.

17      For these reasons we are of the opinion the following order should issue:

The Registrar is hereby authorised to register the alteration to the rules of the applicant by inserting in rule 16 – Executive and Organisers a new rule, r 16(4A) after r 16(4) as follows:

(4A) Each office in the Union may, from such time as the Executive may determine, be held by the person who, in accordance with the rules of the Construction and General Division, Western Australian Divisional Branch of the Construction, Forestry, Mining and Energy Union, holds the corresponding office;