Application for declaration pursuant  to section 71(2) relating to Federal counterpart body

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2011 WAIRC 01175

DELIVERED : WEDNESDAY, 21 DECEMBER 2011

FILE NO. : FBM 7 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 that exist within the branch

Legislation : Industrial Relations Act 1979 (WA) s 27(1)(k), s 71, s 71(1), s 71(2), s 71(3), s 71(4);

Conciliation and Arbitration Act 1904 (Cth) s 36(2).

Result : Declaration made

Representation:

Counsel:

Applicant : Mr S Millman (of counsel)

Solicitors:

Applicant : Slater & Gordon Lawyers

Case(s) referred to in reasons:

Gairns v The Royal Australian Nursing Federation Industrial Union of Workers, Perth (1989) 69 WAIG 2343

Re Ludeke; Ex parte The Customs Officers’ Association of Australia, Fourth Division (1985) 155 CLR 513

Reasons for Decision

THE FULL BENCH:

The Application

1         The Full Bench has before it an application made under the Industrial Relations Act 1979 (WA) (the Act) in which the applicant (the state organisation) seeks the following orders:

(a) A declaration pursuant to Section 71(2) and Section 71(3) of the Industrial Relations Act 1979 (WA) that the Construction, Forestry, Mining and Energy Union, Construction and General Division Western Australian Branch is the counterpart Federal body ("the Counterpart Federal Body") of The Construction, Forestry, Mining and Energy Union of Workers ("the State Organisation");

(b) A declaration pursuant to Section 71(2) and Section 71(3) that the rules of the Counterpart Federal Body relating to the qualifications of persons for membership are the same, or in the alternative deemed to be the same as the qualifications of persons for membership within the State Organisation;

(c) A declaration pursuant to Section 71(4) that the offices within the Counterpart Federal Body are deemed to be the same as the offices within the State Organisation;

2         The grounds on which the application is made are:

(a) that the rules of the State Organisation and the Counterpart Federal Body are the same, or substantially the same;

(b) that for every office in the State Organisation there is a corresponding office in the Counterpart Federal Body;

(c) that the application fulfils the Objects of the Industrial Relations Act, in particular ss 6(ab), 6(e) and 6(f); and

(d) otherwise set out in the attached statutory declaration.

3         The applicant is a State organisation as defined in s 71(1) of the Act as it is a registered organisation under Div 4 of Part II of the Act.  This is the second application brought by the applicant under s 71 of the Act that has been heard by a Full Bench in 2011.  The first application was FBM 15 of 2010:  Re application by The Construction Forestry Mining and Energy Union of Workers [2011] WAIRC 00422; (2011) 91 WAIG 1034.  The Full Bench issued its decision in that matter on 16 June 2011 and dismissed the application.  Although it found that the qualifications of persons for membership of the State organisation were substantially the same as the qualifications of persons for membership of the Construction, Forestry, Mining and Energy Union, Construction and General Division, Western Australia Divisional Branch (the Branch and the State organisation’s counterpart Federal body), the Full Bench was not satisfied that the offices of the State organisation were the same or could be deemed to be the same as the State organisation’s counterpart Federal body.

Application to intervene

4         On 9 December 2011, Robert Mcjannett filed an application for leave to intervene in this matter under s 27(1)(k) of the Act.  The grounds on which the application was made are stated as:

the applicant intervener together with all other union members not holding office in the union and the private sector construction industry as a whole will be unduly prejudiced by the granting of a certificate under s 71 of the Act to the State organisation. 

The applicant opposed the application by Mr Mcjannett to intervene.

5         Pursuant to s 27(1)(k) of the Act, the Commission may permit the intervention in proceedings of any person who has an interest in the proceedings.  In Gairns v The Royal Australian Nursing Federation Industrial Union of Workers, Perth (1989) 69 WAIG 2343 Sharkey P found that the most helpful dissertation OF THE principles which relate to permitting intervention is set out in the judgment of the High Court in Re Ludeke; Ex parte The Customs Officers’ Association of Australia, Fourth Division (1985) 155 CLR 513.  In that matter Gibbs CJ with whom Dawson J agreed held that every person whose rights will be directly affected by an order made by the Australian Conciliation and Arbitration Commission must be given a full and fair opportunity to be heard before an order is made (520).  He also observed that:

(a) The principles of natural justice do not require that everyone who may suffer some detriment as an indirect result of an order of the Commission is entitled to be heard before the order is made;

(b) Orders made by the Commission may affect many members of the community who are not parties to the proceedings in question, but that does not mean that any member of the community who will be indirectly affected by an order of the Commission has a right to be heard (520). 

6         Deane J expressed a similar view.  He was of the opinion that the rules of procedural fairness ordinarily require the Commission to extend to the parties and to others who will be directly affected by its orders an adequate opportunity of being heard, but those rules do not require the Commission to ignore the nature of proceedings inter partes and to extend an opportunity of being heard to every person who, while not being a party, claims to have an indirect interest in the proceedings in the sense that he is likely to be indirectly advantaged or disadvantaged by an order or award of the Commission (530).  Mason J, however, expressed a broader view and said (522):

In general, the applicant is required to have an interest which is a substantial interest, a legal interest or one which is known and protected by the law.  In this respect the applicant must be interested in the outcome or the result of the litigation because he has a legal right which will be directly affected thereby or a legal liability which will be directly enlarged or diminished by the judgment — the interest must be direct and immediate rather than merely consequential.

7         Justice Mason also observed that an interest which in its nature is inadequate to support intervention in legal proceedings in a court may be sufficient to support intervention in a matter of industrial arbitration before the Commission (523).

8         Justice Brennan also expressed a broader view.  He said (528):

Generally speaking, a decision that will affect adversely a person's legal rights or his proprietary or financial interests or his reputation ought not to be taken without first giving him an opportunity to be heard provided such an opportunity can be reasonably given (F.A.I. Insurances Ltd. v. Winneke (1982) 151 CLR 342, at pp. 411-412, even if that person is not directly involved in the proceedings which lead to the making of the decision: cf. Reg. v. Town and Country Planning Commissioner; Ex parte Scott [1970] Tas. S.R. 154, at pp. 182-187; 24 L.G.R.A. 108, at pp. 137-141. But that is not an absolute rule.

9         Justice Deane had regard to the express power in s 36(2) of the Conciliation and Arbitration Act 1904 (Cth) which empowered the Commission to grant leave to a person or organisation to intervene in any matter where the Commission is of the opinion that it is desirable that a person or organisation should be heard.  Having regard to that provision he found:

In other words, the Act expressly provides that the power to grant to a non-party leave to intervene can only be exercised by the Commission if it is persuaded that it is desirable that the applicant for such leave should be heard in those proceedings.  Subject to that restriction, the general power to grant leave to intervene encompasses the power to grant such leave in a limited form: cf. Reg. v. Evatt; Ex parte Master Builders' Association (N.S.W.) (1974) 132 CLR 150 at pp. 153-154, 155. Indeed, conformably with the statutory restriction upon the exercise of the power and subject to the general observation that it ordinarily would not be open to the Commission to fail to be of the opinion that it was ‘desirable that a person or organization should be heard’ in relation to a part of the proceedings in which he, she or it was directly interested, one would expect that, in a case where the Commission is ‘of the opinion that it is desirable that a person or organization should be heard’ in relation to part only of proceedings before it, the grant of leave to intervene would be limited so that it related only to that part of those proceedings (530 – 531).

10      In Gairns Sharkey P, after having regard to each of the judgments in Ludeke, found (2347):

In deciding whether to exercise my discretion under s.27(1)(k) a number of matters must be considered under the section, and by application of the authorities to which I adverted above:-

(1) That the applicants, for leave to intervene, have a sufficient interest.  That is the primary question.

(2) It would be doubtful that a person not directly affected would have sufficient interest, but such a person would not, as an absolute rule, have insufficient interest.

(3) As Mr Gethin submitted, s.66 is directed to the resolution of internal problems arising under the rules of an organization (see for example s.66(1) which limits the classes of applicants).

(4) The principal object of intervention is to ensure that all interested parties will participate in a single resolution of a controversy, instead of being relegated to a resolution of the controversy in several proceedings.

(5) There are no unusual criteria to enable me to make this decision.

(6) Generally speaking, a decision that will affect adversely a person's legal or property rights or interests would constitute sufficient interest, but that is not an absolute rule.

(7) That in this case, the hearing was almost concluded before there was any application to intervene.

(8) In hearing proceedings the Commission is bound to observe the rules of procedural fairness which are commonly referred to as the principles of natural justice (see R. v. Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546).

Those rules will ordinarily require the Commission to give the parties and give others who will be directly affected by its orders, and who have a sufficient interest, an adequate opportunity of being heard.  They do not require the Commission to ignore the nature of proceedings, inter partes, and to extend an opportunity of being heard to every person, who, while not being a party, claims merely to have an indirect interest in the proceedings, in the sense that he is likely to be directly or indirectly advantaged by an order or award which the Commission may make.

11      When the application to intervene was heard on 16 December 2011, Mr Mcjannett outlined particulars of the grounds of his application.  In summary the points he made were as follows:

(a) Officers and employees of the State organisation had interfered in contractual relations of members with their employer and had committed criminal offences and amongst other offences had stolen or misappropriated funds;

(b) There were no members of the State organisation;

(c) The State organisation had filed false returns in the Commission.

12      Section 71(1), s 71(2), s 71(3) and s 71(4) of the Act provides:

(1) In this section — 

Branch means the Western Australian Branch of an organisation of employees registered under the Commonwealth Act;

counterpart Federal body, in relation to a State organisation, means a Branch 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; and

State organisation means an organisation that is registered under Division 4 of Part II.

(2) 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.

(3) 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.

(4) 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.

13      After hearing submissions from Mr Mcjannett and from counsel for the applicant, the Full Bench dismissed Mr Mcjannett’s application to intervene.  The reason why the application was dismissed is that the Full Bench was not satisfied that Mr Mcjannett had shown a sufficient interest in the proceedings before the Full Bench.  This is because the Full Bench formed the opinion that if the substantive application by the State organisation was to be granted, the ability of Mr Mcjannett to pursue a review of his allegations would not and could not be affected.  This is in part because the matters raised in [11](a) by Mr Mcjannett are matters that if Mr Mcjannett wishes to pursue, can only be investigated by the Police or the Corruption and Crime Commission.  As to the contention that the State organisation has no members, this issue has been litigated at length and found to have no merit by Ritter AP in Thompson v Reynolds [2009] WAIRC 00024; (2009) 184 IR 186; (2009) 89 WAIG 287 and Mcjannett v Kevin Reynolds, Secretary – The Construction Forestry, Mining & Energy Union of Workers [2009] WAIRC 01282; (2009) 89 WAIG 2395.  In relation to the issue raised in [11](c), this is not a matter that can be considered by the Full Bench when hearing an application for a declaration under s 71 of the Act.  This is a matter, (if it is to be pursued), that may be raised with the Registrar of the Commission.

14      The scope of the powers, functions and duties of a Full Bench hearing an application for a declaration under s 71 of the Act are circumscribed by the express provisions of s 71.  The Full Bench is not provided with a discretionary power to make a declaration.  The power in s 71 to make a declaration is not inquisitorial, nor arbitral, but requires the Full Bench to interpret the rules of the State organisation and the counterpart Federal body.  If the conditions set out in s 71(2), s 71(3) and s 71(4) are met then the Full Bench is obliged to make a declaration.  The pre-conditions set out in these provisions require the Full Bench to have regard to, and only to, the provisions of the rules of the State organisation and the rules of the counterpart Federal body. 

Qualifications of persons for membership

15      Under s 71(2) of the Act, the Full Bench is required to consider whether the rules of the State organisation and its counterpart Federal body relating to the qualifications of persons for membership can be deemed to be the same.  The Full Bench can make such a declaration if it forms the opinion that the rules of each body are substantially the same: s 71(2) of the Act.  Further, s 71(3) of the Act provides the Full Bench may form the opinion that the rules referred to in s 71(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.

16      In FBM 15 of 2010 the Full Bench had regard to the evidence contained in a statutory declaration made by Kevin oel Reynolds, the secretary of the State organisation and the counterpart Federal body.  After considering the documents attached to his statutory declaration, in particular a document that set out in detail a table of persons who are qualified for membership of the State organisation and the counterpart Federal body, the Full Bench formed the view that the eligibility rules of both the State organisation and the counterpart Federal body are substantially the same as required by s 71(2) and s 71(3) of the Act.

17      In this matter the Full Bench has before it another statutory declaration made by Mr Reynolds.  This statutory declaration was made on 10 October 2011.  In that statutory declaration Mr Reynolds sets out a table which compares the businesses, callings, trades, manufacturers, undertakings, industries, occupations, vocations and industrial pursuits of persons usually employed or desiring to be employed who would be eligible to be members of the State organisation and the counterpart Federal body.  That table reflects the same information and analysis as the table which was annexed to Mr Reynolds’ affidavit in FBM 15 of 2010.  Mr Reynolds in his affidavit made on 10 October 2011 attests that since the reasons for decision were published by the Full Bench in FBM 15 of 2010 there has not been any change to either the state rules or the federal rules in relation to eligibility of membership.  Consequently, following the earlier decision in FBM 15 of 2010, we are satisfied that the eligibility rules of both the State organisation and the counterpart Federal body can be deemed to be the same as the persons eligible for membership of each body are substantially the same and it is not necessary to consider this issue any further in these reasons for decision.

Are the offices that exist in the counterpart Federal body the same as the offices of the applicant?

18      In FBM 15 of 2010 the Full Bench analysed of each of the offices in the State organisation and the counterpart Federal body.  In conducting this analysis the Full Bench had regard to the observations of Pullin J in Jones v Civil Service Association Inc (2003) 84 WAIG 4 [35] where his Honour found that when determining whether the offices that exist in a counterpart Federal body are the same as the offices of the State organisation, it is necessary for the Full Bench to consider the functions and powers of the office based upon a consideration of the similarity or otherwise of the content of the rules.  Since the determination of FBM 15 of 2010, the offices that exist in each organisation still remain the same.  The offices that exist in the State organisation are established by r 16 of the rules of the state organisation.  These are as follows:

(a) President

(b) Senior Vice President

(c) Vice President

(d) Secretary

(e) Two Assistant Secretaries

(f) Treasurer

(g) Two Trustees

(h) Two Ordinary Executive Members.

19      The offices of the counterpart Federal body are established by r 42(a)(v).  These offices are as follows:

(a) Divisional Branch President

(b) Divisional Branch Senior Vice President

(c) Divisional Branch Vice President

(d) Divisional Branch Secretary

(e) Two Divisional Branch Assistant Secretaries

(f) Divisional Branch Treasurer

(g) Three Divisional Branch Trustees

(h) Five Divisional Branch Management Committee Members.

20      In FBM 15 of 2010 the Full Bench found that the rules of the counterpart Federal body did not prescribe any duties for the office of the Divisional Branch Treasurer or the office of Divisional Branch Senior Vice President.  As those two offices had no powers or functions prescribed, the Full Bench found that they were not satisfied that for each of the offices prescribed in the State organisation there was a corresponding office in the Branch within the meaning of s 71(1), s 71(2) and s 71(3) of the Act.  However, with the exception of those two offices, the Full Bench was satisfied that there was otherwise an office for each office in the State organisation and the Branch.  In particular, the Full Bench in FBM 15 of 2010 made the following finding [51]:

In the circumstances where no functions or powers of the Divisional Branch Treasurer and the Divisional Branch Senior Vice President are prescribed in the rules of the counterpart Federal body (other than common duties as a member of the Divisional Branch Management Committee), and where specific functions and powers of the office of Treasurer and the Senior Vice President in the State organisation are prescribed and vested specifically in each office, we are unable to form the opinion that the rules of the counterpart Federal body prescribing offices are the same or can be deemed to be the same as the rules of the State organisation.  For these reasons we are of the opinion that an order should be made that the application be dismissed.

21      In the statutory declaration made by Mr Reynolds on 10 October 2011 he states as follows:

19. On 11 August 2011, in the matter of Construction, Forestry, Mining and Energy Union [2011] FWAD 4832 ("the FWA Decision"), Fair Work Australia certified alterations to the Construction and General Division Rules.  A copy of the FWA Decision is Annexed hereto and marked "Annexure "KNR6".

20. The alterations made to the Construction and General Division Rules were sub rule 48A and the insertion of a new rule 48D.  These alterations were lodged with Fair Work Australia on 12 July and 8 August 2011 respectively.

21. New sub rule 48A (b) is in respect of the Construction and General Division and reads as follows :

"(b) In the Western Australian Divisional Branch, the Divisional Branch Treasurer shall:

(i) draw up a report and balance sheet for submission to members in the months of January and July and submit his or her books and accounts to the Auditor half-yearly;

(ii) receive all moneys and pay them into the bank account of the Divisional Branch immediately, with the exception of petty cash not exceeding five hundred dollars ($500.00) at any one time;

(iii) keep distinct and intelligible account of all moneys received and expended, with vouchers detailed therefore;

(iv) submit a statement of his or her receipt and expenditure every three months to the members of the Divisional Branch attending a General Meeting;

(v) not make any payment, other than for his or her own travelling and accommodation expenses incurred whilst on business, exceeding twenty dollars ($20,00) except by cheque;"

22. New rule 48D is in respect of the Construction and General Division and reads as follows:

"48D - DUTIES OF DIVISIONAL BRANCH SENIOR VICE-PRESIDENT (WESTERN AUSTRALIA)

Notwithstanding the provisions of any other rule relating to the duties of Divisional Branch officer, in the Western Australian Divisional Branch the duties of the Divisional Branch President shall, in his or her absence, be performed by the Divisional Branch Senior Vice President.

In the absence of both the Divisional Branch President and the Divisional Branch Senior Vice President, the Divisional Branch Vice President shall perform the duties of the Divisional Branch President.  In the simultaneous absence of the Divisional Branch President, Divisional Branch Senior Vice President and Divisional Branch Vice President, the Divisional Branch Management Committee may appoint a member to carry out the duties of the President."

22      It is clear from the changes to the rules of the counterpart Federal body that the functions and powers which are prescribed for the Divisional Branch Treasurer are now the same as the functions and powers prescribed for the office of Treasurer pursuant to r 25(3) of the rules of the State organisation.  Also the duties now prescribed by r 48D of the rules of the counterpart Federal body are now the same as the functions and powers of the Senior Vice President and the Vice President of the State organisation.

23      Having regard to the changes to the rules of the counterpart Federal body which were made by Fair Work Australia on 11 August 2011 and to the reasons given by the Full Bench in FBA 15 of 2010, we are now satisfied that for each office in the State organisation there is a corresponding office in the Branch and that the declaration sought by the applicant should be made by the Full Bench.