Application for Declaration pursuant to sECTION 71(2)

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2012 WAIRC 01004

DELIVERED : Wednesday, 14 November 2012

FILE NO. : FBM 8 OF 2012

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

Legislation : Industrial Relations Act 1979 (WA) s 7(1), s 71, s 71(1), s 71(2), s 71(3), s 71(4);

Fair Work (Registered Organisations) Act 2009 (Cth).

Result : Decarlation issued

Representation:

Applicant : Mr M Zoetbrood and Mr S Price

Case(s) referred to in reasons:

Jones v Civil Service Association Inc [2003] WASCA 321; (2003) 84 WAIG 4

Re an application by the Civil Service Association (1993) 73 WAIG 2931

Re Bonny [1986] 2 Qd R 80

Re The Australian Workers’ Union, West Australian Branch, Industrial Union of Workers [2012] WAIRC 00032; (2012) 92 WAIG 102

Case(s) also cited:

The Australian Workers' Union, West Australian Branch, Industrial Union of Workers (1981) 61 WAIG 631

The Australian Workers' Union, West Australian Branch, Industrial Union of Workers and The Forest Products, Furnishing and Allied Industries Industrial Union of Workers, WA [2012] WAIRC 00850; (2012) 92 WAIG 1721

Western Australian Municipal, Administrative, Clerical and Services Union of Employees [2011] WAIRC 00111; (2011) 91 WAIG 331

Reasons for Decision

THE FULL BENCH:

1 Introduction

1          This is an application made under s 71(2) and s 71(4) of the Industrial Relations Act 1979 (WA) (the Act) for a declaration that the rules of a counterpart federal body:

(a) relating to the qualifications of persons for membership are deemed to be the same; and

(b) prescribing the offices which exist in a branch of an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Cth) are deemed to be the same as the rules prescribing the offices which exist in the state organisation.

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 Fair Work (Registered Organisations) Act, the rules of which:

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

(b) prescribe the offices which shall exist within the branch,

are, or, in accordance with s 71, are deemed to be, the same as the rules of the state organisation relating to the corresponding subject matter.

3         The applicant was registered as a state organisation by a Full Bench on 19 September 2012, following the amalgamation of The Australian Workers’ Union, West Australian Branch, Industrial Union of Workers and The Forest Products, Furnishing and Allied Industries Industrial Union of Workers, WA:  [2012] WAIRC 00850; (2012) 92 WAIG 1721.

4          The counterpart federal body of the applicant is The Australian Workers’ Union, West Australian Branch.  The applicant makes the application to enable the orderly and efficient administration and co-ordination of its functions and duties and its counterpart federal body.  Obtaining a declaration is a 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 exempt the applicant from holding elections for its offices as defined in s 7(1) of the Act.  A certificate will also enable it to make an agreement relating to the management and control of funds with The Australian Workers’ Union (AWU) of which the counterpart federal body is a branch.

2 Are the qualifications of persons for membership substantially the same?

5          Pursuant to s 71(2) of the Act, the rules of the state organisation and its counterpart federal body relating to the qualification of persons for membership are deemed to be the same if, in the opinion of the Full Bench, they are substantially the same.

6          Under s 71(3) of the Act, the Full Bench may form the opinion that the rules of the state organisation and the counterpart federal body 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.

7          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.

8          The eligibility rules for membership of the applicant and its counterpart federal body are lengthy and somewhat tortuous.  Whilst the applicant was recently registered as a new state organisation following the amalgamation, its eligibility rules are merely the eligibility rules of the amalgamating organisations.  The applicant's rules are from a longstanding organisation which has been registered since 18 July 1941 (see the discussion in Re The Australian Workers’ Union, West Australian Branch, Industrial Union of Workers [2012] WAIRC 00032; (2012) 92 WAIG 102 [144]).

9          The eligibility rules of the applicant and its counterpart federal body show that the organisations have historically covered an extremely broad range of industries and occupations.  This is perhaps reflected in the names of the applicant and its counterpart federal body which do not tie themselves to any particular branch of industry or occupation.

10       The applicant filed an outline of submissions on 22 October 2012.  Attached to those submissions is a document which contains a broad comparison of the eligibility clauses of the applicant and its counterpart federal body.  It is apparent from that document and the submissions made on behalf of the applicant that there are a number of occupations for which there is no equivalent eligibility rule in the rules of the counterpart federal body which are largely occupations which are out-dated.  They refer to work which is no longer carried out in Western Australia such as the manufacture of sealing devices for bottles or jars and the manufacture of badges and emblems.  The fact that these industries and occupations are out-dated is reflected in the absence of members in the membership records of the applicant and the counterpart federal body.

11       The applicant provided evidence in a statement made by the secretary, Stephen Price, on 14 August 2012 in which he states that as at 10 August 2012 there were 6795 members of the applicant and 6679 members of its counterpart federal body.  Of these members 116 members of the applicant are not eligible to be members of the counterpart federal body.  These include 112 furniture workers and four service station employees.  Further, there are 58 members of the counterpart federal body who are eligible for membership of the counterpart federal body but who are not eligible to be members of the applicant.  Of these 58, 38 members are engaged in the manufacture of fertilisers and chemicals and 20 members are engaged by a company known as Energy Developments Ltd.

12       It is apparent that in the main those who are not eligible to be members of the counterpart federal body are engaged in occupations which were formerly covered by the Forest Products, Furnishing and Allied Industries Industrial Union of Workers, WA.  However, workers engaged in those occupations comprise a very small number.

13       Consequently, when regard is had to the actual numbers of members of the applicant and the counterpart federal body and their occupations, together with the fact that the eligibility rules of the applicant contain a number of out-dated occupations, we find that the eligibility rules of the applicant and the counterpart federal body are substantially the same as, in essence, there is a significant similarity of coverage between both organisations.

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

14       When determining whether the offices that exist in the counterpart federal body 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] WASCA 321; (2003) 84 WAIG 4 [35] (Pullin J).

15       Pursuant to s 71(4) of the Act, the rules of a counterpart federal body prescribing the offices which shall exist 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 each office in the state organisation there is a corresponding office in the counterpart federal body.

16       Rule 24 of the rules of the applicant establishes the following offices of the state organisation.  These are as follows:

(a) president;

(b) two vice-presidents;

(c) secretary;

(d) assistant secretary;

(e) seven executive committee members.

17       Although these offices are referred to in r 14, r 34 and r 35 as branch president, branch vice-presidents, branch secretary, branch assistant secretary and branch executive committee members, pursuant to the order made by the Full Bench on 19 September 2012, the registration of the new amalgamated organisation was authorised subject to the applicant taking steps forthwith to alter its rules to remove a number of errors, including the inconsistencies in references to these titles.  In these reasons, as r 24 creates the executive and each office of the applicant without a preceding title of branch, each of those offices will be referred to without the reference to branch, even when the provisions in r 14, r 34 and r 35 are being considered.

18       Pursuant to r 33(7) of the rules of the AWU, the offices of the counterpart federal body are as follows:

(a) branch secretary;

(b) branch president;

(c) branch assistant secretary;

(d) two branch vice-presidents;

(e) seven branch executive committee members.

(f) Alcoa Pinjarra sub-branch president;

(g) Alcoa Pinjarra sub-branch secretary.

19      As s 71(4) of the Act only requires that the offices which exist in the counterpart federal body correspond to each office in the state organisation, it is immaterial that the counterpart federal body establishes two additional offices.

20       To determine whether the offices that exist in the counterpart federal body are the same as the offices of the state organisation, the Full Bench is required not only to have regard to the titles of the offices that exist in each organisation, but it is also necessary for the Full Bench to consider the functions and powers of each of those offices which necessarily includes an analysis of the functions and powers of each office as a member of the executive of each organisation.

3A Functions and powers of offices that comprise the executive and branch executive

21       It is clear that the express duties and functions of the president and vice-presidents of the applicant and the branch president and the branch vice-presidents of the counterpart federal body are identical.  However, regard should also be had to the functions and powers that the president, branch president, vice-presidents and branch vice-presidents have as members of the executives.

22       In the applicant’s table of comparison of the powers and duties of the executive committee members of the applicant and the executive committee members of the counterpart federal body, the applicant only refers to r 27 of the rules of the applicant and r 35(5) and r 35(6) of the rules of the AWU.  However, as members of each executive, the executive committee members exercise the powers of each of the executives, together with the other members of the executives, the presidents, the vice-presidents, the secretaries and assistant secretaries.  In r 27 there is only one provision that deals expressly with the powers of an executive committee member.  In r 27(4) of the rules of the applicant, executive committee members shall exercise all the rights and privileges of members of the executive, except where they pertain to a particular office.  Whilst there is no equivalent provision in the rules of the counterpart federal body, it is inherent in the nature of a position of an office of an executive that each member is empowered, together with other members of the executive, to exercise those powers of the executive.  To analyse the positions of executive committee members and also all of the other members of the executive to ascertain whether the offices can be said to correspond, it is necessary to examine the powers and functions of the executive of the applicant and the branch executive of the counterpart federal body.  These powers and functions are set out in the following provisions:

(a) Admission to membership

23       Pursuant to r 6(1) of the rules of the applicant, where a person applies and is admitted to membership the executive of the applicant can determine within one month to terminate the membership.  A similar power resides with the branch executive of the counterpart federal body under r 7(5) of the rules of the counterpart federal body.  Under r 6 of the rules of the applicant, the state executive is empowered to determine the form of the application for membership.  However, there is no equivalent provision in the rules that apply to the counterpart federal body, but both the state executive and the branch executive of the counterpart federal body comprise the management committee of each organisation and as such would have the power to determine the form of such an application.

(b) Expulsion

24       Under r 9 of the rules of the applicant, the executive is empowered to expel members of the state union.  A similar provision is contained in the rules of the AWU in r 19.

(c) Investment of funds

25       Under r 15 of the rules of the applicant, all property and funds of the union vests in and is under the control of the executive.  Under the rules that apply to the counterpart federal body all property and funds is vested in the national executive under r 51.  However, given that the counterpart federal body is simply a branch of a national body one would expect that a branch would not have absolute control over the funds of the branch.

(d) Annual general meetings, general meetings and extraordinary meetings

26       The time and place of the annual general meeting is to be determined by the state executive under r 20 of the rules of the applicant.  They are also empowered under r 20(2) to call a general meeting at any time and to decide under r 20(4) the time of an extraordinary general meeting as being called by requisition of not less than 100 financial members.  The branch executive of the counterpart federal body also has similar powers to call these meetings under r 46(1) and r 47(1).  However, the time and place of an extraordinary general meeting is to be fixed by the branch secretary under r 48(1) of the rules of the AWU.

(e) Management

27       Under r 24 of the rules of the applicant, subject to the rules of the applicant or decision by plebiscite of the whole of the financial members of the union, the applicant is to be managed by the executive.  The branch executive is also the management committee of the counterpart federal body.  Under r 35(1) of the rules of the AWU, it has general control and conduct of the business of the branch and acts on its own behalf subject to the rules and decisions of national conference and national executive.  Given that a branch is part of a larger national body, it follows that the branch would have to be subject to the decisions made by its national executive.  Consequently, the management powers of the respective executives could not be regarded as material.

(f) Constitution of divisions

28       Under r 25 and r 26 of the rules of the applicant, an executive can create or eliminate divisions from time to time.  Under r 33 of the rules that apply to the counterpart federal body, two or more branches of the federal body can form a division with the approval of the national conference or national executive.

(g) Powers of the executive

29       Under r 27 of the rules of the applicant, all powers of the executive are set out.  In particular, the executive has power to decide any question affecting the union which may arise under the rules and to make, alter or rescind any by-laws for the guidance of and generally to have absolute control of the affairs of the union, subject to the constitution and rules of the union or plebiscite of the whole of the members of the union.  There are also specific powers to appoint returning officers and to dismiss officers of the union.  Importantly, it is expressly provided in r 27(3) that subject as provided in the rules, the highest authority of the union shall be the executive.  Similar powers are given to the branch executive of the counterpart federal body under r 35 of the AWU rules.

(h) Elections

30       Under r 29(5)(b) of the rules of the applicant, a person is prohibited from nominating or holding any office in the union or being employed by the union if they are an officer, agent, delegate or employee of another union, unless they have the authority of the executive.  A similar power is contained in the rules of the AWU.  However, the power of approval in such a case resides with the national executive under r 60(7)(b) of the rules of the AWU.  Where a candidate for an election dies after close of nomination and before a ballot is declared, the executive may appoint a member who qualifies for office to act in the respective office until the ballot is declared.

31       Under r 31(11) of the rules of the applicant, a similar power is vested by r 60(14) in the national executive under the rules of the AWU.

32       Under r 31A(12) of the rules of the applicant, the executive sets the opening and closing dates for election.  There is no equivalent provision in the rules of the AWU as the dates for elections are set in r 63(9).

33       Under r 32 of the rules of the applicant, a vacancy in an elected office can be filled by the executive.  The branch executive of the counterpart federal body is also empowered to fill a vacancy in its branch executive under r 65 of the rules of the AWU.

(i) Representation in court and settlement of disputes

34       Under r 38 of the rules of the applicant, the executive can appoint persons to represent the union.  The branch secretary of the counterpart federal body also has the power to make similar appointments under r 68 of the rules of the AWU, but this power does not reside generally in the branch executive.

(j) Auditors

35       Under r 46 of the rules of the applicant, auditors are appointed by the executive.  Under r 56(3) of the rules of the AWU, branch auditors are required to be appointed each year by the branch executive.

(k) Amalgamation and dissolution of the union

36       Under r 45 of the rules of the applicant, the executive may submit the question of dissolution of the union to a plebiscite of the membership.  Under r 50(3), any proposed amalgamation requires approval by a majority vote of the executive.  Under r 73 of the rules of the AWU, the union cannot be dissolved while any two branches are in favour of its continuance.  Subject to that provision, the national conference or the national executive council may submit the question of dissolution of the union to a plebiscite of financial members.  However, there is no provision which deals with the circumstances under which amalgamations are to take place under the rules of the AWU.  However, such amalgamations are contemplated by r 78 of the rules of the AWU as that rule deals with holding offices in an amalgamated organisation.

3B Functions of secretary, assistant secretary, branch secretary and branch assistant secretary

37       In respect of the duties and functions of the secretary of the applicant and branch secretary of the counterpart federal body, the applicant’s schedule of comparison of its rules and its counterpart federal body simply analyses the functions, powers and duties of the secretary under r 35(1) of the rules of the applicant and of the branch secretary in r 39(1) of the rules of the AWU.  Rule 35(1) of the rules of the applicant is almost in identical terms to r 39(1) of the rules of the AWU.  The only exception is that there are additional duties attached to the rules of the branch secretary of the counterpart federal body in that the branch secretary is also charged with the duty of endeavouring to increase the membership of the branch and to promote and/or organise the education of officers, employees, members and delegates of the union.  These rules, however, do not contain all of the powers, functions and duties of the secretary and the branch secretary of the relevant organisations.  Apart from the functions and powers of the secretary and branch secretary as members of the executive, there are other relevant provisions which are scattered throughout the rules of the applicant and the AWU.  These are as follows:

(a) Admission to membership

38       Under r 6(2) of the rules of the applicant, a person applying for membership is required to pay a prescribed contribution to the secretary or other named officers and authorised persons.  A similar provision is found in r 7(2) and r 7(4) of the rules of the AWU.

(b) Resignation

39       Under r 7(1) of the rules of the applicant, resignation of members of the union is effected by the giving of written notice of intention to resign to the secretary.  Under r 14(1) of the rules of the AWU a member may resign membership by notice in writing addressed to an officer of the relevant branch.  An officer is defined in r 81 of the rules of the AWU to mean a member holding any elected position in or on behalf of the union.

(c) Free membership

40       Under r 8 of the rules of the applicant, the secretary of the applicant can issue a free membership to any member who has been financial for the preceding five years and who is over the age of 65 years or is permanently incapacitated, where such persons are not earning the minimum wage.  A similar entitlement to a ticket is available to members of the counterpart federal body.  However, the contribution is to be $10 per quarter and there is nothing in the rules of the AWU that states to whom the application is to be made, or who can grant it (see r 9(3) of the rules of the AWU).

(d) Expulsion

41       Officers of the union who believe a member has been guilty of any breach of the rules, or misconduct, is required to report the breach to the executive or to the secretary pursuant to the requirements of r 9 of the rules of the applicant.  Under r 19(2) of the rules of the AWU, any member may charge another member with breaches of the rules, or other categories of misbehaviour, some of which could be characterised as misconduct.  Pursuant to r 19(3) of the rules of the AWU, charges must be made to the national secretary or the branch secretary.

(e) Roles of officers and members

42       Under r 10 of the rules of the applicant, the secretary is required to keep a correct register of the names, postal addresses and occupations of all officers and members and is required to provide a copy of the same to the national secretary.  There does not appear to be an obligation on the counterpart federal body to keep a register of officers, but under r 59(2) of the rules of the AWU, the branch secretary is required to keep a register of the members.

(f) Contributions

43       Annual contributions are payable under r 14(2) of the rules of the applicant.  These are to be paid by way of a lump sum or over such period and in such part payments as may be determined by the secretary.  The same right to determine the periods and part payments is conferred on the branch secretary pursuant to r 10(2) of the rules of the AWU.  Also under r 14 of the rules of the applicant, duties are created for the secretary to carry out in relation to payroll deductions and direct debits.  These are set out in r 14(5) and r 14(6) of the rules of the applicant and the same obligations are found in r 10(6) and r 10(7) of the rules of the AWU.

(g) Accounts, balance sheet and audit

44       Under r 16 of the rules of the applicant, the secretary is to submit to each annual general meeting the auditor’s report, balance sheet, the annual report of the secretary and a statement of the financial position of the applicant.  A similar obligation arises under r 55 of the rules of the AWU.  However, pursuant to r 55(2) of the rules of the AWU, the branch secretary is required to provide records to the branch auditor by 31 July each year and the branch auditor is required to provide by 30 September each year an audit and report of the accurate figure of membership contributions.  The branch secretary is required to provide the audit and report to the national executive before 15 October each year.  Also each branch is required to file with the audited balance sheet and the auditor’s report, an operating report as prescribed by the Fair Work (Registered Organisations) Act.  There does not, however, appear to be an obligation to provide or issue an annual report.

(h) Withdrawal of funds

45       Under r 17(3) of the rules of the applicant, no funds can be withdrawn from the bank except by cheque signed by the secretary and countersigned by the president, vice-president or assistant secretary.  Under r 17(4), the secretary can also withdraw funds by electronic transfer.  It appears from the rules of the AWU that there is no equivalent obligation placed upon the functions and duties of the branch secretary.

(i) Postponement of general and annual meetings

46       Under r 20(3) of the rules of the applicant, general or executive meetings may be postponed by the order of two officers, of whom the secretary shall be one.  Under r 20(4), the secretary is empowered to call an extraordinary general meeting upon receipt of a requisition signed by not less than 100 financial members.  The equivalent powers are conferred upon the branch secretary under r 46(3) and r 48(1) of the rules of the AWU.

(j) Trustees

47       Under r 28(2) of the rules of the applicant, the secretary of the union can act as an attorney for a trustee in certain circumstances.  However, no office of trustee is created under the rules of the applicant so it appears this rule has no operation.

(k) Elections

48       There are a number of duties conferred upon the secretary of the applicant by r 30(5), r 31(10) and r 31A(1) and r 31A(5) of the rules of the applicant.  Equivalent obligations are also conferred on the branch secretary by r 61(6), r 62(10), r 63(1) and r 63(5) of the rules of the AWU.

(l) Representation in court, industrial agreements and industrial disputes

49       Duties are conferred upon the secretary in respect of these matters by r 38, r 39 and r 41 of the rules of the applicant.  Similar duties are conferred upon the branch secretary by r 67, r 68 and r 69(2) of the rules of the AWU.

(m) Returns

50       Under r 40 of the rules of the applicant, the secretary is to file with or deliver to the Registrar of the Commission records and other documents which are required to be filed or delivered under the Act.  There is no equivalent provision conferring such a duty on the branch secretary under the rules of the AWU.

(n) Seal

51       Under r 43 of the rules of the applicant, a seal is to be kept in the custody of the secretary.  Under the rules of the AWU there is no seal of the branch and pursuant to r 69 the common seal of the AWU is kept in the custody of the national secretary.

(o) Control of organisers

52       Under r 48 of the rules of the applicant, all organisers are required to conform to the directions of the secretary.  It is inherent in this rule that the secretary is able to direct the duties of the organisers.  The same duty is conferred upon the branch secretary by operation of r 41 of the rules of the AWU.  However, organisers in the state branch are also to conform to the direction of the national secretary.

3C Conclusion

53       When all of these provisions are analysed, together with the obligations on the secretary in r 35(1) and on the branch secretary in r 39(1), it is apparent there is a substantial similarity between the duties, functions and powers of each of the offices of secretary and branch secretary so as to enable a finding to be made that these offices correspond.  The functions of assistant secretary of the applicant and the branch assistant secretary are the same.  The assistant secretary under r 35(2) is to carry out such functions as are determined by the executive or the secretary and is to have the powers and perform the duties of the secretary when the position of secretary is vacant.  The same functions and powers are conferred on the branch assistant secretary pursuant to r 39(2) of the rules of the counterpart federal body.

54       It is also apparent when regard is had to all of these provisions that apply to the other members of each executive that there is a substantial similarity between the functions, powers and duties of the executive and in turn each of the offices of the applicant and the branch executive and the offices of the counterpart federal body.  Clearly not all powers, functions and duties are the same.  However, such a finding is not required and, in any event, would be difficult to find in most applications that come before a Full Bench under s 71 of the Act, as counterpart federal bodies are bodies that are part of much larger organisations whose principal affairs and concerns are determined by a national body that extends beyond the limits of one state.

55       For these reasons, we are of the opinion that a declaration can be made that for each office in the state organisation there is a corresponding office in the counterpart federal body.