Application for declaration pursuant to s.71 and application pursuant to s.62 - addition of new rule - 14a - counterpart federal body

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2014 WAIRC 00006

DELIVERED : MONDAY, 13 JANUARY 2014

FILE NOS. : FBM 10 OF 2013, FBM 11 OF 2013

Appellant

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 - Qualifications for membership rules substantially the same - Not satisfied offices are the same or can be deemed to be the same.

Legislation : Industrial Relations Act 1979 (WA) s 7(1), s 56, s 56A, s 57, s 62, s 71, s 71(1)(b), s 71(2), s 71(4), s 71(5), s 71(5)(a), s 71(6), s 71(7), s 71A;

Fair Work (Registered Organisations) Act 2009 (Cth)

Result : FBM 10 of 2013 - Dismissed

FBM 11 of 2013 - Adjourned sine die

Representation:

Applicant : Mr J Walker, Mr J Welch and Mr A Smith

Case(s) referred to in reasons:

Jones v Civil Service Association Inc. [2003] WASCA 321; (2013) 84 WAIG 4

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

Re Bonnie [1986] 2 Qd R 80

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

Reasons for Decision

THE FULL BENCH:

Introduction

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:

(a) A declaration pursuant to section 71 of the Industrial Relations Act 1979 (WA) (the Act) that the Community and Public Sector Union, SPSF Group, Western Australian Prison Officers' Union Branch is the counterpart Federal body (the counterpart Federal body) of the Western Australian Prison officers' Union of Workers (the State Organisation).

(b) A declaration pursuant to section 71(2) of the Act the rules of the counterpart Federal body relating to the qualification of persons for membership are the same as or deemed to be the same as the qualifications of persons for membership within the State Organisation; and

(c) A declaration pursuant to section 71(4) of the Act that the officers [sic] within the counterpart Federal body are the same as or deemed to be the same as the offices within the State Organisation.

2          The State organisation recently entered into an arrangement to create a counterpart Federal body by forming a Western Australian Prison Officer Branch of the SPSF Group of the Community and Public Sector Union which is an organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth).  The reason the counterpart Federal body has been created is to enable access to the Federal industrial relations system which will enable the counterpart Federal body to represent the interests of current and future members who are national system employees within the prison service in the State of Western Australia.

3          The declarations are sought so that the State organisation can obtain a s 71 certificate to enable 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          Section 71 of the Act provides:

(1) In this section —

Branch means the Western Australian Branch of an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Commonwealth);

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.

(5) Where, after the coming into operation of this section —

(a) the rules of a State organisation are altered pursuant to section 62 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; and

(b) the committee of management of the State organisation decides and, in the prescribed manner notifies the Registrar accordingly, that from a date specified in the notification all offices in the State organisation will be filled in accordance with the rule referred to in paragraph (a),

the Registrar shall issue the State organisation with a certificate which declares —

(c) that the provisions of this Act relating to elections for office within a State organisation do not, from the date referred to in paragraph (b), apply in relation to offices in that State organisation; and

(d) that, from that date, the persons holding office in the State organisation in accordance with the rule referred to in paragraph (a) shall, for all purposes, be the officers of the State organisation,

and the certificate has effect according to its tenor.

(6) A State organisation to which a certificate issued under this section applies may, notwithstanding any provision in its rules to the contrary, make an agreement with the organisation of which the State organisation's counterpart Federal body is the Branch, relating to the management and control of the funds or property, or both, of the State organisation.

(7) Where a memorandum of an agreement referred to in subsection (6) is —

(a) sealed with the respective seals of the State organisation and the other organisation concerned; and

(b) signed on behalf of the State organisation and the other organisation by the persons authorised under their respective rules to execute such an instrument; and

(c) lodged with the Registrar,

the Full Bench may, if it is satisfied that the terms of the agreement are not detrimental to the interests of persons who are eligible to be members of the State organisation and of its counterpart Federal body and will not prevent or hinder the State organisation from satisfying any debt or obligation howsoever arising, approve the agreement.

(8) Where the Full Bench approves an agreement under subsection (7) the Registrar shall —

(a) register the memorandum as an alteration to the rules of the State organisation; and

(b) amend, where necessary, the certificate issued to the State organisation under subsection (5) by declaring that the State organisation is, from the date of registration of the memorandum, exempted from compliance with such provisions of this Act and to such an extent as the Full Bench may, having regard to the terms of the memorandum, direct; and

(c) notify the State organisation in writing of the matters referred to in paragraphs (a) and (b).

(9) After the issue to a State organisation of a certificate or an amended certificate under this section —

(a) the rule referred to in subsection (5)(a) and a memorandum registered under subsection (8)(a) shall not be altered unless the alteration is approved by the Full Bench; and

(b) an alteration to any rule of the State organisation other than the rule referred to in paragraph (a) may be registered by the Registrar if he is satisfied that the rule as so altered is the same as a rule of the State organisation's counterpart Federal body; and

(c) every member of the State organisation's counterpart Federal body who is eligible to be a member of the State organisation shall, for all the purposes of this Act and of any award, industrial agreement or order, be deemed to be a member of the State organisation.

(10) Before granting approval to an alteration of the rule or memorandum referred to in subsection (9)(a), the Full Bench may require compliance by the State organisation with such conditions as the Full Bench considers appropriate.

5          On 4 November 2013, a delegate of the General Manager of the Fair Work Commission approved the creation of the Federal Branch of the Western Australian Prison Officers' Union by amendments to the CPSU Chapter C – SPSF Group Rules which inserted a new Schedule B – SPSF Group Rules for the Western Australian Prison Officers' Union (WAPOU) Branch:  O90V‑SPSF.

6          The State organisation seeks a declaration pursuant to s 71(2) of the Act to facilitate the orderly and efficient administration and coordination of the State organisation and 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.

7          Prior to the issuance of a certificate, the State organisation's rules must be altered and the Full Bench issue a declaration pursuant to s 71 of the Act.  An application to alter its rules is the subject of FBM 11 of 2013 which is made pursuant to s 71(5)(a) of the Act which requires the rules of the State organisation 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. 

Are the qualifications of persons for membership of the State organisation and its counterpart Federal body substantially the same?

8          The first declaration sought by the State organisation is that its counterpart Federal body is the Community and Public Sector Union, SFSF Group, Western Australian Prison Officers' Union Branch.  The second declaration sought is a declaration that the qualifications of membership of the State organisation and its counterpart Federal body are the same or can be deemed to be the same. 

9          The qualification for membership rules of  a State organisation are deemed to be the same as the qualifications for membership rules of the counterpart Federal body if in the opinion of the Full Bench they are substantially the same: s 71(2).  'Substantial' means what is 'real or of substance as distinct from ephemeral or nominal' or 'considerable' or 'in the main essentially':  Re an application by the Civil Service Association (1993) 73 WAIG 2931; Re Bonnie [1986] 2 Qd R 80, 82.

10       The State organisation's Federal body is the Community and Public Sector Union.  Pursuant to r 2 of Schedule B ‑ WAPOU Branch rules of the CPSU – SPSF Group – Western Australian Prison Officers' Union (WAPOU) Branch, the name of the Branch is the CPSU, the Community and Public Sector Union, SPSF Group, Western Australian Prison Officers' Union Branch (WAPOU Branch).  Under r 4.1 of the rules of the WAPOU Branch it is provided that the members of the WAPOU Branch shall be those persons employed in a prison or prison service in the State of Western Australia, who is not a member of, or eligible to be a member of the CPSU/CSA Western Australian Branch and who has been admitted to membership of the CPSU, SPSF Group and who is eligible for membership under r 2 – Constitution and Eligibility for Membership of the CPSU rules. 

11       When regard is had to r 5 of the rules of the State organisation and r 4 of the rules of the WAPOU Branch, it is clear that the qualifications of persons for membership are substantially the same.  Rule 5 of the rules of the State organisation provides that any person employed in a prison or prison service in the State of Western Australia, who is not a member of, or eligible to be a member of, the Civil Service Association of Western Australia (Incorporated) (the CSA), shall be eligible for admission to the State organisation.  The Federal body of the CSA is also the Community and Public Sector Union.

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

12       The third declaration sought by the State organisation is a declaration that the offices that exist in the counterpart Federal body are the same as or are deemed to be the same as the offices that exist in the State organisation. 

Written submissions filed on behalf of the State organisation

13       Supplementary written submissions were filed on 20 December 2013, addressing the issue of whether the rules of the counterpart Federal body prescribing the offices which exist in the WAPOU Branch can be deemed to be the same as the rules of the State organisation prescribing the offices which exist in the State organisation.  On behalf of the State organisation, the following submissions are made: 

(a) Section 71(4) sets out the relevant criteria for deeming the offices rules to be 'the same' namely, 'for each office in the State organisation there is a corresponding office in the Branch'.  The task is not one merely of seeing whether the names of the offices held in one organisation are the same or substantially the same as the offices in the other organisation.  It is necessary for the Full Bench to consider at least the functions and powers of the office based upon a consideration of the similarity or otherwise of the content of the rules:  Jones v Civil Service Association Inc. [2003] WASCA 321; (2013) 84 WAIG 4 [35].  In this regard, it is likely to be relevant whether the powers and functions performed and the qualification for election and appointment are similar, but the terms of office and powers to remove officers are not relevant:  Re The Construction, Forestry, Mining and Energy Union of Workers [2011] WAIRC 00422; (2011) 91 WAIG 1034 [20].  The test does not require the functions and powers provided for by the respective rules to be identical.  The source of the test stated in Jones is the reference in the Act to the words 'corresponding office'.  Nothing in s 71 requires the rules to be identical or the same in respect to the powers and functions of the offices.  The purpose to which s 71 is directed is to ensure that if the requirement to hold elections is dispensed with, members are not deprived of the democratic right to elect those who will exercise the powers of management and influence in the Union.  The Full Bench must be satisfied that the offices of the counterpart Federal body have sufficient equality of power and function with the State organisation's offices so as not to pervert the democratic and representative operation of the Union.  Accordingly, the fact that offices exist within the rules and have the same titles will not be sufficient to satisfy the requirement that the offices are 'corresponding'. 

(b) The word 'correspond' is defined in the Macquarie dictionary to mean 'to be similar or analogous; be equivalent in function, position, amount, etc'.  The rules of the respective entities may differ in respect to the precise descriptions of the functions and powers of offices.  For example, the rules of a Federal branch may provide for particular record keeping functions of an office so as to comply with specific requirements of Federal laws which may not apply to the State organisation.  The fact that the State organisation's rules are silent or specify no requirement of the office to keep such records will not take that office outside the scope of what is 'corresponding'.  In Re CFMEU, the Full Bench articulated a test which required the powers and functions of each office to be 'the same or substantially the same' [37] and later a test of 'sufficient similarity' [44] – [48].  The former formulation goes further, and is a narrower test, than what Jones requires, namely similarity of functions and powers in the context of the rules.  The practical application of the test in Re CFMEU suggests the test is more accurately described by reference to similarity of functions and powers rather than 'sameness'.  For example, in Re CFMEU, the Full Bench observed at [25] that the rules of the State organisation did not prescribe the duties of the management committee except in general terms, whereas the management committee of the counterpart Federal body had specific duties under the rules expressed in addition to the general obligation to manage and control the Union.  This did not derogate from the finding at [36] that the offices of the State organisation and the Branch were respectively the management committee of the State organisation and the Branch.  Further, the fact that particular offices had functions in addition to those which were common, or there were minor procedural differences in the exercise of powers and functions, did not detract from them being sufficiently similar and therefore corresponding offices:  [44] – [48]. 

(c) The definition of 'office' under s 7(1) of the Act does not include the office of any person who is an employee of the organisation and who does not have a vote on the committee of management of the organisation.  However, the Act does not define what a 'committee of management' is.  A committee of management ordinarily refers to the body which manages an association, having collective control over the property of an organisation and charge of its destiny.  The management committee has the same nature as a board of directors of a company.  The officers of an association are generally a broader group than the committee of management.  For example, officers may include paid executive or senior management staff, or members of the committee:  Fletcher KL, Non-Profit Associations, Chapter 17 Management. 

(d) The State organisation has a State Council and a State Executive Committee with their respective roles and functions set out in r 14.  The State Council has 'the general control and conduct of the business of the Union and shall act on its behalf in all matters'.  The State Executive 'shall have the control and conduct of the business of the Union and shall act on its behalf in all matters' between meetings of State Council and subject to the direction of State Council.  Members of both the State Council and the State Executive Committee are elected:  r 14(2) and r 14(3)(a)(ii).  The State Executive comprises the President, Vice-President, Secretary, Assistant Secretary, Treasurer and three members.  Each of these offices are 'offices' for the purposes of s 71 by virtue of definition (b) of 'office' in s 7(1) of the Act.  The members of the State Executive Committee are also members of the State Council.  While the Council has general control over the business of the Union and has power to direct the Executive, the Executive manages the business of the Union between Council meetings.  The structure of the rules therefore suggests that the Executive is the committee of management in which case, all positions on the Executive are 'offices' for the purpose of s 71 by virtue of definition (a) of 'office' in s 7(1) of the Act. 

(e) The WAPOU Branch has a Branch Council and Branch Executive with their respective roles and functions set out in r 13 and r 17 respectively.  The Branch Council 'manages the affairs of the Branch' with power to 'control and manage the business and affairs of the Group'.  The Branch Executive is expressly described as the committee of management of the Branch.  Branch officers are the Branch President, the Branch Vice-President, the Branch Secretary, the Branch Assistant Secretary, the Branch Treasurer and Executive Councillors if the Branch rules so provide.  Each of these offices is 'offices' for the purpose of s 71 by virtue of definition (b) of 'office' in s 7(1) of the Act.  As the Branch Executive is the committee of management, all positions on the Branch Executive are 'offices' for the purpose of s 71 by virtue of definition (a) of 'office' in s 7(1) of the Act. 

(f) The State Executive and the Branch Executive have substantially the same powers and functions.  Both are the committee of management of each organisation.  The State Executive has particular express functions: 

(i) To appoint a returning officer:  r 27;

(ii) Give notice of general meetings:  r 29;

(iii) Receive written notices of objection to rule alterations:  r 34(4);

(iv) Make press statements:  r 34;

(v) Visit branches:  r 44;

(vi) Grant emergency legal assistances subject to conveying the grant to State Council:  r 40;

(vii) Determine the salary of the Secretary:  r 42. 

The Branch Executive powers are expressed in general terms only.  The general powers conferred would ordinarily encompass the matters which are express functions of the State Council, except that the Branch Council powers are more extensively listed in the Federal rules.  Two of the functions exercisable by the State Executive are reserved to the Branch Council:  appointing a returning officer:  r 13(ii)(vii) [sic] and fixing salaries:  r 13(ii)(ix) [sic].  These differences do not alter the nature of the functions and powers of the State Executive and Branch Executive sufficiently to mean the offices which comprise the management committee are not equivalent and corresponding.  The State Executive and Branch Executive function equivalently as management committees. 

(g) In assessing whether the rules prescribing offices are 'the same', it is relevant to consider the content of the rules as a whole and in particular, the structure of the governance of the relevant entity.  The case where particular functions are conferred on an office in one entity, but there is no express conferral of those functions on any office of the other entity, is different to the case where the specific functions are provided for but are conferred on a different office.  In the former case, the nature of the office may well be sufficiently similar and the overall governance structure aligned and equal.  In the latter case, the offices take on a different nature as does the governance.  The rules of the State organisation and the WAPOU Branch fall into the former category.  The number and title of offices are entirely aligned.  There is no case where duties or functions of one office are performed by a different office in the other entity.  This is a strong indicator of meeting the requirements for the rules to be deemed to be the same for the purposes of s 71(1)(b) and s 71(4) of the Act. 

The functions and powers of the President/Branch President

(h) Both the State President and the Branch President have in common obligations to preside over all meetings of Council, Executive and membership; maintain and enforce rules; and ensure officers of the Union abide by the rules.  Under the rules of the State organisation, the President must additionally ensure that expenditure is authorised by the members in meeting and must certify such authorisation.  This is a minor difference in procedure rather than a substantive difference in powers or functions.  Insofar as the rules of the WAPOU Branch require that the Branch President enforce Branch policies and ensure the rules of the WAPOU Branch are enforced, this function encompasses a responsibility for ensuring authorisation of expenditure as may be required by the rules and policies (including r 13(ii)iv) [sic] of the rules of the WAPOU Branch which empowers the Branch Council to authorise the disbursement of moneys).  The only substantive difference is that the rules of the State organisation require the President to certify that such expenditure is duly authorised.  The President has no additional power to authorise expenditure him or herself.  Under the WAPOU Branch rules, the Branch President determines the dates of meetings of the Branch Council and Branch Executive in consultation with the Branch Secretary.  Under the rules of the State organisation, this function is conferred upon the State Council.  This is a minor procedural difference which does not alter the nature of the functions and powers on the office of President.  The President of the State organisation has a casting vote.  The President of the WAPOU Branch may exercise a deliberative vote at meetings of Branch Council and Branch Executive.  Having a deliberative vote anticipates that the President may not exercise his or her ordinary vote at a meeting unless and until the remaining members have voted and if that vote was required to determine an issue.  A casting vote is exercised only after the ordinary vote has been exercised and only if voting is then equal.  A casting vote therefore cannot be exercised to determine a special resolution, and can only influence the passing of a resolution which would otherwise lapse for want of a simple majority.  This represents a difference in respective voting rights and meeting procedure.  It does not alter the scope of the President's functions or powers in the sense contemplated by Pullin J in Jones.  The casting vote is a procedural mechanism for breaking a tie in votes:  Renton NE, Guide for Meetings and Organisations, (4th ed, 1985, para 813.  It is a procedural provision.  Even if the capacity to cast a vote is viewed as a 'power', which is not admitted, then the difference is minor.  The fact that the State rules provide for the President to exercise a deliberative vote and the Federal rules provide the Branch President a casting vote was not an obstacle to finding the offices were corresponding in Re CFMEU:  CFMEU State r 25(1)(c) [22] and Federal r 43 [26].  It can also be said that the difference is analogous to the position of the State President in Re CFMEU having a power to decide upon a course of action in circumstances of urgency.  That is, the State President had an additional power not conferred on the Branch President with limited scope of operation so that it did not sufficiently alter the nature of the office so that the offices were not corresponding. 

The functions and powers of the Vice-President/ Branch Vice-President

(i) Both the Vice-President and the Branch Vice-President are required to assist their respective President and Branch President in relation to the conduct of meetings only.  The Vice-President takes the chair in the President's absence.  The Branch Vice-President on the other hand is expressly required to assist the President in the performance of 'duties of Branch President' and perform the duties of Branch President or Branch Treasurer when those respective officers are absent or whenever requested by the President (in the case of the President's duties) or whenever instructed by the Branch Council or the Branch Executive.  The Branch President's duties are set out in r 16.1 of the rules of the WAPOU Branch and include presiding at meetings but also extend to enforcing the rules and other matters.  Whilst this represents a difference in the rules that are relevant to the office of Vice-President, the difference does not detract from the corresponding nature of the office of the Vice-President and the office of Branch Vice-President.  This is because when the Branch Vice-President is performing duties in accordance with r 16.2(b) or 16.2(c) of the rules of the WAPOU Branch he or she is performing the duties and exercising the functions of the Branch President, the Branch Treasurer, the Branch Council or the Executive Branch depending on the duties that were requested or instructed to be performed.  In practical terms, this means that the Vice-President can be called upon to perform an unlimited scope of duties.  That does not mean that the role of Vice-President should be characterised as an office having unlimited duties or duties encompassing all those of the Branch President, Branch Treasurer, Branch Council and Branch Executive.  The fundamental nature of the office of Vice-President is that his or her purpose is to assist the Branch President.  In Re CFMEU, the CFMEU Branch rules provided for the Divisional Branch Vice-President to carry out 'such duties as may be required by resolution of the Divisional Branch Council or the Divisional Branch Management Committee':  r 44(i) [27].  This was not a requirement of the State rules.  This did not however appear to have been a bar to the finding that the offices were 'corresponding'.  The Full Bench said in Re CFMEU [44]: 

Whilst the Divisional Branch Vice-President of the Branch has duties which are in addition to the functions in common with the Vice-President of the State organisation, it is apparent that there is sufficient similarity in the shared central function of the offices which is to act in the place of President and the Divisional Branch Vice-President respectively.

The function and powers of the Secretary/Branch Secretary

(j) Rules 10, 21, 23 and 31 of the rules of the State organisation and r 16.4 of the rules of the WAPOU Branch provide for common duties and functions.  These include the issuing of notices of meetings; attending general meetings, executive and council meetings; keeping minutes of meetings; receiving and attending to correspondence; receiving fees and contributions; maintaining books and records, and maintaining proper accounts; maintaining the register of members; discharging other duties as are assigned or allocated; and lodging such information as is necessary for the compliance with the Act.  In addition, under the rules of the State organisation, the Secretary is expressly the custodian of movable property and is required to maintain a register of member attendances at meetings.  The Branch Secretary is to be 'the executive officer' of the Branch and be responsible for administration and management of the Branch and its employees, be an ex‑officio member of committees and fulfil various financial functions.  Despite the different expressions of the scope of duties, the offices are sufficiently similar and are clearly of the same nature, having regard to the functions and powers so as to be 'corresponding' offices. 

The functions and powers of the Treasurer/Branch Treasurer

(k) The Treasurer of the State organisation and the Branch Treasurer have in common the duty to present accounting reports and reports on the financial position to Council.  The State rules express the duty of reporting to Council in more general terms of 'relevant reports', whereas the Branch rules refer to specific statements showing financial position and reports supplied by auditors.  These are minor differences only.  The State Treasurer has the obligation to 'keep a general oversight of the financial position of the Union'.  This obligation is implicit in the requirement for the Branch Treasurer to report on the financial position of the Branch and is therefore not a substantive difference.  The State Treasurer has an obligation to 'exercise proper control over the management of [the Union's] funds and ensure accounting records are kept in accordance with proper accounting principles and truly record and explain the financial transaction and financial position of the Union.'  Again, while these duties are not expressed in r 16.3 of the rules of the WAPOU Branch, it is implicit that the requirement to 'furnish' statements showing the financial position that the Branch Treasurer will do these things.  The Branch Treasurer cannot provide reports on the financial position of the Branch without keeping proper accounts from which those reports can be prepared.  The Branch Treasurer cannot practically provide reports showing the financial position without recording and explaining the financial transactions that comprise those reports.  The State organisation rules additionally require the Treasurer to present accounts at the annual general meeting and act with the President and two other members of the Executive in matters of urgency.  These further functions do not significantly alter the nature of the office so as to detract from its similarity with the Branch Treasurer.  The Branch Treasurer has an additional duty to perform the duties of the Branch President in the absence of both the Branch President and Branch Vice-President, and to perform particular duties when requested or instructed by the President, Council or Executive.  This is not a difference in the office which detracts from its correspondence with the State Treasurer for the same reasons that are put forward in relation to the offices of Vice-President and Branch Vice-President. 

The functions and powers of the Assistant Secretary/Branch Assistant Secretary

(l) Rule 21A of the rules of the State organisation and r 16.5 of the rules of the WAPOU Branch provide in each case that the Assistant Secretary and the Branch Assistant Secretary are to assist and act on behalf of their respective Secretaries when he or she is absent.

Finding – Is there a corresponding office in the WAPOU Branch for each office in the State organisation

14       Pursuant to s 71(4) of the Act, the rules of the 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.  An 'office' in relation to an organisation is defined in s 7(1) of the Act to mean:

(a) the office of a member of the committee of management of the organisation; and

(b) the office of president, Vice-President, secretary, assistant secretary, or other executive office by whatever name called of the organisation; and

(c) the office of a person holding, whether as trustee or otherwise, property of the organisation, or property in which the organisation has any beneficial interest; and

(d) an office within the organisation for the filling of which an election is conducted within the organisation; and

(e) any other office, all or any of the functions of which are declared by the Full Bench pursuant to section 68 to be those of an office in the organisation,

but does not include the office of any person who is an employee of the organisation and who does not have a vote on the committee of management of the organisation;

15       At the hearing of this matter on 16 December 2013, Mr Walker on behalf of the State organisation made a submission that the State Council and the Branch Council are the management committee of each of the organisations.  A contrary submission is however put on behalf of the State organisation in its supplementary submissions filed on 20 December 2013.  In our opinion, the submission put on behalf of the State organisation in its supplementary submissions is correct.  We have some difficulty with the contention that the State Council and the Branch Council are management committees of the organisations within the meaning of 'office' in s 7(1) and s 71 of the Act.  Such a construction in respect of the WAPOU Branch is contrary to the express provision in r 7.1 of the rules of the WAPOU Branch which provides that between meetings of Branch Council the management of the WAPOU Branch shall be vested in the Branch Executive which shall be the committee of management of the Branch and pending the first meeting of Branch Council shall have all such powers except the power to make, amend or rescind rules or any power expressly reserved to itself by decision of Branch Council.

16       Rule 14(1) of the rules of the State organisation provides:

Subject to the Rules and decisions of a General or Special General Meeting, the State Council shall have the general control and conduct of the business of the Union and shall act on its behalf in all matters.  Between meetings of the State Council and subject to the control of the State Council, the State Executive shall have the control and conduct of the business of the Union and shall act on its behalf in all matters.  It shall have the daily management of the business of the Union.  Without in any way limiting the generality of the foregoing, the State Executive shall have power to hear and determine all disputes between any two or more members relating to matters concerning the Union.  It shall interpret the rules and shall determine all matters where the rules are silent and shall provide delegates to affiliated organisations in pursuance of all the objects of the Union.

17       Pursuant to r 14(2) of the rules of the State organisation, the State Executive consists of the President, Vice-President, Secretary, Assistant Secretary, Treasurer and three members.  It also provides that members of the State Executive shall be elected four yearly.  Under r 14(3)(a) of the rules of the State organisation, the State Council consists of the State Executive and delegates elected by each Branch on the basis of one delegate for each hundred members or part thereof.

18       Under r 7.3 of the rules of the WAPOU Branch, the Branch Executive consists of the Branch President, the Branch Vice-President, the Branch Secretary, the Branch Assistant Secretary, the Branch Treasurer and three Executive Members.  Like the State Council, the Branch Council also consists of the Branch Executive Officers and Delegates to the Branch Council elected by each Sub-Branch on the basis of one delegate for each hundred financial members or part thereof:  r 6.2 of the rules of the WAPOU Branch.  The Branch Council is required to meet every two months or at such other times as Branch Council or Branch Executive shall deem necessary and shall be convened by notice signed by the Branch Secretary:  r 6.3 of the rules of the WAPOU Branch.  The State Council is also required to meet at least every second month:  r 14(5)(a) of the rules of the State organisation.  Under r 14(5)(b), a State Executive can determine when it meets.  However, under r 7.2 of the rules of the WAPOU Branch, the Branch Executive is required to meet at least every two months between meetings of Branch Council and whenever required by the Branch President after consultation with the Branch Secretary.

19       Whilst the State Council has the overall general control and conduct of business of the union, which is subject only to the rules and decisions of General and Special General Meetings, it does not follow as a matter of construction of r 14 of the rules of the State organisation that the State Council is the management committee of the organisation.  In our opinion, the proper construction of r 14(1) is that the Council is the supreme governing body of the organisation that has the power to direct and control the State Executive.  As the State Executive is required to have the daily management of the business of the union it is the management committee of the union within the meaning of the definition of 'office' in s 7(1) and s 71 of the Act.  Consequently, in our opinion, the only offices that need to be examined by the Full Bench in considering whether the offices that exist in the WAPOU Branch are the same as the offices of the State organisation are those of the offices in the State Executive and the Branch Executive.

20       We now turn to the powers and functions of each of the offices in the State Executive and the Branch Executive, which are as follows: 

21       It is apparent from the scheme of the provisions of s 71 when read with the definition of 'office' in s 7(1) of the Act together with the provisions in the Act that deal with the subject matter of elections of office holders of an organisation (s 56, s 56A, s 57) and the provisions of s 71A which authorises a State organisation to adopt the rules of its counterpart Federal body, that it is intended that once a declaration is made by a Full Bench and a certificate is issued by the Registrar of the Commission under s 71(5) of the Act, a State organisation and its counterpart Federal body can effectively operate as one organisation.  If they wish to do so they can jointly manage the property and funds of both organisations by entering into a memorandum of agreement with the counterpart Federal body under s 71(6) and s 71(7) of the Act relating to the management and control of the funds or property, or both, of the State organisation.  It is also clear that by authorising persons holding office in a counterpart Federal body to hold office in a State organisation is that effectively the two organisations can be operated for many purposes as if the organisations were as one. 

22       Where there is no difference between the functions and powers of the offices of both organisations, clearly the offices can be deemed to be the same.  However, if the powers and functions of the offices of the State organisation and its counterpart Federal body are not sufficiently similar, a decision or decisions of the management committees of the organisations could in some circumstances be challenged as invalid.  If, for example, a State management committee and its counterpart Federal body committee of management sit at the same time with the same officers holding office in each committee and make decisions that collectively affect the members and/or property or funds of both organisations, the question is likely to arise if the issue is to be dealt with differently or by different persons holding offices under the rules, which rules do they have to comply with in making decisions that affect members of both organisations, if it is not possible to comply with the rules of both organisations. 

23       Whilst Pullin J in Jones at [35] found that when determining whether the offices that exist in a counterpart Federal body are the same as the offices in the State organisation 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, his Honour did not analyse how this task is to be conducted.  Nor did his Honour formulate any principles upon which similarity of powers and functions of offices should be assessed.  Section 71(4) of the Act deems offices of the State organisation to be the same as offices in the counterpart Federal body if there is a corresponding office for each State office in the counterpart Federal body.  For an office to 'correspond', its functions and powers must be similar.  To determine whether there is similarity, the functions and powers must have a degree of similarity that is sufficient to enable a finding to be made that offices can be deemed to be the same and thus correspond within the meaning of s 71(4) of the Act. 

24       In Re CFMEU after comparing each office of the State organisation and its counterpart Federal body, the Full Bench was unable to be satisfied that there was sufficient similarity in the functions and powers of the some offices to be sufficiently similar, or the same or substantially the same [37].  In respect of other offices the Full Bench found there was sufficient similarity in the function and powers of offices to form the requisite opinion [44], [45], [46], [47] and [48]. 

25       In assessing similarity, it is also necessary to assess whether a conflict arises between the functions and powers of the duties of each office of the State organisation and each office that is not a 'corresponding' office in the counterpart Federal body but corresponds to another office.  This issue arose in Re CFMEU.  One of the reasons why the Full Bench in that matter found that the offices of the President of the State organisation and the Divisional Branch President could not be deemed to be the same is that the Divisional Branch President had some of the powers and functions of a treasurer which were in part similar to the powers of the Treasurer of the State organisation [38].  In these circumstances, a clear conflict arose as the functions and powers of one office could be performed by the holder of another office.

26       Where an office of a State organisation is said to correspond with an office of its counterpart Federal body, no conflict will usually arise if each office has the same or substantially similar functions and power.  Nor will any conflict usually arise if any of the offices of the counterpart Federal body have additional functions and powers that are not comparable to the powers and functions of any office in the State organisation.  In such a case, no conflict arises if those other functions and powers are simply 'additional'.  For example, some differing additional obligations arise out of the fact that the Act and the Fair Work (Registered Organisations) Act impose different regulatory obligations on the organisations.

27       When these principles are applied the following findings can be made in respect of each of the offices in the State organisation and the WAPOU Branch. 

President and Branch President

28       Pursuant to r 19 of the rules of the State organisation, the President is required to preside at all meetings of the union to maintain order and administer the rules impartially, and to the best of his/her ability see that the officers of the union attend strictly to their respective duties and see that all expenditure is first authorised at regular meetings of the members and duly certified by him.  The President has an ordinary vote (deliberative) and where the voting is equal has a casting vote.  Thus, the President has two votes when there is a tie.  The Branch President however only has one vote and that is deliberative.

29       The duties of the Branch President are set out in r 16.1 of the rules of the WAPOU Branch.  Rule 16 provides as follows:

The Branch President shall:

(a) preside at all meetings of Branch Council, Branch Executive and any meetings in the WAPOU Branch that they attend, and sign the minutes thereof;

(b) enforce the rules, Union and WAPOU Branch policies and standing orders, and have control of meetings at which he or she presides, and shall use all necessary power to secure and enforce order and expedition in the conduct of the business and good order of the members thereat;

(c) in consultation with the Branch Secretary determine the date, time and place of meetings of Branch Council and Branch Executive whenever such date, time and place has not been determined by Branch Council or Branch Executive;

(d) exercise a deliberative vote if he or she so desires at meetings of Branch Council and Branch Executive;

(e) ensure, as far as possible, that the rules of the WAPOU Branch are performed and observed by officers and members of the WAPOU Branch;

(f) request and receive an explanation from any officer or member of the WAPOU Branch in any case where the Branch President believes that the rules of the WAPOU Branch have not been performed or observed and report thereon to Branch Executive and Branch Council;

(g) generally act to safeguard the reputation, unity, autonomy and property of the WAPOU Branch;

(h) be an ex-officio member of all committees of the WAPOU Branch;

(i) act in conjunction with the Branch-Secretary and at least two other members of the Branch Executive in all matters of urgency.

30       An irregularity could arise if the Executive and the Branch Executive convene a joint meeting to consider and determine matters that are common to the members of both organisations as the Branch President has under the WAPOU Branch rules a deliberative vote and as President pursuant to the rules of State organisation rules, he or she has an ordinary vote and a casting vote.  Thus, under the rules of the WAPOU Branch the holder of the office would have one vote and under the rules of the State organisation they would have two votes if there is a tie.  If there is a meeting of both executives at the same time, and six members of the Executive are present including the President, and a vote is taken and the vote is split 3/3, under the rules of the State organisation the person who holds the office of Branch President and President could act under the State rules to exercise a casting vote to resolve the matter at 3/4 or 4/3.  However, such a course of action would not be open under the rules of the WAPOU Branch, the vote would remain tied at 3/3.

31       The voting rights and duties of President and Branch President in this matter are different to the voting rights of the offices of President and Divisional Branch President in Re CFMEU.  In that matter, the Divisional Branch President did not have a 'casting' vote as well as a deliberative vote, the holder of that office had a 'casting vote only' ([26] r 43(d)), whereas the President of the State organisation of the CFMEU had a deliberative vote.  Whilst the right to vote was different both offices only had one vote.

32       Whilst a conflict could also be said to arise under r 16.1 of the rules of the WAPOU Branch, which requires the Branch President safeguard the property of the WAPOU Branch.  The President of the State organisation has no such role.  In fact, the Secretary of the State organisation under r 21 of the rules of the State organisation is the custodian of all movable property of the union.  As r 16.1 only applies to the property of the WAPOU Branch no conflict with the requirements of the rules of the State organisation is likely to arise

33       There are functions that the Branch President has that the President of the State organisation does not have.  These arise under r 16.1(c) of the rules of the WAPOU Branch.  They are, determining the date, time and place of meetings of the Branch Council and Branch Executive, being an ex officio member of all committees of the WAPOU Branch and acting in conjunction with the Branch Secretary and at least two other members of the Branch Executive in all matters of urgency.  Also, under r 16.1(f) of the rules of the WAPOU Branch, the Branch President is empowered to request and receive an explanation from any officer or member of the WAPOU Branch in any case where the Branch President believes that the rules of the WAPOU Branch have not been performed or observed and report thereon to the Branch Executive and Branch Council.  The President of the State organisation has no such role.  Under r 11(3) of the rules of the State organisation, a member who wishes to make a complaint against another member for alleged conduct in breach of the rules must lodge the complaint in writing at the registered office, addressed to the Secretary.  None of these powers and functions are material as they can all be characterised as additional duties of the Branch President that do not conflict with the powers and functions of the President or any other office of the State organisation.

34       Whilst there are some functions and powers of the President and the Branch President that are similar or the same, such as presiding at meetings, maintaining and enforcing rules and ensuring officers of the organisations abide by the rules, the voting rights of the Branch President conflict with the requirements of the rules of the State organisation.  Thus, we are of the opinion that the offices of President and Branch President cannot be deemed to be the same. 

Vice-President and Branch Vice-President

35       In the rules of the State organisation, the Vice-President is required to assist the President to conduct all meetings, and during his/her absence take the chair.  However, the Branch Vice-President has some additional powers, functions than that of the Vice-President.  Rule 16.2 of the rules of the Branch provides:

The Branch Vice-President shall:

(a) assist the Branch President in the performance of the duties of the Branch President;

(b) in the absence of the Branch President, or whenever the Branch President requests, or Branch Council or Branch Executive instructs, perform the duties of the Branch President or such of those duties as may be specified in each request or instruction;

(c) in the absence of the Branch Treasurer, or whenever Branch Council or Branch Executive instructs, perform the duties of the Branch Treasurer or such of those duties as may be specified in each request or instruction; and

(d) attend all meetings of the Branch Council and Branch Executive.

36       It is apparent from the powers and functions contained in r 16.2 that the Branch Vice-President, unlike the State Vice-President, can carry out and perform the functions of the Branch President.  He or she can also carry out the functions of the Branch Treasurer.  This function cannot in our opinion be characterised as an additional function that does not conflict with the functions and powers of the offices of President and Vice-President.

37       Thus, if at a meeting of the Branch Executive and the Executive the Branch Vice-President performs some of the functions of the Branch President as the Branch President is absent or performs the functions of the Branch Treasurer because the Branch Treasurer is absent, and decisions are made which relate to the property of the State organisation an argument could arise that the Branch Vice-President was not authorised by the rules of the State organisation to carry out those functions despite the fact if a s 71 declaration had been made would enable the Branch Vice-President to also carry out the roles and functions of the Vice-President.  However, the functions and powers of the Vice-President do not enable the Vice-President to carry out all of the functions and powers of the President or the Treasurer.  The Vice-President has a very limited role under the rules of the State organisation.  In the absence of the President he or she is only authorised to take the chair at all meetings.

38       For these reasons, we are not satisfied that the office of Vice-President and Branch Vice-President can be said to be the same or deemed to be the same.

Secretary and Branch Secretary

39       The powers, functions and duties of the Secretary of the State organisation are to be found in r 21 and r 23 of the rules of the State organisation as the Secretary is also a finance officer of the State organisation.  Rule 21 provides:

The Secretary's duty is to issue notice of all meetings of the Union, to attend same and ensure fullest minutes of the proceedings are recorded, receive and attend to all correspondence to receive all fees and contributions payable by members.  He/she shall keep all documents and books, save those documents and books necessarily retained and maintained by the Treasurer, and shall be custodian of all movable property of the Union.  The Secretary shall forward to the Registrar each year the returns required by 'The Act'.  He/she shall keep the register of all members attendance, which shall be signed by each member before taking his seat.  The Secretary shall further discharge such other duties as may be allotted to him/her from time to time and generally pay the strictest attention to the interests of the Union.  The Secretary shall be permitted to operate imprest accounts.

Rule 23 provides:

(1) The Finance Officials of the Union are the persons who:

(a) Are entitled to participate directly in the financial management of the Union, or

(b) Are elected to the Office of Treasurer and are entitled to participate directly in the financial management of the Union.

(2) Each Financial Official is to ensure the Union keeps and maintains accounting records as required by Rule 22 : Treasurer and the Act.

40       The rules of the Branch Secretary are set out in r 16.4 of the rules of the WAPOU Branch.  Rule 16.4 provides:

The Branch Secretary shall:

(a) be the executive officer of the WAPOU Branch and, subject to Rule 6, be responsible for the administration of the WAPOU Branch, the management of the Branch Office and the direction of the employees of the WAPOU Branch;

(b) attend all General Meetings and meetings of the Branch Council or Branch Executive;

(c) attend to and keep a copy of all correspondence;

(d) keep minutes of all meetings and record business transacted by the WAPOU Branch, circulate such minutes in draft where required and present a true copy of minutes at a subsequent meeting of the same body;

(e) convene all General Meetings and summon members of the Branch Council and Branch Executive to all meetings;

(f) keep a register of all members of the WAPOU Branch and the Sub-Branch to which members are assigned;

(g) conform to all the requirements of legislation required to be observed by the WAPOU Branch and where necessary and appropriate submit industrial disputes to conciliation and arbitration in accordance with the practices and procedures set out in the legislation;

(h) keep proper books of account of the WAPOU Branch and see to the preparation of an annual balance sheet and statement of receipts and payments and income and expenditure disclosing the true financial position of the WAPOU Branch and submit same together with all books and vouchers or records required for audit to the WAPOU Branch and in particular:

(i) be accountable for all monies received by the WAPOU Branch;

(ii) ensure prompt payment of WAPOU Branch monies into the appropriate bank account of the WAPOU Branch;

(iii) be accountable for all monies expended p-om Branch funds;

(iv) ensure cheques drawn upon the Branch fund in payment of accounts are correct to be paid and that all cheques are countersigned;

(v) not make any disbursement directly out of monies received before being banked;

(vi) produce any books and records for inspection at all reasonable times when demanded by the Branch Council;

(vii) produce any financial records for inspection when demanded by the Auditor or Branch Treasurer;

(i) discharge all such other duties and services as may be assigned by the Branch Council or Branch Executive;

(j) not pay, lend or otherwise appropriate any of the funds of the Branch for any cause or purpose whatsoever unless so authorised by the Branch Council;

(k) not make any disbursement directly out of monies received before being paid into the bank.

(1) be an ex-officio member of all committees of the WAPOU Branch; and

(m) act in conjunction with the Branch President and at least two other members of the Branch Executive in all matters of urgency.

41       Rule 23 of the rules of the State organisation provides that the Secretary as Financial Official is to ensure the union keeps and maintains accounting records as required by r 22 – Treasurer.  It is apparent when one reads r 22 together with r 16.4 of the rules of the WAPOU Branch, that it could be said that the functions, powers and duties of the Secretary and the Branch Secretary are in this respect substantially similar. 

42       However, there are three other matters which arise in relation to comparison of the functions and powers of the Secretary which require consideration.  Firstly, under r 16.4 of the rules of the WAPOU Branch, the Branch Secretary is an ex officio member of all committees of the WAPOU Branch.  There is no equivalent power under the rules of the State organisation.  However, that is not, in our view, material as this function could be said to be an additional function that does not conflict with the powers and functions of the office of Secretary or any other office.  The second matter is that the Branch Secretary under r 16.4(m) of the rules of the WAPOU Branch is empowered to act in conjunction with the Branch President and at least two other members of the Branch Executive in all matters of urgency.  This provision is also not material as the quorum for a meeting of State Executive under r 14(4) of the rules of the State organisation is four, so that it can be contemplated that the State Executive at a joint meeting with the Branch Executive could make decisions when it is comprised solely of the President, the Secretary and two other members of the Executive.

43       The third issue is that r 14(7) and r 25(c) of the rules of the State organisation contemplate that persons holding office as Secretary and Assistant Secretary may not be members of the State organisation.  Pursuant to r 25(c), a person is prohibited from holding office, except if they hold the office of Secretary and Assistant Secretary, unless they are members of the union and r 14(7) provides that all members of the State Council and State Executive, with the exception of the Secretary, shall be members of the union.  Pursuant to r 23.3 of the rules of the WAPOU Branch, the Branch Secretary and the Branch Assistant Secretary can be held by a member of the WAPOU Branch or a person who is not a member.  Rule 23.3 contemplates that if a person from outside the WAPOU Branch is elected to either position they will be subsequently deemed to possess all the rights and privileges of a member of the WAPOU Branch.  Consequently, r 23.3 contemplates that a person who as a member of the WAPOU Branch could be elected as Branch Secretary or Branch Assistant Secretary and where such a person is a member if the application for a s 71 declaration is successful this would enable someone who is a member of the Branch to hold the office of Branch Secretary or Branch Assistant Secretary and also hold the office as Secretary or Assistant Secretary of the State organisation.  However, as the person holding the office of Branch Secretary would only be a member of the WAPOU Branch and not a member of the State organisation, no conflict would arise.

44       For these reasons, we are satisfied that the offices of the Secretary and the Branch Secretary can be deemed to be the same.

Assistant Secretary and Branch Assistant Secretary

45       The role of the Assistant Secretary is set out in r 21A of the rules of the State organisation and r 16.5 of the rules of the WAPOU Branch.  It is clear that both of those rules provide the same powers, functions and duties for each of those offices.  The duties of the Assistant Secretary and Branch Assistant Secretary are to in each case assist the Secretary and the Branch Secretary with the discharge of their duties and to act on their behalf when he or she is absent.  Thus, it is clear that the functions and powers of the Assistant Secretary and the Branch Assistant Secretary can be deemed to be the same.

Treasurer and Branch Treasurer

46       Rule 22 of the rules of the State organisation provides that the powers, duties and functions of the Treasurer are as follows:

(1) The Treasurer shall:

(a) Keep a general oversight of the financial position of the Union and exercise proper control over the management of its funds and ensure accounting records are kept in accordance with proper accounting principles and truly record and explain the financial transactions and financial position of the Union.

(b) Present to State Council appropriate accounting reports including the status of funds and financial position of the Union or other relevant reports as required by State Council.

(c) At each Annual General Meeting, the Treasurer shall give a full account of the year's operations, providing a balance sheet signed by the Auditors.

(d) The Treasurer shall produce all books, vouchers and other papers of his/her office as required by the Auditors or the State Council.

(e) Be entitled to call for a full audit at any given time.

47       Under r 16.3 of the rules of the WAPOU Branch, the powers, duties and functions of the Branch Treasurer are as follows:

The Branch Treasurer shall:

(a) furnish to the Branch Council at each ordinary meeting a statement showing the financial position of the WAPOU Branch;

(b) present to the Branch Council such reports as may have been supplied by the Auditors;

(c) in the absence of the Branch President and the Branch Vice- President, or whenever the Branch President requests, or Branch Council or Branch Executive instructs, shall perform the duties of the Branch President or such of those duties as may be specified in each request or instruction; and

(d) attend all meetings of the Branch Council and Branch Executive.

48       With the exception of the duties and functions conferred by r 16.3(c) of the rules of the WAPOU Branch, the duties of the Branch Treasurer are substantially similar to the duties, powers and functions of the Treasurer.  However, under r 16.3(c) the Branch Treasurer is empowered in the absence of the Branch President and the Branch Vice- President, or whenever the Branch President requests, or Branch Council or Branch Executive instructs, to perform the duties of the Branch President.  Such a power is not conferred on the Treasurer of the State organisation.  In our opinion, this function conflicts with the powers and functions of the State Treasurer who is not empowered to act as the President. 

49       For these reasons, we are of the opinion that the office of Treasurer and Branch Treasurer cannot be deemed to be the same. 

Executive Members and Branch Executive Members

50       The rules of the State organisation do not prescribe any powers, duties or functions of the Executive Members.  However, as the Executive Members are members of the Executive it follows therefore that the Executive Members are required to participate in meetings of the State Executive and vote on decisions involving the control and conduct of the business of the union and matters involving the daily management and business of the union.

51       Rule 16.6 and r 16.7 of the rules of the WAPOU Branch set out the duties of the Branch Executive Members.  Rule 16.6 and r 16.7 provide as follows:

The Branch Executive Members shall attend all meetings of the Branch Council and Branch Executive.

With the exception of the Branch Secretary, where a Branch Officer is unable to perform a duty of office, the Branch Executive may authorise one of the Executive Members or member of Branch Council to perform that duty.

52       As r 16.7 contemplates that a Branch Executive Member can perform a duty of office of any of the Branch offices, with the exception of the Branch Secretary, for the reasons set out in [37] and [48] in respect of the offices of Vice-President and Branch Vice-President; and Treasurer and Branch Treasurer, we are of the opinion that the office of Executive Members are not the same, nor can they be deemed to be the same as the offices of the Branch Executive Members.

Conclusion

53       For these reasons, we are of the opinion that FBM 10 of 2013 should be dismissed.

54       Whilst application FBM 11 of 2013 came on for hearing before the Full Bench on 16 December 2013, we are of the opinion that FBM 11 of 2013 should be adjourned sine die.  The rules of an organisation should not be altered to enable the holders of an office in a counterpart Federal body to hold an office in a State organisation until declarations are made under s 71 of the Act.