Application for declaration pursuant to s 71(2) and Application pursuant to s.62 - Alteration of Registered Rules: Addition of Part VIII - Office Bearers to be Persons Holding Office in PTA Branch

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2014 WAIRC 00438

DELIVERED : Wednesday, 28 May 2014

FILE NO. : FBM 6 OF 2013, FBM 7 OF 2013

Applicant

CatchWords : Industrial Law (WA) - Application pursuant to s 71 for declaration relating to qualifications of persons for membership of a State Branch of a Federal organisation and offices that exist within the State organisation - Application to alter rules of an organisation to enable the holders of an office in the counterpart Federal body to hold an office in a State organisation

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

Fair Work (Registered Organisations) Act 2009 (Cth) s 159(1), s 182(2)

Result : Orders and declaration made

Representation:

Applicant : Mr P G Laskaris (of counsel)

Case(s) referred to in reasons:

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

Re Western Australian Prison Officers' Union of Workers [2014] WAIRC 00006; (2014) 94 WAIG 62

Reasons for Decision

FULL BENCH:

Introduction

1          The Full Bench had before it two applications made under the Industrial Relations Act 1979 (WA) (the Act).  In FBM 6 of 2013, the applicant (the State organisation) sought the following declarations:

1. Pursuant to sec. 71(2) of the Industrial Relations Act 1979 ('IR Act') the rules of the Applicant and the Australian Rail, Tram and Bus Industry Union, West Australian PTA Branch ('PTA Branch') of the Australian Rail, Tram and Bus Industry Union ('RTBU'), being a counterpart Federal Body as defined in sec. 71(1) IR Act relating to qualification of person for membership are in the Full Bench's opinion deemed to be the same;

2. Pursuant to sec. 71(4) of the IR Act that the rules of the Applicant and the PTA Branch of the RTBU, being a counterpart Federal Body as defined in sec. 71(1) IR Act, prescribing the offices which exist in the PTA Branch of the RTBU are deemed to be the same as the rules of the Applicant prescribing the offices which exist in the Applicant there being for every office in the Applicant a corresponding office in the PTA Branch of the RTBU; and

3. Conditional upon a certificate being issued by the Registrar to the Applicant pursuant to sec. 71(5) of the IR Act then pursuant to sec. 71(7) of the IR Act the terms of the deed between the Applicant and the RTBU made for the purposes of sec. 71(6) of the IR Act relating to the management and control of the funds and property of the Applicant are not detrimental to the interests of the persons who are eligible to be members of the Applicant and of the PTA Branch of the RTBU and will not prevent or hinder the Applicant from satisfying any debt or obligation howsoever arising and is approved.

2          In FBM 7 of 2013, the State organisation made an application pursuant to s 62(2) and s 71(5)(a) of the Act to insert a new Part VIII of the rules of the State organisation to provide for officers holding office in its counterpart Federal body to hold a corresponding office in the State organisation.

3          After hearing counsel for the State organisation on 12 May 2014, the Full Bench was of the opinion that the applications should be granted and it made the following orders:

(a) In FBM 6 of 2013 the following order and declaration was made:

(1) (a) The Australian Rail, Tram and Bus Industry Union, West Australian PTA Branch is the counterpart Federal body (the counterpart Federal body) of The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch (the State Organisation).

(b) 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.

(c) The rules of the counterpart Federal body prescribing the offices that exist in the counterpart Federal body are deemed to be the same as the offices that exist in the State Organisation.

(2) The application is hereby and is otherwise dismissed.

(b) In FBM 7 of 2013 the following order was made:

The Registrar is hereby authorised to register the alteration to the rules of the applicant by inserting new Part VIII after r 47.2.22:

PART VIII - OFFICE BEARERS TO BE PERSONS HOLDING OFFICE IN PTA BRANCH

48. PTA Branch of RTBU

48.1 Each Office of the Union from such time as the Executive may determine shall be held by the person who in accordance with the rules of the PTA Branch of the RTBU holds the corresponding office in that body.

48.2 Any determination by the Executive in accordance with rule 48.1 shall be notified to the Registrar and from the date specified in the notification all Offices in the Union will be filled in accordance with rule 48.1.

4          These reasons set out the reasons why the Full Bench made the orders and declarations.

FBM 6 of 2013

5          The State organisation is a registered organisation that represents employees employed by the Public Transport Authority of Western Australia.  The State organisation became registered as an organisation under the Act on 12 March 1999 when the Australian Railways Union of Workers, (WA Branch) and The West Australian Locomotive Engine Drivers', Firemen's and Cleaners' Union of Workers amalgamated:  (1999) 79 WAIG 975.  At the time of registration the State organisation operated under the incorrect assumption that an effective s 71 certificate under the Act, relating to a Branch of its Federal organisation, the Australian Rail, Tram and Bus Industry Union (RTBU), was in place.  As a consequence of this assumption, from 1999 to early 2012 the State organisation failed to keep a proper and current list of its members and had failed to hold elections for office bearers.  After the irregularity was revealed, steps were taken to regularise the state of affairs of the State organisation and these are recorded in reasons for decision given by the Full Bench in FBM 3 of 2012:  [2012] WAIRC 00431; (2012) 92 WAIG 747.

6          After the decision of the Commission was given in FBM 3 of 2012, and after the Registrar registered new rules which substituted the old rules of the State organisation in its entirety, elections for office bearers of the State organisation were held in September 2012.

7          On 23 November 2012, the Fair Work Commission, pursuant to an application by the RTBU under s 159(1) of the Fair Work (Registered Organisations) Act 2009 (Cth) for the alteration of its rules, the delegate of the General Manager of the Fair Work Commission certified the alteration of rules of the RTBU which resulted in the creation of the Australian Rail, Tram and Bus Industry Union, West Australian PTA Branch (PTA Branch).  On 7 April 2014, further alterations to the rules of the RTBU were made to correct some errors and omissions.

8          There are currently no elected office bearers of the PTA Branch of the RTBU.  It is proposed, however, that subject to an application by the RTBU to the Fair Work Commission pursuant to the provisions of s 182(2) of the Fair Work (Registered Organisations) Act, an exemption be obtained for the election of office bearers of the PTA Branch until the next general election for offices in the RTBU scheduled for November 2014.  If, however, such application is not granted by the Fair Work Commission, then the election of office bearers of the PTA Branch will be conducted immediately upon the granting of the orders and declarations sought from the Full Bench in this application.

9          The State organisation seeks a declaration pursuant to s 71(2) of the Act to facilitate the orderly and efficient administration and co-ordination of the State organisation and its counterpart Federal body who is the PTA Branch by only having one set of elections to fill the corresponding offices of each organisation.  A certificate issued pursuant to s 71(5) of the Act will also enable it to make an agreement with the RTBU relating to the management and control of funds.  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.

(a) Are the rules of the State organisation and its counterpart Federal body relating to the qualifications of persons for membership the same or can they be deemed to be the same?

10       Pursuant to r 3.1 of the rules of the State organisation, any person employed in the Public Transport Authority of Western Australia who is an employee within the meaning of the Act may be admitted as a member of the State organisation.

11       Under r 191 of the rules of the RTBU, the PTA Branch is to comprise all members of the union who are in the employ of the Public Transport Authority of Western Australia, or who are employed in, or in connection with the activities of the Public Transport Authority, including those persons employed in, or in connection with security, urban rail, customer relations, administrative technical and supervisory, TransWA, Delron and Goldfields buses and miscellaneous infrastructure.

12       Under s 71(2) of the Act, the Full Bench can make a declaration that the rules of the State organisation and its counterpart Federal body relating to the qualifications of persons for membership can be deemed to be the same if it forms the opinion the rules of each body are substantially the same.  Section 71(3) of the Act, provides the Full Bench may form the opinion that the rules referred to in s 71(2) are substantially the same notwithstanding that a person who is eligible to be a member of the counterpart Federal body is ineligible to be a member of the State organisation.

13       After reviewing the rules of the State organisation and the counterpart Federal body the Full Bench was of the opinion it is clear that all members of the State organisation are also eligible to be members of the PTA Branch and it is immaterial that there are additional categories of members of the PTA Branch who are ineligible to be a member of the State organisation because of the operation of s 71(2) of the Act.

14       For these reasons, the Full Bench formed the opinion that the eligibility rules of the State organisation and the counterpart Federal body are substantially the same within the meaning of s 71(2) and s 71(3) of the Act.

(b) Are the offices that exist in the counterpart Federal body the same as the offices of the State organisation?

15       When determining whether the offices that exist in the PTA Branch (the counterpart Federal body) are the same as the offices of the State organisation, it is necessary for the Full Bench to consider the functions and powers of 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).

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

17       In Re Western Australian Prison Officers' Union of Workers [2014] WAIRC 00006; (2014) 94 WAIG 62 the Full Bench considered how the task of assessing whether the functions and powers of each office in an organisation registered under the Act and its counterpart Federal body should be assessed.  In its reasons for decision, the Full Bench observed:

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.

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.

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.

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].

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.

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 [21] - [26].

18       In analysing the offices of each organisation, it is first necessary to identify the committee of management of each organisation.  In this matter, pursuant to r 6 of the rules of the State organisation, the Executive of the union is the committee of management of the union.  Rule 6.1 entrusts the Executive with the responsibility of the affairs of the union.  The offices of the Executive, pursuant to r 6.2 of the rules of the State organisation, consist of the President, the Vice-President, the Secretary, the Assistant Secretary and one representative from each Branch.

19       Pursuant to r 192 of the rules of the RTBU, the PTA Branch is governed by the Branch Executive which is autonomous subject to the rules and the supervision of the National Executive and National Council.  The effect of this rule is that the Branch Executive is the management committee of the Branch and the National Executive and the National Council are its governing bodies. 

20       Pursuant to r 194 and r 198 of the rules of the RTBU, the PTA Branch Executive consists of the Branch Secretary, the Branch President, the Branch Vice-President and one representative from each Sub-Branch within the Branch.  The PTA Branch is organised into Sub-Branches of security, urban rail, customer relations, TransWA, Delron and Goldfields buses and other such Sub-Branches as the Branch Executive may determine: r 193. 

21       The powers and functions of the office of President of the State organisation are as follows:

(a) The President together jointly with the Secretary may determine when the Executive should meet (r 6.3).

(b) A decision to hold a supplementary Executive meeting is to be made by the President and the Secretary jointly (r 6.7.1).

(c) In addition to any other duties specified in the rules, the President is required to:

15.1.1 Preside at all meetings of the Executive and all general meetings of members;

15.1.2 Preserve order and decorum at such meetings and shall confirm the minutes thereof; and

15.1.3 Ensure that the Rules and the policies of the Union are adhered to.

(d) The President is also empowered to interpret the rules of the State organisation but such interpretation is subject to review by the Executive (r 15.2).

(e) At all meetings of the union, at which he or she presides, the President shall have a deliberative vote only (r 15.3).

(f) All cheques are to be signed by the Secretary together with the President unless the Executive has authorised other members of the Executive or designated employees of the union to sign in place of the Secretary or President should either the Secretary or President not be readily available (r 25.1).

(g) The President is empowered to deal with any charges made against the Secretary (r 33.6).

(h) The seal of the union is required to be affixed to any document by the President and the Secretary or other such member or members of the Executive as may be determined by the Executive (r 41.1).  Other documents not required to be under seal shall be executed on behalf of the union by the Secretary or in the Secretary's absence by the President (r 41.2).

22       The powers and functions of each of the offices of the PTA Branch are set out in Part VI of the rules of the RTBU.  When the powers and functions of the Branch President are examined it is apparent that the powers and functions of the Branch President, whilst not identical to the President of the State organisation, are sufficiently similar.

23       Pursuant to r 195 of the rules of the RTBU, the Branch President and the Branch Secretary jointly can determine when meetings of the Branch Executive are to be held.  They can also determine jointly when to hold an urgent Branch Executive meeting.  All disbursements from the Branch fund are to be by cheque signed by the Branch Secretary together with the Branch President or the Branch Vice-President:  r 23(3).  Also the seal of the Branch is to be affixed by the Branch President and the Branch Secretary:  r 81(2).  Branch documents not required to be under seal are to be executed by the Branch Secretary or in his or her absence by the Branch President:  r 81(4).  The remaining duties of the Branch President are set out in r 52 of the rules of the RTBU which provides as follows:

(a) The Branch President is to preside at all meetings of the Branch Council and the Branch Executive.  He or she is to preserve order and decorum at such meetings and confirm the minutes thereof and ensure the rules of the union and the PTA Branch are adhered to.

(b) The Branch President is empowered to give an interpretation of Part XVI of the rules of the RTBU (which establishes the PTA Branch).  His or her decision shall be final and conclusive unless overruled by the Branch Council or the National Council.

(c) The Branch President has a deliberative but not a casting vote and is to be an ex officio member of all Branch governing bodies and committees.

24       In respect of the powers, functions and duties of the Vice-President of the State organisation, pursuant to r 16, the duties of the Vice-President are to assist the President in the conduct of the President's formal duties and in the absence of the President to deputise for the President.  Thus, the powers, functions and duties of the Branch Vice-President are in effect the same pursuant to r 53 of the rules of the counterpart Federal body.

25       The Secretary of the State organisation has quite extensive powers and functions.  Pursuant to r 17.1 the Secretary is the principal officer of the union.  Apart from the joint duties to be performed with the President, the Secretary is required to perform numerous functions.  These include forwarding notices of meeting of the Executive to each Executive member:  r 6.4.  All persons eligible for membership of the union are to make their application to the Secretary:  r 9.1.  Pursuant to r 9.5 of the rules of the State organisation the Secretary determines whether a person who applies for membership is either ineligible or of general bad character.  If that is the case the Secretary is to refer the application for consideration to the Executive:  r 9.5.  All dues are to be paid to the Secretary:  r 10.1 and all notices of resignation are to be addressed and delivered to the Secretary:  r 13.

26       The main functions and duties of the Secretary are provided for in r 17.  Rule 17 provides as follows:

17.1 The Secretary shall be the principal officer of the Union.

17.2 Between meetings of the Executive, the Secretary shall, subject to the Rules and the policies and decisions of the Executive, have primary responsibility for the conduct and management of the affairs of the Union and do all things necessary to be done by or on behalf of the Union.

17.3 Without limiting the generality of the foregoing the Secretary shall:

17.3.1 Discharge all duties assigned to the Secretary by the Rules, and the Executive;

17.3.2 Summon and attend all meetings of the Executive;

17.3.3 Where the Secretary considers it necessary, consult with the President on any urgent matters which require a decision between meetings of the Executive;

17.3.4 Arrange for all Union correspondence to receive attention;

17.3.5 Issue press statements and provide media comment in relation to the Union and its affairs;

17.3.6 Be responsible for the safe custody of the Union seal, documents, securities and accumulated funds

17.3.7 Prepare, keep and/or file or cause to be prepared, kept and/or filed, all union documents and records required under the provisions of the IRA or any other relevant legislation;

17.3.8 Receive all monies belonging to the Union and deposit the same in the Union’s bank account as soon as practicable;

17.3.9 Disburse all Union funds in accordance with the Rules;

17.3.10 Ensure that union financial records are maintained and that annual accounts are prepared and audited;

17.3.11 Monitor the accounts and other affairs of any Branch and for this purpose to have custody of and access to Branch documents and financial records;

17.3.12 Prepare or cause to be prepared, all necessary documents for the Executive including the minutes of Executive meetings;

17.3.13 Prepare or cause to be prepared, regular financial statements for the Executive;

17.3.14 Co-ordinate the activities of a Branch;

17.3.15 Control and supervise the Union office and its staff including the engagement and termination of such staff;

17.3.16 Maintain the Register of Members;

17.3.17 Maintain Register of Office Bearers;

17.3.18 Be responsible to the Executive for the proper performance of the Secretary’s duties.

27       The Secretary is also empowered to investigate disciplinary action against members pursuant to r 19.2 of the State organisation.  Unless the Secretary decides the matter is without substance, the charge is to be referred to the Executive for determination.  Under r 20.1 the register of members is to be kept by the Secretary.  The Secretary is also responsible for purging the names and details of persons who have resigned or whose membership has ceased:  r 21.  Pursuant to r 22 the Secretary has the power to authorise action in the name of the union in a court of competent jurisdiction to recover any subscriptions, fees or levies due from any member and shall take such action when instructed to do so by the Executive.  All entrance fees, subscriptions, levies and other fees shall be paid to and collected by the Secretary:  r 24.2.  All loans, grants or donations under $1,000 can only be made by the Secretary:  r 26.2.  Pursuant to r 29 the Secretary is to ensure adequate books and accounts are kept and the provisions of the Act are complied with in relation to maintenance, lodgement and distribution of financial records.  The Secretary is also required to forward notices of general meetings to the members with an agenda:  r 44.3.

28       The duties of the Branch Secretary of the PTA Branch are sufficiently similar to the duties of the Secretary of the State organisation.  Under r 54 of the Federal rules the Branch Secretary is the principal officer and treasurer of the Branch.  Between meetings of the Branch Council and the Branch Executive, he or she is required (subject to the rules of the Federal union and to the policies and decisions of the National Council, the National Executive, the Branch Council and the PTA Branch Executive), to have responsibility for the conduct and management of the affairs of the PTA Branch and to do all things necessary to be done by or on behalf of the PTA Branch.  Without limiting the generality of those obligations, he or she is required to carry out the following duties under r 54.  These are as follows:

(i) discharge all duties assigned to him/her by these Rules, the Branch Council or the Branch Executive;

(ii) summon and attend all meetings of the Branch Council and the Branch Executive;

(iii) attend all meetings of the National Council and the National Executive;

(iv) consult with the Branch President and the Assistant Branch Secretary (where such Office exists) and relevant Branch Divisional Secretaries on any urgent matters which require a decision between meetings of the Branch Executive;

(v) attend to all Branch correspondence;

(vi) authorise and release press statements and provide media comment on behalf of the Branch;

(vii) be responsible for the safe custody of the Branch Seal (if any), and Branch documents, securities and accumulated funds;

(viii) prepare, keep and/or file or cause to be prepared, kept and/or filed, all Branch documents and records required under the provisions of the Industrial Relations Act 1988 and the Regulations or any other relevant legislation;

(ix) receive all monies belonging to the Branch Fund and deposit same in a Bank on behalf of the Branch as soon as practicable;

(x) disburse all Branch funds in accordance with the Rules;

(xi) ensure that Branch financial records are maintained and that annual accounts are prepared and audited;

(xii) monitor the accounts and other affairs of the Branch Divisions, Sub-Divisions and Sub-Branches and for this purpose to have access, whenever requested, to relevant documents and financial records;

(xiii) prepare or cause to be prepared, all necessary documents for the Branch Council and the Branch Executive including the minutes of meetings;

(xiv) prepare or cause to be prepared, regular financial statements for the Branch Council and the Branch Executive;

(xv) prepare or cause to be prepared a statement showing Branch membership by category and financial status as at December 31 of each year and a statement of Branch income and expenditure and a balance sheet as at December 31 of each year and forward such statements to the National Secretary no later than March 31 of each year.

(xvi) maintain Registers of Members of the Branch and Branch Office Bearers.

(xvii) co-ordinate the activities of Branch Divisions;

(xviii) control and supervise the Branch Office and its staff including the appointment and termination of such staff;

(xix) initiate legal, industrial or other proceedings on behalf of the Branch before any Court, Commission, Board or Tribunal;

(xx) be an ex-officio member of all Branch Governing Bodies and Committees;

(xxi) be responsible to the Branch Council and the Branch Executive to the proper performance of his/her duties;

29       Persons eligible for membership of the PTA Branch are to make an application to the Branch Secretary: r 10(1).  If the Branch Secretary considers the applicant for membership to be ineligible, or is of general bad character, he or she is to refer the application to the Branch Executive: r 10(5).  The Branch Secretary is to inform applicants of financial obligations arising from membership and the manner in which a member may resign from the union:  r 10(6).  All monies due as membership contributions (which include subscription rates, entrance fees and national levies) are to be paid to the Branch Secretary: r 11(1).  The Branch Secretary is to keep the register of members, purge the register of the names and details of members who have resigned and transfer members between branches of the union: r17, r 18 and r 20.  The Branch Secretary is also empowered to recover any monies due from a member: r 19.  The Branch Secretary is empowered to submit disputes or matters to the Fair Work Commission or other body: r 83(4).  The Branch Secretary is also responsible for investigating charges against a member and, unless he or she determines that the matter is without substance, he or she is required to refer the charge to the Branch Executive for determination:  r 16.

30       There are no powers or functions prescribed for the Branch representatives of the Executive of the State organisation or the Sub-Branch representatives of the Executive of the PTA Branch.  However, this is not material as members of each executive they would be required (along with other members of each executive), to carry out the powers and functions of each executive.

31       Section 71(4) of the Act does not require that the offices that exist in the Branch are required to have a corresponding office in the State organisation.  In this matter it was apparent to the members of the Full Bench that for each office of the State organisation there is a corresponding office in the PTA Branch.

FBM 7 of 2013

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

(a) the application has been authorised in accordance with the rules of the organisation; and

(b) reasonable steps have been taken to adequately inform the members —

(i) of the intention of the organisation to apply for registration; and

(ii) of the proposed rules of the organisation; and

(iii) that the members or any of them may object to the making of the application or to those rules or any of them by forwarding a written objection to the Registrar,

and having regard to the structure of the organisation and any other relevant circumstance, the members have been afforded a reasonable opportunity to make such an objection; and

(c) in relation to the members of the organisation —

(i) less than 5% have objected to the making of the application or to those rules or any of them, as the case may be; or

(ii) a majority of the members who voted in a ballot conducted in a manner approved by the Registrar has authorised or approved the making of the application and the proposed rules;

and

(d) in relation to the alteration of the rules of the organisation, those rules provide for reasonable notice of any proposed alteration and reasons therefor to be given to the members of the organisation and for reasonable opportunity for the members to object to any such proposal; and

(e) rules of the organisation relating to elections for office —

(i) provide that the election shall be by secret ballot; and

(ii) conform with the requirements of section 56(1),

and are such as will ensure, as far as practicable, that no irregularity can occur in connection with the election.

33       The first matter about which the Full Bench must be satisfied is that the proposed rule alteration must be authorised by the organisation in accordance with its rules.  The authority of the State organisation to alter its rules is found in r 45 of the rules of the State organisation.  The power to alter the rules resides with the Executive of the union.  Rule 45 provides as follows:

45.1 Subject to rule 45.3 of the Rules, the Executive shall have power to rescind, alter or amend these Rules in accordance with the procedure set out in rule 45.2 of the Rules.

45.2 Any rescission, alteration or amendment to these Rules shall be of no affect unless it complies with the following provisions:

45.2.1 The Secretary shall forward all members of the Executive written notice of the proposed rescission, alteration or amendment of the Rules which sets out the proposal in full;

45.2.2 Such notice shall specify the time and place of the Executive meeting which is to consider the proposal for the rescission, alteration or amendment of the Rules, which meeting shall be not less than one month after the date of the notice;

45.2.3 The resolution meets the requirements of these Rules for carriage of a resolution at a meeting of the Executive.

45.3 Any rescission, alteration or amendment to any provisions of these Rules shall be of no effect unless such rescission, alteration or amendment of the Rules is resolved to by the Executive.

45.4 Notwithstanding the foregoing in rule 45 of the Rules, the Executive shall also comply with any requirements as to the alteration of the Rules required by section 62 IRA that include but are not necessarily limited to:

45.4.1 Notification to all members of the proposal for the alteration of the Rules and the reasons therefore along with a copy of the proposed alterations to the Rules;

45.4.2 Notification to all members that any member may object to the proposed alteration of the Rules by forwarding a written objection, within 21 days of notification, to the Registrar.

45.5 No alteration of the Rules shall be effective until the Registrar has given to the Union a certificate that the alteration to the Rules has been registered.

34       The facts supporting the State organisation's submission that it complied with the rules and the statutory requirements of the Act are supported by the following evidence:

(a) On 23 August 2013, the Secretary of the State organisation, Paul Robinson, sent by email a notice of meeting of the Executive to all members of the Executive.  The notice set out the date, time and place of the meeting and the proposed alterations to the rules.

(b) On 24 September 2013, the Executive of the State organisation met.  The minutes of the meeting of the Executive record that each member of the Executive had received a notice of meeting of the Executive dated 23 August 2013 with three attachments which set out the alterations and additions to the rules of the union and the reasons therefor.  One of the alterations which was sought was the addition of a new Part VIII to provide for office bearers to be persons holding office in the PTA Branch.

(c) It is clear from these minutes that each member of the Executive had received the agenda no less than seven days prior to the date of the meeting as required by r 6.4 of the rules of the State organisation.  The minutes record that six members of the Executive were present and the following relevant resolutions were unanimously resolved:

(i) Subject to the compliance by the Executive of the union with r 45.4 of the rules and to the receipt of a certificate from the Registrar to the registration of the alterations of the rules of the union, to adopt the alterations and additions to the rules of the union set out in attachment B.

(ii) Notice be given to all members of the union of the proposal for the alterations and additions to the rules of the union by sending out to each member of the union copies of three attachments.  (The first was a current copy of the rules (attachment A).  The second was a copy of the rules showing the alterations (attachment B).  The third attachment set out the reasons for the alterations and the reasons for seeking a s 71 certificate and the relevant history of the matter (attachment C)).

(iii) In the event that 5% or more of the members of the union object to the proposed alterations and additions by forwarding written objection to the Registrar the Secretary of the union was authorised to request the Registrar to arrange for the conduct of a ballot of the members of the union to determine if the majority of the members of the union who vote in the ballot authorise or approve the proposed alterations and additions to the rules of the union.

(iv) The Secretary of the union was authorised to disseminate all necessary information to the members of the union, in the name of the Executive, relating to the proposal for the alterations and additions to the rules of the union by sending each of the members of the union the documents referred to in paragraph (ii).

(v) The Secretary of the union was directed to take steps to send via Australia Post to all members of the union at their residential address the documents in paragraph (ii).  Also to publish that information on the union's RTBU website and, to send via email to all members of the union who have provided the union with an email address the documents and to post the documents on a notice board at each of the depots of the Public Transport Authority of Western Australia where members of the union work.

(d) Pursuant to r 6.5 it is clear that a quorum for a meeting of the Executive was present as r 6.5 of the rules of the State organisation provides that a quorum for a meeting of the Executive shall be a majority of the members of the Executive entitled to attend the meeting.

35       In a statutory declaration made by Mr Robinson on 27 September 2013, he set out the steps he took to comply with the resolutions made by the Executive on 24 September 2013.  These were as follows:

(a) On 25 September 2013, he sent by mail to 595 members of the union copies of Attachments A, B and C together with a memorandum that advised each member that any of them could object to the proposed alterations and additions to the rules of the State organisation by forwarding a written objection to the Registrar within 21 days of the date of the memorandum.

(b) There were two people on the membership list that were not sent by post copies of those documents.  One was himself and the other was a Mr Tan for whom the State organisation does not have a residential address.

(c) On 25 September 2013, he caused a webpage to be created and put up on the website of the State organisation headed 'WA Rail Tram and Bus Union', together with links to attachments A, B and C.

(d) Over the period 25 September 2013 to 27 September 2013, he put in a prominent place in a number of places and crib rooms of the Public Transport Authority being the place of employment of the members of the State organisation attachments A, B and C.

(e) On 25 September 2013, Mr Kivraj Singh, the industrial officer of the State organisation, sent an email attaching attachments A, B and C to each member of the State organisation who had provided the State organisation with a non-Public Transport Authority email address.

36       When regard is had to this evidence it was clear to the members of the Full Bench that r 45 of the rules of the State organisation had been complied with.  In particular:

(a) The Secretary had forwarded all members of the Executive written notice which set out the proposed alteration or amendment of the rules.

(b) The notice to the Executive specified the time and place of the Executive meeting which was to consider the proposal and the meeting was not less than one month after the date of the notice.

(c) The resolution to alter the rules met the requirements of r 6.5 for carriage of a resolution at a meeting of the Executive.

(d) Notification was given to all members of the proposal and the reasons therefor, along with a copy of the proposed alterations to the rules.

(e) Notification was also given to all members that any member could object to the proposed alteration of the rules by forwarding written objection, within 21 days of notification, to the Registrar.

37       The members of the Full Bench were also satisfied that members of the State organisation had been afforded a reasonable opportunity to make an objection to the making of the alteration to the rules and we noted that no member of the State organisation had objected to the making of this application or to the variation of the rules.

38       For these reasons, the Full Bench was satisfied that s 55(4)(b), s 55(4)(c) and s 55(4)(d) of the Act had been complied with.  Section 55(4)(e) and s 56(1) of the Act provide for procedural rules that are to be provided for the rules of all organisations in respect of elections by secret ballot.  The State organisation's current rules provide for the procedures as required by these provisions of the Act and the alterations sought in this application do not relate to those matters.