Application pursuant to s.66

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PRESIDENT

CITATION : 2015 WAIRC 00392

DELIVERED : THURSDAY, 21 MAY 2015

FILE NO. : PRES 1 OF 2015

Applicant

AND

Western Australian Police Union of Workers

Respondent

CatchWords : Industrial Law (WA) - Application pursuant to s 66 of the Industrial Relations Act 1979 (WA) for an order for an interim board of directors - variation and waiver of union rules pending changes to the rules of the organisation and a new s 71 certificate

Legislation : Industrial Relations Act 1979 (WA) s 66, s 71

Result : Order made

Representation:

Applicant : Mr P Hunt, as agent

Respondent : Mr P Hunt

Reasons for Decision

1         This application under s 66 of the Industrial Relations Act 1979 (WA) (the Act) came before me by way of a directions hearing.  The applicant, Mr Tilbury, is a member of the Western Australian Police Union of Workers (WAPU).  He is the president of the counterpart Federal body of the WAPU, the Police Federation of Australia - Western Australia Police Branch (PFA Branch).

2         In 2006, the WAPU obtained a s 71 certificate enabling that the officers of the committee of management of the WAPU be held by persons who in accordance with the rules of the PFA Branch held the corresponding office in that body.

3         In March 2015, the WAPU received legal advice that because of differences in the rules of the WAPU and the PFA Branch, the s 71 certificate may be invalid after changes were made to the rules of the WAPU on 19 December 2013.  After receipt of this advice, Mr Tilbury filed an application under s 66 of the Act on 15 May 2015 seeking a number of orders.

4         The WAPU consented to the application and to the orders sought.  The orders sought by the parties were as follows:

1. An Interim Board of Directors is appointed until the expiry of the current Term, constituted as follows:

1) President

Mr George Tilbury

2) Senior Vice President

Mr Brandon Shortland

3) Vice President

Mr Harry Arnott

4) Treasurer

Mr Michael Kelly

5) Metropolitan Region Director

Mr Ward Adamson

6) Metropolitan Region Director

Mr Lindsay Garratt

7) Central (Midwest/Gascoyne) Region Director

Mr Michael Gill

8) Metropolitan Region Director

Mr Mark Johnson

9) Metropolitan Region Director

Mr Graeme Macey

10) Metropolitan Region Director

Mr Kevin McDonald

11) Metropolitan Region Director

Mr Peter McGee

12) Metropolitan Region Director

Mr Peter Potthoff

13) Metropolitan Region Director

Mr Harry Russell

2. All decisions and actions taken by the Board of Directors, in conducting the business of the Respondent, in good faith since 19 December 2013 are validated.

3. To facilitate the expeditious resolution of the outstanding matters, the Applicant and Respondent jointly file and serve further and better particulars covering the grounds for seeking interim appointments to:

1) current and subsequent casual vacancies, and;

2) the Board of Directors due to take office from 24 November 2015.

within 7 days.

4. The matter be listed for a Hearing as soon as practicable thereafter.

5         Pursuant to r 6.1(b) of the rules of the WAPU the board of directors consists of 15 directors, of which 11 who hold office shall be from the Metropolitan Region and one each from the North (Kimberly/Pilbara) [sic] Region, Central (Midwest/Gascoyne) Region, East (Goldfields/Esperance) Region and South (Southwest/Wheatbelt/Great Southern) Region.

6         A general election for the PFA Branch is to be held in 2015 with the results declared no later than 15 October 2015.  These officers will commence to hold office from 24 November 2015.

7         At this present time the WAPU only seeks an interim board of 13 directors be established.  This is because the PFA Branch has casual vacancies for the position of executive member North (Kimberley/Pilbara) and executive member East (Goldfields/Esperance) Regions that are in the process of being filled by appointment pursuant to the rules of the PFA Branch.  Consequently, the WAPU seeks that any casual vacancies that arise before the 2015 general election be filled on an interim basis (for the remainder of the current term), by persons appointed to the equivalent executive member vacancy of the PFA Branch.

8         To maintain control and governance, the WAPU seeks that an interim board of directors be appointed until such time as a new s 71 certificate can be granted.  However, it also seeks an order that the interim board of directors be constituted by the persons declared elected as executive members of the PFA Branch in October 2015.

9         After hearing Mr Hunt on behalf of both parties, I formed the opinion that an interim order should be made to vary the rules of the WAPU to enable it to constitute an interim board of directors that is constituted by current directors of the board of the PFA Branch.  On 19 May 2015, the following order was made:

1. An Interim Board of Directors is established, constituted as follows:

1. President

George Bradley Tilbury

2. Senior Vice President

Brandon Chad Shortland

3. Vice President

Harry Sean Arnott

4. Treasurer

Michael Craig Kelly

5. Metropolitan Region Director

Ward Darren Adamson

6. Metropolitan Region Director

Lindsay Bryan Garratt

7. Metropolitan Region Director

Mark Wayne Johnson

8. Metropolitan Region Director

Graeme George Macey

9. Metropolitan Region Director

Kevin Patrick McDonald

10. Metropolitan Region Director

Peter McGee

11. Metropolitan Region Director

Peter John Potthoff

12. Metropolitan Region Director

Harry Anthony Russell

13. Central (Midwest/Gascoyne) Region Director

Michael Robert Gill

2. The definitions of 'Board', 'Director', 'President', 'Senior Vice President', 'Vice President' and 'Treasurer' in r 3 of the rules of the Western Australian Police Union of Workers (the rules) shall be interpreted as the Board, offices and officers holding office in the Interim Board of Directors.

3. Save and except for r 6.1(a), r 6.1(b) and r 6.1(j), r 6.1 is waived.

4. Rule 6.2(a) and r 6.2(b) of the rules are waived.

5. Rule 6.3 of the rules is waived.

6. Rule 12 of the rules is waived.

7. The Interim Board of Directors shall have the authority to exercise all of the powers, duties and functions of the Board of Directors and each of the members of the Interim Board of Directors shall have the authority to exercise all of the powers, duties and functions of the office held by each of them.

8. There be liberty to the parties to apply to vary the terms of this order.

9. Unless the operative effect of this order is varied, this order ceases to have effect on 20 May 2016.

10. The application be otherwise adjourned sine die.

10      Pursuant to paragraph 8 of the order, liberty to the parties to apply to vary the terms of the order was granted for the following purposes:

(a) if the WAPU wishes to pursue its application that an order be made that all decisions and actions taken by the board of directors, in conducting the business of the WAPU, in good faith since 19 December 2013 are validated, this is a matter that can be listed for hearing and determination and, if necessary, the order can be varied to deal with this issue;

(b) when appointments are made to the current casual vacancies for the positions of executive member North (Kimberley/Pilbara) Region and executive member East (Goldfields/Esperance) Region by the executive of the PFA Branch, an order can be sought to vary paragraph 1 of the order to change the constitution of the interim board of directors in accordance with the appointments made by the PFA Branch; and

(c) when the results of the forthcoming election of executive members of the PFA Branch are declared in October 2015, the constitution of the interim board of directors can be further varied by order.

11      The terms of the order make it clear that the interim board of directors is to have all of the powers, duties and functions of the board of directors as set out in the rules of the WAPU until the order ceases to have effect.  The terms of the order also make it clear that no election of officers of the committee of management of the WAPU (its directors) are required to be held by the WAPU in accordance with its rules whilst the order remains in force.

12      The terms of the order are to take effect as an interim order.  The interim order will cease to have effect on 20 May 2016 unless the operative effect of the order is varied.  At this point in time, by 20 May 2016, the WAPU anticipates that variations would have been made to its rules to enable an application to be heard and determined by the Full Bench for a new s 71 certificate.  Once a new s 71 certificate is issued, an order can be made to vary the order to cease its operative effect.