2016 WAIRC 00966
AMALGAMATION OF THE AUSTRALIAN WORKERS' UNION, WEST AUSTRALIAN BRANCH, INDUSTRIAL UNION OF WORKERS AND THE FOOD PRESERVERS' UNION OF WESTERN AUSTRALIA UNION OF WORKERS

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2016 WAIRC 00966

CORAM
: THE HONOURABLE J H SMITH, ACTING PRESIDENT
COMMISSIONER T EMMANUEL
COMMISSIONER D J MATTHEWS

HEARD
:
MONDAY, 7 NOVEMBER 2016; WEDNESDAY, 14 DECEMBER 2016

DELIVERED : FRIDAY, 23 DECEMBER 2016

FILE NO : FBM 2 OF 2016

BETWEEN
:
THE AUSTRALIAN WORKERS' UNION, WEST AUSTRALIAN BRANCH, INDUSTRIAL UNION OF WORKERS
AND
THE FOOD PRESERVERS' UNION OF WESTERN AUSTRALIA UNION OF WORKERS
Applicants

AND

(NOT APPLICABLE)
Respondent

CatchWords : Industrial Law (WA) - Application pursuant to s 72 of the Industrial Relations Act 1979 (WA) - Amalgamation of two registered employee organisations - Principles applicable to an application to intervene considered - Application by federal registered organisation to intervene dismissed on grounds of insufficient interest - Notices of objection filed on behalf of persons not members of the applicants dismissed on grounds no standing to object - Notices of objection filed on behalf of members dismissed on grounds not satisfied leave should be granted to allow notices out of time - Application complies with the requirements of the Industrial Relations Act 1979 - Registration of new organisation approved
Legislation : Industrial Relations Act 1979 (WA) s 6(a), s 6(c), s 6(e), s 7, s 27(1)(k), pt II div 4, s 53, s 53(1), s 55, s 55(1), s 55(2), s 55(3), s 55(4), s 55(4)(a), s 55(4)(b), s 55(4)(d), s 55(4)(e), s 55(5), s 56(1), s 58(2), s 59, s 63(1)(a), s 63(1)(b), s 64A, s 64B, s 64B(1), s 64C, s 66, s 72, s 72(1), s 72(2), s 72(3), s 72(5)
Industrial Arbitration Act 1912 (WA) s 9(a)
Industrial Arbitration Act 1979 (WA) s 6
Industrial Relations Commission Regulations 2005 (WA) reg 37, reg 68(4)
Fair Work (Registered Organisations) Act 2009 (Cth)
Fair Work Act 2009 (Cth)
Result : Orders issued
REPRESENTATION:
APPLICANTS : MR C YOUNG AND MR M ZOETBROOD ON BEHALF OF THE AUSTRALIAN WORKERS' UNION, WEST AUSTRALIAN BRANCH, INDUSTRIAL UNION OF WORKERS
and
Mr D Rafferty (of counsel) and with him Mr P O'Keeffe on behalf of The Food Preservers' Union of Western Australian Union of Workers
and
Mr C Fogliani (of counsel) on behalf of Ms A Ristevska, Mr B Rizzo and Mr G Tupluk

Case(s) referred to in reasons:
Gairns v The Royal Australian Nursing Federation Industrial Union of Workers, Perth (1989) 69 WAIG 2343
R v Holmes; Ex parte Public Service Association (NSW) [1977] HCA 70; (1977) 140 CLR 63
Re Ludeke; Ex parte Customs Officers' Association of Australia, Fourth Division [1985] HCA 31; (1985) 155 CLR 513; (1985) 13 IR 86
Re The Forest Products, Furnishing and Allied Industries Industrial Union of Workers, WA (1990) 70 WAIG 3974
Stacey v Civil Service Association of Western Australia (Inc) [2007] WAIRC 00568; (2007) 87 WAIG 1229
The Australian Workers' Union, West Australian Branch, Industrial Union of Workers and The Forest Products, Furnishing and Allied Industries Industrial Union of Workers, WA [2012] WAIRC 00845; (2012) 92 WAIG 1713
Case(s) also cited:
Western Australian Railway Officers' Union and Australian Municipal, Administrative, Clerical and Services Union of Employees, W.A. Clerical and Administrative Branch [2010] WAIRC 00417; (2010) 90 WAIG 596
Reasons for Decision
FULL BENCH:
Introduction
1 This is an application by The Australian Workers' Union, West Australian Branch, Industrial Union of Workers (AWUWA) and The Food Preservers' Union of Western Australia Union of Workers (FPU) to amalgamate filed on 8 September 2016. Each organisation is an employee organisation registered under the Industrial Relations Act 1979 (WA) (the IR Act) and makes application under pt II, div 4 of the IR Act for the registration of a new organisation pursuant to s 72 of the IR Act to be called The Australian Workers' Union, West Australian Branch, Industrial Union of Workers. As at 12 October 2016, the AWUWA had 7,100 members and the FPU 268 members (statutory declaration, Michael Johannes Zoetbrood, secretary of the AWUWA, made on 12 October 2016).
2 The application was heard on 7 November 2016. At the conclusion of the hearing the matter was adjourned for the Full Bench to consider the matter and deliver its decision on the basis that the parties had put forward all evidence and material in support of the application. However, subsequent to the hearing 15 notices of objection to the application were filed and served on 14 November 2016 which resulted in the FPU filing two affidavits sworn by the secretary of the FPU, Peter Francis O'Keeffe, and a further hearing on 14 December 2016 to determine whether:
(a) some of the persons who signed notices of objection had standing to object; and
(b) the remaining persons who signed notices of objection who were members of the FPU should be granted leave to object out of time.
3 At the conclusion of the hearing on 14 December 2016, the Full Bench informed the parties and Mr Fogliani who appeared on behalf of three of the persons seeking to object to the application to amalgamate, that the notices of objection would be dismissed and an order would be made to authorise the registration of a new amalgamated organisation.
4 The reasons why the Full Bench made the orders it did at the conclusion of the hearing of this application are as follows in these reasons.
Background - the reasons why the FPU seeks to amalgamate with another organisation
5 In early 2016, an issue arose whether the members of the committee of management of the FPU validly held office as an annual general meeting and elections for offices (other than the secretary) had not been held in 2015. With the exception of the secretary, under r 7 each officer holds office for a period of 12 months from the conclusion of each annual general meeting. As a result, Mr O'Keeffe, as a member of the FPU, brought an application pursuant to s 66 of the IR Act seeking orders to enable an annual general meeting of the FPU to be called, an interim committee of management and a process for elections of office holders to be put in place (PRES 1 of 2016).
6 After hearing the parties on 18 March 2016, the following interim order was made in PRES 1 of 2016 on 21 March 2016 ([2016] WAIRC 00159; (2016) 96 WAIG 310):
1. Rule 6 of the rules of the respondent (the rules of the Union) is varied in that an Interim Committee of Management is established, constituted as follows:
(a)
President
Bishir Ahmed
(b)
Senior Vice President
Ibrahim Taha
(c)
Junior Vice President
Cylynn Criddle
(d)
Secretary
Peter O'Keeffe
(e)
Treasurer
Adnan Alsudani
(f)
Trustees
Alene Ayanaw
Dusan Dragosavic
(g)
Committee Members
Phe Ta
Sarah-Emily Enua
2. The Interim Committee of Management is to remain in place until elections for office are conducted in accordance with the rules as varied by orders 3 and 4 of this order.
3. Rule 11 of the rules is varied in that an Annual General Meeting of the Union is to be held in accordance with the terms of rule 11 in the month of May 2016.
4. Rule 21(1) of the rules is varied in that the notice for nominations for office for elections to be conducted in accordance with order 3 of this order and the rules, are required to be displayed in the manner required by the Interim Committee of Management on a date not earlier than 24 March 2016.
5. Rule 7(1) of the rules is varied in that following the election for each office conducted in accordance with orders 3 and 4 of this order and the rules, each member of the Committee of Management (other than the Secretary) shall hold office for a period of approximately eighteen (18) months, namely from the conclusion of the Annual General Meeting conducted in May 2016 at which he or she is declared duly elected to the conclusion of the next Annual General Meeting in November 2017, when he or she shall retire from office but shall be eligible for re-election.
6. The Interim Committee of Management shall have the authority to exercise all of the powers, duties and functions of the Committee of Management and each of the members of the Interim Committee of Management shall have the authority to exercise all of the powers, duties and functions of the office held by each of them.
7. Unless this order is revoked or varied, this order shall cease to have effect at the commencement of the Annual General Meeting held in the month of November 2017.
8. There be liberty to the parties to apply to vary the terms of this order
7 Pursuant to the terms of the order in PRES 1 of 2016, elections were held between 24 March 2016 and 29 April 2016. Mr Ben Harris, the returning officer for the FPU elections, after conducting the elections, declared the results on 5 May 2016 (annexure 2, statutory declaration of Mr O'Keeffe).
8 In a letter and attachments written by Mr O'Keeffe, as the secretary of the FPU, to all members of the FPU dated 17 June 2016, the following reasons why the FPU seeks to amalgamate with the AWUWA were put to the members:
(a) The FPU has been for many years run administratively by The Shop, Distributive and Allied Employees' Association of Western Australia (SDAWA) through the operation of a service agreement. Mr O'Keeffe is also the secretary of the SDAWA.
(b) For some years, the FPU has only had a membership of approximately 250. They tried for several years unsuccessfully to increase their membership. The committee of management formed the view there was little prospect of any increase in the coming years. As the FPU for many years has failed to increase their membership coupled with low numbers resulted in the resources of the union dwindling. As of April 2016, the FPU had total membership funds of $27,150.
(c) The FPU reduced expenses by reducing the secretary's wage from $10,400 per annum to zero and the SDAWA took on more of the cost of employment of the FPU organiser, Mr Suliman Ali. This meant that Mr Ali spent more time working for the SDAWA than for the FPU.
(d) The committee of management formed the view that its only real option for its viability was to increase membership fees in the order of 100%, but that was not likely to be supported by the membership as a whole so that idea was rejected.
(e) The other option was to amalgamate with another union. Despite the fact that the FPU having a close relationship with the SDAWA over the years, the committee of management was of the opinion that the rules of the SDAWA do not permit it to cover members working in FPU areas of work and so the SDAWA was not a viable option.
(f) The committee of management authorised Mr O'Keeffe to commence discussions with the AWUWA to see if they would be open to an amalgamation with the FPU.
9 Prior to July 2016, there were nine sites at which members of the FPU worked. However, in July 2016 two workplaces, Smiths and Golden Egg, closed. These closures resulted in a loss of about 30 members of the organisation.
Rules of the proposed amalgamated organisation
10 The rules of the proposed amalgamated organisation, with the exception of the following rules, are identical to the current registered rules of the AWUWA:
(a) Rule 4(40) and r 4(41) of the proposed rules set out, without amendment, the existing eligibility rules of the FPU (r 4 (membership) and r 3 (interpretation) respectively of the rules of the FPU).
(b) The following proviso is added to proposed r 4 which states:
PROVIDED that no person shall be eligible to be a member of the Union unless they were eligible to be a member of:
The Australian Workers' Union, West Australian Branch, Industrial Union of Workers;
or
The Food Preservers' Union of Western Australia, Union of Workers
As at the date of the amalgamation of the two Unions on [date of amalgamation]
(c) Rule 36 and r 50 of the current rules of the AWUWA require publication of notices in The Australian Worker. Rule 36 of the proposed rules instead requires publication of a notice of a proposed alteration to rules in The West Australian newspaper. The same requirement for publication in r 50 is also proposed.
Eligibility rule for FPU members of the proposed amalgamated organisation
11 Rule 4(40) and r 4(41) of the proposed rules provide:
Subject to sub clause (41) the Union shall consist of an unlimited number of persons comprising those-
(a) who are employed in the manufacture, packing, bottling, blending, refining, pulping, brewing, mixing, the following:- pastry, confectionery, biscuits, cakes, cake ornaments, ice, ice cream, grocers' sundries, chemists' sundries.
(b) who are engaged in processing by canning, quick-freeze, or other methods of preservation of poultry, rabbits, game, fruit, vegetables, fish including crustaceans and molluscs or any part thereof.
(c) who are employed or usually employed in or in connection with the handling, candling, grading, packing, pulping, dehydrating, oiling or by any other method processing eggs, with the exception of transport workers, worked engaged in any clerical capacity, or workers employed in or about warehouses which do not deal solely in eggs or workers employed in or about retail shops.
(d) who are employed assisting in the production or putting up for sale the products or wares of factories or establishments manufacturing and/or dealing with any of the classes of goods referred to in paragraphs (a), (b) and (c) of this sub-rule.
(e) provided that such persons are not eligible to join:-
The Australasian Meat Industry Employees' Union Industrial Union of Workers', Western Australian Branch, Perth.
The Western Australian Bakers', Pastrycooks' and Confectioners' Union of Workers.
The Federated Engine Drivers' and Firemens' Union of Workers of Western Australia, Perth, or any other existing Industrial Union.
(f) who are engaged in packing fruit (other than apples or pears) but only where that work is done in connection with a process designed to preserve the fruit or improve its appearance.
(g) who are engaged in the preparation and packing of edible fungus.
(h) who whether employed in the industry or not are for the time being officers of the union.
(i) The following persons shall not be eligible for membership of the Union:
Persons employed as production employees in the poultry processing industry by Inghams Enterprises Pty Ltd situated, as at 14 September 2000, in Baden Street and Powell Street, Osborne Park or at such other location or locations at which the said enterprise at Osborne Park may subsequently be carried out. In this paragraph, Inghams Enterprises Pty Ltd includes its successors, assignees, transmittees or any purchaser of the whole or any part of its business.
In sub-rule (40) each of the following terms shall have the respective meaning hereby assigned to it -
'Grocers' Sundries', means and includes cereal and farinaceous foods, tea, coffee and/or chicory essence, coffee chicory, cocoa, honey, jams, selfraising flour, salt, starch, bird seed, matches, sauces, vinegar, pickles, chutneys, rice, sago, tapioca, macaroni, vermicelli, spaghetti, mustard, spices, herbs, condiments, peppers, soups, fish, and fish pastes, Italian paste, flavouring and colouring essences, peel, preserved fruits, dried fruits, health salines, nuts and nut foods and products, edible oils, margarine, eggs, baking powder, custard powder, blanc mange powder, jelly or jelly crystals, gelatine, vegetables, methylated spirits, turpentine, linseed oils, oils, benzine and polishing materials.
'Polishing Materials' means and includes oils, boot blacking, boot paste, boot polish, harness dressing, harness compounds, ebonite shine, stove polish, metal polish, knife polish, washing blue, moulders' blacking, moulders' plumbago preparations, grinding charcoal or coal dust.
'Chemists Sundries' means and includes tartaric acid, citric acid, alum, bicarbonate of soda, cream of tartar, fruit essences, cordials as manufactured by manufacturing chemists, patent medicines, ointments, hair oils, cosmetics, toilet preparations other than soap, essential oils and health salines.
PROVIDED that no person shall be eligible to be a member of the Union unless they were eligible to be a member of:
The Australian Workers' Union, West Australian Branch, Industrial Union of Workers;
or
The Food Preservers' Union of Western Australia, Union of Workers
As at the date of the amalgamation of the two Unions on [date of amalgamation]
Applications to Intervene
12 The National Union of Workers (NUW), an organisation registered as a federal body under the provisions of the Fair Work (Registered Organisations) Act 2009 (Cth) filed an application on 4 November 2016 seeking to object to the amalgamation. Their grounds of objection were:
1. That the application for amalgamation before the Commission has not been authorised in accordance with the rules of the Food Preservers' Union of Western Australia Union of Workers.
Particulars:
a. Contrary to rules 12, 16 and 52 of the rules of the Food Preservers' Union of Western Australia Union of Workers, the Food Preservers' Union of Western Australia Union of Workers did not publish a notice in a newspaper that circulates in the Perth District which indicated that there was going to be a General Meeting on 28 July 2016 to vote on the changes to the organisation's rules.
b. Contrary to rule 18 of the rules of the Food Preservers' Union of Western Australia Union of Workers, the General Meeting held on 28 July 2016 did not achieve a quorum of at least ten members.
13 The NUW in its application contends that it is likely to be affected by the application in the following manner:
The amalgamation of the Australian Workers' Union, West Australian Branch, Industrial Union of Workers and the Food Preservers' Union of Western Australia Union of Workers will most likely be followed by an application in the Fair Work Commission to merge the Food Preservers' Union of Western Australia Union of Workers' eligibility rule into the eligibility rule of the Australian Workers' Union. If this happens, it will likely result in demarcation disputes between the Australian Workers' Union and the National Union of Workers.
14 At the hearing on 7 November 2016, the NUW, after argument, did not pursue its application to object but did, however, seek to press an application to intervene in the proceedings pursuant to s 27(1)(k) of the IR Act. Only members of the applicants are permitted pursuant to s 55(4) of the IR Act to object to an application made under s 72 of the IR Act to amalgamate two or more registered organisations: Re The Forest Products, Furnishing and Allied Industries Industrial Union of Workers, WA (1990) 70 WAIG 3974.
15 Section 27(1)(k) provides:
Except as otherwise provided in this Act, the Commission may, in relation to any matter before it —
(k) permit the intervention, on such terms as it thinks fit, of any person who, in the opinion of the Commission has a sufficient interest in the matter; and
16 After hearing from counsel for the NUW and the parties, the Full Bench informed counsel for the NUW and the parties that the NUW's application would be dismissed as it was not satisfied the NUW had a sufficient interest in the matter. The reasons why we made this decision were as follows.
17 The principles for the Commission to consider when determining whether to exercise its discretion to allow a person to intervene in proceedings pursuant to its power to do so under s 27(1)(k) of the IR Act, in particular the determination whether a person has, in the opinion of the Commission, a sufficient interest in a matter that that person should be heard, were considered by Sharkey P in Gairns v The Royal Australian Nursing Federation Industrial Union of Workers, Perth (1989) 69 WAIG 2343. In Gairns the substantive application was an application brought before the President's original jurisdiction under s 66 of the IR Act for an interpretation of union rules. The federal nursing union, the Australian Nursing Federation, sought intervention in the proceedings. So, too, did federal and state Academic Unions. President Sharkey found that the most helpful dissertation of principles relating to intervention was set out in Re Ludeke; Ex parte Customs Officers' Association of Australia, Fourth Division [1985] HCA 31; (1985) 155 CLR 513; (1985) 13 IR 86.
18 In Ludeke, the matter before the High Court was an application by the Customs Officers' Association of Australia, Fourth Division to make absolute an order nisi for a prerogative writ to quash an order made by Justice Ludeke that leave be granted to the Administrative and Clerical Officers' Association, Australian Government Employment (ACOA) to intervene in the matter subject to limitation on certain questions it raised in its submissions in a demarcation dispute between that union and the ACOA. Chief Justice Gibbs at (519) - (520), with whom Dawson J agreed, observed:
The critical question is whether the prosecutor will be denied natural justice if it is allowed to intervene in ACOA's application only to the limited extent allowed by Ludeke J. It may be said immediately that it is clear that notwithstanding the wide discretion in matters of procedure given to the Commission by s. 40(1) of the Act, the Commission is bound to observe the rules of natural justice: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group ((1969) 122 C.L.R. 546, at p. 552); Reg. v. Moore; Ex parte Victoria ((1977) 140 C.L.R. 92, at pp. 101-102); Reg. v. Isaac; Ex parte State Electricity Commission (Vict.) ((1978) 140 C.L.R. 615, at p. 620). That means that a person whose rights will be directly affected by an order made by the Commission must be given a full and fair opportunity to be heard before the order is made. That requirement will not necessarily be satisfied if the Commission relies only on the fact that the person concerned has been heard on the same question by the same member of the Commission on a previous occasion. In general, the rules of natural justice are not satisfied unless the opportunity to be heard is afforded in the proceeding in question, although the fact that there had been an earlier hearing would be relevant in determining what constituted a full opportunity to be heard. However, natural justice does not require that everyone who may suffer some detriment as an indirect result of an order of the Commission is entitled to be heard before the order is made. Orders made by the Commission may affect many members of the community who are not parties to the proceedings in question but that does not mean that any member of the community who will be indirectly affected by an order of the Commission has a right to be heard in those proceedings. It has been held that a person who is not a party to a dispute, but who may nevertheless be affected, indirectly and consequentially, by an order made in settlement of the dispute is not entitled to be heard before the matter is determined: Reg. v. Moore; Ex parte Victoria; Reg. v. Isaac; Ex parte State Electricity Commission (Vict.).
19 From these observations of Gibbs CJ in Ludeke, the following principles emerge:
(a) Every person whose rights will be directly affected by an order must be given a full and fair opportunity to be heard; and
(b) The principles of natural justice do not require that everyone who may suffer a detriment as an indirect result of an order or who is indirectly affected is entitled to be heard before the order is made.
20 Justice Mason in Ludeke made similar observations. He observed that an interest which in its nature is inadequate to support intervention in legal proceedings in a court may be sufficient to support intervention in a matter of industrial arbitration before the Commission (523). His Honour found that if an organisation has a substantial interest sufficient to sustain an application to the court for prohibition then, generally speaking, it is desirable that the Commission should recognise that interest, subject to discretionary considerations, as a basis for intervention (525). In making this observation, his Honour had regard to the decision in R v Holmes; Ex parte Public Service Association (NSW) [1977] HCA 70; (1977) 140 CLR 63 where it was found that where the prosecutor had relevant coverage under its eligibility rule there could be no doubt that it had a substantial interest sufficient to sustain its intervention and that a lack of coverage would result in the prosecutor's interest being much more tenuous (525). Justice Mason in Ludeke also said (527):
Indeed, the principal object of intervention is to ensure that all interested parties will participate in a single resolution of a controversy instead of being relegated to a resolution of the controversy in several proceedings. It is the attainment of this object that justifies intrusion into the litigant's right or interest in pursuing his proceedings as he chooses to constitute them.
21 Justice Brennan said that he generally agreed with the judgment of the Chief Justice. His Honour then went on to add that in determining whether a repository of a statutory power is bound to hear a person who is not directly involved in proceedings regard must be had (528):
to all the circumstances of the case, including the language of the statute, the nature of the power and of the body in which the power is reposed, the nature of the proceedings, the procedural rules that govern the proceedings (especially any provision for intervention by a person not directly involved in them), the interests which are likely to be affected, directly or indirectly, by the exercise of the power and the stage the proceedings have reached when the repository of the power learns of those interests. Generally speaking, a decision that will affect adversely a person's legal rights or his proprietary or financial interests or his reputation ought not to be taken without first giving him an opportunity to be heard provided such an opportunity can be reasonably given (F.A.I. Insurances Ltd. v. Winneke ((1982) 151 C.L.R. 342, at pp. 411-412)), even if that person is not directly involved in the proceedings which lead to the making of the decision: cf. Reg. v. Town and Country Planning Commissioner; Ex parte Scott ([1970] Tas. S.R. 154, at pp. 182-187; 24 L.G.R.A. 108, at pp. 137-141). But that is not an absolute rule.
22 The NUW argued that it has three interests which, when considered, form a proper basis for the Full Bench to find the NUW has a sufficient interest to be granted leave to intervene in this application. These are:
(a) If the amalgamation application is granted it is likely to result in a demarcation dispute between the NUW and the federally registered body of The Australian Workers' Union (AWU). The NUW points out that all employees who are covered by the FPU are all employed by constitutional corporations, that is national system employers. Whilst it concedes that it has no state registered counterpart body, its concern is that the new amalgamated body will try to expand its coverage of food manufacturing industry employees into the coverage of the NUW. Rule 4(1)(e) of the eligibility for membership rule of the FPU provides that persons engaged in the industries named in the eligibility for membership rule, r 4, are excluded from membership if those persons are eligible to join any other existing industrial union. The NUW argues that the words 'existing industrial union' should be interpreted to apply to both federally registered unions and state unions. It also points out that the FPU is a transitionally registered organisation under the provisions of the Fair Work (Registered Organisations) Act. The NUW says that whilst no demarcation issues have arisen at the workplaces of the employees who are covered by the FPU and the NUW, they will arise in the future, as statements have been made that once the amalgamation goes forward the new organisation intends to push aggressively into the food manufacturing industry by the AWU subsequently seeking to change its eligibility rules under the Fair Work (Registered Organisations) Act.
(b) The second issue the NUW raises is that, if this application is granted, it will lead to further litigation which raises a financial interest. In particular, if the AWU seeks to incorporate the new eligibility rules created by the amalgamated association into its federal rules the NUW is likely to object and this will incur it costs as it will seek to argue that the provisions of the IR Act were not complied with on grounds that the application to amalgamate was not authorised by the rules of FPU. It also says it may seek judicial review of the decision of the Full Bench.
(c) The third issue the NUW raises is that it claims that its reputation has been disparaged by the FPU at the annual general meeting of the FPU held on 27 May 2016 and at a general meeting held on 28 July 2016. In support of its arguments, the NUW relies upon the following statements set out in:
(i) The FPU minutes of the annual general meeting held on 27 May 2016 which record:
The President then called for general business. D. Dragocevic queried the choice of the AWU as the amalgamation partner. The Secretary explained that the SDA was not an option due to coverage issues. The NUW is based in Melbourne, does not have a significant presence in WA and may well vacate the state in the near future. The other option, being the AMWU, is facing a membership crisis of its own due to the collapse of the vehicle industry and was itself in amalgamation talks with other Unions.
(ii) The FPU minutes of the general meeting held on 28 July 2016 which record:
The Secretary advised that, as per the correspondence he had previously sent to all members, the Committee of Management had, after much deliberation, determined that the FPU should consider an amalgamation with the AWU. The Secretary explained that the Committee had considered two other possible amalgamation options, being the AMWU and the NUW. In both cases, there were issues particular to the Western Australian operations of those Unions that suggested to the Committee that the AWU would be a more secure option in the medium to long term.
23 The NUW also put an argument that in construing the power of the Full Bench to permit intervention under s 27(1)(k) of the IR Act, it should have regard to the principal objects of the IR Act, in particular s 6(a), s 6(c) and s 6(e) which provide:
The principal objects of this Act are —
(a) to promote goodwill in industry and in enterprises within industry; and
…
(c) to provide means for preventing and settling industrial disputes not resolved by amicable agreement, including threatened, impending and probable industrial disputes, with the maximum of expedition and the minimum of legal form and technicality; and
…
(e) to encourage the formation of representative organisations of employers and employees and their registration under this Act and to discourage, so far as practicable, overlapping of eligibility for membership of such organisations; and
Consideration of application made by the NUW to intervene
24 In our opinion, reliance upon the principal object in s 6(e) of the IR Act does not assist the NUW's argument as this object, insofar as it refers to organisations, only applies to organisations which are registered under the IR Act. This is clear from the definition of the word 'organisation' in s 7 of the IR Act which defines an organisation to mean an organisation registered under div 4 of pt II of the IR Act. As the NUW is not an organisation registered pursuant to the provisions of the IR Act, the Full Bench has no ability to deal with any demarcation dispute that may arise between the NUW and the AWU as they are both federal unions.
25 In any event, the NUW has constitutional coverage in the federal system under the provisions of the Fair Work Act 2009 (Cth) and the Fair Work (Registered Organisations) Act of all members and persons who are eligible to be members of the FPU. However, it has no ability to provide any assistance to its members or persons eligible to be members of the FPU under the provisions of the IR Act as it has no state counterpart body or any other state registered organisation that it is affiliated with, or has an administrative arrangement with, in Western Australia. Further, at law, the potential for demarcation could arise, in any event, at any time between the NUW and the FPU.
26 In the event of this application being granted, all that will occur is that the current eligibility for membership of the FPU, as reflected in r 3 and r 4 of the FPU rules, will be incorporated without amendment into the rules of the new amalgamated organisation. Consequently, there will be no change to the status quo other than a new organisation will have coverage of persons who were formerly covered by the rules of the FPU. The only change is that the new amalgamated organisation, in addition to the coverage of the FPU, will be a larger organisation which will have constitutional coverage of employees in other unrelated industries.
27 We are not persuaded by the argument that the proviso in r 4(1)(e) of the rules of the FPU should be construed to apply to unions other than state registered organisations, but even if such a construction is open it would not assist the NUW in its argument. Given that this exemption is contained in the proposed rules of the new amalgamated organisation, even if the exemption can be construed to apply to federally registered organisations such as the NUW, would mean that, if anything, the coverage of these employees could not take effect at a federal level, because of the constitutional coverage of the NUW, as r 4(1)(e) would be construed to exclude from coverage any person who is eligible to be a member of any union irrespective of whether the union is registered as an organisation under the IR Act or the Fair Work (Registered Organisations) Act.
28 In any event, the FPU itself is currently registered as a transitionally registered organisation pursuant to the provisions of the Fair Work (Registered Organisations) Act. Thus, it has federal coverage of persons who are members of the NUW. In addition, even if the AWU does at some time in the future make an application under the Fair Work (Registered Organisations) Act to vary its rules to mirror the coverage of the new amalgamated association by incorporating the current r 3 and r 4 of the rules of the FPU, this is a matter, or to use the words of Mason J in Ludeke, is a controversy, that only the Fair Work Commission can resolve. It is not a matter that can be taken into account by the Full Bench of this Commission. In any event, no material has been put before the Full Bench by the NUW that such an application is contemplated by the AWU.
29 As to the second issue raised by the NUW that it will seek to run a collateral attack in the Fair Work Commission on the decision of the Full Bench to authorise the registration of a new amalgamated organisation in the event the AWU seeks to incorporate a new rule into its federal rules, is not a matter that is relevant to the determination of this application. Proceedings for an amalgamation under s 72 of the IR Act do not involve the exercise of a discretion, they are administrative proceedings whereby the Full Bench is required to authorise an amalgamation if it is satisfied that the provisions of the IR Act have been complied with which include a consideration of whether the rules of the organisations that seek to amalgamate have been complied with. If the Full Bench is not so satisfied, it is not authorised by the IR Act to grant the application.
30 As to the issue raised in respect of disparagement of the reputation of the NUW, we are not persuaded that this argument or the statements made at the annual general meeting and the general meeting of the FPU raise a sufficient interest as the NUW can make no application to this Commission for constitutional coverage of persons who are members or eligible to be members of the FPU, because it is not registered as an organisation under the IR Act. In these circumstances, it has no right to procedural fairness; that is, it has no right to be heard in these proceedings in relation to the statements made by Mr O'Keeffe at those meetings.
31 Nor did the NUW have a right to attend the meetings of the FPU. If it wished to do so it could have organised its own meetings to discuss with its members the proposed amalgamation. In these circumstances, even if the statements made at the meetings could be regarded as disparagement, the fact that they were made cannot make a difference to the outcome of these proceedings. As the NUW lacks constitutional coverage under the IR Act its interest is too tenuous to be regarded as a sufficient interest.
32 Although the NUW made this application at a late stage, in that it did not make an application to intervene until one business day before the hearing of this application, we did not regard this particular issue as material in our consideration of the merits of the application to intervene as the application was made before the commencement of proceedings and it appears that the matters raised by the NUW did not take any of the parties by surprise.
33 We also note that the provisions of s 72 of the IR Act do not assist the NUW as it is clear that it has no right to object to this application. It is clear from s 55(4) of the IR Act that only members of the amalgamating organisations are able to object. In our opinion, if a person has a valid right to object and notice of their objection complies with the provisions of the IR Act and Industrial Relations Commission Regulations 2005 (WA), no leave is required for that person to be heard. However, an application to intervene is of a different character. The Commission has a discretion whether to allow intervention.
Application by The Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers - Western Australian Branch to be heard
34 At the hearing of the application to amalgamate on 7 November 2016, The Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers - Western Australian Branch (AFMEPKIU), whose federal counterpart body is the Australian Manufacturing Workers Union, sought also to appear in these proceedings. After some discussion between it and the parties, the Full Bench was advised that the AFMEPKIU had reached an agreement that the new amalgamated organisation would not seek to extend its coverage of the FPU outside the State of Western Australia.
Notices to object
35 Subsequent to the hearing on 7 November 2016, 15 notices of objection were filed in the Commission. Each of the notices were filed together. At the same time the notices of objection were filed, a letter from solicitors, W G McNally Jones Staff, was also filed in which it was stated that the NUW had instructed it to file 15 notices of objection on behalf of members of the FPU. Each of the notices contained the same grounds of objection. The grounds of objection set out in each one of the notices are as follows:
1. I did not know about the General Meeting of the FPU that was held on 28 July 2016. Contrary to rule 52 of the FPU rules. I did not see any advertisement in a newspaper which set out the time, date, location and purpose of the meeting. I was denied an opportunity to vote against the amalgamation.
2. I do not want my FPU membership cancelled. I especially do not want to become a member of the AWU.
The objector is or is likely to be affected by the application in the following manner, namely:
I am likely to be affected because my membership with the FPU is going to be cancelled by the amalgamation. I am going to be automatically transferred into the newly formed AWU. I do not want my membership at the FPU to end, and I do not want to join the AWU.
36 On the same day, the FPU filed an affidavit of Mr O'Keeffe made on 14 November 2016. In the affidavit Mr O'Keeffe stated he was served with each of the notices of objection at about 11.00 am that morning and at about 11.30 am he compared the names of the objectors to those in the FPU's membership records. In his affidavit he set out the following table which was said to identify the current membership status of the persons who had signed the notices:
Name
Address
Employer
FPU Member No
Membership Status
Date Form 13 signed
Madhieu Akot
36 Eastdene Circle, Nollamara
Vesco Foods
43630
Financial
11 November 2016
Andrijana Ristevski [sic]
11 Monash Circle, Marangaroo
Vesco Foods
873
Financial
9 November 2016
Michael Cox
31 Glenbrook Drive, Ballajura
Baiada Poultry
44175
Financial
11 November 2016
Nadia (Yosufi)
5A Danby Street, Doubleview
Vesco Foods
44089
Financial
9 November 2016
Gabriela Cremanaru
13A Elvire Street, Watermans Bay
Vesco Foods
43819
Financial
13 November 2016
Vladimir Medvedev
9/42 Kathleen Avenue, Maylands
Vesco Foods
43829
Financial
11 November 2016
Seokyoung Heo
188A Knutsford Avenue, Kewdale
Australian Personnel Global
254946
Financial
14 November 2016
James Cotton
15 Copenhagen Street, Baldivis
Australian Personnel Global
245944
Financial
14 November 2016
Row deliberately blank





Ben Rizzo
6 Fitzroy Place, Heathridge

876
Resigned effective 10 August 2016
11 November 2016
Mark Reyes
49 Brighton Road, Scarborough

43298
Resigned effective 16 December 2013
10 November 2016
Glenn Tupluck [sic]
13 Ravencroft Way, Kelmscott

44382
Resigned effective 10 August 2016
11 November 2016
Stephen Matthews
16 Braithwaite Road, Lockridge

43064
Resigned effective 10 August 2016
11 November 2016
Ian Bryson
82 Teasel Way, Banksia Grove

44201
Resigned effective 10 August 2016
11 November 2016
Jordan Gontran
4 Trentbridge Ave, Madeley


No record of membership
14 November 2016
Vinh Thanh Nguyen
12 Selloa Place, Mirrabooka


No record of membership
9 November 2016
37 Mr O'Keeffe addressed Ms Cremanaru's notice of objection and stated that he had had a conversation with her in which she had informed him that she intended to resign her FPU membership, but as of 14 November 2016 the FPU had not received Ms Cremanaru's resignation.
38 On 15 November 2016, the Full Bench directed the FPU to serve a copy of Mr O'Keeffe's affidavit sworn on 14 November 2016 on each one of the objectors. An inquiry was also made of Mr Fogliani of W G McNally Jones Staff as to whether his firm had any instructions to act for any of the 15 persons who had filed objections.
39 On 16 November 2016, a copy of the following letter was sent on behalf of the Full Bench to each of the persons who had signed notices of objection:
The application to amalgamate The Australian Workers' Union, West Australian Branch, Industrial Union of Workers with The Food Preservers' Union of Western Australia Union of Workers was held by the Full Bench on 7 November 2016.
Your notice of objection was filed in the registry of the Commission on 14 November 2016.
Prior to the Full Bench delivering its decision as to whether the application should be granted, the members of the Full Bench have determined that you should be provided with an opportunity to be heard in respect of the matters stated in your notice of objection and the affidavit filed in reply to your objection by Peter Francis 'Keefe made on 14 November 2016.
The Full Bench has directed that if you wish to be heard, you should advise these chambers by 4:00 pm next Friday, 25 November 2016.
If you wish to be heard, please advise whether:
(a) you wish to cross-examine Mr O'Keeffe in respect of the contents of his affidavit; and
(b) you wish to make an oral submission or a submission in writing.
If you or any of the other objectors wish to cross-examine Mr O'Keeffe or make an oral submission, the Full Bench will re-list the matter for hearing.
40 On 17 November 2016, Mr Fogliani sent an email to the Commission in which he stated that he had instructions to act directly for Mr Reyes, Ms Ristevska and Mr Rizzo. Mr Fogliani subsequently advised on 17 November 2016 by email that he also had instructions to act on behalf of Mr Tupluk.
41 On 25 November 2016, written submissions were filed by Mr Fogliani on behalf of Ms Ristevska and Mr Rizzo who sought to object to the amalgamation. In an email attached to the submissions, Mr Fogliani informed the Commission that he had been unable to obtain instructions from Mr Reyes because Mr Reyes is out of the country and will not be returning for two months.
42 In the submissions, it was submitted on behalf of Ms Ristevska and Mr Rizzo that a motion to amalgamate with a different organisation is, in practicality, a vote to repeal the current rules of the organisation and to form a new organisation. Consequently, they argued that the strict process which is set out in r 52 of the FPU rules must be complied with.
43 Rule 52 of the rules of the FPU provides:
No amendment, repeal or alteration of these Rules shall be made unless the amendment, repeal or alteration has been passed and approved by a vote of the majority of the members of the Union present in person at a general meeting called for the purpose in the manner provided by paragraph (a) Section 9 of the Industrial Arbitration Act 1912-1971 as amended.
44 Section 9(a) of the Industrial Arbitration Act 1912 (WA) (repealed) provided:
A society shall not make application to be registered as a union unless and until –
(a) a resolution authorising the application has been passed by a majority of the members of the society present in person at a general meeting of the society specially called for the purpose, of which seven days' previous notice specifying the time, place and objects of the meeting has been given, by publishing a copy of a notice thereof in a newspaper circulating generally in the district in which the office of the society is situate and by posting a copy of the notice in a conspicuous place outside that office;
45 In particular, Ms Ristevska and Mr Rizzo sought to put an argument that the amalgamation should not be authorised by the Full Bench as the general meeting called on 28 July 2016, at which a motion was passed by members of the FPU to authorise the proposed amalgamation of the FPU with the AWUWA, was not called in the manner provided by s 9(a) of the Industrial Arbitration Act 1912.
46 Pursuant to s 9(a) of the Industrial Arbitration Act 1912, Ms Ristevska and Mr Rizzo say prior to calling a general meeting to vote on the amalgamation, the FPU had two options:
(a) it could publish a notice in the local newspaper which set out the time, place and objects of the meeting; or
(b) it could make a written request to the Registrar, in the required form, to use a different method to advertise the meeting.
47 As the FPU did not use either of those methods to advertise the general meeting that occurred on 28 July 2016, pursuant to s 55(4)(a) of the IR Act, it is argued that the Full Bench should refuse to authorise the amalgamation application.
48 No other response to the letter from the Commission dated 16 November 2016 was received from or on behalf of any person who signed a notice of objection.
49 Following service of the submissions filed on behalf of Ms Ristevska and Mr Rizzo, Mr O'Keeffe filed a further affidavit on 25 November 2016. In that affidavit, Mr O'Keeffe stated that:
(a) in his first affidavit he identified Ms Ristevska as a financial member of the FPU and Mr Reyes, Mr Rizzo and Mr Tupluk as former members of the FPU;
(b) because Mr Fogliani stated he was instructed to act for Ms Ristevska, on or about Thursday, 17 November 2016, he made further inquiries into Ms Ristevska's membership status. As a result of that inquiry, he determined he was incorrect in his first affidavit when he identified Ms Ristevska as a financial member of the FPU;
(c) Ms Ristevska resigned her membership of the FPU on Wednesday, 3 August 2016 and therefore was not a financial member when he affirmed and signed his first affidavit; and
(d) the FPU membership records have now been updated to reflect Ms Ristevska's 3 August 2016 resignation and that her membership dues were paid up until the same date.
50 Annexed to Mr O'Keeffe's affidavit made on 25 November 2016 was an email dated 3 August 2016 to the FPU from Ms Ristevska. The email was sent to the payroll manager of her employer, Olly Lemmey, the subject is 'Food Preservers Union deductions, employee # 40302'. In the email Ms Ristevska stated, 'This email is to advised [sic] you to please cease FPU deductions from my wages, effective immediately'.
51 On 30 November 2016, an email was sent to Mr Fogliani on behalf of the Full Bench in which it was stated:
The Full Bench has directed that if your clients wish to be heard in respect of the matters stated in the further affidavit of Peter Francis O'Keeffe made on 25/11/2016, you should advise these chambers by 4:00 pm on Monday, 5 December 2016.
If any of your clients wish to be heard, please advise whether your clients wish to cross-examine Mr O'Keeffe in respect of the content of his further affidavit; and whether your clients wish to make an oral submission or a submission in writing.
52 Mr Fogliani responded by email dated 5 December 2016 and advised that he wished to cross-examine Mr O'Keeffe on behalf of Ms Ristevska.
53 On 14 December 2016, when cross-examined, Mr O'Keeffe gave the following evidence:
(a) union contributions were received by the FPU from Ms Ristevska's employer for the period ending 31 July 2016;
(b) union contributions are forwarded each month for the whole of a month in arrears by employers on behalf of employees who have union dues deducted from their pay;
(c) the FPU would not become aware that a member has ceased paying union contributions until at least the middle of the month, or towards the end of the month, that follows a month for which union dues have been deducted;
(d) Ms Ristevska's payment for 2016 contributions deducted for July 2016 would not have been forwarded from her employer until the later third of September 2016 and if she had made any contributions in August 2016 they would not have been forwarded to the FPU until the later third of October 2016;
(e) no contributions had been received for Ms Ristevska for any period subsequent to 31 July 2016.
Standing to object
54 Section 55(4)(b), when read with s 72 of the IR Act, creates a right of a member of an organisation to object to the registration of a new organisation created by an amalgamation of one or more organisations.
55 After considering the effect of s 64B and s 64C of the IR Act, the Full Bench found that Ms Ristevska ceased to be a member of the FPU on 31 October 2016.
56 Section 64B provides:
(1) Where —
(a) a period in respect of which a subscription has been paid to an organisation for a person’s membership of the organisation expires; and
(b) no subscription to continue or renew that membership has been paid to the organisation before, or within 3 months after, that expiry,
that membership ends by operation of this subsection at the end of that 3 month period.
(2) Subsection (1) does not apply if the membership has already ended under section 64A or under the rules of the organisation.
57 Section 64C provides:
(1) The ways of ending membership of an organisation set out in sections 64A and 64B are in addition to any ways of ending that membership provided for in the rules of the organisation.
(2) The ending of membership of an organisation under section 64A or 64B has effect despite anything in the rules of the organisation.
58 The effect of s 64B(1) is that a person ceases to be a member three months after a 'period in respect of which a subscription has been paid'. The effect of s 64C is that, any means of ending a person's membership that is not prescribed by s 64A (by written resignation) or by s 64B (when subscriptions are not paid) has effect but that s 64B renders any rule of an organisation ineffective that deals with the same subject matter as s 64A and s 64B.
59 As Ms Ristevska had paid subscriptions for membership of the FPU for the period of the whole of July 2016, pursuant to s 64B, her membership ceased on 31 October 2016 as no subscriptions were received by the FPU on behalf of Ms Ristevska within three months of the period ending on 31 July 2016.
60 As the evidence given by Mr O'Keeffe established that Ms Ristevska, Mr Rizzo, Mr Reyes, Mr Tupluk, Mr Matthews, Mr Bryson, Mr Gontran and Mr Nguyen were not members of the FPU at the time each of their notices to object were signed, filed and served, we found that they each did not have standing to object to the application to amalgamate the FPU with the AWUWA and each of their notices of objection would be dismissed.
Whether leave to extend time to object should be granted to the members who signed notices of objection out of time
61 Regulation 68(4) of the Industrial Relations Commission Regulations requires that any person who objects to the registration of a new amalgamated organisation must give notice of that objection in the form of Form 13 within 21 days of the publication of the notice of the application to amalgamate. However, the Full Bench is empowered to exempt a person from any procedural requirement of the Industrial Relations Commission Regulations (reg 37).
62 Publication of the notice occurred in the Western Australian Industrial Gazette on Wednesday, 28 September 2016: (2016) 96 WAIG 1384. Thus, each of the notices to object were filed out of time as notice of the objections were required to be given by 19 October 2016.
63 The parties opposed leave being granted to the seven members of the FPU who signed notices of objection being granted leave to extend time to object.
64 As Mr Young for the AWUWA pointed out:
(a) despite being afforded an opportunity by the Full Bench to be heard, including a right to make a submission in writing, each member of the FPU who signed a notice of objection has chosen not to make a submission or to appear in the matter;
(b) nor have any of the members who signed a notice to object made an application to extend time; and
(c) even if the Full Bench was to make an order granting an extension of time to all of the seven members, the total number of members who have sought to object is less than 5% of the total number of members of the FPU.
65 Whilst it is notable that Mr Fogliani, on behalf of the NUW, requested that leave be granted to extend time to each of the persons who signed the notices of objection, we formed the opinion that it would not grant an extension of time to any of the seven members who signed notices of objection and determined we would make an order to dismiss the notices of objection for the reasons outlined by Mr Young.
Statutory requirements for amalgamation
66 Pursuant to s 72 of the IR Act, two or more organisations registered under the IR Act may apply for registration of a new organisation. Section 72 of the IR Act provides:
(1) Where 2 or more organisations (in this section referred to as the amalgamating organisations) apply for the registration of a new organisation and the rules of the proposed new organisation are such that the only persons eligible for membership of the new organisation will be persons who, if the amalgamating organisations had remained in being, would have been eligible for membership of at least one of the amalgamating organisations, the new organisation may be registered by authority of the Full Bench.
(2) An application under this section shall be made under the respective seals of the amalgamating organisations and shall be signed by the secretary and principal executive officer of each of those organisations.
(3) The provisions of this Division applying to and in relation to the registration of organisations under section 53(1) or 54(1), other than section 55(5), shall apply with such modifications as are necessary, to and in relation to the registration of an organisation under this section.
(4) Subsection (1) does not prevent the alteration, pursuant to this Act, at any time after an organisation has been registered under this section, of the rules referred to in that subsection.
(5) On and from the date on which an organisation is registered under this section —
(a) the registration of each of the amalgamating organisations is cancelled; and
(b) all the property, rights, duties, and obligations whatever held by, vested in, or imposed on each of those organisations shall be held by, vested in, or imposed on, as the case may be, the new organisation; and
(c) actions and other proceedings already commenced by or against any of those organisations may be continued by or against the new organisation and the new organisation is substituted for each of those organisations as a party; and
(d) actions and other proceedings that could have been brought by or against any of those organisations may be brought by or against the new organisation.
67 The first requirement of s 72 is that the rules of the proposed new organisation must be such that the only persons eligible for membership of the new organisation must be persons who, if each of the amalgamating organisations had remained in existence, would have been eligible for membership of at least one of the amalgamating organisations (s 72(1)).
68 When regard is had to the rules of the proposed new organisation, it is clear that s 72(1) of the IR Act has been complied with. It is apparent that proposed r 4 of the rules of the proposed new organisation replicates r 4 of the rules of the AWUWA and r 3 and r 4 of the rules of the FPU.
69 The application complies with s 72(2) of the IR Act because the application is signed by the president and the secretary of both the AWUWA and FPU and the common seals of both organisations are affixed to the application.
70 Turning to s 72(3) of the IR Act, s 53 relates to the qualifications for and the basis of registration of organisations of employees. Section 53(1) of the IR Act provides that an organisation consisting of not less than 200 employees associated for the purpose of protecting or furthering the interests of employees may be registered by authority of the Full Bench. It is clear that the new amalgamated organisation will have more than 200 members who are employees. It is also clear from proposed r 3 that the new organisation is to be formed for the purpose of protecting or furthering the interests of employees.
71 Other than s 55(5) of the IR Act, s 55 applies to applications to amalgamate. Section 55(1), s 55(2), s 55(3) and s 55(4) of the IR Act provide:
(1) An organisation seeking registration under section 53 or 54 shall lodge in the office of the Registrar —
(a) a list of the officers of the organisation with their addresses; and
(b) 3 copies of the rules of the organisation; and
(c) the prescribed form of application.
(2) When the organisation has complied with the requirements of subsection (1) the Registrar shall publish in the required manner —
(a) a notice of the application; and
(b) a copy of such rules of the organisation as relate to the qualification of persons for membership of the organisation and, without limiting the generality thereof, including any rule by which the area of the State within which the organisation operates, or intends to operate, is limited; and
(c) notice that any person who objects to the registration of the organisation and who, having given notice of that objection within the time and in the manner prescribed, satisfies the Full Bench that he has a sufficient interest in the matter, may appear and be heard in objection to the application.
(3) An application under this section shall not be listed for hearing before the Full Bench until after the expiration of 30 days from the day on which the matters referred to in subsection (2) are first published.
(4) Notwithstanding that an organisation complies with section 53(1) or 54(1) or that the Full Bench is satisfied for the purposes of section 53(2) or 54(2), the Full Bench shall refuse an application by the organisation under this section 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.
72 In compliance with s 55(1) of the IR Act, the AWUWA and the FPU made application in the prescribed form and have filed a list of officers of the new organisation with their addresses and three copies of the rules.
73 Pursuant to s 55(2) of the IR Act, the Registrar published in the Western Australian Industrial Gazette the notice of the application and a copy of the rules of the proposed new organisation as they relate to the qualification of persons for membership and notice that any person who wishes to object to the registration of the organisation and who satisfies the Full Bench that he or she has sufficient interest in the matter, may appear and be heard in objection to the application. The notice was published in the gazette on 28 September 2016 ([2016] WAIRC 00761; (2016) 96 WAIG 1384).
74 The application was listed for hearing on 7 November 2016, which was the date notified in the gazette. Consequently, as required by s 55(3) of the IR Act, the hearing was held after the expiration of 30 days from the date on which the notice was published.
75 Pursuant to s 55(4)(a) of the IR Act, the application is required to be authorised in accordance with the rules of both organisations.
Evidence of compliance with the rules of the FPU
76 The principles for the approach to the construction of the rules of an organisation are well established. In Stacey v Civil Service Association of Western Australia (Inc) [2007] WAIRC 00568; (2007) 87 WAIG 1229, Ritter AP said [90] - [93]:
Brinsden J with whom Smith J agreed in Hospital Salaried Officers Association of Western Australia (Union of Workers) v The Hon Minister for Health (1981) 61 WAIG 616 at 618 said:-
'Generally speaking the correct approach to the interpretation of a union rule is to interpret it in the same manner as any other document. It must be remembered however that union rules are not necessarily drafted by skilled draftsmen. It is therefore necessary I think in construing a union rule not to place too literal adherence to the strict technical meaning of words but to view the matter broadly in an endeavour to give it a meaning consistent with the intention of the draftsman of the rule. This approach has been endorsed in relation to awards: see Geo A. Bond & Co. Ltd. (In Liq.) v McKenzie (1929) A.R. 499 at 503-4 referred to in Federal Industrial Law by Mills and Sorrell 5th Ed. at p522. I also said much the same thing in the unreported decision of Bradley v The Homes of Peace 1005/1978, judgment delivered 21st December, 1978 at p.13-14.'
These observations have been cited and applied in s66 applications. An example is Williams v SDAEAWA (2005) 85 WAIG 1963.
A similar approach has been adopted by the High Court in the construction of union eligibility rules. In Re Anti-Cancer Council of Victoria; Ex Parte State Public Services Federation (1992) 175 CLR 442 at 448, Mason CJ, Brennan and Gaudron JJ said it 'is well settled that union eligibility rules are to be interpreted liberally and according to their ordinary and popular meaning'. Their Honours cited a number of decisions in support of this proposition including The Queen v Isaac; Ex Parte Transport Workers’ Union (1985) 159 CLR 323 decision, where Wilson J at 340 said:-
'In construing the eligibility clause in the constitution of an organization, it is necessary to bear in mind the nature of the instrument in which the words appear and the purposes that it is intended to serve. The rule now in question bears ample indication on its face that it has been prepared without the assistance of a skilled draftsman. It has been amended from time to time, probably in response to the exigencies attending the industrial affairs of the union and without regard to the effect of the amendment on the internal consistency of the clause as a whole. It follows that the words of the rule should be given a wide meaning and interpreted according to their ordinary or popular denotation rather than by reference to some narrow or formal construction: Reg. v Cohen; Ex parte Motor Accidents Insurance Board; Reg. v McKenzie; Ex parte Actors and Announcers Equity. Nevertheless, notwithstanding this generosity of approach, the meaning of the words remains a legal question to be determined by the application of the ordinary rules which govern the construction of written documents: Reg. v Aird; Ex parte Australian Workers' Union; McKenzie.' (Footnotes omitted)
French J in Re Election for Office in Transport Workers’ Union of Australia, Western Australian Branch (1992) 40 IR 245 at 253 said that the 'preferred approach to the construction of union rules which requires them to be construed not technically or narrowly but broadly and liberally and not "subjected to the same meticulous scrutiny as a deed carefully prepared by lawyers."'. His Honour cited R v Holmes; Ex Parte Public Service Association (NSW) (1977) 140 CLR 63 per Gibbs J at 73 and Re An Election in the Australian Collieries Staff Association (NSW Branch) (1990) 26 FCR 499 per Lockhart J at 502. The reasons of French J were cited with approval by Mansfield J in Thomas v Hanson [2001] FCA 539 at [20]. Authorities cited by the applicant set out a similar method of approach. (Delron Cleaning Pty Ltd T/A Delron Hospitality Management (2004) 84 WAIG 2527 at [40] and FMWU v GW Smith and KJ Rose (1988) 68 WAIG 1010.
77 The FPU does not have a rule relating to the amalgamation with another organisation. Although Mr O'Keeffe in his statutory declaration made on 7 September 2016 states that the actions were taken by the FPU to effect the proposed amalgamation in accordance with r 52, that does not appear to be the case. In any event, the failure to follow the procedure for the convening of a general meeting pursuant to r 52 is, in our view, not material. Whilst the FPU sought authorisation from its committee of management at a meeting on 27 May 2016 and its members at a general meeting held on 28 July 2016, the FPU was not required by its rules to follow the procedure in r 52.
78 Pursuant to s 72(3) of the IR Act, the provisions of pt II div 4 apply to and in relation to the registration of employee organisations under s 53(1) and these provisions apply, other than s 55(5), with such modifications as are necessary to the registration of an amalgamated organisation. Before approving an application for amalgamation the members of the Full Bench must be satisfied that the conditions for registration set out in s 55(4) of the IR Act have been complied with.
79 An application for amalgamation of two organisations pursuant to s 72 of the IR Act is to create a new organisation with its own rules and is not an amendment, repeal or alteration of rules of an organisation seeking to amalgamate with another or other organisations. An amendment, repeal or alteration of rules contemplates a change of the rules of an organisation that continues to exist. However, on and from the registration of the new organisation the registration of each amalgamating organisation is cancelled pursuant to s 72(5) of the IR Act. It follows therefore, on cancellation, the rules of each amalgamating organisation cease to exist by operation of law.
80 The absence of a specific rule in the rules of the FPU authorising an amalgamation does not have the effect that the FPU is prohibited from making an application with another organisation or more than one organisation to amalgamate to create a new organisation. It is empowered to seek amalgamation with the AWUWA by operation of s 72 of the IR Act.
81 Section 55(4)(b) requires an amalgamating organisation to take reasonable steps to adequately inform members of the intention to apply for registration of the new organisation, the proposed rules of the new organisation and a right to object to the making of the application to amalgamate or to object to the rules of the new organisation. Further, s 55(4)(b) requires that members must be given a reasonable opportunity to make such an objection.
82 As set out in these reasons, we are satisfied that the FPU complied with s 55(4)(b) by taking a number of steps including holding a general meeting in compliance with the requirements of r 16 for the holding of general meetings (other than general meetings convened pursuant to r 52).
83 Rule 16 of the FPU provides for the procedure of notification of general meetings. Rule 16 provides:
Subject as provided in Rule 52 members of the Union shall be notified of General Meetings, Factory Meetings and Section Meetings by notices placed on the Union notice board at places of members' employment, and by such other similar means as the Committee of Management may deem reasonable. The time, place and purpose of the meeting shall be clearly indicated in the notice. Seven days notice at least of the holding of such meetings shall be given.
84 Pursuant to r 18, a quorum for all meetings of the union (except committee of management meetings) is 10 members.
85 In the statutory declaration made on 7 September 2016, Mr O'Keeffe set out the facts and circumstances the FPU relies upon in making this application to amalgamate the FPU with the AWUWA. Because of the matters raised in the NUW's notice of objection and an attached statutory declaration made by an organiser employed by the NUW, Mr Tim Gunstone of 833 Bourke Street, Docklands, Victoria, about what he says occurred at the general meeting of the FPU on 28 July 2016, Mr O'Keeffe gave oral evidence on oath about what occurred at that meeting to supplement the evidence which was set out in his statutory declaration.
86 Mr O'Keeffe's written and oral evidence is as follows.
87 On 19 May 2016, to effect the proposed amalgamation in accordance with the FPU rules as varied by the order made in PRES 1 of 2016 on 21 March 2016, Mr O'Keeffe caused a notice of an annual general meeting to be displayed in places of members in employment as required by r 16 of the FPU rules. The notice stated that in accordance with an order handed down by Smith AP on 21 March 2016, an annual general meeting of the FPU would be held on 27 May 2016 at 5.30 pm at the Osborne Park Community Centre, 11 Royal Street, Osborne Park (annexure 3, statutory declaration of Mr O'Keeffe). When giving oral evidence, Mr O'Keeffe explained that he handed the notices to the FPU organiser, Mr Ali, and instructed him to display them at every worksite.
88 On 27 May 2016, the annual general meeting was held at the Osborne Park Community Centre. The minutes of the meeting record that there were 12 members who attended, including Mr O'Keeffe. Consequently, it is clear that a quorum was present at the meeting in accordance with r 18 of the rules of the FPU. The FPU minutes of the meeting record:
Chair: B Ahmed
Present: As per attached Attendance List
Meeting opened at 5.30pm
Apologies: None
The Secretary advised that he had been unable to locate the minutes of the previous AGM.
The Secretary presented a report on 125 new members who had joined the Union since November 2014. Moved P. O'Keeffe seconded B. Ahmed that these members be admitted to the FPU
CARRIED
The Secretary presented his report on the state of the FPU. He advised the meeting that, due to the precarious financial position in which the Unions finds itself, the Committee of Management had resolved to seek amalgamation with the AWU. This would ensure that members retained the protection of an appropriately resourced Union. The next step in the process would be to call a General Meeting of members to decide the issue. Moved A. Alsudani seconded B. Ahmed that the Secretary's report be received and adopted.
CARRIED
The President waived his opportunity to present a report.
The Secretary presented the financials as per the attached report. Moved B. Ahmed seconded A. Alsudani that the financial report be received and adopted.
CARRIED
The Secretary moved that KPMG be appointed as the Union's auditors for the forthcoming year. Seconded B. Ahmed.
CARRIED
The Secretary advised of the content of the attached Returning Officer's Report. Moved P.O'Keeffe seconded D. Dragocevic that the Returning Officer's Report be received and adopted.
CARRIED
The President then called for general business. D. Dragocevic queried the choice of the AWU as the amalgamation partner. The Secretary explained that the SDA was not an option due to coverage issues. The NUW is based in Melbourne, does not have a significant presence in WA and may well vacate the state in the near future. The other option, being the AMWU, is facing a membership crisis of its own due to the collapse of the vehicle industry and was itself in amalgamation talks with other Unions.
There being no further general business the President declared the meeting closed at 6.04pm.
89 Immediately following the annual general meeting, the committee of management of the FPU held a meeting. At that meeting the committee of management resolved to direct Mr O'Keeffe to call a general meeting of the FPU's membership to consider the proposed amalgamation.
90 On 17 June 2016, Mr O'Keeffe caused a notice of a general meeting to be prepared for a general meeting to be held on 3 July 2016 at the Osborne Park Community Centre to consider the amalgamation with the AWUWA (annexure 4, statutory declaration of Mr O'Keeffe). He handed copies of the notices to Mr Ali and instructed Mr Ali to put them up on all the notice boards at all of the FPU worksites. On the same day, Mr O'Keeffe caused a letter and annexures to be posted to all FPU members. In the letter Mr O'Keeffe outlined concerns about the viability of the FPU and attached a letter dated 7 April 2016 that he had written to the FPU's auditor about, among other things, the financial state of the FPU. He also attached a copy of the notice of general meeting that was proposed to be held on 3 July 2016 and stated that the reason for the general meeting was to consider the proposed amalgamation with the AWUWA (annexure 5, statutory declaration of Mr O'Keeffe).
91 On 3 July 2016, the general meeting was unable to be held because insufficient members attended the meeting to constitute a quorum.
92 On 18 July 2016, Mr O'Keeffe caused a further notice of a general meeting to be displayed in worksites of members. The notice advertised a general meeting was to be held on 28 July 2016 at Baiada Steggles, 116 Howe Street, Osborne Park (annexure 6, statutory declaration of Mr O'Keeffe). Again, Mr O'Keeffe handed those notices to Mr Ali to display at each of the premises where employees of the FPU work. He also asked Mr Ali to circulate amongst the members and express to them that this was an important meeting to attend. The reason why Mr O'Keeffe decided to hold the general meeting at the premises of Baiada Steggles is that Baiada Steggles is where the majority of members of the FPU work. Mr O'Keeffe explained that approximately 200 members of the FPU are either employed by Baiada Steggles directly or work for contractors at the Baiada Steggles site.
93 In Mr Gunstone's statutory declaration, he made the following statements about events that were said to have occurred at a meeting of FPU members on 28 July 2016:
(a) On 28 July 2016 at 2.10 pm, he attended the Baiada Steggles Osborne site. Upon entering the site, he initially spoke with five members of the FPU in and around the lunchroom and kill area and ascertained that none of those members were aware of a general meeting to be conducted by the FPU at 2.30 pm that day.
(b) There were no signs in the lunch area notifying FPU members of such a meeting.
(c) At 2.30 pm, Mr Gunstone entered a small meeting room in the administration area of the site where seven people were present, Mr O'Keeffe, Mr Michael Zoetbrood, Mr Ali and four people whose names he did not know that he believed to be FPU members employed at Baiada Steggles.
(d) Mr O'Keeffe asked him to leave, but Mr Gunstone stated that he would remain until such time as he had an opportunity to speak about the proposed amalgamation and answered any queries the employees present might have.
(e) Mr O'Keeffe stated that the meeting had not started yet, as there was no quorum.
(f) Mr Gunstone spoke to the employees in the room about the amalgamation and general poultry issues.
(g) Mr Gunstone left the room at 2.40 pm, at which point the meeting had still not commenced as there was not a quorum.
(h) Mr Gunstone returned to his car and at 2.50 pm drove past the Baiada Steggles administration area and noticed that Mr Zoetbrood's AWU branded car was no longer present.
94 In response to these statements raised in the statutory declaration of Mr Gunstone, Mr O'Keeffe gave the following evidence.
(a) Although Mr Ali had informed him that three notices of the general meeting had been placed at the Baiada Steggles premises, he did not go into any of the areas where the notices had been placed by Mr Ali as he went straight to the boardroom of Baiada Steggles where the general meeting was to be held.
(b) Mr Gunstone came into the boardroom a minute or two before 2.30 pm with another organiser of the NUW, whose name is Katrina. At that point in time the general meeting had not commenced.
(c) Mr Gunstone's statutory declaration only sets out a partial description of what occurred in the boardroom. Mr Gunstone came into the boardroom, introduced himself and stated he would be staying for the meeting. Mr O'Keeffe asked Mr Gunstone if he was a member of the FPU, knowing full well he was not. Mr O'Keeffe told Mr Gunstone it was an FPU meeting to discuss the amalgamation and as a non-member he was not welcome to attend. Mr Gunstone said in reply that site management had told him that he had the right to attend the meeting. Mr Gunstone then said to the employees present in the boardroom that, 'With this amalgamation going on FPU members would have to think that the officials of this union are either incompetent or corrupt, or both'. Mr O'Keeffe intervened at that point and told Mr Gunstone it was not appropriate to carry on in that fashion and to leave the meeting.
(e) Mr Gunstone refused to leave the boardroom. Consequently, Mr O'Keeffe left the boardroom and spoke to the site manager of Baiada Steggles who informed Mr O'Keeffe that Mr Gunstone had told him he had been invited to attend the FPU meeting.
(f) Mr O'Keeffe then walked with the site manager to the boardroom with the intention of taking steps to remove Mr Gunstone from the boardroom.
(g) As Mr O'Keeffe walked back to the boardroom, Mr Gunstone emerged from the boardroom and said he was leaving.
(h) Mr Gunstone left the boardroom a minute or two before 2.40 pm.
(i) Mr O'Keeffe then returned to the boardroom and was informed by the members who were present at that time that they had told Mr Gunstone to leave. At that point in time, there was no quorum as there were only six members of the FPU present.
(j) After Mr Gunstone left, Mr O'Keeffe spoke to Mr Ali and asked him to speak to some delegates to invite some more members of the FPU to attend the general meeting. Mr Ali did so and a number of members subsequently came into the boardroom.
(k) Mr Zoetbrood remained in the boardroom. Once the meeting commenced Mr Zoetbrood spoke to the members about the amalgamation. Mr Zoetbrood stepped outside the boardroom whilst the members voted. Mr Zoetbrood left the premises of Baiada Steggles with Mr O'Keeffe just after 3.00 pm.
(l) Mr Zoetbrood's car did not have AWU branding, it was a plain white Holden Captiva.
95 Mr O'Keeffe also gave evidence that once a quorum was present, the general meeting commenced. The members who were present at the general meeting signed an attendance record which is attached to the minutes of the general meeting of the FPU held on 28 July 2016. The attendance record records that, together with Mr O'Keeffe, there were 13 members of the FPU present. Of the members present at the general meeting who are employees, one member who attended is employed at another site owned by Vesco Foods. When Mr O'Keeffe returned to the union office he checked the names of the members who attended the meeting against the membership records of the FPU and ascertained that with the exception of one person all were financial members of the FPU.
96 The FPU minutes of the 28 July 2016 general meeting record:
Chair: In the absence of the President and Vice Presidents, Committee of Management member D. Dragosevic was invited to chair the meeting.
Present: As per attached Attendance Sheet
AWU WA Secretary Mike Zoetbrood was invited to attend to provide a report from the AWU.
Meeting opened at 2.35pm
Apologies: B. Ahmed, I. Taha, F. Enua
The Chairman invited the Secretary to outline the potential amalgamation of the FPU with the AWU.
The Secretary advised that, as per the correspondence he had previously sent to all members, the Committee of Management had, after much deliberation, determined that the FPU should consider an amalgamation with the AWU. The Secretary explained that the Committee had considered two other possible amalgamation options, being the AMWU and the NUW. In both cases, there were issues particular to the Western Australian operations of those Unions that suggested to the Committee that the AWU would be a more secure option in the medium to long term.
The Secretary explained the financial position of the FPU, as outlined in his previous correspondence. This position was such that the FPU had no viable practical options other than amalgamation. The Secretary explained the likely outcome of the FPU continuing to operation without an amalgamation, being a situation of insolvency.
The Chairman then invited AWU Secretary M. Zoetbrood to speak to the meeting. Mr Zoetbrood outlined the fee structure offered by the AWU, being no change to fees until July 2017 and then payment of the concessional fee, currently at $8 per week. He also fielded questions regarding the AWUs coverage and size.
Mr Zoetbrood then withdrew to allow FPU members to consider the amalgamation and ask questions of the Secretary.
Following general discussion about the timing of the amalgamation, it was moved P.O'Keeffe and seconded A. Alsudani that the FPU amalgamate with the AWU and the Secretary of the FPU being authorised to do all things necessary to give effect to such a decision.
CARRIED UNANIMOUSLY
There being no further general business the Chairman declared the meeting closed at 3.10pm.
97 The motion passed at the general meeting was (annexure 7, statutory declaration of Mr O'Keeffe):
That the Food Preservers' Union of Western Australia, Union of Workers (FPU) amalgamate with the Australian Workers' Union, West Australian Branch, Industrial Union of Workers and the Secretary of the FPU be authorised to do all things necessary to effect that amalgamation.
Moved: P.O'Keeffe
Seconded: A. Alsudani
RESOLVED:
MOTION CARRIED UNANIMOUSLY
98 When Mr O'Keeffe gave oral evidence, he was asked to explain the statements that he made to the annual general meeting about the NUW, in particular what did it mean that the NUW did not have a significant presence in Western Australia. Mr O'Keeffe said that he explained to the members at the annual general meeting that the NUW has one full-time and one part-time official to service its members. He also explained to the members that due to the operating practice of the FPU (which is to pay a fee for administrative services to the SDAWA), the FPU members have access to one legal officer, three industrial officers, a training officer, a workers' compensation officer, an occupational health safety officer and other organisers who, apart from Mr Ali, can be accessed if Mr Ali is not available. Mr O'Keeffe also said when giving oral evidence that he explained to the members at the annual general meeting that the AWUWA has significantly more resources available in Western Australia than the NUW, including legal officers, organisers and other officers all based in Western Australia. He also told the members at the annual general meeting that the NUW was potentially or possibly vacating its Western Australian operations sometime in the future, but he did not further elaborate on this statement.
99 Subsequent to the general meeting of the FPU on 28 July 2016, four meetings were held in about the first week of August 2016 at Baiada Steggles to discuss the proposed amalgamation. Approximately 150 members of the FPU collectively attended these meetings. The four meetings were all held on the same day. There were two meetings held during the morning shift and two during the afternoon shift. Each one of those meetings were held in paid time. Mr Zoetbrood from the AWUWA also attended each of those meetings and spoke to the members about the effect of the amalgamation.
100 On 15 August 2016, Mr O'Keeffe caused a letter to be posted to all FPU members which gave members notice of the proposed amalgamation, access to a copy of the proposed rules of the amalgamated organisation and informed members of their right to object to the amalgamation by writing to the Registrar within 21 days of the date of issue of the notice (annexure 8, statutory declaration of Mr O'Keeffe). On the same day, Mr O'Keeffe also caused a copy of the notice to be displayed on the glass door to the reception of the FPU's registered address at Level 5, 25 Barrack Street, Perth.
101 Mr Ali gave evidence that he is employed as an organiser by the FPU and his role is to visit all FPU sites. Mr Ali informed the Full Bench that it is his usual practice to visit the Baiada Steggles worksite twice a week. His evidence is that:
(a) On 19 May 2016, he was given notices of the annual general meeting on 27 May 2016 by Mr O'Keeffe to display at each of the worksites and he placed notices in the entrance of or inside the lunchrooms at each of the worksites.
(b) On 17 June 2016, he placed a notice advising members of a general meeting on 3 July 2016, at all worksites where FPU members work.
(c) On 18 July 2016, he placed notices of the general meeting to be held on 28 July 2016 at all worksites. At the Baiada Steggles worksite he put up three notices, one in the main entrance of the lunchroom, one in the kill lunchroom and one in the deboning lunchroom.
(d) The notices he placed on the notice boards at Baiada Steggles on 18 July 2016 were still on the notice boards up to three days after the general meeting on 28 July 2016 as he saw them when he visited the premises.
102 When regard is had to the evidence of Mr O'Keeffe in his statutory declaration made on 7 September 2016 and his oral evidence, together with the oral evidence of Mr Ali, we are satisfied that the application for amalgamation has been authorised in accordance with the provisions of the IR Act.
103 We are satisfied that r 16, when read with s 55(4)(b) of the IR Act, has been complied with as reasonable steps were taken to adequately inform members of the proposal for the amalgamation and provide them with a reasonable opportunity to object as:
(a) The time, place and purpose of a general meeting to be held on 28 July 2016 was clearly indicated in a notice placed on the union notice board at places of members' employment on 18 July 2016 which was more than seven days prior to the date of the general meeting.
(b) A letter setting out the proposal to amalgamate the FPU with the AWUWA and reasons therefor was posted to all FPU members on 17 June 2016.
(c) At the general meeting on 28 July 2016, a motion was passed by a majority of the members present approving the amalgamation of the FPU with the AWUWA.
(d) As required by r 18, more than 10 members were present at the general meeting on 28 July 2016, thus a quorum was constituted when the resolution to amalgamate was passed.
104 We are also satisfied that less than 5% of members of the FPU have objected to the making of the application to amalgamate. Even if the Full Bench had not dismissed the notices to object, when regard is had to the evidence of the membership status of each of the persons for whom notices of objection were filed, it is clear that only 12 of those persons were members of the FPU when the decision was made by the members at the general meeting on 28 July 2016 to approve the amalgamation and at the time the notices were filed and served only seven were members. As the FPU had 268 members as at 12 October 2016, 5% of the members of the FPU was 13 (rounded down).
Evidence of compliance with the rules of the AWUWA
105 The procedure for amalgamation is prescribed in r 50 of the rules of the AWUWA. Rule 50 of the rules provides:
(1) The Union may amalgamate with any other employee organisation provided:
(a) That the provisions of this rule have been adhered to; and
(b) The other amalgamating organisation has approved the proposed amalgamation in accordance with its rules.
(c) The amalgamated Organisation will retain the name The Australian Workers’ Union, West Australian Branch, Industrial Union of Workers.
(2) Where the Union and another organisation propose to amalgamate, the provisions of this rule shall apply in lieu of Rule 36 – Alteration of Rules.
(3) Any proposed amalgamation requires approval by a majority vote of the Executive.
(4) An application for amalgamation shall not be made to the Registrar of WAIRC unless a notice of the proposed amalgamation is published in The Australian Worker which shall be distributed to all financial members.
(5) The notice referred to in subrule (4) shall inform members of the proposal and the reasons for the proposal and that:
(a) The Union intends to apply to the Registrar of WAIRC for registration of the amalgamated organisation after the expiration of 21 days from the date of issue of the issue of The Australian Worker; and
(b) The member may object to the proposed amalgamation by forwarding a written objection to the Registrar of WAIRC to reach him no later than 21 days from the date of the issue of The Australian Worker.
(6) A person holding an office in the Union or in the other amalgamating organisation may upon the coming into force of the amalgamation hold an office in the proposed amalgamated organisation. Provided that no person is to hold an office in the amalgamated organisation for more than four (4) years after the amalgamation takes effect without an election being held in relation to that office.
106 Pursuant to r 50(3), any proposed amalgamation requires approval by a majority vote of the executive. In a statutory declaration made by Mr Zoetbrood on 7 September 2016, he states that on 10 June 2016 a meeting of the AWUWA executive was held in Perth and the proposed amalgamation was approved unanimously in accordance with the requirements of r 50(4) [sic].
107 The minutes of the meeting of the AWUWA held on 10 June 2016 record that nine members of the executive attended the meeting and the following motion was carried unanimously:
The Executive approves the proposed amalgamation between the Australian Workers' Union, West Australian Branch, Industrial Union of Workers (AWU) and The Food Preservers' Union of Western Australia Union of Workers (FPU). The Executive further authorises the Secretary to take all necessary steps and applications to WAIRC in connection with the proposed amalgamation.
Moved: C. King
Seconded: B. Gandy
RESOLVED:
MOTION CARRIED UNANIMOUSLY
108 Pursuant to r 22 of the rules of the AWUWA, at meetings of the executive 50% of the members of the executive shall form a quorum. Pursuant to r 24 of the rules, there are 14 officers of the executive. Consequently, it is clear that a quorum was present at the meeting of the executive held on 10 June 2016.
109 Prior to the AWUWA taking steps to implement the proposed amalgamation in accordance with its rules, it too brought an application under s 66 of the IR Act seeking waiver of the requirements in r 36 and r 50 of the rules of the AWUWA which require notices to be published in 'The Australian Worker' magazine to inform members of a proposed rule change or amalgamation. The grounds on which the application was made was that the union had recently ceased to publish 'The Australian Worker'. Thus, it was unable to comply with the requirements of r 50 in the absence of orders being made by the President under s 66 of the IR Act (PRES 2 of 2016). After hearing the parties, the following order was made on 20 June 2016 in PRES 2 of 2016 ([2016] WAIRC 00366; (2016) 96 WAIG 667):
WHEREAS this matter having come on for a hearing before me on 17 June 2016, and having heard Mr M Zoetbrood in person and Ms E Douglas (of counsel) and Mr B Gandy on behalf of the respondent;
AND WHEREAS having heard that The Australian Workers' Union, West Australian Branch, Industrial Union of Workers (the AWU) intends with The Food Preservers' Union of Western Australia Union of Workers (the Food Preservers' Union) to make an application to amalgamate pursuant to s 72 of the Industrial Relations Act 1979 (WA) (the Act) after each organisation has complied with its respective registered rules for doing so;
AND WHEREAS r 50 – Amalgamation, of the rules of the AWU, requires a notice to be published in The Australian Worker magazine to inform members of a proposed amalgamation;
AND WHEREAS the parties by consent seek the observance of r 50(4) and r 50(5) be waived and undertake to take reasonable steps to adequately inform financial members of the proposed amalgamation consistent with s 55(4) of the Act;
NOW THEREFORE pursuant to the powers conferred by s 66(2) of the Act, hereby orders that —
1. Compliance with r 50(4) and r 50(5) of the rules of the respondent (the rules of the AWU) is waived.
2. Rule 50 of the rules of the AWU is varied as follows:
(a) An application for amalgamation with the Food Preservers' Union shall not be made to the Registrar of the Western Australian Industrial Relations Commission unless notice of the proposed amalgamation is published by:
(i) Emailing all financial members for whom the AWU has a valid email address.
(ii) Mailing a copy of the notice to all delegates of the AWU with a request for the notice to be placed on the noticeboard at their workplace.
(iii) Posting of the notice on the AWU website.
(iv) The AWU will place a notice in the public notices section of The West Australian newspaper.
(v) Displaying the notice in a prominent place on the doors of the AWU's Perth, Bunbury and Kalgoorlie offices.
(b) The notice referred to in order 2(a) of this order shall inform members of the proposal and the reasons for the proposal and that:
(i) The AWU intends to apply to the Registrar of the Western Australian Industrial Relations Commission for registration of the amalgamated organisation after the expiration of not less than 28 days from the publication of the notice in The West Australian newspaper.
(ii) The member may object to the proposed amalgamation by forwarding a written objection to the Registrar of the Western Australian Industrial Relations Commission to reach her no later than 21 days from the publication of the notice in The West Australian newspaper.
(c) Publication of the notice referred to in order 2(a) of this order is to be given within seven days of a General Meeting of the Food Preservers' Union approving the proposed amalgamation.
3. The application for amalgamation referred to in order 2(a) of this order shall not be made until at least 28 days from the publication of the notice in The West Australian newspaper.
4. Unless this order is revoked or varied, the order shall cease to have effect on 31 October 2016.
5. There be liberty to the parties to apply to vary the terms of this order.
110 At the conclusion of the general meeting of the FPU on 28 July 2016, Mr Zoetbrood was advised that the proposal had been endorsed unanimously by the FPU general meeting.
111 As required by order 2 of the order made in PRES 2 of 2016 on 20 June 2016, on 1 and 2 August 2016:
(a) the AWUWA undertook steps to publish the notice of proposed amalgamation setting out the proposal and the reasons of proposal. The notice stated as follows (AWU2, statutory declaration of Mr Zoetbrood made on 7 September 2016):
AWU NOTICE
RE: Proposed AWU - FPU Amalgamation
Dear AWU Delegates and Members
I write to advise you of the proposed amalgamation between The Australian Workers' Union, West Australian Branch, Industrial Union of Workers (AWU) and The Food Preservers' Union of Western Australia Union of Workers (FPU).
The FPU is a small State registered Union of about 270 members. The proposed amalgamation was approved by a General Meeting of FPU members on 28th July 2016 and the AWU Executive on 10th June 2016. Please note there will be no change to the AWU structure, fees, organisers and officials or the name of the Union.
An AWU member who objects to this proposed amalgamation may do so in writing to the Registrar of the WA Industrial Relations Commission (WAIRC) within 21 days of the date of this notice.
The amalgamated union's rules will be based on the current AWU registered rules with the addition of the FPU eligibility rules and minor procedural amendments to rules 36 and 50. A copy may be viewed on the AWU website https://wa.awu.net.au/news or a hardcopy can be obtained by calling the AWU Perth Office on (08) 9221 1686.
(b) emailed the notice to 2,126 members for whom the AWUWA has a valid email address;
(c) mailed two copies of the notice to 263 delegates along with a request to place the second copy on the notice board in their workplace;
(d) posted the notice, including a link to the proposed rules, on the AWU website;
(e) placed a notice in the public notices of The West Australian newspaper which was published on 1 August 2016; and
(f) displayed the notice in a prominent place on the doors of the AWUWA Perth, Kalgoorlie and Bunbury offices.
112 On 16 August 2016, the AWUWA mailed a letter to all FPU members. The letter stated as follows (AW6, statutory declaration of Mr Zoetbrood):
Your Union, the Food Preservers Union (FPU) has after much careful consideration of the best future options for Union members, decided to amalgamate with The Australian Workers' Union (AWU).
A General meeting of FPU members held on 28th July 2016 unanimously approved the decision to amalgamate. If the WA Industrial Relations Commission approves the amalgamation application you will automatically become a member of the AWU and are entitled to all the benefits that the AWU offers. Attached is a summary of the various services and benefits that the AWU offers to members.
The AWU is a large and diverse Union covering many types of workers in a wide range of industries. It is this rich diversity in backgrounds and experiences that makes all of us stronger.
The AWU has offices and organisers based in Perth, Kalgoorlie, Bunbury, Port Hedland, Karratha, Newman and Onslow always ready to assist Union members. FPU members' interests will also continue to be represented at the highest level of the AWU with a position on the Union's Executive reserved for the FPU area of coverage.
Your current FPU Union dues will remain unchanged until 1 July 2017. The AWU will then offer membership at the AWU Concessional rate for all current FPU members. The concessional rate is currently $8 per week which is tax deductible.
The amalgamation process will take several months to complete and you will be kept up to date by both the FPU and AWU. If you have any questions or concerns in the meantime please feel free to contact the AWU Office on (08) 9221 1686
113 The application to amalgamate was filed on 8 September 2016, which is more than 28 days after the publication of the notice in The West Australian newspaper as required by order 3 of the order made in PRES 2 of 2016 on 20 June 2016.
114 When regard is had to the matters stated in Mr Zoetbrood's statutory declaration made on 7 September 2016, we are satisfied that the application for amalgamation has been authorised in accordance with the rules of the AWUWA (as varied by the order made on 20 June 2016 in PRES 2 of 2016). In particular:
(a) As required by r 50(3), the proposed amalgamation was approved by a majority vote of the executive:
(i) on 10 June 2016 the executive met and unanimously approved the proposed amalgamation of the AWUWA with the FPU; and
(ii) at the meeting of the executive on 10 June 2016, as required by r 22 (when read with r 24), a quorum of the executive was present when the motion to approve the amalgamation was passed.
(b) The process for informing the members of the proposed amalgamation and the reasons therefor by a notice to the members of the AWUWA was effected in accordance with the procedure prescribed in r 50 (as varied by the order made on 20 June 2016).
Satisfied of compliance with the requirements of the IR Act
115 In his statutory declaration made on 7 September 2016, Mr Zoetbrood states there have been no objections to the resolution to amalgamate the two organisations, nor have there been any subsequent objections forwarded to either of the applicant organisations. The Commission records also reveal that no objections to the application to register the proposed amalgamated organisations or to the proposed rules of the proposed amalgamated organisation were received by the Registrar until after the application was heard by the Full Bench on 7 November 2016. On 14 November 2016, 15 notices of objection were filed.
116 After careful consideration of the evidence and the orders made pursuant to s 66 of the IR Act, we are satisfied, as required by s 55(4) of the IR Act, that:
(a) the application has been authorised in accordance with the rules of both organisations; and
(b) reasonable steps have been taken to adequately inform their members:
(i) of the intention of each organisation to apply for registration of the new organisation;
(ii) of the proposed rules of the new organisation; and
(iii) that the members or any of them have not objected to the making of the application or to those rules or any of them by forwarding a written objection to the Registrar.
117 We are also satisfied as required by s 55(4)(d) of the IR Act, that the rules of the proposed organisation 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.
118 Rule 36 of the rules of the proposed organisation provides for the following procedure:
(1) Notwithstanding anything contained in these rules, and subject to the provisions of the Industrial Relations Act 1979 and any subsequent amendment thereof, no rule shall be altered or repealed, and no new rule shall be added except by a majority vote of the members present in person at a General Meeting of the Union specially called for the purpose, of which seven days' previous notice, specifying the time, place and objects of such meeting shall have been given.
(2) Notice of such General Meeting shall be given by publication of an advertisement in a newspaper circulating in the district in which the head office of the Union is situated, and by posting a copy of the notice in a conspicuous place outside the said office. Fifteen members shall form a quorum at such meeting. Such alterations, repeals or additions of rules shall be subject to the requisites of the Industrial Relations Act 1979 and any subsequent amendment thereof, and shall be registered with the Registrar of WAIRC.
(3) An alteration to these Rules shall not be or become effective until the Registrar of WAIRC has given to the Union a Certificate that the alteration has been registered pursuant to the Industrial Relations Act 1979.
(4) No application shall be made to the Registrar of WAIRC for the registration of any proposed alteration to these Rules unless the Union has taken reasonable steps to adequately inform financial members of the proposed alteration and the reasons.
(5) Further to subrule (4), the Union shall also inform the financial members that
(i) The union intends to apply to the Registrar of WAIRC for the registration of the proposed alteration after the expiration of 28 days from the date of the publication of notice in the West Australian newspaper.
(ii) The members or any of them may object to the proposed alteration by forwarding written objection to the Registrar of WAIRC to reach the Registrar no later than 28 days from the date of the publication of the notice in the West Australian newspaper.
(6) Where the Union and another organisation propose to amalgamate, the provisions of Rule 50- Amalgamation shall apply in lieu this Rule.
119 Pursuant to s 55(4)(e) of the IR Act, the rules of the proposed organisation relating to elections for office must provide that elections shall be by secret ballot and conform with the requirements of s 56(1) of the IR Act, and are such as will ensure, as far as practicable, that no irregularity can occur in connection with the election.
120 The proposed rules of the amalgamated organisation relating to elections are the same as the current rules of the AWUWA. Compliance with the provisions of the IR Act, in respect of the rules of a new organisation, were considered at some length on the last occasion the AWUWA amalgamated with another organisation. In The Australian Workers' Union, West Australian Branch, Industrial Union of Workers and The Forest Products, Furnishing and Allied Industries Industrial Union of Workers, WA [2012] WAIRC 00845; (2012) 92 WAIG 1713, the current rules of the AWUWA were before the Full Bench in a proposed form. The current rules were comprehensively reviewed by the Full Bench and found to comply with the requirements of the provisions of the IR Act.
121 In this matter, the applicants provided to the Full Bench a document which summarises each of the rules of the proposed amalgamated organisation that make provision for compliance with the provisions of the IR Act in respect of elections and the duties and functions of its officers. This document summarises the following provisions as follows:
4 Provision for the Election of Office Holders
Rule 31A(8) and Rule 30(9) provide for elections to be conducted by secret ballot in compliance with s55(4)(e) and 56(1)(d)(i).
Rule 31(1)(b)(i) ensures that no irregularities can occur in relation to the election in compliance with s55(4)(e) and 56(1)(d)(iii)
Rules 31(1) and 49(8) provide for the returning officer not to be connected to the Union in compliance with s56(1)(a).
Rule 31(6) provides for the returning officer to allow candidates to rectify defective nominations in compliance with s56(1)(b).
Rule 31(17) sets out the method of election of office holders in compliance with s56(1)(c).
Rule 31(5) makes provision for absent voting in compliance with s56(1)(d)(ii)(I)
Rule 29 sets out the manner in which persons can become candidates for elections.
Rule 31 set [sic] out the duties and conduct of the returning officer.
Rules 31 and 31A provide for the conduct of the ballot.
Rule 31(8) and (9) provide for the appointment, conduct and duties of scrutineers.
Rule 31(10) provides for the declaration of the results of ballot by the returning officer in compliance with s56(1)(d)((ii)(VI)
Rules 24(1) and 30(1) provide for the period of elected positions not exceeding four years in compliance with s56(1)(e).
Rule 32 provides for the filling of casual vacancies not exceeding the unexpired part of the term of office in compliance with s56(1)(f).
5. Settlement of Disputes
Rule 44 provides for the settlement of disputes with members in compliance with s110(1).
Other Provisions for Rules of Organisations
6. Organisation Seal
Rule 43 provides for a common seal, its custody and use.
Rule 39 provides for use of the seal for executing agreements, deeds and instruments.
7. Meetings
Rules 20 provides for the calling, advertising and business of Annual General, General and Extraordinary General Meetings.
Meetings of the Executive may be called by the President or Secretary in accordance with Rules 34(1)(b) and 35(1)(m).
Rules 20(5) and 22 provide for the quorum at meetings.
Rule 23 sets out the voting at meetings.
8. Deeds and Instruments
Rule 39 provides for the making of agreements, deeds and instruments by the Union.
9. Representation
Rule 38 provides for the representation of the Union.
10. Property and Investments
Rule 15 provides for the control of property and funds by the Executive.
11. Accounts
Rule 16 provides for the keeping of accounts, balance sheets and audit. The financial year specified at rule 16(1).
12. Audit of Accounts
Rules 46 provides for the appointment of auditors to examine books, balance sheets, receipts and documents at least yearly. Auditors cannot be members of the Union.
Rule 16(2) provides for audited balance sheets and report to be filed with WAIRC Registrar within one month of completion of the Auditor's report.
13. Register of Members
Rule 10(1) provides for the keeping of correct register of members in compliance with s63(1)(a).
Rule 10(2) provides for purging of the register of members in compliance with s64D.
Rule 35(1)(h) further provides for the Secretary to keep a correct register of members.
14. List of Office Bearers
Rule 10 provides for the keeping of correct register of officers in compliance with s63(1)(b).
15. Elections
Rule 30(1) and (3) provide the dates and times for the opening and closing of nominations for elections.
Rule 30(2) provides for the advertising of nominations of candidates for elections to be advertised.
Rule 31(6) provides the period of time for correcting defective nominations in accordance with s56(1)(b).
Rule 31A(8) provides the times and dates for opening and closing of ballots. Rule 31A(9) provides for the closing date to be published in newspaper or official Union publication.
Rule 31A(2) provides for the order of candidates names on the ballot paper to be determined by lot drawn by the returning officer.
Rule 31(17) provides for the voting method for the ballot by placing a cross.
Rule 31A(11) provides the date for successful candidates to take office.
16. Duties
Rule 27 sets out the powers and duties of members of the Executive.
Rule 34 sets out the duties and powers of the President and Vice-Presidents.
Rule 35 sets out the duties and powers of the Secretary and Assistant Secretary.
18. Objects
Rule 3 sets out the objects of the Union.
19. Dissolution
Rule 45 provides for the dissolution of the Union.
21. Membership
Rule 6 provides the procedure for application for membership.
Rule 12 provides for the rate of membership dues to be determined under the Rules of The Australian Workers' Union as registered with the Fair Work Act 2009.
Rule 7 provides the procedure for resignation from the Union.
22. Casual vacancies
Rule 32 provides for filling of vacant offices.
122 We are satisfied that the name of the proposed organisation does not contravene s 59 of the IR Act. Section 59 provides that the Full Bench shall not authorise the registration of an organisation under a name identical with that by which any other organisation has been registered or which by reason of its resemblance to the name of another organisation or body or for any other reason is, in the opinion of the Full Bench, likely to deceive or mislead any person. Although the proposed organisation will bear the same name as the AWUWA, once registered, the AWUWA in its current form will cease to exist so no issue will arise about registration of an organisation under a name that is identical by which any other organisation has been registered.
123 Pursuant to s 63(1)(a) and s 63(1)(b) of the IR Act, an organisation is required to keep records of the residential address of each member and each office holder. Proposed r 10, however, requires the secretary to keep a register of postal addresses of members and officers. It is notable that s 63(1)(a) and s 63(1)(b) are not required by the provisions of the IR Act to be expressly contained in the rules of an organisation. Further, if this rule comes into operation it will not absolve the FPU from complying with s 63(1)(a) and s 63(1)(b) of the IR Act. However, to ensure compliance with s 63(1)(a) and s 63(1)(b), a subsequent amendment to the rules of the new organisation is desirable.
124 For these reasons, we are of the opinion that the Full Bench should authorise the Registrar to register the new organisation. Pursuant to s 58(2) of the IR Act, the Full Bench is empowered to authorise the Registrar to register an organisation unconditionally or subject to the compliance by the organisation with any direction given to it by the Full Bench. However, we are of the opinion that the registration should be subject to the compliance by the organisation with a direction that the following rules be amended to remedy a number of provisions:
(a) Rule 4(40)(e) is identical in terms to r 4(1)(e) of the rules of the FPU. It provides an exclusion from membership of not only persons who are eligible to join any other existing industrial union, but also persons who are eligible to join the Australasian Meat Industry Employees' Union Industrial Union of Workers', Western Australian Branch, Perth; The Western Australian Bakers', Pastrycooks' and Confectioners' Union of Workers and The Federated Engine Drivers' and Firemens' Union of Workers of Western Australia, Perth. These are all organisations that have ceased to exist. When the Act was first enacted as the Industrial Arbitration Act 1979 (WA) organisations were referred to as industrial union or unions. An industrial union or unions was defined in s 6 of that Act to mean an industrial union registered under that Act. The term 'industrial union' was subsequently amended to 'organisation'. Consequently, we are of the opinion that r 4(40)(e) should be updated to delete the words in r 4(40)(e) and substitute the following words, 'PROVIDED such persons are not eligible to join any other existing organisation registered under the Industrial Relations Act 1979'.
(b) Rule 10(1) of the proposed rules of the amalgamated organisation should be amended by deleting the word 'postal' that appears twice and substitute the word 'residential', or alternatively by adding after the word 'postal' that appears twice the words 'and residential'.
(c) Rule 12 of the proposed rules of the amalgamated organisation refers to the rules of the Australian Workers' Union as registered with Fair Work Australia. This provision should be updated to delete the word 'Australia' and substitute the word 'Commission'.
(d) Rule 19 should be amended by deleting the words 'BY Order No 2198 of 1997 of the 15 December 1997'.
(e) Rule 26(11) should be amended by deleting the word 'Arbitration Act,' and substitute the word 'Relations Act'.