2018 WAIRC 00725
APPLICATION FOR DECLARATION PURSUANT S 71(2)

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2018 WAIRC 00725

CORAM
: THE HONOURABLE J H SMITH, ACTING PRESIDENT
CHIEF COMMISSIONER P E SCOTT
SENIOR COMMISSIONER S J KENNER

HEARD
:
WEDNESDAY, 30 MAY 2018, FRIDAY, 17 AUGUST 2018

DELIVERED : MONDAY, 3 SEPTEMBER 2018

FILE NO. : FBM 4 OF 2018

BETWEEN
:
WESTERN AUSTRALIAN POLICE UNION OF WORKERS
Applicant

AND

(NOT APPLICABLE)
Respondent

CatchWords : Industrial Law (WA) - Application pursuant to s 71 for a declaration relating to qualifications of persons for membership of a State Branch of a Federal organisation and offices that exist within the Branch - Qualifications for membership rules substantially the same - Satisfied offices are the same or can be deemed to be the same
Legislation : Industrial Relations Act 1979 (WA), s71, s 71(1), s 71(2), s71(3), s71(4), s71(7), s 71(8), s 71(9)
Fair Work (Registered Organisations) Act 2009 (Cth)
Police Act 1892 (WA)
Result : Application granted
REPRESENTATION:
Counsel:
APPLICANT : MR R FRENCH, OF COUNSEL, AND WITH HIM MR A CLARE, OF COUNSEL
Solicitors:
APPLICANT : TINDALL GASK BENTLEY LAWYERS

Case(s) referred to in reasons:
Jones v Civil Service Association Inc [2003] WASCA 321; (2003) 84 WAIG 4
Re an application by the Civil Service Association (1993) 73 WAIG 2931
Re Bonny [1986] 2 Qld R 80

Reasons for Decision
FULL BENCH:
Introduction
1 The Full Bench had before it an application made under s 71 of the Industrial Relations Act 1979 (WA) (the Act) in which the applicant, the State union, seeks a declaration that:
(a) pursuant to s 71(2) of the Act, the Police Federation of Australia Western Australia Police Branch is the counterpart Federal body (the counterpart Federal body) of the applicant and the rules of the applicant and the counterpart Federal body relating to the qualifications of persons for membership are deemed to be the same; and
(b) pursuant to s 71(4) of the Act, the rules of the counterpart Federal body prescribing the offices which exist in the Branch are deemed to be the same as the rules of the applicant prescribing the offices which exist in the applicant.
2 After hearing the applicant on Friday, 17 August 2018, the Full Bench granted the application and made a declaration in the terms sought by the applicant ([2018] WAIRC 00691).
3 These reasons set out the reasons why the Full Bench granted the application.
4 Pursuant to s 71(1) of the Act, the counterpart Federal body of a State organisation is the Western Australian Branch of an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Cth), the rules of which:
(a) relate to the qualifications of persons for membership; and
(b) prescribe the offices which shall exist within the Branch,
are, or, in accordance with s 71, are deemed to be, the same as the rules of the State organisation relating to the corresponding subject matter.
5 This is not the first application the State union has made for a s 71 declaration. On 31 January 2006, the Full Bench of the Commission made declarations in accordance with s 71(2) and s 71(4) in respect of the counterpart Federal body ([2006] WAIRC 03610; (2006) 86 WAIG 402).
6 On 6 November 2007, pursuant to s 71(7) of the Act, the Full Bench approved a deed between the State union and the Federal body, the Police Federation of Australia (the Federal union), being a memorandum of an agreement relating to the management and control of funds and property of the State union. Pursuant to s 71(8) of the Act, the Registrar registered the memorandum as an alteration to the rules of the State union.
7 Since January 2006, there have been numerous changes to the rules of the State union and the counterpart Federal body which led to an issue being raised as to whether the 2006 declaration made by the Full Bench is still effective and whether a subsequent certificate issued by the Registrar, pursuant to s 71(9) of the Act, in 2006 is operative and effective.
8 In a statutory declaration made on 1 May 2018 by the secretary of the State union, Paul Craig Hunt, he states that between August 2011 and March 2016 the provisions within the rules of the State union and the rules of the counterpart Federal body were independently amended and for that period were temporarily disconnected. Mr Hunt also states that the relevant respective rules of the State union and the counterpart Federal body have subsequently been realigned through variations made to the rules with effect from 29 March 2016.
9 In these circumstances, the State union makes application for the Full Bench to make a fresh s 71 declaration in respect of its rules and the rules of the counterpart Federal body.
Are the qualifications of persons for membership of the State organisation and the counterpart Federal Body substantially the same?
10 Section 71(2) of the Act provides that the rules of the State organisation and its counterpart Federal body relating to the qualifications of persons for membership are deemed to be the same if, in the opinion of the Full Bench, they are substantially the same. 'Substantial' means what is 'real or of substance as distinct from ephemeral or nominal' or 'considerable' or 'in the main or essentially': Re an application by the Civil Service Association (1993) 73 WAIG 2931, 2932; Re Bonny [1986] 2 Qld R 80, 82.
11 Under s 71(3) of the Act, the Full Bench may form the opinion that the rules of a State organisation and its counterpart Federal body are substantially the same notwithstanding that a person who is:
(a) eligible to be a member of the State organisation is, by reason of his being a member of a particular class of persons, ineligible to be a member of that State organisation's counterpart Federal body; or
(b) eligible to be a member of the counterpart Federal body is, for the reason referred to in paragraph (a), ineligible to be a member of the State organisation.
12 The qualifications of persons for membership are set out in r 5.1 of the rules of the State union and r 3 of the rules of the counterpart Federal body.
13 Under r 5 of the rules of the State union, a person is eligible to be an ordinary member of the union if they are appointed under the Police Act 1892 (WA) and employed by the Commissioner of Police or a police recruit. Rule 3 of the rules of the Federal union cover much wider categories of persons who are eligible for membership. In respect of the counterpart Federal body, the eligibility for membership rule, r 3 of the rules of the Federal union, covers all persons who are eligible to be members of the State union and under r 3(v) also includes elected or appointed offices or employees of the association or any branch thereof, whether or not employees in the industry. Rule 3 also covers an unlimited number of persons in certain other categories which are intended to cover persons eligible for membership Australia-wide.
14 Having read the eligibility rules of the State union and the counterpart Federal body, it is clear that all persons who are eligible to be members of the State union are eligible to be members of the counterpart Federal body. Further, it is clear from s 71(3) of the Act that it is immaterial that some persons who are eligible to be members of the counterpart Federal body are ineligible to be members of the State union.
15 For these reasons, it is clear that the finding can be made that the categories of eligibility for membership of the State union and the counterpart Federal body are substantially the same.
Are the offices that exist in the counterpart Federal body the same as the offices of the State organisation?
16 Pursuant to s 71(4) of the Act, the rules of a counterpart Federal body prescribing the offices which shall exist in the Branch are deemed to be the same as the rules of the State organisation prescribing the offices which shall exist in the State organisation if, for every office in the State organisation there is a corresponding office in the counterpart Federal body.
17 When determining whether the offices that exist in the counterpart Federal body are the same as the offices of the State organisation, it is necessary for the Full Bench to consider the functions and powers of each office based on a consideration of the similarity or otherwise of the content of the rules: Jones v Civil Service Association Inc [2003] WASCA 321; (2003) 84 WAIG 4 [35] (Pullin J).
18 Pursuant to r 6.1(b) of the rules of the State union, there is constituted a Board of Directors which consists of 15 directors, of which 11 who hold office shall be from the metropolitan region and one each from the northern (Kimberley/Pilbara) region, central (Mid West-Gascoyne/Wheatbelt) region, eastern (Goldfields/Esperance) region, and southern (Southwest/Great Southern) region. The rules of the Federal union create a Branch Executive of the Federal body and the same number of office holders from the same regions. Pursuant to r 6.1(i) of the State union and r 52AA(1) of the Federal union, the Board of Directors of the State union and the Branch Office Bearers are to consist of a president, a senior vice president, a vice president, and a treasurer.
19 The rules of the State union and the Federal union provide for the duties of the office holders of the applicant and the counterpart Federal body as follows:
WA Police Union Rules
PFA WA Police Branch Rules - Part CA
Office Holder Duties
President
Rule 7.3
The President shall:
(a) be chairperson at all meetings of the Board and the Union to maintain order and administer these Rules impartially;
(b) oversee the control and supervision of the employees and agents of the Union;
(c) manage the business and affairs of the Union in accordance with these Rules including, but not limited to, policy matters, liaison between the Board and employees, and media liaison;
(d) sign all Industrial Agreements, deeds or other instruments made on behalf of the Union by the Board;
(e) arrange the preparation of an annual budget for approval by the Board and monitor and control the budget so approved;
(f) as required authorise any extraordinary expenditure up to a level as predetermined by the Board each year;
(g) present a report to each Annual Conference; and
(h) delegate to a Director, employee, member or agent all such tasks and duties as may be necessary to properly conduct the affairs, financial and otherwise, of the Union and to pursue its Objects.
Rule 8.2 – Special Conferences
(a) If the President or a majority of Branches consider that the Board is acting contrary to the best interests of the Union then they shall be empowered to instruct the Secretary to summon a Special conference, and the Secretary shall within 30 days convene such a Conference.
Rule 8.4 – Meetings of the Board of Directors
(e) Special meetings of the Board may be convened by the:
(1) President whenever considered necessary by the President;
(2) Secretary within seven days of a requisition signed by at least five (5) Directors setting out the object of the meeting. No other business shall be transacted at the special meeting of the Board than that set out in the request for the meeting.

52AG
The President shall:
(1) be the Chief Executive Officer of the Branch and ex officio member of all Committees;
(2) preside at all meetings of the Executive or of the Branch to maintain order and administer the Rules impartially, and upon the minutes being confirmed to sign the Minute Book in the presence of the meeting;
(3) manage the business and affairs of the Branch in accordance with these Rules including, but not limited to, policy matters, liaison between the Executive and employees, and media liaison;
(4) sign all Industrial Agreements, deeds or other instruments made on behalf of the Branch by the Executive;
(5) arrange the preparation of an annual budget for approval by the Executive and monitor and control the budget so approved;
(6) ensure that all expenditure is authorised by the Executive;
(7) as required authorise any extraordinary expenditure up to a level as predetermined by the Executive each year;
(8) present a report to each Annual Conference;
(9) be the appropriate officer to notify the Commission (in writing) of any industrial disputes involving the Branch or its members only of which he or she becomes aware, consistent with rule 28(d);
(10) have the power to summon either a Special Executive or a Special Conference Meeting by reason of extraordinary circumstances existing, and shall state the special business requiring attention. Where such meetings have been called the business upon which such meetings were called must be dealt with; and
(11) delegate to the Senior Vice President, Vice President, Treasurer or an Executive Member all such tasks and duties as may be necessary to properly conduct the affairs, financial and otherwise, of the branch and to pursue its Objects.

Senior Vice President and Vice President
Rule 7.4
(a) During any absence or incapacity of the President, the Senior Vice President has the authority to act for and on behalf of the President, and when so acting, shall have all the rights, powers, duties and responsibilities of the President whether implied or expressed under these Rules.
(b) In the absence or incapacity of both the President and the Senior Vice President from any meeting the Vice President shall take the chair and shall have all the rights, powers, duties and responsibilities of the President, whether implied or expressed under these Rules.
(c) The Senior Vice President and the Vice President shall be members, ex officio, of each Committee established by the Board.

52AH
(1) During any absence or incapacity of the President the Senior Vice President has the authority to act for, and on behalf of the President when so acting, and shall have all the rights, powers, duties and responsibilities of the President, whether implied or expressed under the Rules.
(2) In the absence or incapacity of both the President and the Senior Vice President from any meeting the Vice President shall take the chair and shall have all the rights and responsibilities specified in sub rule (1) of this rule.
(3) The Senior Vice President and the Vice President shall be members, ex officio, of each Committee established by the Executive.

Treasurer
Rule 7.5
The Treasurer shall:
(a) keep a general oversight of the financial position of the Union;
(b) exercise proper control over the management of Union funds;
(c) ensure accounting records are kept in accordance with proper accounting principles and truly record and explain the financial transactions and financial position of the Union;
(d) present to each meeting of the Board appropriate accounting reports indicating the status of the funds and financial position of the Union, or other relevant reports as required by the Board;
(e) present to each Annual Conference an audited balance sheet of the assets and liabilities, a statement of the receipts and expenditure and a statement of the sources and application of funds of the Union;
(f) be entitled to inspect the books of the Union at any time and in the event of any irregularity shall immediately make a report to the President;
(g) be an ex officio member of each committee established by the Board;
(h) chair the Union's Risk and Audit Committee;
(i) assist the President prepare a report for the Annual Conference;
(j) assist the President in the preparation of an annual budget as well as the monitoring and control of the approved budget; and
(k) be entitled to call for a full audit at any given time.

52AI
The Treasurer shall:
(1) keep a general oversight of the financial position of the Branch and exercise proper control over the management of its funds and ensure accounting records are kept in accordance with proper accounting principles and truly record and explain the financial transactions and financial position of the Branch;
(2) present to each meeting of the Executive appropriate accounting reports indicating the status of the funds and financial position of the Branch, or other relevant reports as required by the Executive for the preceding period;
(3) present to each Annual Conference an audited balance sheet of the assets and liabilities, a statement of the receipts and expenditure and a statement of the sources and application of funds of the Branch;
(4) be entitled to inspect the books of the Branch at any time and in the event of any irregularity shall immediately make a report to the President;
(5) be an ex officio member of each Committee established by the Executive;
(6) in conjunction with the President prepare an annual report;
(7) assist the President in the preparation of an annual budget as well as the monitoring and control of the approved budget; and
(8) be entitled to call for a full audit at any given time.

20 It can be seen from this table that the duties of the president of the State union and the counterpart Federal body are substantially the same.
21 There is no corresponding provision to r 52AG(9) of the rules of the Federal union. The State union points out that this is because r 28(d) of the rules of the Federal union authorises State branches to lodge industrial disputes only affecting their Branch, in the context of a federation of multiple branches. Rule 52AG(10) of the rules of the Federal union confers upon the president the power to summon either a special executive or a special conference meeting whenever necessary. The corresponding provision in the State union rules is r 8.2 and r 8.4.
22 In the counterpart Federal body, the elected positions are 'executive members', therefore their monthly meetings are 'executive meetings'.
23 A State annual conference involves the whole membership through their nominated Branch, delegates and the directors. The counterpart Federal body annual conference only involves the elected 'executive members'.
24 The duties of the senior vice president of the counterpart Federal body and the State union are essentially the same.
25 The duties of the treasurer of the State union and the counterpart Federal body are effectively identical except that the treasurer of the State union is required to chair the State union's risk and audit committee (r 7.5(h)). However, there is no corresponding provision to r 7.5(h) in the rules of the Federal body because there is no risk and audit committee in the counterpart Federal body.
26 Having examined these provisions of the rules of the State union and the Federal body, the Full Bench formed the opinion that for each office in the State union, there is a corresponding office in the counterpart Federal body and a declaration in these terms should be made by the Full Bench.