Kate Ferguson -v- Media, Entertainment and Arts Alliance of Western Australia (Union of Employees)
Document Type: Decision
Matter Number: PRES 6/2021
Matter Description: Order pursuant to s.66
Industry: Unions
Jurisdiction: President
Member/Magistrate name: Chief Commissioner S J Kenner
Delivery Date: 1 Mar 2022
Result: Order issued
Citation: 2022 WAIRC 00087
WAIG Reference: 102 WAIG 194
ORDER PURSUANT TO S 66
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
CITATION : 2022 WAIRC 00087
CORAM
: CHIEF COMMISSIONER S J KENNER
HEARD
:
THURSDAY, 18 NOVEMBER 2021
DELIVERED : TUESDAY, 1 MARCH 2022
FILE NO. : PRES 6 OF 2021
BETWEEN
:
KATE FERGUSON
Applicant
AND
MEDIA, ENTERTAINMENT AND ARTS ALLIANCE OF WESTERN AUSTRALIA (UNION OF EMPLOYEES)
Respondent
Catchwords : Industrial law (WA) - Application under s 66 - Inconsistency between State and federal union rules - Section 71(5) certificate no longer satisfied - Interim Union Council established - Order issued
Legislation : Fair Work (Registered Organisations) Act 2009 (Cth)
Industrial Relations Act 1979 (WA) s 66, s 71, s 71(5)
Result : Order issued
REPRESENTATION:
Counsel:
APPLICANT : MS J SIMS OF COUNSEL
RESPONDENT : MS J SIMS OF COUNSEL
Solicitors:
APPLICANT : STEEDMAN STAGG LAWYERS
RESPONDENT : STEEDMAN STAGG LAWYERS
Case(s) referred to in reasons:
Reasons for Decision
1 This application is made under s 66 of the Industrial Relations Act 1979 (WA). The applicant, Ms Ferguson, is a member of the respondent, the Media, Entertainment and Arts Alliance of Western Australia (Union of Employees). The respondent is a registered organisation under s 60 of the Act. The respondent has a counterpart federal body, the Media Entertainment and Arts Alliance, which is registered under the Fair Work (Registered Organisations) Act 2009 (Cth). In accordance with the requirements of s 71 of the Act, the respondent was issued a certificate under s 71(5) in May 2010. The certificate enabled persons elected to office in the Association, to hold the corresponding office in the respondent.
2 As a consequence of progressive changes to the registered rules of the federal Association between 2012 and 2020, the rules of the Association and the rules of the respondent, are no longer in alignment. Specifically, and most particularly, apart from other changes, was the replacement in the Association of the paid elected position of Federal Secretary, with an appointed position of Chief Executive. At the federal branch level, including the Western Australian Branch, the duties undertaken formerly by the position of an elected Secretary, are now performed by an employed Regional Director. The consequence of this change is that the employed Regional Director cannot constitute the ‘Registered Officer’ of the respondent, for the purposes of the Act, as required by rule 26(a) of the respondent’s rules. This is because the Regional Director does not occupy an ‘office’, as defined s 7 of the Act, due to the position being held by an employee, and not an elected officer, who does not have a vote on the committee of management of the respondent. Additionally, provisions of the respondent’s rules in relation to Branch Council positions, are inconsistent with those specified in the federal Association’s rules.
3 These matters were brought to the attention of the respondent by the Registrar in correspondence in April and July 2021. The correspondence pointed out that the inconsistency between the rules of the respondent and the federal Association, meant that the requirements of the s 71(5) certificate were no longer met. As a consequence of this, the application under s 66 of the Act, sought an order of the Commission for the establishment of an Interim Union Council, to have the carriage of the affairs of the respondent, until such time as the respondent’s rules can be amended, to align them with those of the federal Association.
4 The matter came before me on 18 November 2021 for directions. At the directions hearing, I was informed that an election for office bearers of the federal Association was underway, with the results of the election expected to be declared in early 2022. Whilst the applicant had initially sought orders for the establishment of an Interim Union Council at that time, it was determined that the matter be adjourned until the completion of the election process.
5 The applicant has notified my Chambers that the election has now been concluded. In correspondence dated 15 February 2022, the applicant’s solicitors attached correspondence from the Australian Electoral Commission, which included declarations of results for contested and uncontested offices in the federal Association made on 7 February 2022. In a supplementary statement of particulars, the applicant set out the chronology of the election process and a list of 11 persons in Western Australia, elected to various positions in the federal Association. Those positions include State President (National Media Section); State President, Equity (Actors/Performers Section); State President, ECS (Entertainment, Crew and Support Section); State President, Musicians (Musicians Section); National MEAA Board Member, WA; Federal President, Musicians; and delegates to the federal Council from the ECS, Media and Equity Sections. The applicant now seeks an order for the establishment of an Interim Union Council, comprising those duly elected officers who reside in Western Australia. The respondent consents to an order being made.
6 Having considered the matter, and in light of the recent declaration by the AEC of elected office bearers in the federal Association, resident in Western Australia, I am satisfied that an order should be made under s 66 of the Act. The order will establish an Interim Union Council, which will enable the respondent to conduct its affairs and to take steps to vary its rules, in order that a new s 71 certificate can be issued in due course.
7 The order also makes it clear that the Interim Union Council will have all of the powers, duties, and functions of the Council of the respondent, as its supreme governing body, for the period that the order is in effect. Additionally, the order also provides that the respondent’s rules in relation to the election of office bearers have no effect whilst the order remains in force. Being an interim order, it will continue until 28 February 2023, unless it is varied in the meantime. A liberty to apply is included in the order for this purpose. By 28 February 2023, it is anticipated that the appropriate steps will have been taken by the respondent to its rules, to enable a new s 71 certificate to be issued by the Full Bench of the Commission.
8 The minutes of proposed order now issue.
ORDER PURSUANT TO S 66
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
CITATION : 2022 WAIRC 00087
CORAM |
: Chief Commissioner S J Kenner |
HEARD |
: |
Thursday, 18 November 2021 |
DELIVERED : Tuesday, 1 March 2022
FILE NO. : PRES 6 OF 2021
BETWEEN |
: |
Kate Ferguson |
Applicant
AND
Media, Entertainment and Arts Alliance of Western Australia (UNION of Employees)
Respondent
Catchwords : Industrial law (WA) - Application under s 66 - Inconsistency between State and federal union rules - Section 71(5) certificate no longer satisfied - Interim Union Council established - Order issued
Legislation : Fair Work (Registered Organisations) Act 2009 (Cth)
Industrial Relations Act 1979 (WA) s 66, s 71, s 71(5)
Result : Order issued
Representation:
Counsel:
Applicant : Ms J Sims of counsel
Respondent : Ms J Sims of counsel
Solicitors:
Applicant : Steedman Stagg Lawyers
Respondent : Steedman Stagg Lawyers
Case(s) referred to in reasons:
Reasons for Decision
1 This application is made under s 66 of the Industrial Relations Act 1979 (WA). The applicant, Ms Ferguson, is a member of the respondent, the Media, Entertainment and Arts Alliance of Western Australia (Union of Employees). The respondent is a registered organisation under s 60 of the Act. The respondent has a counterpart federal body, the Media Entertainment and Arts Alliance, which is registered under the Fair Work (Registered Organisations) Act 2009 (Cth). In accordance with the requirements of s 71 of the Act, the respondent was issued a certificate under s 71(5) in May 2010. The certificate enabled persons elected to office in the Association, to hold the corresponding office in the respondent.
2 As a consequence of progressive changes to the registered rules of the federal Association between 2012 and 2020, the rules of the Association and the rules of the respondent, are no longer in alignment. Specifically, and most particularly, apart from other changes, was the replacement in the Association of the paid elected position of Federal Secretary, with an appointed position of Chief Executive. At the federal branch level, including the Western Australian Branch, the duties undertaken formerly by the position of an elected Secretary, are now performed by an employed Regional Director. The consequence of this change is that the employed Regional Director cannot constitute the ‘Registered Officer’ of the respondent, for the purposes of the Act, as required by rule 26(a) of the respondent’s rules. This is because the Regional Director does not occupy an ‘office’, as defined s 7 of the Act, due to the position being held by an employee, and not an elected officer, who does not have a vote on the committee of management of the respondent. Additionally, provisions of the respondent’s rules in relation to Branch Council positions, are inconsistent with those specified in the federal Association’s rules.
3 These matters were brought to the attention of the respondent by the Registrar in correspondence in April and July 2021. The correspondence pointed out that the inconsistency between the rules of the respondent and the federal Association, meant that the requirements of the s 71(5) certificate were no longer met. As a consequence of this, the application under s 66 of the Act, sought an order of the Commission for the establishment of an Interim Union Council, to have the carriage of the affairs of the respondent, until such time as the respondent’s rules can be amended, to align them with those of the federal Association.
4 The matter came before me on 18 November 2021 for directions. At the directions hearing, I was informed that an election for office bearers of the federal Association was underway, with the results of the election expected to be declared in early 2022. Whilst the applicant had initially sought orders for the establishment of an Interim Union Council at that time, it was determined that the matter be adjourned until the completion of the election process.
5 The applicant has notified my Chambers that the election has now been concluded. In correspondence dated 15 February 2022, the applicant’s solicitors attached correspondence from the Australian Electoral Commission, which included declarations of results for contested and uncontested offices in the federal Association made on 7 February 2022. In a supplementary statement of particulars, the applicant set out the chronology of the election process and a list of 11 persons in Western Australia, elected to various positions in the federal Association. Those positions include State President (National Media Section); State President, Equity (Actors/Performers Section); State President, ECS (Entertainment, Crew and Support Section); State President, Musicians (Musicians Section); National MEAA Board Member, WA; Federal President, Musicians; and delegates to the federal Council from the ECS, Media and Equity Sections. The applicant now seeks an order for the establishment of an Interim Union Council, comprising those duly elected officers who reside in Western Australia. The respondent consents to an order being made.
6 Having considered the matter, and in light of the recent declaration by the AEC of elected office bearers in the federal Association, resident in Western Australia, I am satisfied that an order should be made under s 66 of the Act. The order will establish an Interim Union Council, which will enable the respondent to conduct its affairs and to take steps to vary its rules, in order that a new s 71 certificate can be issued in due course.
7 The order also makes it clear that the Interim Union Council will have all of the powers, duties, and functions of the Council of the respondent, as its supreme governing body, for the period that the order is in effect. Additionally, the order also provides that the respondent’s rules in relation to the election of office bearers have no effect whilst the order remains in force. Being an interim order, it will continue until 28 February 2023, unless it is varied in the meantime. A liberty to apply is included in the order for this purpose. By 28 February 2023, it is anticipated that the appropriate steps will have been taken by the respondent to its rules, to enable a new s 71 certificate to be issued by the Full Bench of the Commission.
8 The minutes of proposed order now issue.