ORDER PURSUANT TO S.66

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CHIEF COMMISSIONER

CITATION : 2022 WAIRC 00208

DELIVERED : WEDNESDAY, 18 MAY 2022

FILE NO. : PRES 4 OF 2021

Applicant

AND

Western Australian Police Union of Workers

Respondent

Catchwords : Industrial law (WA) - Union rules - Application under s 66 - Whether the Union failed to observe its rules - Whether President of the Union was unlawfully and improperly prevented from performing duties and functions - Relevant principles applying to s 66 matters - Interlocutory application under s 27(1)(a) to dismiss - Jurisdiction or power under s 66 to grant relief - Relevant principles - Valid election held while applicant on leave - Applicant ceased to be a police officer - Union rules - Not eligible for election to office - Outcome of valid election should not be disturbed - Interlocutory application granted - Section 66 application dismissed

Legislation : Fair Work (Registered Organisations) Act 2009 (Cth)

Industrial Relations Act 1979 (WA) s 27(1)(a), s 66, s 66(1)(a), s 66(2), s 71(2), s 71(4) s 71(5), s 71(5)(a)

Police Act 1892 (WA)

Result : Application dismissed

Representation:

Counsel:

Applicant : Mr D Howlett of counsel

Respondent : Mr R French of counsel

Solicitors:

Applicant : Argos Legal

Respondent : Croftbridge

Case(s) referred to in reasons:

Australian Rail, Tram and Bus Industry Union of Employees West Australian Branch v Public Transport Authority of Western Australia [2017] WAIRC 00830; (2017) 97 WAIG 1689

CGU Insurance Ltd v Blakely (2016) 259 CLR 339

Re Dulles’ Settlement Trust; Dulles v Vidler [1950] 2 All ER 1013

Federal Commissioner of Taxation v Tomaras [2018] HCA 62; 93 ALJR 118

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

Luby v Secretary, the Australian Nursing Federation Industrial Union of Workers, Perth (2002) 82 WAIG 2124

Minister for Education v State School Teachers’ Union of WA (Inc) (1996) 76 WAIG 3376

Mullen and Anor v Gisborne [2010] WAIRC 00176; (2010) 90 WAIG 241

Murcia and Associates (a firm) v Grey (2001) 25 WAR 209

Springdale Comfort Pty Ltd (t/as Dalfield Homes) v Building Trades Association of Unions of Western Australia (Association of Workers) (1987) 67 WAIG 325

Stacey v Civil Service Association of Western Australia [2007] WAIRC 00568; (2007) 87 WAIG 1229

WALEDFCU v Schmid (No.1) (1996) 76 WAIG 639

Reasons for Decision

Background

1         This is an unusual case.  The applicant was a member of the respondent and in October 2018 was elected as a Director on the respondent’s Board of Directors.  In the same month, the applicant was elected to the position of President.  The applicant’s term as a Director was for three years.  Under the respondent’s registered Rules, members of the Board of Directors hold office until the dissolution of the third Annual Conference of the respondent, following their election.  The Directors elect, then assume office and elect from their own number, office bearers, including that of the President, for the ensuing term.

2         On about 11 February 2021, the applicant was informed by letter from the respondent, that the Board of Directors had directed that he be placed on ‘garden leave’ with immediate effect, purportedly in accordance with a document described as an ‘Executive Employment Agreement’, entered into between the respondent and the applicant.  The letter informed the applicant that he was relieved of all his functions and duties as President of the respondent but would remain on full pay.  The reason referred to in the letter for this direction, concerned ‘ongoing WA Police matters involving yourself’.  The applicant’s access to the respondent’s premises and its email system was suspended.  The period of leave was unspecified. Mr Kelly, the respondent’s Senior Vice President became the Acting President.

3         By a letter of 9 June 2021, the respondent informed the applicant that the Board of Directors, from a review of complaints received, had further matters that required investigation.  Because of this, the Board resolved to continue the applicant’s leave on the same terms as originally imposed.  By this time, the applicant had obtained legal representation.

4         On 17 July 2021, the respondent’s solicitors informed the appellant’s solicitors by letter of the same date, details of further allegations against the applicant.  These included alleged breaches of confidentiality and the applicant’s duty ‘to enhance the reputation of the WAPU within the Agency and use his best endeavours to promote the interests and objects of the WAPU’.  The letter invited a response to the allegations by the applicant, following which the respondent would determine the appropriate outcome.  Given these steps, the applicant would remain on leave.

5         On 7 September 2021 the applicant made an application under s 66 of the Industrial Relations Act 1979 (WA), seeking various declarations and orders.  As a member of the respondent, he had standing to do so under s 66(1)(a).  The applicant alleged that the respondent had failed to observe several of its rules and unlawfully and improperly prevented him from performing his duties and functions as the President and as a Director of the respondent.  The primary relief sought by the applicant was his restoration to his role as President and as a Director of the respondent, and for the term of his office as President and as a Director, to be extended by the period from 11 February 2021 to the date he is restored to his position.

6         A few days later, on 10 September 2021, the respondent wrote to the applicant informing him that the respondent’s Board of Directors met on 8 September 2021, and that the Board had lost confidence in him in the performance of his duties as President.  The grounds cited were that he had committed misconduct on 3 June 2021 at a Union branch meeting, by disclosing confidential information relating to the respondent; by making statements damaging the reputation of the respondent or potentially so; and not making best endeavours to promote the respondent.  Further acts of misconduct were found to have occurred on 6 November 2020 and 14 January 2021, involving the applicant failing to act transparently when responding to the Commanding Officer’s Branch in relation to a grievance and by providing misleading information to a branch President.  The letter went on to inform the applicant that the Board had resolved to give him three months written notice, during which time the applicant may make further written representations to the respondent, after which the respondent may either withdraw the notice or terminate the Employment Agreement.  The period of leave would continue over this three-month period.

Procedural history

7         Given how the proceedings have unfolded, it is necessary to outline the procedural history of this matter, to put these reasons for decision in context.  By consent, directions were made by me on 14 September 2021, for the filing of an amended s 66 application, and a response by the respondent.  By an amended application filed on 23 September 2021, the applicant maintained his claim for orders to be restored to his position of President and as a Director and for his term to be extended, as previously outlined.  Additionally, the applicant sought to strike down resolutions of the respondent’s Board of Directors set out in its letter of 10 September 2021, based on non-compliance with provisions of the applicant’s Employment Agreement.

8         In its response filed on 1 October 2021, amongst other things, the respondent denied that the effect of the gardening leave was to suspend or remove the applicant from his position as an officer of the respondent, and nor did it involve any contravention of the respondent’s Rules.  Further, the leave directed to be taken by the applicant, was contended by the respondent to be in accordance with both its rules and the Employment Agreement.  Additionally, the respondent maintained that the claim by the applicant for an extension of time for the restoration of the applicant to this position as President was contrary to the respondent’s Rules in relation to terms of office of the President and members of the Board.

9         A directions hearing was held on 11 October 2021, at which directions were made to hear the substantive application.  At that hearing, I was informed that the applicant was standing as a candidate for re-election to the respondent’s Board of Directors, which election was to be held in November 2021.

10      The matter was brought back on before the Commission on 19 October 2021.  The respondent sought to vacate the directions made on 11 October 2021, having reconsidered the issues and the impact of the impending election of new office bearers.  Whilst programming directions were made, on 14 October 2021, the respondent’s solicitors sought to vacate those directions on the basis that as the applicant was standing for election, if he was successful, then the applicant’s claims may well either fall away, or be narrowed substantially.  The respondent sought an adjournment to later in November 2021, for further directions if necessary.

11      The respondent also foreshadowed raising an issue as to the Commission’s jurisdiction under s 66 of the Act to order the restoration of the applicant to his position on the Board and as President. The respondent contended that if the applicant was not successful and the applicant maintained his claims, then a real issue arose as to the Commission’s jurisdiction to effectively, in the respondent’s view, overturn the outcome of the election. The respondent requested the vacation of the directions made, so that the election for the Board of Directors could take place and that a preliminary issue of jurisdiction may be heard and determined. Ultimately, because of the matters raised, the directions were amended to enable time for the election to take place and a timetable for the preparation of the parties’ cases was extended to late February 2022.

12      On 13 January 2022, the matter was relisted for mention.  The Commission was informed by the respondent that a new Board of Directors and President had been elected, and that the applicant was not successful in his bid for election to the Board.  New directions issued for an application by the respondent under s 27(1)(a) of the Act to be made, seeking to dismiss the substantive application on the grounds that the Commission has no jurisdiction or power to make the orders sought to restore the applicant to the position of President.

The respondent’s s 27(1)(a) application

13      On 20 January 2022 the respondent filed its application under s 27(1)(a) of the Act.  The respondent’s grounds in support of the application are as follows:

1. This application is made by the Respondent under s 27(1)(a) of the Industrial Relations Act 1979 (WA) (Act), seeking an order from the Commission dismissing the matter.

2. The applicant seeks, pursuant to s 66, inter alia, an order that the applicant be permitted to occupy his former role as President and Director of the Board forthwith.

3. It is an accepted fact between the parties raised before the Commission that, in November 2021, a further election occurred whereupon the Applicant ran for election to the Board but was not elected as a member of the Board.

4. There is no allegation, made in the Amended Application, by the Applicant that there were any procedural or substantive irregularities associated with the election to the effect that the election did not comply with the Respondent’s Rules.

5. The Applicant now seeks relief (in reinstating the applicant to his position) that would require the Commission, in effect, to interfere with the outcome of an ostensibly valid election.

6. That relief is not available pursuant to section 66(2), which limits the relief to orders and directions relating to the Respondent’s Rules, their observance of non-observance or the manner of their observance, either generally or in the particular case as considered to be appropriate.  The reinstatement of a former President of the Respondent, in circumstances where there has been a valid election in the intervening period, does not relate to the Rules or their observance or non-observance.

14      The parties filed written submissions in relation to the s 27(1)(a) application and additionally, the application was listed for hearing on 4 March 2022 to provide the parties with an opportunity to make further oral submissions which they did.

The applicant ceases to be a member of the Police Force

15      By letter of 11 April 2022, the respondent wrote to my Associate raising a further issue.  The issue raised was that on 17 March 2022, the applicant ceased to be a member of the Western Australian Police Force.  A copy of the Police Gazette dated 23 March 2022, annexed to the respondent’s solicitor’s letter, refers to officer cessations and contains an entry bearing the applicant’s name and his PD number, with the effective date of 17 March 2022.  The applicant did not dispute that he ceased as a member of the Police Force on 17 March 2022.  The respondent contended that this fact had a direct bearing on the applicant’s claim under s 66 of the Act and the respondent’s application to dismiss it under s 27(1)(a).  The respondent and the applicant were given the opportunity to make further written submissions on this matter and they did so on 26 and 28 April 2022 respectively.  I will refer to these submissions later in these reasons.

Statutory provisions and their application

Section 66

16      It is convenient at this juncture to set out relevant provisions of the Act.  Section 66, which deals with the powers of the Chief Commissioner to deal with matters in relation to registered organisations, is in the following terms:

66. Power of the Chief Commissioner to deal with rules of organisation

(1) The following persons may apply to the Chief Commissioner  for an order or direction under this section —

(a) a person who is or has been a member of an  organisation; or

(b) a person who has applied for and not been admitted to  membership in an organisation; or

(c) the Registrar acting on the complaint of or on behalf of a  person referred to in paragraph (a) or of the Registrar’s  own motion.

(2) On an application made pursuant to this section, the Chief  Commissioner may make such order or give such directions  relating to the rules of the organisation, their observance or  non‑observance or the manner of their observance, either  generally or in the particular case, as the Chief Commissioner  considers to be appropriate and without limiting the generality  of the foregoing may —

(a) disallow any rule which, in the opinion of the Chief  Commissioner —

(i) is contrary to or inconsistent with any Act or law,  or an award, industrial agreement, order or  direction made, registered or given under  this Act; or

(ii) is tyrannical or oppressive; or

(iii) prevents or hinders any member of the  organisation from observing the law or the  provisions of an award, industrial agreement,  order or direction made, registered or given  under this Act; or

(iv) imposes unreasonable conditions upon the  membership of a member or upon an applicant  for membership; or

(v) is inconsistent with the democratic control of the  organisation by its members;

and

(b) instead of disallowing a rule under paragraph (a), direct the organisation to alter that rule within a specified time in such manner as the Chief Commissioner may direct; and

(c) disallow any rule which has not been altered by the organisation after a direction to do so pursuant to paragraph (b); and

(ca) where the Chief Commissioner disallows any rule under paragraph (a) or (c), give such directions as the Chief Commissioner considers necessary to remedy, rectify, reverse or alter or to validate or give effect to, any act, matter or thing that has been done in pursuance of the disallowed rule; and

(d) declare the true interpretation of any rule; and

(e) inquire into any election for an office in the organisation if it is alleged that there has been an irregularity in connection with that election and make such orders and give such directions as the Chief Commissioner considers necessary —

(i) to cure the irregularity including rectifying the register of members of the organisation; or

(ii) to remedy or alter any direct or indirect consequence thereof;

and

(f) in connection with an inquiry under paragraph (e) —

(i) give such directions as the Chief Commissioner considers necessary to the Registrar or to any other person in relation to ballot papers, envelopes, lists, or other documents of any kind relating to the election;

(ii) order that any person named in the order shall or shall not, as the case may be, for such period as the Chief Commissioner considers reasonable in the circumstances and specifies in the order, act or continue to act in and be deemed to hold an office to which the inquiry relates;

(iii) declare any act done in connection with the election to be void or validate any act so done.

[(3) deleted]

(4) Any person to whom an order or direction given or made under this section applies shall comply with that order or direction  whether or not it is contrary to or inconsistent with any rule of  the organisation concerned.

[(5) deleted]

(6) A rule disallowed pursuant to subsection (2)(a) or (c) is void.

[(7), (8) deleted]

(9) The power of the Chief Commissioner under subsection (2)(d)  may, on a reference made under section 27(1)(t), be exercised  by the Commission in Court Session.

17      The scope of s 66 was examined in detail by Ritter AP in Stacey v Civil Service Association of Western Australia [2007] WAIRC 00568; (2007) 87 WAIG 1229.  In Stacey the applicant, who was an Executive Officer of the CSA, and a member, made a claim for compensation on the ground that the CSA had committed past breaches of its rules in relation to alleged failures to pay Mr Stacey overtime as one of its employees; that it also failed to provide funding for representation in relation to a denied contractual benefits claim before this Commission brought by Mr Stacey; and by failing to provide funding to Mr Stacey to conduct his s 66 application.

18      An issue brought into focus by Mr Stacey’s claims, was whether there existed power under s 66 of the Act to make orders in the nature of damages or compensation for the non-observance of an organisation’s rules.  Whilst concluding that the Commission’s powers under s 66(2) are broad, Ritter AP said they are not unlimited.  In the statutory context in which s 66 appears, Ritter AP considered that the focus of the section is on the rules of an organisation.

19      Having regard to the statutory context, and the focus on the registered rules of an organisation, Ritter AP, when considering the extent of the jurisdiction, observed at [273] to [274] as follows:

273 A significant touchstone of the general power under s66(2) is the concept of the “observance” of an organisation’s rules.  This demonstrates in my opinion that a key part of the s66 jurisdiction is, to put it colloquially, to keep an organisation “on track” – running in accordance with its rules.  This also suggests some contemporary connection between a s66 application, any conduct said to give rise to it, and any orders or directions to be made.  The parties named in s66(1) can via s66(2) seek the assistance of the President to disallow/alter prohibited rules, to declare the interpretation of rules, inquire into election irregularities and make other orders to assist or require an organisation to observe its rules.  The text and context suggests that any corrective orders are limited to those which have some present connection with the activities of the organisation and the observance of its rules.

274 In my opinion the purpose of s66 is not to correct long ago breaches which now have no relevance to how an organisation is running.  Also, the ordering of compensation or damages for old breaches of the rules is beyond the scope and purpose of a s66(2) order.  In my opinion the applicant is attempting to squeeze out of the words of the section remedies which are beyond what the legislature intended as being the jurisdiction, purpose and operation of the section.

20      Ritter AP also, after considering several decisions of the Industrial Appeal Court in relation to s 66 and its powers, postulated that from those decisions several principles had emerged.  At [279] his Honour observed:

279 The cases which have been decided by the IAC provide insight into the nature of the jurisdiction and the type of orders which can be made under s66(2) of the Act.  The following relevant principles can be distilled from the authorities:-

(a) An order for the purposes of the section must involve a command to someone to do something.  (CMEWUA v UFTIU (1991) 71 WAIG 563)

(b) Section 66(2)(d) empowers the President to interpret a rule for the purpose of deciding whether to make an order or direction (UFTIU at page 569).  Further or alternatively in the case of controversy an interested party may seek a declaration about the true interpretation of a rule.  (Robertson at paragraph [54])

(c) The President may exercise jurisdiction under s66 where there has been an improper exercise of powers, contrary to the rules.  (Carter v Drake (1991) 72 WAIG 2501 at 2504)

(d) Sections 66(2)(e) and (f) contain the only powers which the President may exercise under s66 in connection with election irregularities.  (Harken v Dornan and Others (1992) 72 WAIG 1727)

(e) Declarations about the validity of meetings by an organisation are outside the power of the President under s66 unless as a matter of law the meetings were invalid.  (Carter v Drake (1993)              73 WAIG 3308 at 3311, and see below).  Therefore the President may declare invalid resolutions passed at meetings where the meetings were conducted in breach of the rules and the breach had the legal effect of invalidity.  (WALEDFCU v Schmid (1996) 76 WAIG 3380 at 3382)

(f) An order for the purpose of requiring an organisation to act in accordance with its rules is within power.  (WALEDFCU v Schmid (1996) 76 WAIG 639)

(g) If the grounds have been established for the making of an order under s66, the President does not have a discretion to refuse to make such an order.  (Robertson)

(h) The purpose of the power given in s66(2) is to ensure that the persons identified in s66(1) have a means of enforcing the rules of an organisation.  (Robertson)

(i) Due to s26(2) the President in considering what order to make under a s66 application is not restricted to the specific claim made.  (Robertson)

21      Reference was made by Ritter AP to the cases of WALEDFCU v Schmid (No.1) (1996) 76 WAIG 639 (IAC) and Luby v Secretary, the Australian Nursing Federation Industrial Union of Workers, Perth (2002) 82 WAIG 2124 (Sharkey P), to the effect that both cases lent support to the proposition that orders may be made under s 66 of the Act, in relation to past breaches of union rules, only in cases where the purpose of such orders is to ensure compliance with existing obligations: Stacey at [291] to [302].

22      These observations of Ritter AP were referred to with approval by Smith AP in Mullen and Anor v Gisborne [2010] WAIRC 00176; (2010) 90 WAIG 241.  In Mullen, the Commission was called on to declare the true interpretation of rule 25(f) of the rules of the State School Teachers’ Union, in relation to the offices of the Union.  Specifically, the issue arising for consideration was whether two employees of the SSTU, Mr Mullen and Mr Sharpe, were, when elected to delegate positions on the State Council, required to resign from their employment with the SSTU.  The relevant events occurred throughout 2007.  After they were elected as delegates to the State Council in May 2007, the SSTU dismissed both Mr Mullen and Mr Sharpe as delegates, as they had remained employed, allegedly in breach of rule 25(f) of the SSTU’s Rules.  The applicants sought orders rescinding the decisions of the SSTU Executive in 2007 to dismiss them as delegates to the State Council.

23      The SSTU, as intervenor in those proceedings, contended, in reliance on Stacey, that orders sought under s 66 of the Act, directed to rectifying historical breaches of union rules, not directed to the performance of an existing obligation under the rules, are beyond power.  Given that the events in question took place in 2007, in the context of proceedings commenced in 2010, the intervenor submitted that the application was moot, as the terms of the positions occupied by the applicants had long since expired.  In considering this aspect of the case, Smith AP, after referring to the observations of Ritter AP in Stacey, said at [127]:

127 When regard is had to these principles, even if a finding is made that the applicants were eligible to hold office as district delegates to State Council in 2007, it is clear that it is not open under s 66 to make the orders in the form sought by the applicants as the breaches of the rules of the Union relate to events which have long passed and the terms of office have long expired.  However, the President in considering what order to make under a s 66 application is not restricted to the specific claim made.  As Mr Mullen has sought nomination to be elected as a delegate to State Council in 2010, I do not agree the subject matter of the application is moot as there is presently a live controversy as to whether Mr Mullen can hold office as a delegate to State Council whilst he is employed by the Union.  Consequently it is open in this matter to make a declaration of a true interpretation of the rules of the Union, in particular whether r 25(f) applies to an employee of the Union who is elected to the position of delegate to State Council.

24      I will adopt and apply the approach taken in the above cases in determining this matter.

Section 27(1)(a)

25      Section 27(1)(a) of the Act, is a broad power enabling the Commission to dismiss or refrain from further hearing a matter or part of a matter, on several grounds.  It provides as follows:

27. Powers of Commission

(1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it —

(a) at any stage of the proceedings dismiss the matter or any  part thereof or refrain from further hearing or determining the matter or part if it is satisfied —

(i) that the matter or part thereof is trivial; or

(ii) that further proceedings are not necessary or desirable in the public interest; or

(iii) that the person who referred the matter to the Commission does not have a sufficient interest in  the matter; or

(iv) that for any other reason the matter or part should be dismissed or the hearing thereof discontinued, as the case may be;

…

26      In this case, the respondent asks the Commission to exercise the power to dismiss, because the respondent maintains that the applicant’s claim to be restored to his former position of President of the respondent, is beyond the Commission’s jurisdiction or power conferred by s 66 of the Act.  Jurisdiction is always at large, and it is for a court or tribunal to satisfy itself that it has the requisite authority to determine a matter: Federal Commissioner of Taxation v Tomaras [2018] HCA 62; 93 ALJR 118 per Edelman J at [132].  ‘Jurisdiction’, in this sense, is the authority of a court or tribunal to decide a matter and is a prerequisite to exercising a power: CGU Insurance Ltd v Blakely (2016) 259 CLR 339 per French CJ, Kiefel, Bell, and Keane JJ at [31].  The parties may not acquiesce or consent to jurisdiction that a court or tribunal does not have: Re Dulles’ Settlement Trust; Dulles v Vidler [1950] 2 All ER 1013; Murcia and Associates (a firm) v Grey (2001) 25 WAR 209.

27      Additionally, in cases where the Commission’s jurisdiction to hear a matter is challenged, the jurisdictional challenge must be heard and determined before the substantive case is heard: Springdale Comfort Pty Ltd (t/as Dalfield Homes) v Building Trades Association of Unions of Western Australia (Association of Workers) (1987) 67 WAIG 325; Minister for Education v State School Teachers’ Union of WA (Inc) (1996) 76 WAIG 3376.

28      Section 27(1)(a) of the Act is not only to be availed of in cases of an application to dismiss because of want of jurisdiction or power. It is a very broad power, enabling the Commission to dismiss or refrain from hearing a matter or part of a matter for a range of reasons, including that further proceedings are not necessary or desirable in the public interest. As to this ground for the exercise of the s 27(1)(a) power, in Australian Rail, Tram and Bus Industry Union of Employees West Australian Branch v Public Transport Authority of Western Australia [2017] WAIRC 00830; (2017) 97 WAIG 1689, I said at [137] to [139] as follows:

137 Section 27(1)(a) is a power to dismiss an application or refrain from further hearing an application.  This power is broad in scope and should be exercised with caution.  It is in the following terms:

27. Powers of Commission

(1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it—

(a) at any stage of the proceedings dismiss the matter or any part thereof or refrain from further hearing or determining the matter or part if it is satisfied—

(i) that the matter or part thereof is trivial; or

(ii) that further proceedings are not necessary or desirable in the public interest; or

(iii) that the person who referred the matter to the Commission does not have a sufficient interest in the matter; or

(iv) that for any other reason the matter or part should be dismissed or the hearing thereof discontinued, as the case may be;

…

138 In The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2013] WAIRC 00754; (2013) 93 WAIG 1431, in considering an application under s 27(1)(a)(ii) to dismiss a matter before the Commission in the public interest, I said at pars 22 and 23:

22 In another context, in The Construction, Forestry, Mining and Energy Union of Workers v Skilled Rail Services Pty Ltd (2006) 86 WAIG 1268, I considered the meaning of the "public interest" for the purposes of s 36A(1) of the Act.  In referring to s 27(1)(a)(ii) of the Act, empowering the Commission to dismiss or refrain from further hearing a matter, I referred to QEC and at par 35 I observed as follows:

35 Given the construction I have placed on s 36A(1) of the Act, it is for the PTA to demonstrate that it would not be in the public interest for the Proposed Award to the made.  The notion of the "public interest" is somewhat amorphous.  Consideration of this issue is similar to the terms of s 27(1)(a)(ii) of the Act empowering the Commission to dismiss or refrain from further hearing a matter on the basis that further proceedings are not necessary or desirable in the public interest.  Similar provisions exist in other industrial jurisdictions.  In Re Queensland Electricity Commission and Ors; Ex-parte Electrical Trade's Union of Australia (1987) 21 IR 151 the High Court in proceedings for prerogative writs against a Full Bench of the then Australian Conciliation and Arbitration Commission, held that for the purposes of the then s 41(1)(d)(iii) of the Conciliation and Arbitration Act 1904 (Cth) that "Ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and be very much a question of fact and degree" (per Mason CJ and Wilson and Dawson JJ). In the same case, Deane J in dealing with the refrain from hearing power in the public interest observed at 162:

"The right to invoke the jurisdiction of the courts and other public tribunals of the land carries with it a prima facie right to insist upon the exercise of the jurisdiction invoked.  That prima facie right to insist upon the exercise or jurisdiction is a concomitant of a basic element of the rule of law, namely, that every person and organisation, regardless of rank, condition or official standing, is "amenable to the jurisdiction" of the courts and other public tribunals (cf Dicey, An Introduction to the Study of the Law of the Constitution, 10th ed (1959), p 193).  In the rare instances where a particular court of tribunal is given a broad discretionary power to refuse to exercise its jurisdiction on public interest grounds, the necessary starting point of a consideration whether such a refusal would be warranted in the circumstances of a particular case in which its jurisdiction has been duly invoked by a party must ordinarily be the prima facie right of the party who has invoked the jurisdiction to insist upon its exercise (cf per Higgins J, Merchant Service Guild of Australasia v Commonwealth Steamship Owners' Association [No 1] (1920) 28 CLR 278 at 281). That position is a fortiori in a case where no other court or tribunal, Commonwealth or State, possesses jurisdiction fully to deal with the particular dispute.  Were it otherwise, effective access to the courts and other public tribunals would be not a right which could be denied in an exceptional case on the grounds of extraordinary consideration of public policy but an uncertain privilege which could be withheld at any time on unconfined and largely unexaminable discretionary grounds (see, generally, Friedman, "Access to Justice: Social and Historical Context: in Cappelletti and Weisner (eds) Access to Justice, vol II, book 1 (1978) pp 5ff; Raz, The Authority of Law, (1979), at p 217)."

23 I adopt what I said in Skilled Rail Services for present purposes.  The discretion open to the Commission to be exercised under s 27(1)(a) is a broad one.  A gloss should not be put on the words of the section to import any particular level of satisfaction to be achieved by the Commission for the exercise of the power.  However, given that a party is entitled to invoke the Commission's jurisdiction, and prima facie expect it to be exercised there is an onus on the Authority in this case, to persuade the Commission, that in the circumstances, that prima facie right should be overridden: QEC per Deane J at 163.  Further, in the exercise of the discretion, the Commission is required, as in all matters before it, to have regard to its statutory obligations under s 26(1) of the Act: Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1987) 68 WAIG 4.

139 This approach to s 27(1)(a) of the Act was affirmed on appeal to the Full Bench (The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2014] WAIRC 00451; (2014) 94 WAIG 787) and on further appeal to the Industrial Appeal Court (The Public Transport Authority of Western Australia v The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch [2015] WASCA 150; (2015) 95 WAIG 1593).

Submissions on the s 27(1)(a) application

29      The respondent submitted that whilst this is its application, it is always for the applicant to establish that the relief sought on the substantive s 66 matter is within the Chief Commissioner’s jurisdiction and power.  If the applicant cannot do so, then the amended application ought be dismissed.  Apart from reference to a provision of the former Executive Agreement between the applicant and the respondent, as being inconsistent with the Rules and s 66 of the Act, the respondent contended that there was no other reference to s 66 anywhere in the amended application.  Furthermore, the submission was that the amended application fails to identify at all how it is that s 66(2) supports the relief claimed by the applicant that he be restored to his former position of President of the respondent.  This is especially considering the subsequent election and appointment of a new President.

30      The respondent also contended that from the terms of s 66(2), and from the relevant authorities, the purpose of the power that may be exercised is ‘forward looking and not directed towards redressing past breaches of Union rules’.  In this connection, the respondent submitted that the tenor of the section is the observance and non-observance of the rules of a Union, with an emphasis on contemporary and future circumstances.  Thus, on this approach to s 66 of the Act, the respondent contended that the matters to be determined under s 66, consistent with the relevant authorities, are contemporaneous and forward looking in nature.

31      In this regard, the respondent referred to and relied upon the observations of Ritter AP in Stacey, and those of Sharkey P in Luby, where his Honour in the latter case, expressed the view that orders under s 66 can only be made in relation to prior non-observance of a union’s rules, where the purpose of such is to secure the performance of an existing obligation.  The respondent submitted that there could be no such existing obligation in this case, to restore a former President to the position of President, considering that there has since been a valid election resulting in the appointment of a new President.  It was contended that the fact that the applicant’s term as President under the Rules of the respondent had come to an end in any event, as it would normally have done, coupled with the November 2021 valid election and appointment of a new President, terminated any prior obligation that may have existed.

32      In a similar vein, the respondent referred to the observations of Smith AP in Mullen, referred to earlier in these reasons.  In this regard, the respondent contended that the factual circumstances in Mullen are not too dissimilar to those in the present case.  The fact that in Mullen, the term of the relevant delegates’ terms of office had expired, and the events long passed, bring into play similar considerations in this matter.  This is compounded by the fact that there has been, in the meantime, a valid election, and the appointment of a new President, about which there is no contest.  The respondent submitted that the grant of the primary relief sought in the application would effectively overturn the election result.  This would have the effect of removing a validly elected President and, far from keeping the respondent ‘on track’, as outlined in Stacey, would lead to chaos, and completely destabilise the respondent.  It was submitted this would be contrary to the purpose and object of s 66 itself.  Insofar as the various declarations that are sought in the amended application are concerned, the respondent submitted that they are plainly in support of the primary relief for orders for the restoration of the applicant to the position of President.

33      The applicant strongly opposes the s 27(1)(a) application and maintained that it was baseless and should be dismissed.  In terms of the substantive requirements of s 66 of the Act, the applicant maintained that the amended application clearly relates to the respondent’s rules and their observance and non-observance.  In particular, the applicant, as the then President of the respondent, was denied the capacity to exercise his functions and powers, directly contrary to the Rules of the respondent and Employment Agreement between himself and the respondent.  The submission was made that relevant facts should be established, and the case before the Commission should be heard.  It was contended that if the facts are proved on the evidence, and those facts justify the exercise of the Chief Commissioner’s discretion under s 62(2), then it should be exercised: Jones v The Civil Service Association [2003] WASCA 321; (2003) 84 WAIG 4; per Pullin J at [20].  It was contended that all the remedies sought by the applicant are available and rejected the respondent’s contentions to the contrary.

34      Whilst the respondent has asserted in its written and oral submissions that there has been a valid election and a new President appointed, the applicant contended, several times, that there has been no election by the respondent.  Rather, the election was for officers in the respondent’s counterpart federal body.  Furthermore, the cases cited by the respondent in support of its application to dismiss, including Stacey, and Mullen, are distinguishable.  In the case of Stacey, the application was made in June 2006, and related to past breaches of the Union’s rules dating back to 1999.  Similarly, the applicant sought to distinguish Mullen, on the basis that whilst the issues in dispute arose in 2007, the matter was not heard and determined until 2010.  In contrast, in this matter, the application and the amended application were both made whilst the applicant’s term as President of the respondent was in effect.  In this sense, contrary to the respondent’s submissions, the circumstances have not ‘long since passed’.

35      In a more general sense, the applicant submitted that the application should also not be dismissed because it discloses what it describes as an ‘unprecedented abuse of power by the respondent’.  This is a case which ought to be heard and determined, because it involves an improper exercise of powers, contrary to the Rules of the respondent.  To hear the case would be consistent with one of the principles discussed in Stacey, where Ritter AP referred to the need at [278], for ‘confidence amongst members of an organisation that its government and administration will be carried out in accordance with the rules in order that the policy of the Act will be carried out effectively…’.

36      In connection with the applicant’s cessation as a member of the Police Force, the respondent submitted this means that the applicant is not eligible to be a member of the respondent and, in accordance with the Rules of the respondent, is also not therefore eligible to be a member of the Board of Directors or the President of the respondent.  It was submitted that under rule 5.1(a) of the respondent’s Rules, to be an ordinary member of the respondent, a person must be ‘appointed under the Police Act 1892 (WA) and be employed by the Commissioner of Police’.  Rule 5.7 deals with termination of membership of the respondent.  Rule 5.7(a)(4) provides that a member’s membership is terminated if a person ceases to be eligible to become a member.

37      The link between membership of the respondent and being eligible to nominate for election to the Board of Directors is dealt with in rule 6.1(d)(i).  The respondent submitted that this requires a person to be a member of the respondent to nominate.  For a person to be elected as President, under rule 6.1(i), they must be a member of the Board of Directors.  It was therefore submitted by the respondent that the cessation of the applicant as a member of the Police Force, means he is no longer eligible to be President of the respondent.  The order sought by the applicant, that he be restored to his position, is impossible under the respondent’s Rules.

38      Therefore, it was contended by the respondent that the relief sought by the applicant, given the above circumstances, is beyond the Commission’s jurisdiction and power under s 66 and fortifies the contention that the substantive application should be now dismissed.

39      The applicant submitted the circumstances of his cessation as a member of the Police Force is immaterial to the application to dismiss under s 27(1)(a).  It was asserted by the applicant that he sought the assistance of the respondent to provide advice regarding the implications of him ceasing to be a police officer.  The applicant submitted that he was referred to the respondent’s in-house solicitor.  When it was suggested by the applicant that the respondent’s in-house solicitor may have a conflict of interest and independent advice should be sought, the applicant contended that this request was declined, and advice was provided by the respondent’s in-house solicitor.  The applicant further alleged that he sought advice on the implications for his current s 66 application of ceasing as a police officer, however the in-house solicitor declined to give it.

40      To the extent that the applicant suggested that by the events immediately above, the respondent has sought to take advantage of the applicant’s decision to resign from the Police Force, this submission carries with it some difficulty.  First, there is no evidence before me as to these matters on which findings of fact can be made.  Second, any suggestion of potential prejudice of the applicant would seem to be significantly diminished by the fact that the applicant, in these proceedings is and has been represented by solicitors and counsel.  In these circumstances, it is not at all clear why the applicant would seek to rely solely on the advice of the respondent’s in-house solicitor in any event, in relation to any implications for his s 66 application, as this submission intimates.

41      Several other submissions were made by the applicant concerning the implications of the cessation of his membership of the Police Force.  It was said that whether he remained a member of the respondent or was eligible to be a member of the respondent, does not impact his standing to bring and maintain the current proceedings under s 66(1)(a) of the Act.  I agree with this submission.  Current membership of an organisation is not necessary.

42      Furthermore, more general submissions were made that the applicant, being no longer a member of the Police Force, does not alter the events which occurred in 2021 and nor the declarations and orders sought, including those that the Commission may consider appropriate, having heard the case in full, and having made findings of fact.  It was also contended that given the matters raised during the hearing on 4 March 2022 concerning the s 27(1)(a) application, it may be open for the Commission to conclude that by preventing the applicant from performing his functions and powers as the President, the respondent acted ultra vires its Rules.  Other live issues according to the applicant, not affected by his cessation as a member of the Police Force, include whether the disciplinary provisions in rule 13 of the respondent’s Rules were complied with; whether there was any power at all under the respondent’s Rules to direct the applicant to not perform his duties and not to attend the workplace; whether the purported Employment Agreement between the applicant and the respondent was a valid contract at all; and the lack of procedural fairness afforded to the applicant as a result of the respondent’s actions.

43      Whilst the applicant commenced these proceedings to vindicate his own rights, as a former President and member of the respondent, it was submitted that he is also  concerned that others who follow him, do not suffer the same fate as he did at the hands of the respondent.  These matters, according to the applicant, are relevant considerations for the Commission to consider.

44      As has been previously alluded to, the applicant repeated his submissions that given the distinction between the respondent and its counterpart federal body, the Police Federation of Australia, and the issuance of a s 71 certificate by the Registrar of the Commission on 15 October 2018, there was a strong argument that he did not hold the position of President. And nor does the current President.  It seems to me that if this contention is maintained, and the former assertion is correct, then that causes some difficulty for the applicant, as he would be seeking an order under s 66 of the Act to be returned to a position that he never held in the first place.  As to the second contention, once Board and office bearers have been elected under the counterpart federal body rules, then by the operation of rule 6.2 of the respondent’s Rules,  those same persons are taken to be the corresponding office holders of the respondent.  I explore this issue later in these reasons.

45      The overall submission of the applicant was that no case could be identified with facts like the matter before the Commission.  The s 27(1)(a) application should be dismissed, and the case heard and determined on its merits.

Consideration of the s 27(1)(a) application

46      In my view, the cessation of the applicant as a police officer, as established by the Police Gazette Western Australia Wednesday 23 March 2022, No.13, deprives the Commission of the power to make an order to restore the applicant to his position of President of the respondent.  There is an inseparable link between a person’s status as a member of the Police Force under the Police Act and that person’s occupancy of the position as President of the respondent.  It is a condition of occupancy of that position, under the respondent’s Rules, that the person be a member of the Police Force under the Police Act and continue to be a member of the Police Force, throughout their term of office.  A person who ceases to be a member of the Police Force, either during or after a term of office as President of the respondent, is no longer qualified to hold office and may not stand for election for such an office.

47      I will first deal with the respondent’s Rules and why I consider this to be so.  I will then turn to consider the implications of such a conclusion for the relief sought in the substantive proceedings and the reason why in my view, that s 66 of the Act, cannot afford the applicant the relief that he seeks in these circumstances.

48      I suspect it is not contentious in this case, and it is well settled in any event, that the rules of a registered organisation under the Act, and union rules generally, should be construed generously and not strictly or technically. In this regard, I refer to and adopt the observations of Smith AP in Mullen at [128] to [130], without repeating what her Honour there said.

49      In rule 3 – Interpretation of the respondent’s Rules, a Director means ‘a Member elected to the Board in accordance with rule 6 – Government of the Union’.  A Member means ‘a financial member of the Union’.  There is also a category of Ordinary Member, which means ‘a person who is a member by virtue of rule 5.1 – Ordinary Membership’.  The officeholders of President, Senior Vice President, Vice President and Treasurer are also defined to mean ‘the Director appointed to such an office by the Board in accordance with Rule 6 – Government of the Union’.  It is only an Ordinary Member, or a Life Member who has not retired, who is eligible to hold office in the respondent, given the terms of rules 5.2(d) and 5.3(c).

50      Moving then to the substantive provisions of the respondent’s Rules, rule 5 – Membership, relevantly provides as follows:

5.1 Ordinary Membership

To be eligible to be an Ordinary Member of the Union a person must be:

(a) appointed under the Police Act 1892 (WA) and employed by the Commissioner of Police;

…

51      By rule 6.1, the Board of Directors of the respondent is established.  The management of the respondent rests in the Board.  Eligibility to nominate for election as a Board member is dealt with in rule 6.1(d) which is as follows:

6.1 Establishment of the Board of Directors

…

(d) To be eligible to nominate for election to the Board a person must:

(1) be a Member (other than a Retired Member or a Life Member who has retired);

(2) be free of any debts or arrears to the Union;

(3) have attended at least four branch meetings in the preceding 12 months;

(4) be stationed in the Region for which they nominate at the time of their nomination.

(5) not to have been found in Breach of the Rules on grounds of misappropriation of funds of the Union, a substantial breach of the Rules, gross misbehaviour or gross neglect of duty as a Director, in the 3 years preceding the election.

52      Once elected, the Board of Directors elects from amongst its own number under rule 6.1(i), the President and other office bearers.  Thus, it is clear from this scheme under the Rules, that it is a condition of eligibility for office, to be both a member of the respondent’s Board of Directors and to be in turn, elected to the position of President or other office bearer, that a person be an Ordinary Member (or a Life Member who has not retired) of the respondent.

53      Termination of membership of the respondent is dealt with by rule 5.7. It is as follows:

5.7 Termination of Membership

(a) A Member’s membership of the Union shall be terminated:

(1) by resignation;

(2) by expulsion in accordance with Rule 13 - Disciplinary Matters;

(3) by death of the Member;

(4) by the Member ceasing to be eligible to become a Member; or

(5) by a Member becoming non financial.

(b) A Member who fails to pay the applicable subscription for a period of more than 3 months or a fee, fine or levy for a period of 6 months without making an alternative arrangement satisfactory to the Board shall be deemed a non financial member.

(c) 1. A Member may resign by giving written notice of the intention to resign.  The notice of resignation shall be delivered in person or by certified mail to the Registered Office.  The resignation takes effect from the day on which it is received by the Union or on such later date specified in the notice.

 2. A notice of resignation received by the Union is not invalid because it was not addressed and delivered in accordance with sub-rule (c)1.

(d) Where a Member’s membership is terminated that person shall cease to be a Member but shall be responsible for any subscriptions, fees, levies or fines owing up to and including the date of termination of membership.

(e) Any subscriptions, fees, levies or fines payable but not paid by the former Member in relation to a period before the termination of the former Member’s membership took effect may be sued for and recovered in the name of the Union in a court of competent jurisdiction as a debt due to the Union.

(f) The Secretary shall remove from the Register of Members the name of any person who ceases to be a Member in accordance with Rule 5.7 - Termination of Membership.

54      It seems tolerably clear that there is no hiatus or intermediate step once a person satisfies the prerequisite for termination of membership.  The introductory part of rule 5.7(a) says ‘membership…shall be terminated’, on the occurrence of the relevant event.  This seems to be affirmed by rule 5.7(d).  Read with the terms of rule 5.7(a), on a person ceasing to be appointed under the Police Act and employed by the Commissioner of Police, that person, by their action, ceases to be a member of the respondent, by the operation of rule 5.7(a)(4).  In this case, on the applicant’s cessation as a police officer under the Police Act on 17 March 2022, he ceased to be a member of the respondent.  On the termination of the applicant’s membership of the respondent, he was no longer eligible to be elected to the respondent’s Board of Directors, or to be subsequently elected as its President.

55      It is also necessary, for completeness, to consider the terms of rule 6.2 of the respondent’s Rules, which deals with the respondent’s counterpart federal body.  Rule 6.2 provides as follows:

6.2 Board of Directors – Federal Counterpart Body

(a) Notwithstanding anything in these Rules to the contrary, but subject to subsection (c), each position on the Board may, from such time as the Board shall determine, be held by the person who, in accordance with the rules of the Police Federation of Australia, holds the corresponding position on the Board of the Western Australian branch of the Police Federation of Australia in accordance with Rule 52AA of the Rules of the Police Federation of Australia.

(b) Where each position on the Board is held by the person who holds the corresponding position in the Western Australian Branch of the Police Federation of Australia in accordance with subsection (a) then the provisions relating to the election of Directors and the appointment of a President, Senior Vice President, Vice President and Treasurer in these Rules no longer apply.

(c) This Rule does not affect the right of the Union pursuant to these Rules, to suspend or expel a Director of the Union.

56      This form of rule, not uncommon in the registered rules of organisations registered under the Act, in conjunction with a certificate issued by the Registrar under s 71(5) of the Act, relieves the respondent of the need to hold simultaneous elections for office holders of both the State union and its counterpart federal branch, where the Commission in Court Session has, in accordance with ss 71(2) and 71(4) of the Act, made the requisite declarations. The effect of a s 71(5) certificate is conclusive as to the matters set out in s 71(5) of the Act.  Two preconditions exist for the issuance of a certificate.  They are that first, the State union’s rules have been altered under s 71(5)(a) to provide that from such time as the committee of management may determine, each office in the State union may be held by the person who holds the corresponding office in the counterpart federal body, in accordance with the rules of the counterpart federal body.  If so, second, the committee of management of the State union is required to decide and notify the Registrar that from the nominated date in the notice, all offices in the State union will be filled in accordance with the altered rules.

57      A s 71(5) certificate was issued by the Registrar to the respondent on 15 October 2018, which certificate is in the following terms:

I, the undersigned, Registrar of the Western Australian Industrial Relations Commission, acting pursuant to section 71(5) of the Industrial Relations Act 1979, hereby declare -

(1) that the provisions of the Industrial Relations Act 1979 , relating to elections for office within a State organisation do not from 15 October 2018 apply in relation to offices in the Western Australian Police Union of Workers; and

(2) that from 15 October 2018, the persons holding office in the Police Federation of Australia, Western Australia Police Branch, an organisation registered under the provisions of the Fair Work (Registered Organisations) Act 2009 shall for all purposes, be the officers of the State organisation, the Western Australian Police Union of Workers.

DATED this 15th day of October 2018

SUSAN BASTIAN

REGISTRAR

58      As a result of the certificate, from 15 October 2018, all officeholders elected to office in the Police Federation of Australia, Western Australian Police Branch, were taken to be officers of the respondent. As mentioned above, some conjecture was raised during the proceedings, that given that the applicant was elected to the respondent’s Board of Directors on 4 October 2018, and to the position of President on 18 October 2018, doubt may exist over the status of the applicant’s election to the Board of Directors, given that the s 71(5) certificate did not take effect until 15 October 2018.  However, from the records of the Commission, on 30 January 2006, the Full Bench issued a declaration under ss 71(2) and 71(4) of the Act, that the rules for qualification of persons for membership of the PFA WA Police Branch, as the respondent’s counterpart federal body, were deemed to be the same.  Secondly, the Full Bench held that the rules of the PFA WA Police Branch, in relation to offices in the Branch, were deemed to be the same as the rules of the respondent, prescribing the offices that existed in the respondent: The Western Australian Police Union of Workers [2006] WAIRC 03576; (2006) 86 WAIG 402; [2006] WAIRC 03610; (2006) 86 WAIG 406-407.

59      On 1 February 2006, the Registrar issued to the respondent a s 71(5) certificate, effective from 31 January 2006.  There is no record of any further s 71(5) certificate issuing after February 2006, and prior to October 2018. The background to the February 2006 s 71(5) certificate was referred to by the Full Bench in Western Australian Police Union of Workers [2018] WAIRC 00725; (2018) 98 WAIG 1111.  At [5] to [9] the Full Bench observed as follows:

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.

60      The parties were invited to make further submissions on the existence of the 2006 s 71 certificate.  The applicant contended that he had assumed that in the absence of a s 71 certificate prior to 2018, the applicant obtained his position based on the respondent’s Rules.  However, regardless, it was submitted that if the 2006 s 71 certificate applied, then the respondent’s Rules in relation to elections did not apply and that the respondent did not have the power under its Rules or Employment Agreement to stop the applicant performing his functions and powers or to terminate the applicant’s employment.  Finally, that it was not lawful for Mr Kelly to act as President and to undertake the applicant’s duties because the applicant’s position was as the President of the PFA WA Police Branch, and Mr Kelly did not hold the acting position in the Branch.

61      The respondent contended on the other hand, that the existence or otherwise of the 2006 s 71 certificate, and whether the applicant was validly elected to the Board of Directors in 2018, was not relevant, because the key issue is the effect of the 2021 election, about which there was no doubt that a valid s 71 certificate existed. The respondent further contended that if there was doubt about the applicant’s election to the position of President in 2018, then no remedy could be granted under s 66 of the Act, as the applicant could not be restored to a position he never held.

62      It is open to argue that there existed a s 71(5) certificate, having application to the respondent and its counterpart federal body, from 2006.  Whilst the rules of the respondent and the PFA WA Police Branch may have fallen out of alignment for a period, as noted by the Full Bench, from the evidence before it and the findings of the Full Bench, this was resolved by March 2016.  Ultimately however, regardless of the situation that existed in October 2018, there can be no doubt as to the application of the s 71(5) certificate, for the purposes of the November 2021 election, in which the applicant stood as a candidate.

63      The PFA WA Police Branch, as the respondent’s counterpart federal body, is registered under the Fair Work (Registered Organisations) Act 2009 (Cth).  Rule 3 – Eligibility for Membership of the PFA, contains rule 3(iii) as follows:

(iii) Persons in Western Australia who are either appointed under the Police Act 1892 (WA) and employed by the Commissioner of Police of Western Australia or employed as police recruits provided nothing in this sub rule will render persons employed under the Public Sector Management Act 1994 (WA) as eligible for membership of the Union.

64      The above rule mirrors the corresponding rule in rule 5.1(a) of the respondent’s rules.  There is a separate part of the PFA Rules, that being Part CA Western Australian Police Branch.  In that Part, rule 52AA, in relation to office holders, provides as follows:

52AA BRANCH OFFICE BEARERS

(1) The Branch Office Bearers shall consist of the President (who shall be the Chief Executive Officer), the Senior Vice President, the Vice President and the Treasurer.

(2) (a) The management of the Branch shall be vested in the Branch Executive.

(b) The Executive shall be elected by and from the financial membership of the Branch.  The Executive shall comprise 15 members, of which 11 who hold office shall be from the Metropolitan Region and one each respectively who hold office shall be from the Northern (Kimberley/Pilbara), Central (Mid West-Gascoyne/Wheatbelt), Eastern (Goldfields/Esperance), Southern (South West/Great Southern) Regions. The Branch Executive - Elect shall meet within 10 working days of election to office and shall elect from within itself the Branch Office Bearers.

(3) The general election of Executive Members shall be held every three years and the elections when they become due shall be arranged and conducted so as to allow the Returning Officer to declare the result of the election for members of the Executive not later than the 15th of October immediately following the date for close of lodging of nominations.

(4) The Executive shall hold office until the dissolution of the third Annual Conference following the date of its election.  At the dissolution of that Conference the Executive Members - Elect shall then commence their office.

(5) No contracts shall be entered into by the outgoing Executive or any member thereof, after the declaration of the election results without the knowledge and consent of the incoming Executive - Elect.

(6) Sitting members of the Executive are eligible for re-election.

(7) To be eligible as a candidate for a position on the Executive a member must meet the following requirements:

(a) be a financial member of the Branch;

(b) be free of any debts or arrears to the Branch;

(c) in the preceding 12 months have attended at least four branch meetings of the state organisation “Western Australian Police Union of Workers”, where the person was a member of that state association throughout the period;

(d) be stationed in the Region for which they nominate at the time of their nomination.

(e) not to have been found in Breach of the Rules on grounds of misappropriation of funds of the Branch, a substantial breach of the Rules of the Federation, gross misbehaviour or gross neglect of duty, in the 3 years preceding an election.

(8) An Executive Member shall be deemed to have vacated his or her office if such Member:

(a) resigns; or

(b) ceases to be a financial member of the Branch; or

(c) being transferred from the Region in which the Executive Member is based.

(9) A Region for the purpose of this Rule shall be as determined by Annual Conference and the Regions so established shall be published in the next following Police News.

65      It is clear from these rules that to be able to maintain membership of the PFA WA Police Branch, as with the respondent, the person concerned needs to be appointed under the Police Act and be employed by the Commissioner of Police in Western Australia.  As with the respondent also, to be eligible to be a candidate for a position on the Branch Executive, a person must not only be a member, but also must be a financial member.  This is underscored by rule 52AA(8)(b), to the effect that a member of the Branch Executive is deemed to vacate their office if they are no longer a financial member of the Branch.

66      Given the combined effect of the respondent’s rules as set out above, and the rules of its counterpart federal body the PFA WA Police Branch, the applicant is not eligible to be a candidate for a position on the Branch Executive of the PFA WA Police Branch.  As a result, in terms of rule 52AA(2)(b) of the PFA WA Police Branch rules, the applicant is not eligible to be elected as a Branch Office Bearer, including as the President.  This means, by the operation of rules 6.2(a) and (b) of the respondent’s rules, the applicant cannot be the President of the respondent.  Irrespective of this, even if there was a separate State election for a Board of Directors under the respondent’s Rules, the applicant would also no longer be eligible to be elected to the  office of President, for the same reason.

67      Based upon my earlier analysis of s 66 of the Act, and the relevant authorities considering the purpose and scope of the power, it is clear from Stacey, and the terms of s 66(2) itself, that the primary purpose of the power to be exercised by the Chief Commissioner, is to ensure observance of an organisation’s rules.  This is part and parcel of ‘keeping an organisation on track’ and running in accordance with its rules: Stacey at [273]. I have already mentioned that the applicant submitted that in addition to seeking to be restored to his position as President, he also seeks other declarations and orders.  However, at all times, including in the various hearings during this matter, it has been made quite clear that the principal relief sought by the applicant in the proceedings, is the restoration of the functions, duties, and powers of President of the respondent, that he formerly exercised.  As noted above, additionally, in his written submissions of 28 April 2022, the applicant seemed to suggest that this was not the only objective, and his concern is also to avoid others being treated in the same way as himself.  However, as I have observed earlier in these reasons when dealing with the declarations and orders sought, they are  plainly ancillary to or consequential upon, the primary purpose of the s 66 application.

68      Having regard to all of the matters raised in relation to this aspect of the s 27(1)(a) application, in my view, it would be an extraordinary outcome, in light of the statutory scheme in s 66 of the Act, for the Chief Commissioner to order the restoration of the applicant to the position as President of the respondent, or something akin to it, in circumstances where the applicant no longer is eligible under the respondent’s Rules and those of its counterpart federal body, to occupy such a position. It would be a flagrant contravention of the respondent’s rules, and such an order could not be made under s 66 of the Act.

69      I turn now to consider the broader arguments of the parties as to the s 27(1)(a) application, especially considering the November 2021 election for office bearers of the PFA WA Police Branch, which by the operation of rule 6.2(a) and (b) of the respondent’s rules, also determined the outcome of office bearers for the respondent.  In this case, the applicant did not seek immediate relief under s 66 of the Act after the events of February 2021.  Nor was the commencement of an action under s 66 of the Act  taken after the events of 9 June or 17 July 2021.  No application for interim relief was sought to seek to stop the respondent taking the steps that it did (See Brown v SSTU (1989) 69 WAIG 1390).  It is not entirely clear from what was before me, why this was so.

70      The gardening leave which the applicant was directed to take maintained the applicant on his full remuneration, including the use of his Union provided motor vehicle.  The applicant suffered no apparent financial loss.  Later, in November 2021, the applicant stood for election as a member of the Board of Directors, in the PFA WA Police Branch election.  It was common ground that the respondent did not prevent the applicant doing so.  The applicant exercised his democratic right, as with all other candidates, and put himself forward to the Union membership at large, for election to office.

71      As I have noted earlier in these reasons, there is no dispute that the election was duly held, and the applicant was not successful.  That is, at a time that would have been following the expiration of his term of office as President of the respondent in the ordinary course, the applicant sought to persuade members of the respondent that he should be again re-elected to high office within the organisation.  The members exercised their democratic right and decided to support other candidates in the election.

72      There is no challenge to the process of or the outcome of that election and nor could there be, given that it was held for offices in the PFA WA Police Branch, and any such issues raised would have to be progressed under the FW (RO) Act in any event.  Likewise, with respect to the applicant’s most recent submissions, referred to at [60] above, that the applicant may have, in effect, still held his position as PFA WA Police Branch President and Mr Kelly did not hold such a position, they are issues be agitated under the FW (RO) Act, and not s 66 of the Act.  However, once the PFA WA Police Branch election outcome was determined, the “two-step” process under rule 52AA(2)(b) of the PFA WA Police Branch rules seemed to have taken place: first the election of the Branch Executive and second, the election from within the Executive itself, of the Branch Office Bearers.  The terms of rules 6.2(a) and (b) of the respondent’s Rules, in conjunction with the s 71(5) certificate, meant that the Board of Directors and the President, Senior Vice President, Vice President and Treasurer of the respondent, were all deemed elected to the corresponding positions at the same time.

73      As a result of this process, there is much to be said for the contention advanced by the respondent, that ‘there can be no existing obligation to reinstate a former President to the position of President where there has been a valid election and appointment in the interim.  The end of the former President’s term and the subsequent valid election and appointment ended any obligation (if one existed) to reinstate the President’ (see respondent’s written submissions 3 February 2022 at [8]).  These events must also be viewed through the prism of the membership of the respondent and the PFA WA Police Branch, who exercised their democratic right to vote at the election.  There was no suggestion before me that the membership at large of the respondent and the PFA WA Police Branch, were involved in or had any direct knowledge of the events that led to the respondent taking the steps it did in February 2021 and beyond, although it is not necessary for present purposes to reach any final view about such matters.

74      It is trite that the powers in s 66 of the Act, are to be exercised consistent with the objects of the Act in s 6 and consistent with s 26(1) of the Act.  A principal object of the Act in s 6(e) concerns the formation of representative organisations of employers and employees … and their registration under the Act.  Additionally, s 6(f), importantly for present purposes, provides as follows:

(f) to encourage the democratic control of organisations so registered and the full participation by members of such an organisation in the affairs of the organisation; and

…

75      These are important objects of the Act in relation to organisations.  Free and fair elections, and encouraging full participation by members of an organisation in its affairs, is a touchstone of the democratic process.  It is a condition of registration of an organisation under Part II Division 4 of the Act, that the rules of the proposed organisation make provision for a proper voting system, subject to independent scrutiny.  Civil penalty provisions exist in the Act for contraventions of voting processes or where threats or forms of intimidation of candidates or voters occur.  These various provisions of the Act, underscore the importance placed on democratic principles and the full participation of members of an organisation in its affairs, consistent with the principal objects of the Act in ss 6(e) and (f).

76      Members of the PFA WA Police Branch and the respondent (to the extent persons have dual membership of both organisations as contemplated by rule 5.6 of the respondent’s Rules) have, in the 2021 elections, exercised their democratic right and voted in, what I must assume for present purposes to be, a free and fair election, to elect those persons to office they wish to occupy such offices.  To now, in effect, subvert that process and to restore the applicant to his former position or something akin to it, and remove the functions and powers of the democratically elected President of the respondent, would be an extraordinary outcome.  It would subjugate the will of the members and would be completely at odds with the objects of the Act, to which I have referred.

77      Whilst the applicant put to me, that what he now seeks, is essentially the same as what occurred to him in 2021, I cannot agree with that submission. I do not know, other than the reference to generalised particulars of the allegations in the amended application and response (with its accompanying documents) the facts as to the allegations made by the respondent against the applicant.  However, the respondent as an organisation and the Board of Directors collectively, saw those matters as serious enough to take the steps that they did in early 2021.  It is a large step for an organisation to do what the respondent did and to place the leader of the organisation on leave and prevent him from performing his functions and powers and accessing the organisation’s premises.

78      Under the Rules of the respondent, in rule 7.4(a), it is provided that:

7.4  Duties of the Senior Vice President and the Vice President

(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.

…

79      This rule is no doubt intended to provide an orderly means of managing the affairs of the respondent, in the circumstances where the President is absent or incapacitated.  Whilst this assumes the validity under its Rules, of the steps taken by the respondent, in a practical sense at least, this is what occurred in this case.  I do not lose sight however, of the allegation by the applicant, that some members on the respondent’s Board of Directors were said to have acted mala fides, in this respect.  The point I make however, is that the relief sought by the applicant, is not in any sense contemplated by the respondent’s rules; would be directly at odds with the recent valid election and its outcome; and would, most likely, lead to a chaotic situation, such that the respondent would have no clear and well-defined leadership.  This will likely have the opposite effect, to ‘keeping the organisation on track’, as referred to in Stacey at [273].  It also appears arguable that given the time and expense that would be incurred in the conduct of the substantive hearing of this matter, it would not be in the public interest to proceed in any event, considering my conclusions.  However, I need not reach any final view on this matter.

80      Having so concluded, I do not resile from what I said during the hearing on 4 March 2022 as to concerns I have about some of the steps taken by the respondent and whether they may have been inconsistent with the respondent’s Rules.  Had the substantive application been made soon after the events of February 2021, and for example, interim orders sought, the outcome may have been different.  However, the two major intervening events of the election of new office bearers and a President in November 2021 and secondly, the cessation of the applicant as a member of the Police Force, and consequently, as a member of the respondent, have changed the circumstances of this application significantly.

Conclusion

81      Accordingly, for the foregoing reasons the application under s 27(1)(a) of the Act is granted and the substantive application under s 66 of the Act is dismissed.