2022 WAIRC 00233
ORDER PURSUANT TO S.66
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CHIEF COMMISSIONER

CITATION : 2022 WAIRC 00233

CORAM
: CHIEF COMMISSIONER S J KENNER

HEARD
:
FRIDAY, 6 MAY 2022, WRITTEN SUBMISSIONS FRIDAY, 13 MAY 2022

DELIVERED : WEDNESDAY, 1 JUNE 2022

FILE NO. : PRES 4 OF 2022

BETWEEN
:
THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS, THE PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA, WEST AUSTRALIAN BRANCH, INDUSTRIAL UNION OF WORKERS
Applicants

AND

BUILDING TRADES ASSOCIATION OF UNIONS OF WESTERN AUSTRALIA (ASSOCIATION OF WORKERS)
Respondent

Catchwords : Industrial law (WA) - Application under s 66 - Waiver of Rules to enable Executive Committee meetings - Proposed changes to Rules - Rule to be waived
Legislation : Industrial Relations Act 1979 (WA) s 66, s 66(1)(a)
Result : Order issued
REPRESENTATION:
Counsel:
APPLICANTS : MR J NICHOLAS OF COUNSEL
RESPONDENT : NO APPEARANCE
Solicitors:
APPLICANT : NICHOLAS LEGAL


Reasons for Decision
1 This application under s 66 of the Industrial Relations Act 1979 (WA) has some history. In application PRES 4 of 2018 the applicants sought and obtained orders under s 66 of the Act for the appointment of an interim Management Committee of the respondent, in order that steps could be taken to enable the election of office bearers and to make necessary changes to the respondent’s Rules. On 20 December 2018 Smith AP made orders to this effect, which were to continue to 14 June 2019.
2 On 13 June 2019, Scott CC extended the operation of a part of the original order so that necessary steps could be completed. A further extension order was made on 28 November 2019. Those extension orders had the effect of waiving compliance with rule 6(e) of the respondent’s Rules, dealing with the quorum required for a meeting of the respondent’s Management Committee.
3 By letter of 29 March 2022, the Secretary of the respondent wrote to my Chambers seeking a further extension of the order to waive compliance with rule 6(e). Given that the most recent order made on 28 November 2019 expired on 27 January 2020, I formed the view that the Commission was then functus officio and was unable to further deal with application PRES 4 of 2018.
4 Accordingly, the current application was made. The grounds in support of the application note that the applicants are the only members of the respondent. A meeting of the Management Committee of the respondent is required under rule 18 of the respondent’s Rules, to approve proposed amendments to the Rules. As rule 6(e) of the respondent’s current Rules requires a quorum of seven members of the Management Committee, or a representative of four affiliated unions at any meeting of the Management Committee, a quorum is currently impossible to form. This is because the applicants are the only two affiliated members. Accordingly, a further waiver of rule 6(e) is requested, to finalise the rule amendment process.
5 In support of the application, an affidavit of Mr Stephen Catania was filed. Mr Catania is employed by the Construction, Forestry, Mining and Energy Union, Construction and General Division, WA Divisional Branch, as its Coordinator – Political and Industrial. Mr Catania referred to the history of application PRES 4 of 2018, as I have recited it above. Mr Catania gave evidence that on 11 June 2019, the respondent’s interim Management Committee was replaced by an elected Management Committee under rule 14 of the respondent’s Rules. On 24 January 2020, a special meeting was convened to approve the proposed amendments to the Rules of the respondent.
6 However, it transpired that the meeting that took place on 24 January 2020 did not constitute a special meeting of the Management Committee in accordance with rule 18 of the respondent’s Rules. On Mr Catania’s evidence, what in fact occurred was two separate meetings of the CFMEUW Executive and the Executive of the Plumbing and Gasfitters Union of Australia, West Australian Branch, Industrial Union of Workers. Accordingly, as there was no special meeting of the Management Committee of the respondent to approve the proposed rule amendments, they could not proceed.
7 The difficulty remains that as the only two members of the respondent, the applicants are unable to form a quorum for a special meeting of the Management Committee of the respondent, under the current Rules, to consider and approve the proposed rule amendments. Mr Catania indicated that if this application is granted and orders made, it is anticipated that such a special meeting of the respondent’s Management Committee could be conducted within two to four weeks.
8 I am satisfied that the applicants have standing to bring these proceedings under s 66(1)(a) of the Act. I am further satisfied on the evidence that as presently constituted, a special meeting of the Management Committee of the respondent cannot be held, as there are an inadequate number of members of the respondent to achieve a quorum for a special meeting under rule 6(e) of the respondent’s Rules. I am further satisfied on the evidence that whilst an attempt was made to conduct such a meeting on 24 January 2020, it was not a valid meeting in accordance with rule 18 of the respondent’s Rules. No proposed changes to the respondent’s Rules can be progressed until such time as a special meeting of the Management Committee can be conducted.
9 Given the terms of s 66 of the Act, and the powers conferred on me under it, I am satisfied that the order sought by the applicants should be made. This will enable a properly constituted special meeting of the Management Committee of the respondent to be held to deal with the proposed amendments to the respondent’s Rules, and any other necessary business.
10 Accordingly, minutes of proposed order now issue.