ORDER PURSUANT TO S.66

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CHIEF COMMISSIONER

CITATION : 2022 WAIRC 00325

DELIVERED : Wednesday, 3 August 2022

FILE NO. : PRES 6 OF 2022

Applicant

AND

The Australian Nursing Federation Industrial Union of Workers Perth

Respondent

Catchwords : Industrial Law (WA) - Application under s 66 - Alleged failure to comply with Union Rules - Delay in request by Secretary to Registrar  for an  election to be held - Electoral Commission unable to meet requirement to conduct election in prescribed period - Extension of time sought - Application to intervene in proceedings by union member and Registrar - Consideration of principles for intervention - Applications for leave to intervene refused - Waiver of Rules and extension of time granted - Order issued

Legislation : Conciliation and Arbitration Act 1904 (Cth)

Electoral Act 1907

Industrial Relations Act 1979 (WA) s 6(f), s 27(1)(k), s 66, s 66(1), s 66(1)(c), s 66(2)

Result : Order issued

Representation:

Counsel:

Applicant : In person

Respondent : Ms B Burke of counsel

Intervenors : Ms S Fenn in person

: Mr J Carroll of counsel on behalf of the Registrar

Case(s) referred to in reasons:

Mr Kevin Reynolds v (Not applicable) [2011] WAIRC 00989; (2011) 91 WAIG 2212

R v Ludeke; Ex parte Customs Officers Association of Australia (1985) 155 CLR 513

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1

Reasons for Decision

The application

1         The applicant, Mr Clancy, is a member of the respondent, the Australian Nursing Federation Industrial Union of Workers Perth, an organisation registered under Division 4 of Part II of the Industrial Relations Act 1979 (WA).

2         The applicant brings this application under s 66 of the Act for a waiver of rule 20 of the respondent’s Rules, in relation to the timetable for the conduct of elections for office bearers. Rule 20 requires elections for office bearers of the respondent to be conducted between the dates of 1 July and 31 August in the year in which the relevant elections are due. An election is due this year.

3         I am satisfied that the applicant has standing to bring this application under s 66(1)(a) of the Act. The application is not opposed by the respondent.

4         The grounds of the application are referred to in both the application and in an affidavit in support of Mr Mark Anthony Olson, the respondent’s then Secretary. Mr Olson gave evidence that:

(a) He wrote to the Registrar of the Commission, Ms Bastian, by letter dated 12 July 2022, to request that an election be conducted for several positions on the respondent’s Council;

(b) In response, by letter of 14 July 2022, Ms Bastian informed Mr Olson that his request for an election had been duly made for the purposes of s 69(2) of the Act. Ms Bastian also informed Mr Olson that she had requested the Western Australian Electoral Commission to conduct the election in accordance with the Electoral Act 1907. A Decision Notice to this effect, made under s 69 of the Act and dated 14 July 2022, was provided to the respondent;

(c) By further letter dated 21 July 2022, Ms Bastian wrote to Mr Olson and informed him that following her request to the Electoral Commission to conduct the election, the Electoral Commissioner had informed her in writing that it was unable to meet the requirement to conduct the election within the prescribed election period, being between 1 July and 31 August, given the late timing of the request. Ms Bastian also noted that two previous requests for elections in 2016 and 2018 by the respondent, were made in mid‑June of those years, to enable sufficient time for the elections to be held in accordance with the respondent’s Rules. It was further noted that in August 2020, following a late request for the conduct of an election, not able to be accommodated by the Electoral Commission, an application was made under s 66 of the Act to waive compliance with the respondent’s Rules to enable the election in that year to be held. It was suggested to Mr Olson that the respondent may wish to consider any necessary application to address matters of non‑compliance with the respondent’s Rules.

5         Consequently, Mr Olson gave evidence that on 21 July 2022, the present application was made. Mr Olson said the reason for the respondent’s non-compliance with rule 20 of its Rules was due to several factors including:

(a) The relevant staff member of the respondent appointed to ensure that all future elections were conducted in accordance with the respondent’s Rules, had left their employment;

(b) Several issues associated with the ongoing COVID‑19 pandemic have impacted on the organisation, including staff absences;

(c) An increase in demands on the organisation caused by concerns of members of the respondent regarding their increasing workloads because of the pandemic; all of which have led to an increase in workload for staff of the respondent, in particular Mr Olson; and

(d) The announcement on 30 May 2022 by Mr Olson that he would be retiring at the end of his current term of office on 29 September 2022, has created a significant further amount of extra work for him in relation to administration in the respondent.

Intervention applications

6         Two applications are before the Commission for leave to intervene in the proceedings under s 27(1)(k) of the Act. The first was made by Ms Fenn, a member of the respondent who intends to stand as a candidate at the elections for the office of Secretary of the respondent. The second, is made by the Registrar of the Commission.

7         As I understood it, Ms Fenn is concerned that because of any delay in the election, existing office‑holders would continue in office and make decisions affecting the respondent’s members. There was also some reference in Ms Fenn’s application to the applicant, Mr Clancy, having been privy to information relevant to the re‑election of his position on the respondent’s Council, with such information not having been received by the respondent’s members. Ms Fenn did not elaborate further on this in her oral submissions in support of her application. Ms Fenn appeared to be concerned about matters of equity and transparency for members of the respondent in relation to the election process.

8         The application to intervene by Ms Fenn was opposed by the respondent. Whilst acknowledging that Ms Fenn had declared her intention to be a candidate at the election, the respondent submitted that as the election has not yet been commenced by the Electoral Commission, Ms Fenn is not yet a candidate. As a member of the respondent, it was submitted that Ms Fenn is entitled to nominate for an office in the election, the same as every other member of the respondent is entitled to do so. Furthermore, the respondent submitted that all members of the respondent will be provided with information regarding the timetable for the election and nomination forms, when the same is provided to the respondent by the Electoral Commission.

9         The respondent contended that based upon the relevant principles, as set out and discussed in R v Ludeke; Ex parte Customs Officers Association of Australia (1985) 155 CLR 513, Ms Fenn has no direct interest in the proceedings beyond that of any other member of the respondent. If Ms Fenn’s application were granted, the respondent submitted that this would have the potential to interfere with and slow down the election timetable, in circumstances where the applicant and the respondent are, by the present application, now attempting to expedite it.

10      After the hearing of the present matter was adjourned on 27 July 2022 to enable me to consider the application for orders, the Registrar made an application on 29 July 2022, for leave to intervene in these proceedings. The application to intervene is made on the basis that if I am persuaded to make orders of the kind sought by the applicant, then an additional order should be made to the effect that those officeholders remaining in office because of the order, not make any “significant decisions” that bind the respondent beyond 30 September 2022, except for those reasonably necessary to enable the day to day running of the respondent. As the Commission is not functus officio, and has not finally determined the application by order, such an application can be entertained. I say this subject to consideration of matters raised by the respondent, in opposition to the intervention application, which I set out further below.

11      The Registrar’s grounds for seeking leave to intervene are that as the Registrar, she has the standing to make an application under s 66(1)(a) of the Act in relation to no-compliance by an organisation with its Rules and a role under the Act in relation to organisations observing their Rules, which constitutes a direct and sufficient interest in these proceedings.  This is so given the issues underlying the present application. Additionally, it is more efficient for the Chief Commissioner to deal with all relevant issues concerning the present proceedings, now they are before the Commission.

12      As to the additional order sought, the Registrar submitted that the rationale for it is to ensure that those remaining in office for any extended time that may be ordered by the Commission, do not take any advantage by their extended time in office. It is contended that such an order is consistent with the objects of the Act, in particular s 6(f), relating to the democratic control of organisations and the ability of members to fully participate in the affairs of an organisation. Whilst accepting that given the current circumstances, orders sought by the applicant are likely necessary to enable the organization to function, that does not detract from the fact that any such extension is undemocratic, as not resulting from an election process under the respondent’s Rules.

13      In its response and written submissions filed on 1 August 2022, the respondent opposes the Registrar’s intervention application. In summary, it is contended that the intervention application is late, having been brought after the directions hearing listed on 27 July 2022, and my indicating to the parties that I would consider their submissions and the application for orders. The present application for intervention followed observations by me as to potential difficulties with an order sought by the Registrar in the same terms as is now sought, in application PRES 7 of 2022.

14      It was contended that, as I was advised during the directions hearing on 29 July 2022 in application PRES 7 of 2022, the Secretary of the respondent, Mr Olson, resigned from this position the prior day on 28 July 2022. Ms Reah has been appointed the Secretary, through the filling of a casual vacancy under the respondent’s Rules. The respondent submitted that for the same reasons identified in relation to application PRES 7 of 2022, that being little time to provide a briefing to the new Secretary on those proceedings, and the need to consult with the Council of the respondent, this places the respondent in a difficult position concerning the Registrar’s intervention application. Despite this, the respondent made further submissions, which are summarized as follows.

15      First, in reliance upon Ludeke, the respondent submitted that it was unclear what the direct interest that was being advanced, to import the notion of ‘a caretaker convention’ into elections for a registered organisation. The respondent submitted that this concept, for the purposes of proceedings of the present kind, is a novel one and for those reasons should not be dealt with urgently, in the context of an application for an election to be conducted, when alternative options are available.

16      Second, the respondent contended that there would be no barrier to the Registrar bringing a further substantive application under s 66(1)(c) of the Act, to seek the order which she does in these proceedings. Given this circumstance, the respondent maintained there is no need for an urgent consideration of this matter, when such an application may be able to be considered in a timelier way and well prior to the cessation of the terms of office of officeholders whose terms will expire on 29 September 2022.

17      Third, the submission was made by the respondent that the proposed intervention, and the additional order sought by the Registrar, have the potential to further delay the final disposition of the present application to seek a waiver of rule 20 of the Rules of the respondent, in order that an election can be conducted. Reference was made by the respondent to the decision of the Commission in Court Session in Mr Kevin Reynolds v (Not applicable) [2011] WAIRC 00989; (2011) 91 WAIG 2212, where the Commission refused a member of the relevant organisation leave to intervene at a late stage, and after the substantive proceedings had been concluded and the Commission’s decision reserved.

18      Fourth, given the breadth of the additional order sought and the restrictions that it may impose on officeholders, those who may be affected by such an order should be entitled, as a matter of natural justice, to be heard as to whether such an order should be made. It was submitted that the effect of an order in the terms sought could unduly hinder the operation of the respondent and could be punitive. It may have the unintended consequence of negatively impacting members of the respondent, in terms of protection of their interests and the provision of industrial leadership in the nursing industry and health sector more generally. It was contended that given the Council of the respondent, which includes those officeholders whose terms of office will expire on 29 September 2022, is not able to meet until 12 August 2022, then they should be provided with that opportunity and to consider any proposed restraint on their powers.

19      On behalf of the applicant, the Registrar’s application for leave to intervene is also opposed, on similar grounds to those advanced by the respondent. In particular, the applicant draws attention to several significant industrial matters being presently dealt with, which may involve the members of the respondent’s Council taking decisions in the industrial interests of members. If the order sought in the intervention application is made, then those Council members’ capacity to act may be significantly constrained. As with the respondent, the applicant drew attention to the requirement of procedural fairness, and the need for those who may be affected by the proposed order to have due notice of it and an opportunity to respond: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1.

20      In particular, the applicant submitted that it was unclear as to how the proposed order sought may affect the members of the respondent’s Council, whose terms are not expiring on 29 September 2022 and who have two years left to serve in their current terms of office.

Consideration

Intervention applications

21      I first deal with the application by Ms Fenn for leave to intervene in these proceedings. Section 27(1)(k) of the Act 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 —

…

(k) permit the intervention, on such terms as it thinks fit, of any person who, in the opinion of the Commission has a sufficient interest in the matter; and

…

22      Whilst this confers a broad power on the Commission to grant leave to intervene, as is made clear from its terms, the Commission must be satisfied that the person seeking leave to intervene has a ‘sufficient interest’ in the matter. Consideration of what this means, has been dealt with in many cases before this Commission, which have applied the leading authority, being the decision of the High Court in Ludeke. Ludeke involved consideration of a similar provision to s 27(1)(k) of the Act, in the former Conciliation and Arbitration Act 1904 (Cth). In the judgment of the Court, whilst it is a lengthy passage, Gibbs CJ said at 421:

 The critical question is whether the prosecutor will be denied natural justice if it is allowed to intervene in ACOA's application only to the limited extent allowed by Ludeke J. It may be said immediately that it is clear that notwithstanding the wide discretion in matters of procedure given to the Commission by s.40(1) of the Act, the Commission is bound to observe the rules of natural justice: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at p 552; Reg. v. Moore; Ex parte Victoria (1977) 140 CLR 92, at pp 101-102; Reg. v. Isaac; Ex parte State Electricity Commission (Vict.) (1978) 140 CLR 615, at p 620 That means that a person whose rights will be directly affected by an order made by the Commission must be given a full and fair opportunity to be heard before the order is made. That requirement will not necessarily be satisfied if the Commission relies only on the fact that the person concerned has been heard on the same question by the same member of the Commission on a previous occasion. In general, the rules of natural justice are not satisfied unless the opportunity to be heard is afforded in the proceeding in question, although the fact that there had been an earlier hearing would be relevant in determining what constituted a full opportunity to be heard. However, natural justice does not require that everyone who may suffer some detriment as an indirect result of an order of the Commission is entitled to be heard before the order is made. Orders made by the Commission may affect many members of the community who are not parties to the proceedings in question but that does not mean that any member of the community who will be indirectly affected by an order of the Commission has a right to be heard in those proceedings. It has been held that a person who is not a party to a dispute, but who may nevertheless be affected, indirectly and consequentially, by an order made in settlement of the dispute is not entitled to be heard before the matter is determined: Reg. v. Moore; Ex Parte Victoria; Reg. v. Isaac; Ex parte State Electricity Commission (Vict.). Those were cases where the person affected sought to be heard as a party; the reasoning in those judgments supports the view that the rules of natural justice do not require the Commission to allow a person who is not a party to the proceedings in question and whose rights will not be directly affected by them to be heard in those proceedings, and therefore do not require the Commission to grant such person leave to intervene. The Commission has power - which, like other powers to which reference has already been made, allows it a wide discretion - to allow any person or organization to intervene in any matter, provided that the Commission is of the opinion that it is desirable that the person or organization should be heard: s.36(2) of the Act. The provisions of that subsection reinforce the view that a person whose rights are not directly affected by a proceeding is not entitled to intervene in the proceeding, although in many cases considerations of fairness may incline the Commission to allow someone who is likely to be indirectly affected by the outcome of the proceedings to intervene in them.

(See too Mason J at pp 422 – 423)

23      Thus, for present purposes, I must be satisfied that Ms Fenn has a direct interest in the outcome of these proceedings and is not merely to be affected by them. For the following reasons, I am not satisfied that Ms Fenn has established a sufficient interest to warrant the grant of leave to intervene in these proceedings.

24      As a member of the respondent, Ms Fenn has no greater interest in these proceedings than any other member of the respondent. However, she may, as a member of the respondent, if she has concerns about the respondent’s compliance with its Rules, bring an application under s 66 of the Act: s 66(1)(a). As a person who intends to nominate for an office in the respondent when the election for office‑holders is called and is conducted by the Electoral Commission, then Ms Fenn may do so, in accordance with rule 19 of the respondent’s Rules. In this regard, Ms Fenn is in the same position as any other member of the respondent who may also nominate for office, if they meet the requirements of rule 19.

25      While Ms Fenn expressed concern as to the delay in the calling of the election and why the Secretary, Mr Olson, had not done so at a much earlier time in accordance with the Rules, again, this concern puts Ms Fenn in no different a position to any other member of the respondent who may share her views on this issue. There is also something to be said for the view expressed by the respondent that if Ms Fenn’s intervention application were to be granted, this may cause some delay to the already delayed election process. Based on the relevant authorities regarding intervention however, I do not place much weight on this consideration.

26      In all the circumstances, I am not persuaded that Ms Fenn has any particular right or interest that may be directly affected by the outcome of these proceedings.

27      As to the application for leave to intervene by the Registrar, for the following reasons, which reasons I can shortly state, prima facie, she has a sufficient interest in the proceedings, for the purposes of s 27(1)(k) of the Act. Section 66 of the Act, in addition to enabling members, past or present, or those denied membership, standing to commence proceedings, also confers standing on the Registrar to initiate proceedings on her own motion or on the complaint of a present or former member of an organization. The ability to do so is reflective of the position the Registrar has under the scheme of the Act concerning registered organization matters.

28      The Registrar has statutory responsibilities under Part II Division 4 of the Act in relation to matters concerning organisations including the registration process; the alteration of rules; the receipt of audited accounts; the maintenance of registers of members; and matters concerning elections for offices, amongst others. In relation to these functions and powers, the Registrar has, given the terms of s 66(1)(c), read with s 66(2) of the Act, the capacity to seek remedies in relation to compliance and non-compliance with an organisation’s rules.

29      The respondent seeks a waiver of its Rules for a second time, concerning the timing of elections for officeholders within the organization. In my view, given her statutory responsibilities, the Registrar’s direct interest in the respondent’s observance of its Rules, in the context of the present application, is self-evident. The specific circumstances of compliance on the current facts, is however, as noted below, the subject of separate proceedings in PRES 7 of 2022, in relation to which programming directions have been made. However, as it is apparent that leave to intervene in these proceedings by the Registrar is sought for the sole purpose of seeking the additional order referred to above, whether the Commission’s broad discretion to grant leave should be exercised in these circumstances, requires consideration of the terms of the order sought and its possible impact; those sought to be covered by it; their legitimate interest in terms of being heard; and whether these matters can be ventilated at a later time, to enable fulsome argument and consideration, without unduly delaying the present matter.

30      For the following reasons, now having had some opportunity to consider the issues arising, and the parties’ submissions, there is force in the respondent’s contentions that I should not exercise my broad discretion at this stage of the proceedings. I accept the respondent’s submissions that the proposed order sought in the present context is a novel one. In the limited time available to me, I have not been able to identify a similar order having been made in proceedings of this kind. That is not to say, given the breadth of the Chief Commissioner’s powers under s 66 of the Act, such an order could not be made. However, given the scope of the powers and responsibilities of the respondent’s Council under Rule 11 ‑ Powers of the Council of the respondent’s Rules, some caution would need to be exercised in imposing a restraint of the kind sought, lest it have unintended consequences to the detriment of members of the respondent.

31      Furthermore, given the breadth of the additional order sought, for the reasons identified by the respondent, natural justice requires that the present members of the Council who would be affected by the order be given due notice of it, and be provided a reasonable opportunity to respond. I am concerned that should such an order be made in the context of these proceedings, which have been brought on an urgent basis to enable the respondent’s election timetable to commence, then the legitimate interests of some members of the Council, and in turn the respondent’s members, may be adversely affected.

32      Relevant too, is my view that, having considered the matter further, there appears no good reason why the order sought on the intervention application could not be the subject of a separate application under s 66(1)(c) of the Act on the Registrar’s own motion, or at the behest of a member of the respondent. I also must take into consideration whether the grant of the intervention in the present circumstances may, as with the application by Ms Fenn, lead to a delay in these proceedings being concluded, which may be adverse to the interests of the respondent’s members.

33      For these brief reasons, the Registrar’s intervention application is refused.

Application under s 66

34      As to the orders sought by the parties, s 66(2) of the Act confers a broad power on the Chief Commissioner to make such orders as the Chief Commissioner considers appropriate in relation to the rules of an organisation, their observance or non‑observance or the manner of their observance, either generally or in a particular case. Section 66 of the Act must be applied consistently with the objects of the Act in s 6, in particular s 6(f), which encourages the democratic control of registered organisations and the full participation by members of registered organisations in the affairs of the organisation. A crucial means by which this object of the Act is achieved is the conduct by registered organisations of free, fair, and timely elections for officeholders to represent the interests of members.

35      I have some concerns regarding the delay in the request by the Secretary of the respondent to Ms Bastian for an election to be held under s 69 of the Act, where, as noted above, this is the second occasion on which orders have been sought of the present kind. However, as there are separate proceedings on foot commenced by the Registrar in relation to this issue, and the alleged non‑compliance by the respondent with its Rules, I say nothing further about that matter for present purposes.

36      It is important that the election for office bearers in the respondent take place as soon as possible. Whilst the application filed by the applicant sought that the time within which the election be conducted under rule 20 of the respondent’s Rules be extended to 30 September 2022, I will make an order in the following terms:

(a) That the observance of the requirement in rule 20 of the respondent’s Rules to hold an election for office bearers between 1 July and 31 August 2022 be waived;

(b) Until the Returning Officer has declared the result of the election, those officers holding office due for election between 1 July and 31 August 2022, the subject of Rule 20 - Elections of the respondent’s Rules, are hereby deemed to continue to hold office and have authority to exercise the powers, duties, and functions of their respective offices;

(c) Unless this order is extended, varied, or revoked, it shall operate until 30 November 2022; and

(d) There be liberty to apply on short notice.

37      The effect of my order in these terms is that the election is to be conducted and concluded by 30 November 2022. However, my expectation is the election process will commence forthwith. A minute of proposed order now issues.

NOTE: Representation for the respondent amended by Corrigendum issued 4 August 2022 (2022 WAIRC 00330)