APPLICATION PURSUANT TO S.62(2) - ALTERATION OF REGISTERED RULES AND NAME

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00091

DELIVERED : Friday, 17 February 2023

FILE NO. : CICS 24 OF 2022

Applicant

AND

(Not Applicable)

Respondent

Catchwords : Industrial Law (WA) - Application pursuant to s 62(2) - Alteration of registered rules - Jurisdiction of Commission in Court Session to exercise powers of the Registrar - Statutory powers of the Registrar and Commission in Court Session - Orders issued - Application granted in part

Legislation : Industrial Relations Act 1979 (WA) s 55, s 55(4)(b), s 55(4)(c), s 55(4)(d), s 55(4)(e), s 56, s 56(1), s 58, s 59(2) s 62(2), s 71, s 71(2), s 71(5)

Industrial Relations Regulations 2005 (WA) reg 69, reg 69(2) 

Result : Application granted in part

Representation:

Counsel:

Applicant : Ms F Stanton of counsel and with her Mr D Stojanoski of counsel

Solicitors:

Applicant : Slater and Gordon

Case(s) referred to in reasons:

Joshua Dekuyer v The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch [2022] WAIRC 00697; (2022) 102 WAIG 1313

Reasons for Decision

COMMISSION IN COURT SESSION:

Background

1         This an application under s 62(2) of the Industrial Relations Act 1979 (WA) to alter the Rules of the applicant that relate to its name, qualification of persons for membership and matters referred to in ss 71(2) and 71(5) of the Act.  Section 62(2) of the Act is subject to the procedural requirements of ss 55, 56 and 58(3) with any necessary modifications.  Those provisions of the Act are applicable to the registration of an organisation under the Act and for present purposes, deal with procedural requirements for the alteration of an organisation’s rules. 

2         The background in relation to the present application, and a related application in CICS 25 of 2022 was set out in proceedings under s 66 of the Act in application PRES 9 of 2022: Joshua Dekuyer v The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch [2022] WAIRC 00697; (2022) 102 WAIG 1313. The relevant background, for the purposes of this application, was outlined by the Chief Commissioner at [2] to [5] as follows:

2 Briefly, the background to the application relates to changes to the branch structure of the federally registered Australian Rail, Tram and Bus Industry Union, an organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth). The ARTBIU, under its rules, has two branches in Western Australia, the West Australian Branch and the West Australian PTA Branch. Membership of either branch is dependent on the nature of the work performed by the member concerned.

3 As a result of proceedings in the Fair Work Commission, determined on 3 March 2022, the rules of the ARTBIU were altered to merge the two existing West Australian branches into a single branch, to be known as the Western Australia Branch. A new Part XVII has been inserted into the rules of the ARTBIU to reflect this change in structure. The merger will take effect on 1 January 2023.

4 Because of the above, the respondent intends to make an application to the Commission to amend its registered rules to recognise the merger. As a part of this process, it intends to apply to amend its name to become the ‘Australian Rail, Tram and Bus Industry Union of Employees, Western Australian Branch’, to come into effect on 1 January 2023, in accordance with transitional rules contained within the new Part XVII of the amended ARTBIU rules. Transitional provisions provide that until 1 January 2023, the West Australian PTA Branch and the West Australian Branch, will continue to operate.

5 As a result of the federal branch merger, members of the former two branches will become members of the new federal branch effective on 1 January 2023. Additionally, elections for office bearers of the new, merged ARTBIU Western Australia Branch, are presently being undertaken and such office holders will take office on the commencement of the new merged branch.

Grounds of application

3         The grounds in support of the present application are set out in the application and they are relevantly in the following terms:

1. This application has been made by The Australian Rail, Tram and Bus Industry Union of Employees (State Union) seeking to change the rules of the State Union (Rules).

2. The Rules of the State Union have been registered under s 58 of the Industrial Relations Act 1979 (WA) (IR Act).

3. By s 62 of the IR Act, this application seeks certification for alterations to the Rules insofar as the proposed alterations affect the name of the State Union, the eligibility for membership, and the powers and responsibilities for the positions of office.

4. In summary, the State Union wishes to alter the Rules because –

a. The State Union has aligned its operation with the federally registered Australian Rail, Tram and Bus Industry Union (Federal Union).

b. The Federal Union has successfully applied to change its rules which are registered at the Fair Work Commission.

c. The changes that have been approved for the rules of the Federal Union are to take effect from 1 January 2023.

d. The State Union must now alter the Rules to maintain consistency with the operation of the Federal Union; and

e. The proposed alterations to the Rules will need to be in effect as from 1 January 2023.

…

Proposed alterations to the Rules

4         The proposed alterations to the applicant’s Rules the subject of this application were extensive.  Those specifically the subject of s 62(2) of the Act included a change to the name of the applicant in rule 1, changes to eligibility for membership in rule 3, and changes to rule 48, dealing with office bearers being those holding office in the applicant’s counterpart federal body.  Many other proposed changes however, covering changes to rules 5, 6, 8, 9, 10, 11, 12, 14, 15, 16, 17, 19, 23-27, 32, 33, 38-42, 44-46 and new rules 6A and 7C, are problematic.  They are not proposed rule alterations falling within s 62(2).

5         Whilst acknowledging the limitations on the Commission in Court Session’s jurisdiction under s 62(2) of the Act, it was submitted that the applicant had adopted a cautious approach, in ensuring that any proposed alterations relating to its name, qualifications of persons for membership, and matters related to ss 71(2) and 71(5) of the Act, in the broadest sense, were the subject of the proceedings.   On the Commission raising with counsel for the applicant whether many of the proposed alterations fell within the Commission in Court Session’s jurisdiction,  it was further contended that as to the relative powers of both the Registrar and the Commission in Court Session concerning alteration to the rules of an organisation, the Commission in Court Session had a general residual jurisdiction to deal with any matter the Registrar could deal with. 

6         Section 62 of the Act is in the following terms:

62. Altering registered rules

(1) Upon and after the registration of rules in accordance with section 58(1), an alteration to those rules by the organisation concerned is not effective until the Registrar has given to the organisation a certificate that the alteration has been registered.

(2) The Registrar must not register any alteration to the rules of an organisation that relates to its name, qualifications of persons for membership, or a matter referred to in section 71(2) or (5) unless so authorised by the Commission in Court Session.

(3) Subject to section 71(8), the Registrar must not register an alteration to any rule unless, after consulting with the Chief Commissioner, the Registrar is satisfied that —

(a) the application has been authorised in accordance with the rules of the organisation; and

(b) reasonable steps have been taken to adequately inform the members —

(i) of the proposal for alteration and the reasons for the alteration; and

(ii) that the members or any of them may object to the proposed alteration by forwarding a written objection to the Registrar,

and, having regard to the structure of the organisation, and any other relevant circumstance, the members have been afforded a reasonable opportunity to object to the alteration; and

(c) less than 5% of the members of the organisation has objected to the proposed alteration or a majority of the members who voted in a ballot conducted in a manner approved by the Registrar has authorised or approved the proposed alteration.

(4) Sections 55, 56 and 58(3) apply, with such modifications as are necessary, to and in relation to an application by an organisation for alteration of a rule of a kind referred to in subsection (2).

7         For the following reasons, that we can relatively shortly state, we are not persuaded by the argument that the Commission in Court Session may exercise powers of the Registrar generally, in relation to the alteration of organisations’ registered rules, in the exercise of a general residual jurisdiction and power.

8         The Registrar has the statutory power under the Act to register an organisation and to register alterations to the rules of an organisation.  The role of the Commission in Court Session under s 54 of the Act in relation to the registration of an organisation and under s 62 of the Act in relation to the alteration of a registered organisation’s rules, is to give ‘authority’ to the Registrar to so act.  However, it is plain from the terms of the statute that the Parliament has conferred on the Registrar the exercise of the power to ‘register’ an organisation or an alteration to an organisation’s rules, and to consequentially issue a certificate to this effect.

9         A similar scheme to that applying to the registration of an organisation and to the alteration of its rules exists under s 71 of the Act.  Section 71 deals with the rules of State and federal organisations in relation to their eligibility for membership and their respective offices.  It enables those persons elected to office in a federal organisation, which is a counterpart federal body of a State organisation, to be deemed to be elected to the corresponding offices in the State organisation.  It is clear from the terms of the Act that the jurisdiction and power of the Commission in Court Session is to form an opinion in relation to the matters prescribed by s 71 of the Act, and to declare accordingly.  Once such an opinion is formed and a declaration is made by the Commission in Court Session, the Registrar is empowered to issue a certificate under s 71, giving effect to the tenor of the statutory provisions.

10      Likewise, in relation to the management and control of funds and/or assets of a State organisation vis‑à‑vis its counterpart federal body, a similar scheme exits under the Act.  This is set out in ss 71(6) to (10).  In relation to these matters, a State organisation may enter into an agreement with the organisation’s counterpart federal body concerning the control of funds and/or property, which is reflected in a memorandum of agreement.  The jurisdiction of the Commission in Court Session extends to approving such a memorandum of agreement and when it does so, the Registrar then must register such a memorandum and issue the State organisation with a certificate.

11      The combined effect of these various provisions of the Act is a plain indication that the Parliament intended that the Commission in Court Session and the Registrar have separate and distinct responsibilities and powers in relation to registered organisation matters.  The principal responsibility for registration of alterations to rules rests with the Registrar, subject to the particular functions and powers exercisable by the Commission in Court Session, set out above.   We do not consider that the statutory scheme, therefore, confers a general residual jurisdiction and power on the Commission in Court Session, to authorise  any or all alterations to the rules of an organisation, apart from those specifically set out in s 62(2).  In our view, there would need to be plain words to this effect in s 62 of the Act if this was the intention of Parliament.

12      To an extent, whilst not decisive, this approach is confirmed by the terms of reg 69 of the Industrial Relations Commission Regulations 2005.  This requires limited rule alterations as to an organisation’s name, qualification for membership or the area of the State within which the organisation operates, to be the subject of an application to the Commission in Court Session, in the approved form. On the other hand, an application to alter the rules of an organisation more generally, not relating to those matters, is to be made to the Registrar in the approved form.

13      Acknowledging regrettable inconvenience for the applicant, it is for these reasons that the proposed alterations to the applicant’s Rules, other than those that we now set out, will need to be the subject of a separate application to the Registrar under reg 69(2).  We accept that this may cause some delay for the applicant.  However, as the material before the Commission in Court Session in relation to meeting the procedural requirements of the Act for authorisation of the alteration of the Rules is broadly the same as that necessary for registration by the Registrar, it seems there may be little or no further work required to be done to incorporate that material into an application to the Registrar.

14      Those proposed alterations to the Rules which are within the Commission in Court Session’s jurisdiction under s 62(2) are as follows:

Existing Rule 1

1. Name Of Union

The Union shall be called “The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch”.

Proposed Rule 1

1. Name Of Union

1.1 The Union shall be called “The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch”.

1.2 Provided that on and from 1 January 2023, the Union shall be called the "Australian Rail, Tram and Bus Industry Union of Employees, Western Australia Branch".

Existing Rule 3

3. Eligibility For Membership

3.1 Any person employed in the Public Transport Authority of Western Australia who is an employee within the meaning of the IRA may be admitted as a member.

3.2 No person shall be a member of the Union except in the capacity of an Honorary Member, who is not an employee within the meaning of the IRA.

3.3 Notwithstanding the above provision, a person who is admitted to membership of the Union pursuant to these provisions and who subsequently is elected as an Office Bearer of the Union or becomes an employee of the Union, shall be entitled to remain as a member while holding such office or engaged in such employment.

Proposed Rule 3

3. Eligibility For Membership

3.1 Any person employed in the Public Transport Authority of Western Australia who is an employee within the meaning of the IRA may be admitted as a member.

3.2 No person shall be a member of the Union except in the capacity of an Honorary Member, who is not an employee within the meaning of the IRA.

3.3 Notwithstanding the above provision, a person who is admitted to membership of the Union pursuant to these provisions and who subsequently is elected as an Office Bearer of the Union or becomes an employee of the Union, shall be entitled to remain as a member while holding such office or engaged in such employment.

3.4 Provided that on and from 1 January 2023, the following shall also be eligible to become members of the Union:-

(i) permanent or casual employees, including persons training for employment, in the tramway services of Australia and  motor omnibus services and trolley bus services and light rail services run  in conjunction therewith or controlled thereby, and also employees of the Metropolitan (Perth) Passenger Transport Trust and any Commonwealth, State or Local Government, in tramway or motor omnibus or trolley bus or light rail services together with such other persons whether employed in the industry or not who at any time when training for employment or working in the tramway, trolley bus, motor omnibus or light rail services have been admitted as members and who continue that membership.

provided nothing in this paragraph (i) shall permit the Union to enrol as members persons employed in Perth as clerks, ticket examiners, depot starters, assistant depot starters or inspectors; and

(ii) an unlimited number of employees employed in or in connection with the Railway and Tramway industry or industries governed and controlled directly by the Governments of the Commonwealth of Australia and the State of Western Australia, or indirectly by such Governments, or any of them through Commissioners, Boards, Managers, Directors, or other means, and also all railway systems in the Commonwealth of Australia owned and controlled by private persons or companies, and the Secretary and/or any employee of the Railway Institute established by or under the direction or with the approval of the Commissioners, Boards, Managers, Directors or other controlling authorities of any of the railway systems in the Commonwealth of Australia; and

(iii) (a) an unlimited number of railway employees (adult or junior, male or female) who become and remain members of the Union and persons who while being members of the Union retire from the railway industry upon the ground of ill health or having reached retiring age and whose membership has not been terminated pursuant to these Rules;

(b) for the purposes of sub-paragraph (ii)(a) above, "Employee" or "Railway Employee" means any officer or employee employed by any Railway Department and also any officer or employee employed in any railway system in the Commonwealth owned or controlled by private persons or corporations other than officers in a supervisory position employed at an annual rate of salary and shall include the Secretary or any employee of any Railway Institute established by or under the direction or with the approval of the Railway Commissioner or other controlling authority of any railway system in the Commonwealth and "Railway industry" has a corresponding meaning; and

(iv) an unlimited number of persons employed in the Railway Train Running Industry  including Locomotive Drivers, Electric Train Drivers, Firemen, Electric Helpers, Chargemen and Cleaners, Packers and Trimmers, Wash-out Men, Wash-out Men's Assistants, Motor Drivers and any other worker engaged in and about the working or management of or incidental to any Steam Locomotive or Motor driven by electricity or other power used on any Railway;

provided that, except as provided in rules 3.6 and 11.3, a person shall only be eligible to remain as a member while he/she continues to meet one or other of the eligibility criteria specified in the foregoing paragraphs.

3.5 Each of the paragraphs numbered (i) to (iv) in rule 3.4 shall be interpreted separately. Accordingly, each paragraph shall neither limit nor be limited by the provisions of any other paragraph.

3.6 Notwithstanding the proviso to rule 3.4, a person who is admitted to membership pursuant to the provisions of rule 9 and who subsequently is elected as a paid Office Bearer of the Union or becomes an employee of the Union, shall be entitled to remain as a member while holding such Office or engaged in such employment.

…

Existing Heading VIII

PART VIII - OFFICE BEARERS TO BE PERSONS HOLDING OFFICE IN PTA BRANCH

Proposed Heading VIII

PART VIII - OFFICE BEARERS TO BE PERSONS HOLDING OFFICE IN RTBU

Existing Rule 48

48.  PTA Branch of RTBU

48.1 Each Office of the Union from such time as the Executive may determine shall be held by the person who in accordance with the rules of the PTA Branch of the RTBU holds the corresponding office in that body.

48.2 Any determination by the Executive in accordance with rule 48.1 shall be notified to the Registrar and from the date specified in the notification all Offices in the Union will be filled in accordance with rule 48.1.

Proposed Rule 48

48. Branches Of RTBU

48.1 Each Office of the Union from such time as the Executive may determine shall be held by the person who in accordance with the rules of the PTA Branch of the RTBU holds the corresponding office in that body.

48.2 Any determination by the Executive in accordance with rule 48.1 shall be notified to the Registrar and from the date specified in the notification all Offices in the Union will be filled in accordance with rule 48.1.

48.3 Provided that between 2 and 7 January 2023, it shall be determined that each Office of the Union shall be held by the person who in accordance with the rules of the WA Branch of the RTBU holds the corresponding office in that body.

48.4 Any determination by the Council in accordance with rule 48.3 shall be notified to the Registrar and from the date specified in the notification all Offices in the Union will be filled in accordance with rule 48.3.

48.5 Provided that for the purposes of the determination under rule 48.3 between 2 and 7 January 2023, there shall be a transitional Council of the Union comprised of those persons constituting the Branch Council of the WA Branch as at the time of the determination. The powers of the transitional Council are limited to that determination under rule 48.3 and upon such a determination being made, the transitional Council shall cease operation for all purposes under the Rules.

15      It is necessary to consider the applicant’s Rules in relation to alteration of the Rules and whether it has been complied with.  This is dealt with in rule 45 which is in the following terms:

45. Amendment to the Rules

45.1 Subject to rule 45.3 of the Rules, the Executive shall have power to rescind, alter or amend these Rules in accordance with the procedure set out in rule 45.2 of the Rules.

45.2 Any rescission, alteration or amendment to these Rules shall be of no affect unless it complies with the following provisions:

45.2.1 The Secretary shall forward all members of the Executive written notice of the proposed rescission, alteration or amendment of the Rules which sets out the proposal in full;

45.2.2 Such notice shall specify the time and place of the Executive meeting which is to consider the proposal for the rescission, alteration or amendment of the Rules, which meeting shall be not less than one month after the date of the notice;

45.2.3 The resolution meets the requirements of these Rules for carriage of a resolution at a meeting of the Executive.

45.3 Any rescission, alteration or amendment to any provisions of these Rules shall be of no effect unless such rescission, alteration or amendment of the Rules is resolved to by the Executive.

45.4 Notwithstanding the foregoing in rule 45 of the Rules, the Executive shall also comply with any requirements as to the alteration of the Rules required by section 62 IRA that include but are not necessarily limited to:

45.4.1 Notification to all members of the proposal for the alteration of the Rules and the reasons therefore along with a copy of the proposed alterations to the Rules;

45.4.2 Notification to all members that any member may object to the proposed alteration of the Rules by forwarding a written objection, within 21 days of notification, to the Registrar.

45.5 No alteration of the Rules shall be effective until the Registrar has given to the Union a certificate that the alteration to the Rules has been registered.

16      The applicant, in a statutory declaration of its secretary Mr Dekuyer, set out the steps taken by the applicant to convene a meeting of the applicant’s Executive and the process adopted to inform members of the applicant in relation to the proposed alterations.  In summary, the evidence of Mr Dekuyer in relation to these matters is as follows:

(a) In accordance with rule 45.2.1 of the Rules, Mr Dekuyer, on 12 August 2022, sent a letter to all members of the Executive by email, which contained written notice of the proposed alterations to the Rules.  Attached to the letter, was a copy of the Rules marked up, indicating the proposed alterations in full.  A clean copy of the proposed Rules was also attached, along with a copy of a document entitled ‘Reasons for the Proposed Alterations to the Rules’;

(b) The letter specified that the meeting of the Executive to consider the proposed alterations to the Rules would be convened on 21 September 2022;

(c) A meeting of the Executive duly took place on 21 September 2022, at which meeting the quorum requirements for a meeting of the Executive of the applicant were met.  At the meeting, the Executive unanimously endorsed the proposed alterations to the Rules and Mr Dekuyer’s declaration annexed a copy of the draft minutes of the meeting to this effect.  There was no demur from the content of the draft minutes, when they were subsequently circulated to members of the Executive;

(d) The Executive meeting resolution authorised the applicant to make an application to the Commission seeking the authorisation of the alterations to the Rules;

(e) The day after the meeting of the Executive, Mr Dekuyer sent an email to all the applicant’s current members to notify them of the proposed alterations to the Rules and included a link to a copy of the proposed alterations in marked up format.  Additionally, the ‘Reasons for the Proposed Alterations to the Rules’ document was also attached as a link accessible by members.  In relation to those members not having an email address, Mr Dekuyer sent a letter to all such members enclosing the same material that he had sent to members by email;

(f) In both the email and letter to members Mr Dekuyer stated that any member who had an objection to the proposed alterations to the Rules would need to provide such objection within 21 days, and the process of making an objection was outlined;

(g) In addition, Mr Dekuyer put a notice on the applicant’s website containing the same information that was sent to members by email and letter; and

(h) No objections have been raised by members of the applicant to the proposed alterations to the Rules and Mr Dekuyer declared he was unaware of any such objections being notified to the Registrar.

Findings and conclusions

17      On the basis of the above evidence, we are satisfied, and we find that the proposed alterations to the applicant’s Rules have been authorised in accordance with its Rules. No objection has been made to the proposed alterations to the Rules, nor to the proposed change of name of the applicant, from members of the applicant, who have been provided with a reasonable opportunity to do so.  Accordingly, we are satisfied that ss 55(4)(b), 55(4)(c), and 55(4)(d) of the Act have been complied with.  Also, as there is in this application, a proposed alteration to the eligibility for membership rule of the applicant, no other registered organisation is able to enrol as members, those persons who will be eligible to be members of the applicant, under the proposed altered eligibility for membership rule.  Thus, we are satisfied that s 55(5) is also complied with.

18      As to ss 55(4)(e) and 56(1) of the Act, these matters concern elections for office and procedural issues in connection with elections.  The Rules of the applicant provide for these matters and no issue of compliance arises with these statutory provisions. Additionally, as to ss 59(1) and 59(2), dealing with the proposed name of the applicant, it is not the same, nor does it resemble, the name of any other registered organisation.  The proposed name also clearly indicates that the organisation is an organisation of employees. Thus, no issues arise with these statutory requirements.

19      For these reasons, we would make an order authorising the Registrar to register the alteration to rules 1, 3 and 48 of the applicant’s Rules, as published in the Western Australian Industrial Gazette on 14 December 2022: [2022] WAIRC 00843; (2022) 102 WAIG 1591.  Otherwise, the application is dismissed.