ORDER PURSUANT TO S.66

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00095

DELIVERED : Friday, 17 February 2023

FILE NO. : PRES 13 OF 2022

Applicant

AND

United Workers Union (WA)

Respondent

Catchwords : Industrial law (WA) - Application under s 66 - Application for waiver of union Rules - Abolition  of federal counterpart - Waiver necessary to allow officers to exercise powers, functions, and duties - Election required prior to issue of section 71 certificate - Rule to be waived - Order issued

Legislation : Industrial Arbitration (Union Elections) Regulations 1980 reg 3

Industrial Relations Act 1979 (WA) s 52A, s 66, s 66(1)(a), s 69, s 69(1), s 71, s 71(5)

Industrial Relations Commission Regulations 2005 reg 32A

Result : Order issued

Representation:

Counsel:

Applicant : In person

Respondent : Mr J Nicholas (of counsel)

Solicitors:

Respondent : Nicholas Legal

Case(s) referred to in reasons:

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

Reasons for Decision

The application

1         This is an application under s 66 of the Industrial Relations Act 1979 (WA).  The applicant is a member of the respondent and accordingly, has standing to bring this application under s 66(1)(a) of the Act. The parties have requested that these proceedings be dealt with on the papers. They will accordingly be determined on this basis for the purposes of reg 32A of the Industrial Relations Commission Regulations 2005.  The orders sought, as specified in the application under s 66(2), are as follows:

1. That the observance of the requirement in rule 13.1 of the respondent’s Rules to hold Branch elections quadrennially be waived;

2. There be an election under Rule 13 of the Respondent’s Rules;

3. Despite rule 13.28 of the Respondent’s Rules, successful candidates take office immediately upon the Returning Officer declares the result of the election;

4. Until the Returning Officer has declared the result of the election, those officers holding office immediately prior to 11 November 2019, are hereby deemed to continue to hold office and have authority to exercise the powers, duties, and functions of their respective offices;

5. Unless order 4 is extended, varied, or revoked, it shall operate until 31 March 2023; and

6. There be liberty to apply on short notice.

Background

2         Since about 2001, the respondent’s offices were occupied by persons holding the corresponding office in the respondent’s counterpart federal body, in accordance with a certificate issued under s 71(5) of the Act.   This scheme was given effect to by rule 29 – Counterpart Federal Body, of the respondent’s Rules.  Changes occurred in late 2019 by which the United Workers Union, at the federal level, changed its organisational structure to operate on a centralised basis.  All of its State based structures and offices were abolished.  As a consequence of this, the s 71 certificate and the operation and effect of rule 29 of the respondent’s Rules, have been rendered nugatory. This is because there are no longer any ‘corresponding offices’ between the respondent and its counterpart federal body, upon which basis the s 71 certificate was granted.

3         It was the intention of the respondent to seek a further s 71 certificate, but it could not do so until amendments made to the Act in ss 52A and 71 came into effect on 20 June 2022.  These provisions enable a State organisation to seek a declaration from the Commission Court Session that a related federal organisation, which does not have a Western Australian branch, may still be declared as a counterpart federal body.

4         These changes have had consequences for elections to be conducted within the respondent.  By rule 13.1 of the respondent’s Rules, branch elections are required to be held on a quadrennial basis according to a timetable which is determined by the returning officer in consultation with the Branch Executive.  The last such election took place in 2018 and accordingly, the next election was required to occur in 2022.   It is the intention of the respondent to request the Registrar under s 69(1) of the Act, to conduct an election.  Furthermore, by rule 13.28, those candidates elected at an election are required to take office on 3 July in each election year, following the declaration of the election result and hold office for a period not exceeding four years.  Given the terms of a rule 13.1, a request under s 69 of the Act was required to be made prior to 3 July 2022, to meet the requirements of reg 3 of the Industrial Arbitration (Union Elections) Regulations 1980.  Accordingly, the orders sought will enable the holding of an election for the respondent in accordance with rule 13 of its Rules.

The evidence

5         The above background was the subject of affidavit evidence of the applicant.  The applicant referred to the situation in effect since 2001, that the offices of the respondent have been held by persons holding the corresponding office in its counterpart federal body in accordance with the s 71 certificate and rule 29 of the Rules.  Whilst the s 71 certificate referred to the respondent as the Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australia Branch, there have been changes of name to the organisation. Prior to 11 November 2019, the respondent was known United Voice.  On 11 November 2019, an amalgamation took place at the federal level between United Voice and the National Union of Workers, which then became the United Workers Union.

6         The effect of the amalgamation was that the National Union of Workers was deregistered and United Voice became the principal organisation.  The Western Australian branch of United Voice and all its offices were abolished on and from the amalgamation day. From that time, the applicant testified that the United Workers Union commenced operating as a centralised national organisation with no State based structures. This led to the respondent’s counterpart federal body being abolished. 

7         The applicant referred to an order of the Commission in Court Session made in 2020, changing the name of the Union from United Voice to United Workers Union, effective on 3 December 2020: [2020] WAIRC 00963; (2020) 100 WAIG 1519.

8         The applicant gave evidence in relation to the last election, which occurred in the counterpart federal body, in 2018.  He referred to the requirements of rule 13.1 and 13.28 of the respondent’s Rules and that the respondent is now unable to conduct an election, due to the restructuring of the federal organisation and abolition of the counterpart federal body.  The applicant also referred to the fact that an election under the Rules is necessary, prior to the seeking of a new s 71 certificate in accordance with ss 52A and 71 of the Act.

9         Accordingly, the applicant testified that the orders sought are to firstly, enable an election to be held in accordance with the respondent’s Rules in the first quarter of 2023.  Secondly, to enable those office holders holding office under the s 71 certificate prior to the amalgamation to continue to hold office and be able to exercise their powers, functions and duties, until the declaration of an election result.

10      I find accordingly.

Consideration

11      Having regard to the evidence before me, and the grounds of the application, I am satisfied that I have the requisite power under s 66(2) of the Act to make the orders sought, and that the orders should be made.  Whilst to an extent, they refer to past events, they have a connection to the current and future activities of the respondent and the observance of its Rules: Stacey v Civil Service Association of Western Australia [2007] WAIRC 00568; (2007) 87 WAIG 1229 per Ritter AP at [273].  They will enable the respondent to hold elections in accordance with rule 13 of its Rules and to operative effectively as a registered organisation, in accordance with the terms of the Act.  The orders will operate until 31 May 2023, unless otherwise varied or revoked.  A minute of proposed order now issues.