ORDER PURSUANT TO S.66

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00891

DELIVERED : MONday, 13 november 2023

FILE NO. : PRES 2 OF 2023, PRES 3 OF 2023, PRES 4 OF 2023, PRES 5 OF 2023, PRES 6 OF 2023, PRES 8 OF 2023, PRES 9 OF 2023, PRES 11 OF 2023, PRES 12 OF 2023, PRES 10 OF 2023

Applicants

AND

Australian Nursing Federation Industrial Union Workers Perth

Respondent

Catchwords : Industrial law (WA) - Application to dismiss under s 27(1)(a) of the Industrial Relations Act 1979 (WA) applications under s 66 of the Act - Relevant principles considered and applied - Number of claims require consideration of factual issues - Some involve interpretation of union rules - One claim without merit - Claims to be heard and determined on the merits - Application otherwise dismissed

Legislation : Industrial Relations Act 1979 (WA)
Fair Work (Registered Organisations) Act 2009 (Cth)  

Result : Order issued

Representation:

Counsel:

Applicants : Mr D Stojanoski of counsel and with him Mr C Fordham of counsel

Respondent : Ms B Burke of counsel

Solicitors:

Applicants : Slater and Gordon

Respondent : Burke Legal Services

Case(s) referred to in reasons:

Fenn v The Australian Nursing Federation, Industrial Union of Workers Perth and Ors 2023 WAIRC 00806; (2023) 103 WAIG 1793

Harry Arnott v Western Australian Police Union of Workers [2022] WAIRC 00208; (2022) 102 WAIG 369

Michael Barrie Clancy v The Australian Nursing Federation Industrial Union of Workers Perth [2022] WAIRC 00325; (2022) 102 WAIG 1235

Registrar WAIRC v Australian Nursing Federation Industrial Union Workers Perth [2022] WAIRC 00681; (2022) 102 WAIG 1315; [2022] WAIRC 00684; (2022) 102 WAIG 1327

Robert McJannett v Construction Forestry Mining and Energy Union of Workers [2012] WAIRC 00935; (2012) 92 WAIG 1889

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

Reasons for Decision

The claims and procedural history

1         Ten applications are before me under s 66 of the Industrial Relations Act 1979 (WA).  The applicants are Romina Aida Raschilla, Amanda de Feularde, Kim Maree Luby, Christian Pansini, Anne Lorna Best, Kammy Rachel Cassey, Sylvia Marlies Demer, Stewart John Gill, Terry Jongen and Lee Ernest Collison.  All are members of the respondent.   I am satisfied that they have standing to bring the proceedings under s 66(1)(a) of the Act.

2         The applications as originally filed made unspecified allegations of non-compliance with the Rules of the respondent.  As a result of a directions hearing on 26 April 2023, orders were made that given the applications are in identical terms, they be joined and be heard and determined together.  Additionally, directions were made for the applicants to file further and better particulars, specifying with particularity their claims as to the observance or non-observance of the respondent’s Rules; specifying those rules of the respondent said to be contrary to s 66(2)(a) of the Act; and that the respondent file an amended response.  The applicants filed further and better particulars of their claims on 15 May 2023.  On 6 June 2023, the respondent filed an amended response, contesting the applicants’ claims.

3         A further directions hearing was listed on 21 June 2023.  The respondent filed written submissions on 20 June 2023, and an application to the effect that the applications should be dismissed under s 27(1)(a) of the Act.  The respondent contended that the applications should be dismissed under either or all ss 27(1)(a)(i), (ii) and (iv) of the Act.  The respondent maintained that the applications, notwithstanding the further and better particulars, amounted to a ‘set of grievances from the applicants to the effect of being a complaint as to how the ANF is being run’ (see respondent’s written submissions at [9]).  It was submitted by the respondent that s 66 of the Act does not provide a vehicle for the airing of such grievances; rather, it is, for present purposes, to provide relief regarding the observance or non-observance of an organisation’s rules, the manner of their observance, or remedies where rules may be contrary to s 66(2) of the Act.

4         Considering the above matters, I made further directions on 21 June 2023 enabling the applicants to file submissions in response to the s 27(1)(a) application.  An opportunity was also given for the applicants to file amended claims, and for the respondent to file further submissions in response to any amended claims and a response to the applicants’ submissions on the s 27(1)(a) application.

5         On 28 July 2023, the applicants filed proposed amendments to their claims, in which they advanced largely new claims.  The six proposed amended claims were:

Claim 1

14. The Respondent failed to observe its rules by allowing persons to be members of the Respondent organisation when those persons were ineligible to be members, the particulars of which are:

a. The incumbent Secretary, Janet Reah was ineligible to be a member of the Respondent organisation before she was elected Secretary;

b. Prior to becoming the Secretary, Ms Reah was in various paid positions as an employee of the Respondent employed as the ANF COVID Enquiries Support Team, the ANF WA Aged Care Campaign Coordinator, and also as an Industrial Officer;

c. Ms Reah did not meet the eligibility criteria of the Respondent under rule 4(1)(b) of the Respondent’s rules because before being elected Secretary Ms Reah was eligible to [sic] a member of an organisation other than the Respondent;

d. Ms Reah was eligible to be a member of:

i. The Australian Municipal, Administrative, Clerical and Services Union (commonly referred to as the Australian Services Union or ‘ASU’)3; and or

ii. The Association of Professional Engineers, Scientists and Managers Australia (commonly referred to as Professionals Australia or ‘APESMA’)4; e.              Ms Reah was not entitled to be a member of the Respondent under any other rule of the Respondent’s rules.

Claim 2

15. The Respondent failed to observe its rules by allowing persons that did not qualify for office to nominate and hold office, the particulars of which are:

a. Pursuant to rule 19(2) the incumbent Secretary Janet Reah was ineligible to be a candidate for election to the office of Secretary because she was not a financial member, or was ineligible to be a financial member preceding the date of nomination for office.

Claim 3

16. The Respondent failed to observe its rules by allowing persons to be members of the Respondent organisation when those persons were ineligible to be members, the particulars of which are:

a. The following persons that are currently on the register of members with the Respondent did not meet any eligibility criteria of the Respondent under rule 4:

i. Peter Fanning, member no. 139905;

ii. Darrell Esparon, member no. 134382;

iii. Daniel Bernhard, member no. 123394;

iv. Shane Taylor, member no. 123497;

v. Madhu Achuthan, member no. 123679;

vi. Luciano Del Pio, member no. 123936;

vii. Glenys Castle, member no. 128176;

viii. Nolvia Rivas-Lemus, member no. 129563;

ix. Geoffrey Ryan, member no. 124688.

b. They are not registered or entitled to be registered with the Nurses of Board of WA, which is today the Western Australian Board of the Nursing and Midwifery Board of Australia, and [sic] arm of the Australian Heath Practitioner Regulation Agency more commonly referred to as AHPRA: Rule 4(1)(a)(i).

c. They are not nurses in training: Rule 4(1)(a)(ii).

d. They are not in paid employment for the Respondent: Rule 4(a)(b).

e. They are not honorary members: Rule 4(2).

Claim 4

17. The Respondent failed to observe an object of its rules under rule 3(1) in that it failed to promote and protect the interests of members, the particulars of which are as follows:

a. The Respondent did not completely obey Order 2 of the orders made by the Commission in The Registrar, Western Australian Industrial Relations Commission v The Australian Nursing Federation, Industrial Union of Workers Perth5.

b. The Requirement on the Respondent pursuant to Order 2 was “that the Respondent take all reasonable steps (including by distributing a copy of the herein reasons for decisions and declaration and orders) to notify its members of its failure to comply with rule 20 of its registered Rules.”

c. The Respondent sent an email to the members on 20 October 2022 with [sic] subject heading “ANF Election Results”. The email concerned and contained details about the election results and at the end of the body of the email it says, “please also find attached the decision of the WAIRC in relation to the timing of the election.” The emails [sic] says nothing further about the decision and orders.

Claim 5

18. The Respondent has failed to observe its requirement under rule 27 to hold Annual General Meetings, the particulars of which are [sic] follows:

1. No Annual General Meetings or any valid Annual General Meetings were held in 2020, 2021, and 2022.

Claim 6

19. The Respondent has failed to observe and act in accordance with rule 30(1), the particulars of which are as follows:

a. Rule 30(1) says that cheques drawn on the Respondent’s account shall be signed by any two of the President, Secretary, Senior Vice President and Vice Presidents.

b. At a meeting of the Council of the Respondent on 22 April 2022 the Respondent carried a motion to have persons other than those listed at rule 30(1) to be signatories.

c. Current Vice Presidents, Romina Raschilla and Terry Jongen (being Applicants in this proceeding) have not been authorised to be signatories to the Respondent’s account(s) for the purposes of being able to fulfil their duties under rule 30(1).

d. The Respondent is not drawing cheques but utilising electronic transfer, contrary to the requirement of the rule.

6         On 7 August 2023, I ordered that the proposed amended claims stand as the applicants’ claims under s 66 of the Act.  Given that the respondent maintained that the amended claims should be dismissed under s 27(1)(a), I also ordered that the respondent’s original application under s 27(1)(a) be taken to be the application to dismiss the applicants’ amended claims and the s 27(1)(a) application was listed for hearing.  In the interim, I also directed that the filing of any evidence in support of or in opposition to the s 27(1)(a) application be by way of affidavit.

Application to dismiss

Relevant principles

7         The approach to s 27(1)(a) of the Act is not controversial and is well settled.  As I observed in Harry Arnott v Western Australian Police Union of Workers [2022] WAIRC 00208; (2022) 102 WAIG 369 at [25] to [28], the s 27(1)(a) power is a broad power and is to be exercised with caution.  It is a power to be used sparingly and only in a clear case: Arnott at [38].  Additionally, in Robert McJannett v Construction Forestry Mining and Energy Union of Workers [2012] WAIRC 00935; (2012) 92 WAIG 1889, Smith AP (as she then was) commented on the power to summarily dismiss proceedings under s 27(1)(a) of the Act and observed at [116]:

Power to summarily dismiss

116. The test to be applied when considering an application to summarily dismiss a substantive application was recently considered by me in United Voice WA v Minister for Health [2012] WAIRC 319; (2012) 92 WAIG 585 (Fiona Stanley Hospital (No 2)) wherein I observed [65]:

Exceptional caution is required by courts and tribunals when exercising the power to summarily dismiss.  A claim should not be dismissed other than when it is clear there is no real question of fact or law to be tried:  General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87.  President Steytler in Talbot & Oliver (a firm) v Witcombe [2006] WASCA 87 summarised the applicable principles as follows:

[21] … An action should only be dismissed as frivolous or vexatious if it cannot possibly succeed.  Moreover, in deciding whether an action could possibly succeed, a court of first instance should be astute not to risk stifling the development of law by summarily disposing of actions in respect of which there is a reasonable possibility that it will be found in the development of the law, still embryonic, that a cause of action does lie: Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365 at 373.

[22] Similar principles apply in the case of an application to strike out a statement of claim as not disclosing a reasonable cause of action: Kimberley Downs Pty Ltd v State of Western Australia unreported; SCt of WA; Library No 6414; 25 August 1986 at 6–7.  In Dalgety Australia Ltd v Rubin unreported; FCt SCt of WA; Library No 5485; 24 August 1984, it was held that it is only in cases in which it can be seen from the outset that, however the facts be found, there is no basis for the legal conclusion contended for by the plaintiff that the pleading should be struck out.  It has also been held in this jurisdiction that, in a case in which an application for summary judgment is combined with an application to the Court's inherent jurisdiction and with an application under O 20 r 19(1)(a) to strike out a pleading upon the basis that it discloses no reasonable cause of action, the Court is not confined by the manner in which the plaintiff has formulated his or her case on the pleadings and may consider not only the undisputed facts but also facts which are in dispute: Bride v Peat Marwick Mitchell [1989] WAR 383 at 394; and see, generally, Seaman Civil Procedure Western Australia (Vol 1) at [16.0.1] and [20.19.6].

The contentions of the parties

8         As I have noted above, the respondent contended that the claims as filed, in the main, contain a set of grievances brought by a minority of the respondent’s Council members seeking to challenge legitimate decisions taken by that body in the exercise of democratic principles.  The respondent contended that most of the applicants’ claims lacked substance and were trivial. Furthermore, the respondent contended that the applications as filed sought to involve the Commission in the day-to-day management of the respondent and, in the main, the applicants are unsuccessful candidates for election for office in the respondent who have not obtained the support of its members.

9         As to Claim 1, it was submitted that the respondent has not failed to observe its rules by admitting persons ineligible to be members.  Specifically, the claim is directed to Ms Reah, the Secretary. The respondent contended that, in accordance with r 4(1)(a), Ms Reah met the eligibility criteria for membership in that she was an employee engaged in the profession or industry of nursing and was registered with the Nursing and Midwifery Board of Australia. 

10      As to the allegation that Ms Reah was not eligible to be a member of the respondent under r 4(1)(b), it was contended that because Ms Reah was eligible to be a member under r 4(1)(a), the former is irrelevant.  In the alternative, the respondent submitted that the organisations referred to by the applicants in their submissions, being the ASU and the APESMA, are not organisations registered under the Act and are not relevant to the current proceedings.

11      As to Claim 2, the respondent contended that Ms Reah was a financial member of the respondent at the material times and was also eligible to be the same.

12      Those persons set out at Claim 3 of the applicants’ claims are, on the respondent’s submissions, not members of the respondent and nor are they eligible to be members of the respondent.  It was submitted that the relevant persons are members of the Australian Nursing and Midwifery Federation, WA Branch, the federal organisation separate from the respondent. The respondent does not have a s 71 certificate in effect.

13      In relation to Claim 4, concerning the alleged failure to comply with my orders of September 2022 made in Registrar WAIRC v Australian Nursing Federation Industrial Union Workers Perth [2022] WAIRC 00681; (2022) 102 WAIG 1315; [2022] WAIRC 00684; (2022) 102 WAIG 1327, the respondent submitted that these matters were in issue in Fenn v The Australian Nursing Federation, Industrial Union Of Workers Perth and Ors 2023 WAIRC 00806; (2023) 103 WAIG 1793.  The claim amounts to an attempt to rehear in the current matter, the same issues dealt with in those proceedings, constituting an abuse of process.

14      As to Claim 5, the respondent submitted that in relation to annual general meetings, an annual general meeting was held in 2021 and 2022.  Regarding 2020, an annual general meeting was not held because of restrictions imposed during the pandemic and the risk of the spread of COVID-19, with large group gatherings.

15      In relation to Claim 6, the respondent submitted that the applicants had misconstrued the terms of r 30(1) of the Rules, which is in the following terms:

(1)                The Council shall control and administer the funds of the Union and cheques drawn on the Union's account shall be signed by any two of the President, Secretary, Senior Vice President and Vice Presidents.

16      The respondent submitted that it makes some payments of accounts by cheque but also uses electronic funds transfer.  It was submitted that, whichever method is used, two signatories authorised under r 30(1) are required to authorise such payments.  It was further contended that there is no authority required for Ms Raschilla or Mr Jongen to become signatories to the respondent’s accounts because this is conferred by r 30(1) itself.  It was further contended that both Ms Raschilla and Mr Jongen have been offered the opportunity to become signatories and to attend the respondent’s bank to complete relevant processes.  This has occurred in relation to Mr Jongen, but not in relation to Ms Raschilla.

17      In any event, the respondent submitted that r 30 does not mandate that cheques be the only method of payment of the respondent’s accounts, when regard is also had to the terms of r 30(2)(d).

18      The respondent maintained that, despite the amendment to the applicants’ claims, they should be dismissed.  As to Claims 1, 2 and 3, the respondent submitted that they are misconceived and reflected a misunderstanding of the relationship between the State organisation and federal branch of the union.  Claim 4 simply seeks to reagitate matters already dealt with in Fenn and this should not be permitted.  The claim in relation to the failure to hold annual general meetings is a stale one, and was caught by the circumstances of the pandemic, preventing the holding of such a meeting.

19      Overall, the respondent submitted that the claims represent a series of grievances intended to remove Ms Reah from office, are baseless and do not relate in any sense to the requirement under s 66, that such orders keep an organisation ‘on track’: Stacey v Civil Service Association [2007] WAIRC 00568; (2007) 87 WAIG 1229. 

20      As a general submission, the applicants contended that the amended claims strike at the heart of s 66(2) of the Act, in dealing with the observance or non-observance of an organisation’s rules.  It was submitted that, far from being a collection of grievances, the claims are advanced by 10 members of the respondent’s Council in relation to serious questions as to compliance by the respondent with its Rules.  This fact alone speaks to the seriousness of the claims, according to the applicants.

21      The applicants assert that the claims are in no sense trivial and raise important issues concerning the democratic control of registered organisations and the capacity of members to fully participate in the organisation’s affairs, consistent with s 6(f) of the Act.  It was submitted that there is no question of the applicants’ standing to bring the claims and there is no issue of jurisdiction raised by the respondent.  It was submitted that the amended claims raised questions as to the respondent’s current operations and ongoing compliance with its Rules. 

22      In relation to Claim 1, it was contended that this matter raises a serious question as to the eligibility of Ms Reah, as the Secretary of the organisation, to hold office and is in no sense a trivial or inconsequential matter.  Read with Claim 3, it was submitted by the applicants that both claims taken together reveal a pattern of conduct by the respondent of not observing its Rules in relation to eligibility for membership.  The general submission made was that, in accordance with Stacey, the claims advanced and the orders and declarations sought, are very much directed to the purpose of keeping the respondent ‘on track’.  As to Claim 3, the applicants asserted that the individuals the subject of this claim, whilst not eligible to be members of the respondent, were, at a meeting of the respondent’s Council on 20 July 2022, ‘endorsed’ to be members of the respondent.

23      Furthermore, the claims made by the applicants directly relate to the important subject matter of the democratic control of registered organisations and the full participation by members of such organisations in the affairs of it: Michael Barrie Clancy v The Australian Nursing Federation Industrial Union of Workers Perth [2022] WAIRC 00325; (2022) 102 WAIG 1235 per Kenner CC at [34].  It was submitted that if the Commission dismissed the applications without a substantive hearing on the merits, this would be inconsistent with the objects of the Act, in particular s 6(f).  The claims relate to a failure by the respondent to give members a proper say in the conduct of the organisation.  It was submitted that the failure to hold proper annual general meetings is a serious issue, given they are crucial to the capacity of members of an organisation to contribute to and fully participate in the affairs of the organisation.

24      It was the applicants’ submission that, regarding the alleged failure to comply with my September 2022 orders the subject of Claim 4, it was plainly in the interests of members, in accordance with r 3(1) of the Rules, that they be fully notified of the respondent’s failure to comply with its Rules in relation to the timing of the 2022 State election.  It was submitted that the respondent did not completely comply with the Commission’s order and undertook a course that was intended to give the appearance of technical compliance but had the effect of subverting the intention of the order.  It was submitted that the respondent’s conduct was intended not to bring members’ attention to my decision and orders of September 2022, and, furthermore, the respondent failed to explain why it engaged in the conduct that it did.

25      The applicants submitted that the respondent has improperly exercised powers inconsistent with its Rules, in particular concerning Claims 2 and 6, but also in relation to Claims 1 and 3.  For all these reasons, the applicants submitted that the applications should not be dismissed under s 27(1)(a) of the Act.

The evidence

26      In accordance with my direction of 11 September 2023, the respondent filed an affidavit of Mr Olson.  No affidavit evidence was filed by the applicants.  Mr Olson was not required for cross-examination.  Mr Olson was formerly the Secretary of the respondent for approximately 24 years, and has extensive knowledge of the respondent’s records, including its membership records.  For the purposes of the preparation of his affidavit, Mr Olson testified that he relied on his knowledge of the respondent’s operations and inspected the respondent’s membership database and the register of practitioners of the Australian Health Practitioners Regulation Agency.

27      As to Claim 1, Mr Olson asserted that Ms Reah was eligible to be a member of the respondent because she met the requirements of r 4(1)(a) of the respondent’s Rules.  Rule 4 is in the following terms:

4 - MEMBERSHIP

Membership of the Union shall be open to all persons who fall within the categories set out in sub-rules (1) and (2) below:

(1) (a) A member shall be a person who is an employee within the meaning of the Act:

(i) employed in the profession or industry of nursing and being registered or entitled to be registered with the Nurses Board of WA; or

(ii) a student nurse training in a school for nurses registered with the Nurses Board of Western Australia, or persons who have left their training schools after having completed the prescribed period of training in Western Australia and who intend to sit for examinations arranged by the Nurses Board until such persons are entitled to be registered as nurses.

(b) A person who has been appointed to a paid position as an employee of the union and who by virtue of such appointment is not eligible to be a member of any other registered organisation pursuant to the Act whether or not such person is entitled to be registered as aforesaid.

(2) Honorary members who shall not be entitled to take any part in any elections or to vote on any matter.

(i) who have left the profession or industry of nursing, or

(ii) Providing that no form of honorary membership shall be open to such persons who come within the definition of "employer" within the meaning of the Industrial Relations Act 1979 as amended,

(iii) who have had conferred upon them by the Council the title of "Distinguished Honorary Member" for distinguished service in or for the nursing profession. Not more than three persons shall be accorded this category of membership in any year.

Providing that no form of honorary membership shall be open to such persons who come within the definition of "employer" within the meaning of the Industrial Relations Act 1979 as amended.

(3) A Member who has ceased to be an "employee" in the profession or industry of nursing shall not be entitled to retain membership under the provisions of sub rule (1) of this Rule and the Council may terminate the membership of any such member upon written advice to the member of its intention so to do.

28      Mr Olson said that he consulted the AHPRA register of nurses and Ms Reah is a registered nurse.  Annexure 1 to Mr Olson’s affidavit contained a copy of an extract of the AHPRA register, which was taken on 27 September 2023.  This shows the name of Ms Reah in the profession of ‘Nurse’.  A registration number is on the extract and Ms Reah’s first registration as a nurse was on 11 July 2007.  According to the register, Ms Reah’s registration is due to expire on 31 May 2024.  Given the content of the extract, which refers to annual registration, and Mr Olson’s uncontradicted evidence that nurses renew their registration annually, the evidence establishes that Ms Reah is registered as a nurse with AHPRA from in or about May 2023 to May 2024.

29      Given that the election for the office of Secretary of the respondent took place in October 2022, there is no evidence before me that Ms Reah was a registered nurse at or about that time.

30      Mr Olson also testified that Ms Reah was employed by the respondent in various positions, including the ANF COVID enquiry support team, as an aged care coordinator and as an industrial officer.  This evidence is consistent with the applicants’ claim.  Additionally, Mr Olson said that, from his own knowledge, Ms Reah was also concurrently registered in the casual nurse pool at St John of God Hospital, Midland.

31      As to Claim 2, in relation to Ms Reah’s status as a financial member of the respondent, annexure 2 to Mr Olson’s affidavit is a document described as ‘Members Financial History’.  It shows Ms Reah’s member number and her financial status over the period from 1 January 2007 to 26 September 2023.  Mr Olson testified that this document was produced for the Western Australian Electoral Commission.  This record shows that Ms Reah has paid membership dues since 2007 and up to 18 November 2023.

32      As to Claim 3, Mr Olson testified that the nine persons referred to in this claim are not members of the respondent.  They are members of the federal union, the Australian Nursing and Midwifery Federation, WA Branch.  Mr Olson said that these persons were not included on the electoral roll for the 2022 State union election as they were not eligible to be members of the respondent.  He testified that he was unaware of where the applicants’ obtained the information relied on in this regard.

33      As to Claim 4, Mr Olson referred to the proceedings before me in Fenn, where the issue of non-compliance with my orders made on application by the Registrar, regarding the respondent’s failure to observe its rules regarding the timing of the 2022 State election, was considered.  In this respect, Mr Olson noted that there had been no application to enforce my orders under s 83 of the Act of which he was aware.

34      In relation to the alleged failure to conduct annual general meetings under r 27 of the respondent’s rules, the subject of Claim 5, Mr Olson testified that they were held in 2021 and 2022, but both meetings failed to reach a quorum. Annexure 3 to Mr Olson’s affidavit were notes of the three such meetings for 2019, 2021 and 2022.  All of them were held at the union’s premises at 260 Pier Street, Perth.  In 2019, two persons attended the meeting, they being the President Ms Fowler and the then Secretary Mr Olson.  In 2020, due to the pandemic, Mr Olson testified that the meeting was not held because of COVID restrictions and the risk to members.  In 2021, two people attended, Ms Fowler as the President and Mr Clancy as the Vice President.  In 2022, the President and 33 members were in attendance, including several of the applicants.

35      Finally, as to Claim 6, Mr Olson testified that both Ms Raschilla and Mr Jongen were offered the opportunity to become signatories to the respondent’s accounts.  Mr Jongen has done so.  Ms Raschilla was sent the relevant documents but has not completed them.  In relation to the allegation that the respondent is paying its accounts other than by cheque, Mr Olson said that the respondent uses both cheques and electronic funds transfer.

Consideration

Claim 1

36      As to this allegation that Ms Reah was not eligible to stand for election as the Secretary of the respondent in the 2022 State election, I am not persuaded to dismiss the claim.  There are two broad limbs to this allegation.  The first is that Ms Reah was not eligible to be a member of the respondent because she was not employed in the profession or industry of nursing at the material time.  No issue seems to have been taken that Ms Reah was registered as a nurse with AHPRA, but as I have noted above, there is no evidence of this before me at the time of the 2022 State election.  This is the second element of r 4(1)(a)(i) of the Rules.

37      Whilst the respondent relied upon the affidavit of Mr Olson, a summary of which is set out above, to rebut the applicants’ contentions in this respect, there are two observations to be made about the evidence.  First, there is no direct evidence from Ms Reah on this issue, which I would have thought would not have been difficult to procure.  Whilst the Commission is not bound by the rules of evidence, on a question such as this, one would expect the best evidence to be made available.  Second, Mr Olson’s evidence at [7] of his affidavit to the effect that Ms Reah was ‘concurrently registered to work on the casual pool at St John of God Hospital, Midland’ raises the question of what this means, in the context of the words in r 4(1)(a)(i) as being ‘employed in the profession or industry of nursing’.

38      It is unclear whether Ms Reah was at that time, or had been, employed as a nurse at St John of God Midland.  There may be a difference between being registered to work and working.  Mr Olson’s affidavit is unclear on this issue.

39      The second issue relates to the uncontroversial claim that Ms Reah was employed by the respondent in positions set out in the claim.  This brings into consideration r 4(1)(b) of the Rules.  The applicants’ reference to the ASU and APESMA refers to the rules of the federal organisations as cited in the appellants’ written submissions.  Rule 4(1)(b) in relation to the prohibition on eligibility for membership of ‘any other registered organisation’, refers to an organisation registered under the Act, and not the Fair Work (Registered Organisations) Act 2009 (Cth).  However, the federal ASU has a counterpart State organisation, the Western Australian Municipal, Administrative, Clerical and Services Union of Employees, which, by its eligibility for membership rule, includes persons engaged in any ‘clerical capacity’, which is also reflected in the federal ASU eligibility for membership rule.

40      The above issues raise matters that should be enquired into and dealt with under s 66 of the Act.  They may well involve the interpretation of the relevant organisation’s constitution rules.  It is not clear cut that the issues are trivial or misconceived and there is no lack of jurisdiction asserted.  The claim should be heard on its merits.

Claim 2

41      As I raised with counsel for the applicants during the hearing, this claim is linked to Claim 1.  A person is not a financial member of an organisation merely by the payment of member subscriptions alone.  A person must be both eligible for membership of the relevant organisation and have paid their membership subscriptions.

42      As I have noted above, it appears from the evidence of Mr Olson that Ms Reah has paid membership subscriptions to the respondent from 2007 up to and including 18 November 2023.  However, if for reasons advanced by the applicants, Ms Reah was not at the material time eligible for membership of the respondent for the reasons alleged, the payment of membership subscriptions in and of itself, is not relevant.  For the reasons identified in relation to Claim 1, this claim should not be dismissed.

Claim 3

43      As to this issue, the applicants were unable to explain Mr Olson’s evidence that the persons set out in the claim were not on the membership register of the respondent, or the electoral roll supplied to the WAEC for the 2022 State election.

44      There is a conflict between the positions of the parties on this issue. Whether these individuals were ‘endorsed’ for membership of the respondent at the respondent’s Council meeting on 22 July 2022, and what that ‘endorsement’ may have meant, will be a matter of record, from Council minutes of the meeting.  Additionally, the discovery of the member register will be relevant.  Allegations of the enrolment of persons not eligible to be members of an organisation is a serious allegation, and one that should not be dismissed lightly. These are factual issues that can be examined considering all the relevant evidence.  I will not dismiss this claim.

Claim 4

45      This claim concerns the orders I made in Registrar WAIRC.  Those orders related to proceedings commenced by the Registrar alleging non-compliance by the respondent with its Rules in relation to the requirement to hold an election.  They were also the subject of proceedings before me under s 66(2)(e) of the Act in Fenn.  That matter concerned a challenge to the election result for the respondent’s 2022 State election.  The relevant order I made in Registrar WAIRC on 23 September 2022 was as follows:

(2) ORDERS that the respondent take all reasonable steps (including by distributing a copy of the herein reasons for decision and declaration and orders) to notify its members of its failure to comply with rule 20 of its registered Rules.

46      In Fenn, it was common ground that the respondent sent a copy of my decision and orders to members on 20 October 2022, after the declaration of the election result on 18 October 2022.  This was contained in an email from the President of the respondent Ms Fowler.  I concluded at [51] to [53] that the respondent had not communicated its non-compliance to its members as required by my order.

47      Whilst it was part of Ms Fenn’s case that the alleged failure to provide my reasons and orders timeously also constituted in part at least, non-compliance with r 3 of the respondent’s Rules, as is now asserted by the applicants, the matter before me in Fenn was not in connection with the observance or non-observance with the respondent’s Rules under s 66(2) generally.  Rather, the matter was whether, for the purposes of s 66(2)(e) of the Act, in an enquiry into an election for office in an organisation, there had been an “irregularity”.  The nature of the proceedings is quite different.

48      In my decision in Fenn, in response to a not dissimilar submission to those put now, I did not accept that there had been an ‘irregularity’ for the purposes of s 7 of the Act, which definition includes a breach of an organisation’s rules. 

49      Rule 3 of the respondent’s Rules is expressed to deal with the ‘objects’ of the respondent.  It does so in terms not dissimilar to an objects provision of a statute, setting out the broad purposes of legislation. Such provisions, as in r 3, are aspirational in character.  It sets out the respondent’s broad purposes and, as with a statute, is an aid in the construction of other parts of its Rules and the lens through which they should be construed.  Rule 3, in and of itself, does not confer substantive rights or impose specific, substantive obligations.  It is, in my view, problematic to allege non-compliance with such a provision.  It begs the question how can such non-compliance be ascertained?

50      The subject of the proceedings in Registrar WAIRC was non-compliance by the respondent with r 20 of its Rules, in failing to hold an election in accordance with the timetable set out in r 20.  It was not a proceeding regarding non-compliance with r 3.  My reference to these democratic principles as an important object of the Act in s 6(f), was to emphasise the importance of free and fair elections underpinning relevant rules of registered organisations under the Act that deal with elections, such as r 20, and it being a condition of registration of organisations that their rules provide for proper voting systems.  In referring to r 3(1) of the respondent’s Rules, I was alluding to the object in s 6(f) of the Act, and that when considering whether there had been non-compliance with any of the respondent’s Rules, specifically relating to elections, these principles, inherent also in r 3, are an aid in the construction, meaning and importance of those specific provisions.         

51      Given my conclusions in Fenn, it would be tantamount to rehearing the same broad issue for this claim to proceed to be determined.  Additionally, for the above reasons, in my view, the applicants’ claim, based solely on alleged non-compliance with r 3 of the respondent’s Rules has no prospect of success.  Accordingly, this claim will be dismissed.

Claim 5

52      As to Claim 5, in relation to the holding of annual general meetings, by r 27, meetings of the respondent are the annual general meeting, general meetings or urgent general meetings.  By r 27(3), an annual general meeting is to be held at a time and place determined by the Council.  Due notice of an annual general meeting is to be given to members in writing, by publication in the West Australian Newspaper or in the respondent’s journal or newsletter.  An annual general meeting is to meet a 5% threshold for a quorum of the approximately 37,000 members of the respondent, which is about 1,850 members.

53      Despite this, the three annual general meetings referred to in Mr Olson’s affidavit were held at the respondent’s offices in Perth.  The respondent accepted during the hearing, through its counsel, that such an office would be incapable of accommodating a quorum if they attended a meeting.  Despite this, counsel for the respondent submitted that it has always had problems getting members to meetings.

54      A meeting of members of the respondent, whether it be the annual general meeting or other meetings under r 27, is an important part of the respondent’s democratic process.  Members attending an annual general meeting, by r 27(13), have the power to direct the Council on matters of policy and administration and the Council has a corresponding duty to give effect to such direction.  Additionally, by r 30(2), an audited report and balance sheet of the respondent is to be presented at an annual general meeting.  Therefore, an annual general meeting is a very important opportunity for members of the respondent to engage with it, to raise and debate issues of importance and to be acquainted with the respondent’s financial affairs.

55      The fact that so few attended the annual general meetings in 2019 and 2021, and only a few more in 2022, or alternatively tendered apologies, is surprising to say the least, in such a large organisation.  The fact that the respondent’s office could not accommodate a quorum, may lead to an inference that there was no genuine attempt to convene an annual general meeting on those occasions.  As to the failure to hold an annual general meeting in 2020 during the pandemic, the holding of such a meeting by remote means, a method of communication that became commonplace at the time, would not, at first blush at least, appear to be precluded under the respondent’s Rules.  It would have enabled members to participate in the respondent’s affairs.

56      What is before me in relation to this claim leaves issues open for consideration.  These include the proper notification to members, in accordance with the respondent’s Rules, of an annual general meeting and the arranging of an appropriate venue to accommodate a quorum for such a large organisation.  Questions of interpretation of the relevant Rules also arises, as there seems no restriction on attempting to convene more than one annual general meeting in any given year, to attract a quorum, given their importance in the democratic processes of a registered organisation.  These matters can properly be considered at a hearing.  Accordingly, this claim will not be dismissed.

Claim 6

57      As to this claim, there is a dispute between the parties as to factual allegations.  It was contended by the applicants that at a meeting of the respondent’s Council on 22 April 2022, a motion was passed that persons other than those referred to in r 30(1) of the respondent’s Rules be signatories.  This was not a matter dealt with in Mr Olson’s affidavit.  There is also a dispute as to whether both Ms Raschilla and Mr Jongen have been authorised as signatories.  An issue also arises as to the proper interpretation of r 30 of the respondent’s Rules.  I am not minded to simply dismiss this claim, considering these matters.

Conclusion

58      Except as to Claim 4, the respondent’s application under s 27(1)(a) of the Act is dismissed.  The applications will be heard and determined on a date to be fixed by the Commission.   A directions hearing will be listed to facilitate the hearing of the applications on the merits.