ORDER PURSUANT TO S.66

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00968

DELIVERED : MONday, 18 December 2023

FILE NO. : PRES 15 OF 2023

Applicant

AND

Western Australian Police Union of Workers

Respondent

Catchwords : Industrial law (WA) - Application under s 66 - State union Rules no longer aligned with federal WA Branch Rules - Section 71 certificate likely to be no longer effective - Interim Branch Executive established - Order issued

Legislation : Industrial Relations Act 1979 (WA) s 66, s 71
Fair Work (Registered Organisations) Act 2009 (Cth)  

Result : Order issued

Representation:

Counsel:

Applicant : Mr S Farrell as agent

Respondent : Mr S Farrell as agent

Case(s) referred to in reasons:

Police Federation of Australia [2023] FWCD 21

Reasons for Decision

KENNER CC:

1         On Thursday 14 December 2023 the present application under s 66 of the Industrial Relations Act 1979 (WA) was before me for directions. Mr McGee, the applicant, is a member of the respondent and its Secretary.  Accordingly, I am satisfied he has standing under s 66(1)(a) of the Act to bring these proceedings.

2         The respondent has a counterpart federal body, the Police Federation of Australia Western Australia Police Branch, an organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth).

3         The respondent has a s 71 certificate issued by the Registrar on 15 October 2018, which enables those persons holding office as members of the Board of Directors of the respondent, to be occupied by persons who hold corresponding office in the PFAWA, in accordance with its Rules. In accordance with those arrangements, on 4 November 2021, the Australian Electoral Commission declared the results of a general election for the Branch Executive of the PFAWA and those persons elected to office were, by the operation of the s 71 certificate, also elected as Directors of the Board of Directors of the respondent, for a term of three years from the conclusion of the respondent’s 2021 annual conference.

4         Following that election, a number of members of the Board of Directors of the respondent resigned from office, and others were elected by special elections to fill the vacancies.  One position, for the respondent’s Northern Region, remains vacant and will do so for the foreseeable future.

5         On 2 November 2023, a delegate of the General Manager of the Fair Work Commission published a decision which altered a number of the Rules of the PFAWA: Police Federation of Australia [2023] FWCD 21.  Those alterations included r 52AA – Branch Office Bearers; r 52AC – Duties and Responsibilities of the Branch Executive; r 52AD – Powers of the Branch Executive; r 52AG – Duties of the President; r 52AH – Duties of the Senior Vice President and the Vice President; r 52AI – Duties of the Treasurer; r 52AM – Disciplinary Matters; r 52AO – Executive Elections; and r 52AT – Referendums.

6         As a result of decisions made at the respondent’s 2022 annual conference, the structure of the respondent’s governance will change.  The changes include the appointment of a Chief Executive Officer to be responsible for the day-to-day operations of the respondent, and for the Board of Directors being responsible for the strategic direction of the respondent.

7         As a consequence of the abovementioned alterations to the Rules of the PFAWA, relating to the duties, responsibilities and powers of office bearers and the Branch Executive, and the elections for Branch Executive Members, the Rules of the respondent and the PFAWA are no longer in alignment, and the s 71(5) certificate may no longer be effective.  Accordingly, the respondent intends to seek an alteration to its Rules in the near future, to realign them with the Rules of the PFAWA.  It will then seek a new s 71 certificate.

8         In the meantime, in order that the affairs of the respondent can be properly conducted until such time as the Rules have been altered and a new s 71 certificate issued by the Full Bench, the applicant seeks an order for the establishment of an Interim Board of Directors.

9         The proposed Interim Board of Directors is to be constituted by those persons elected to the PFAWA Branch Executive in November 2021, and those elected by the subsequent special election.  It is intended that there be no position of Director for the Northern Region for the time being.  Thus, for the purposes of r 6.1(b) of the Rules of the respondent, the Interim Board of Directors will be constituted by 14 rather than 15 Directors.

10      At the directions hearing, having considered the application and having heard from the applicant and the respondent, I was satisfied in the circumstances, that an order should be made to establish an Interim Board of Directors, by varying the Rules of the respondent.  The Interim Board of Directors will, by the terms of my order, have all of the powers, duties and functions of the Board of Directors as set out in the respondent’s Rules, for the duration of the order.  The terms of the order mean that whilst it remains in effect, the respondent will not be required to hold an election for a Board of Directors in accordance with the Rules.  On the alteration of the Rules by the Registrar, and the making of a new s 71 certificate, as authorised by the Full Bench, the order can cease to have effect.