2025 WAIRC 00420
APPLICATION FOR A DECLARATION PURSUANT TO SECTION 71 IN ACCORDANCE WITH SECTION 52A(2)
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2025 WAIRC 00420

CORAM
: CHIEF COMMISSIONER S J KENNER
SENIOR COMMISSIONER R COSENTINO
COMMISSIONER C TSANG

HEARD
:
THURSDAY, 3 JULY 2025

DELIVERED : TUESDAY, 15 JULY 2025

FILE NO. : CICS 9 OF 2025

BETWEEN
:
THE INDEPENDENT EDUCATION UNION OF WESTERN AUSTRALIA, UNION OF EMPLOYEES
Applicant

AND

(NOT APPLICABLE)
Respondent

Catchwords : Industrial Law (WA) – Application pursuant to s 71 – Declaration sought – Qualifications of persons for memberships of a State branch of a federal organisation and offices that exist within the State organisation – Declaration issued
Legislation : Industrial Relations Act 1979 (WA) s 52A, s 62(2), s 71, s 71(2), s 71(4)
Fair Work Act 2009 (Cth) s 350C
Result : Declaration issued
REPRESENTATION:
APPLICANT : MR M ELLIOT

Case(s) referred to in reasons:
THE INDEPENDENT EDUCATION UNION OF WESTERN AUSTRALIA, UNION OF EMPLOYEES [2025] WAIRC 00403; (2025) WAIRC 00404
Western Australian Police Union of Workers [2024] WAIRC 00960; (2024) 104 WAIG 2308

Reasons for Decision

THE COMMISSION IN COURT SESSION:
1 In related proceedings an application CICS 8 of 2025, the applicant sought authorisation from the Commission in Court Session under s 62(2) of the Industrial Relations Act 1979 (WA) to alter its Rules. The first alteration sought was an alteration to r 3 – Constitution, to effectively mirror the eligibility for membership rule of the Independent Education Union of Australia WA Branch, the applicant’s federally registered counterpart. The second alteration was to r 10 – Elections, to enable those elected to office within the federal Branch of the applicant, to also hold office in the corresponding office in the applicant.
2 The Commission in Court Session was satisfied that the applicant had complied with its Rules, the Act and the Industrial Relations Commission Regulations 2005 and by order dated 4 July 2025, the Registrar was authorised to register the alterations: The Independent Education Union of Western Australia, Union of Employees [2025] WAIRC 00403; [2025] WAIRC 00404. The present application, which was heard in conjunction with the application to alter the Rules in CICS 8 of 2025, seeks declarations expressed as follows:
a. pursuant to s.52A of the Industrial Relations Act 1979 (WA) (“the IR Act”), the Independent Education Union of Australia WA Branch (“IEUA WA Branch”) is a counterpart federal body of the IEUwa; and
b. pursuant to s.71 of the IR Act, the rules of the IEUwa and the IEUA WA Branch relating to the qualification of persons for membership are deemed to be the same; and
c. for every office in the IEUwa, there is a corresponding office in the IEUA WA Branch; and
3 As a result of the rule alterations in application CICS 8 of 2025, and other alterations to the Rules, given effect by the Registrar, the applicant submitted that having regard to the terms of s 71(2) of the Act, in relation to membership, the qualifications of persons for membership between the applicant and the federal Branch, are substantially the same. In relation to offices, the applicant contended that for the purposes of s 71(4) of the Act, for every office in the applicant, there is a corresponding office in the federal Branch.
4 In support of the application, a statutory declaration was filed by Mr Elliott, the Deputy Secretary of the applicant. Mr Elliott declared that the alteration to the applicant’s eligibility for membership rule in r 3 sought to align eligibility for membership with the federal Branch. The only difference between the two eligibility for membership rules are those parts of the federal Branch eligibility rule that make reference to membership coverage in other States and Territories, and also omitting references to workplaces that no longer exist. Mr Elliott also declared that the offices of the applicant and the federal Branch are now almost identical, and in written submissions, it was submitted that the Commission in Court Session ought grant the relief sought.
Statutory requirements
5 Sections 71(2) and 71(4) deal with State branches of federal organisations and rules as to membership and offices. They are as follows:
71. Rules of State and federal organisations as to membership and offices
…
(2) The rules of a State organisation and a counterpart federal body described in section 52A(2) are taken to be the same if the rules of the organisation and the body —
(a) relate to the qualifications of persons for membership; and
(b) are, in the opinion of the Commission in Court Session, substantially the same.
…
(4) The rules of a State organisation and a counterpart federal body described in section 52A(2) are taken to be the same if —
(a) the rules prescribe the offices existing in the body; and
(b) for every office in the organisation there is a corresponding office in the body.
…
Membership
6 For the purposes of s 71(2) of the Act, as was recently observed by the Commission in Court Session in Western Australian Police Union of Workers [2024] WAIRC 00960; (2024) 104 WAIG 2308 at [10]:
[10] It is well settled that for the purposes of s 71(2) of the Act, ‘substantial’ means ‘real or of substance as distinct from ephemeral or nominal’ or ‘considerable’ or ‘in the main or essentially’: Western Australian Police Union of Workers (2018) WAIRC 00725; (2023) 98 WAIG 1111 citing Re an application by the Civil Service Association (1993) 73 WAIG 2931 at 2932 and Re Bonny [1986] 2 Qld R 80 at 82.
7 From the terms of Appendix 2 to the application, setting out a comparison of rules relating to qualifications of persons for membership between r 3 – Constitution of the applicant and r 2 – Constitution of the federal Branch, it is plain that except for minor differences in the federal Branch rules that are particular to other States and Territories, and the omission of workplaces no longer in existence such as the ‘Slow Learning Children’s Centres’ referred to in r 2(v)(viii) of the federal Branch Rules, eligibility for membership between both organisations is virtually identical. Thus, it is plain for the purposes of s 72(2) of the Act, the rules of the applicant and the federal Branch in relation to the qualifications of persons for membership are substantially the same.
Offices
8 The requirement in s 71(4) of the Act is that for every office in the applicant, there must be a corresponding office in the federal Branch. The relevant test in this respect, was also referred to by the Commission in Court Session in Western Australian Police Union of Workers at [15] in the following terms:
[15] For the purposes of determining whether the requirement of s 71(4) of the Act is met, it is necessary to focus on the functions and powers of the offices in both the State organisation and the federal Branch, in terms of the similarity or otherwise of the content of the Rules of the respective organisations: Jones v Civil Service Association Inc [2003] WASCA 321; (2003) 84 WAIG 4 per Pullin J at [35].
9 The offices of the applicant are set out in r 8 – Executive, as altered by recent variations authorised by the Registrar. The offices of the federal Branch are set out in r 8 – Duties of Officers. It was contended by the applicant that for the purposes of s 71(4) of the Act, the functions and powers of the offices of the applicant and the federal Branch are virtually identical. The only difference which exists is an additional responsibility on the Secretary of the federal Branch in r 8.1(y) of the federal Branch Rules, in relation to the appointment of workplace representatives. It was submitted that this function and power derives from s 350C of the Fair Work Act 2009 (Cth), relating to the exercise of workplace delegates rights. The applicant submitted that there was no corresponding provision in the Act to enable the Secretary of the applicant to have a similar function and power. Given that this provision is the only difference between the rules relating to offices of the applicant and the federal Branch, then the conclusion can be reached that s 71(4) of the Act is satisfied.
10 Appendix 3 to the application contains a table setting out a comparison of offices between the applicant and the federal Branch. This table is as follows:

Office
Provision in Rules of the IEUwa
Provision in Rules of the IEUA WA Branch
IEUwa: President

IEUA WA Branch: Branch President
Rule 9(2)

(2) The President shall:

(a) preside, if possible, at all meetings of the Executive and preserve order so that business shall be conducted in due form, and with propriety and sign the minutes as appropriate following their confirmation;

(b) attend such meetings of the Union that the President at his or her discretion determines;

(c) through the Secretary convene meetings of the Executive;

(d) have the power always, subject to the Rules, to refer a specific matter to the Executive;

(e) where the President deems it necessary, conduct a vote through the Secretary of Executive members on any issue by post, telephone or any other means, provided that any information given to each member so voting shall be exactly the same in every respect;

(f) perform all such other duties as may be prescribed by the Rules from time to time;

(g) perform other such duties as may from time to time be determined by the Executive;

(h) shall bring to the attention of the Branch any matter the President believes to affect the welfare of members;

(i) have a casting vote in the event of tied vote.
Rule 8.2, Rules of the IEUA WA Branch

8.2 The President shall:

(a) preside, if possible, at all meetings of the Branch Executive and preserve order so that business shall be conducted in due form, and with propriety and sign the minutes as appropriate following their confirmation;

(b) attend such meetings of the Branch that the President at his or her discretion determines;

(c) through the Branch Secretary convene meetings of the Branch Executive;

(d) have the power always, subject to the Rules, to refer a specific matter to the Branch Executive;

(e) where the President deems it necessary, conduct a vote through the Branch Secretary of Branch Executive members on any issue by post, telephone or any other means, provided that any information given to each member so voting shall be exactly the same in every respect;

(f) perform all such other duties as may be prescribed by the Rules from time to time;

(g) perform other such duties as may from time to time be determined by the Branch Executive;

(h) shall bring to the attention of the Branch any matter the President believes to affect the welfare of members;

(i) (have a casting vote in the event of tied vote.
IEUwa: Vice President

IEUA WA Branch: Vice President
Rule 9(3)

(3) The Vice President shall:

(a) in the absence of the President, preside at all meetings of the Executive with the full powers of the President for such meetings;
(b) perform such other duties as may from time to time be determined by the Executive;

(c) assist the President as required;

(d) perform all such other duties as may be prescribed by the Rules from time to time;
Rule 8(e), Rules of the IEUA WA Branch

(e) The Vice President shall:

(a) in the absence of the President, preside at all meetings of the Branch Executive with the full powers of the President for such meetings;
(b) perform such other duties as may from time to time be determined by the Branch Executive;

(c) assist the President as required;

(d) perform all such other duties as may be prescribed by the Rules from time to time.
IEUwa: Secretary

IEUA WA Branch: Branch Secretary
Rule 9(1)

(1) The duties of the Secretary shall:

(a) be the Chief Administrative Officer of the Branch;

(b) subject to the Rules be empowered to make any decisions as necessary in the day to day affairs of the Branch including the serving of letters of demand and logs of claims;

(c) be responsible for the employment and dismissal of administrative staff of the Union, in consultation with the President and Vice President;

(d) have the right to define the duties and direct the work and function, subject to these rules, of the Union’s officials and employees;

(e) undertake necessary administrative action to implement Executive decisions and carry out the instructions of the Executive;

(f) be responsible for keeping or causing to be kept all documents, papers, correspondence and records of the Union;

(g) attend, where possible, all meetings of the Union’s Executive and be responsible for the keeping of, or causing to be kept, correct minutes of the proceedings of such meetings;

(h) be entitled to attend all meetings of the Union;

(i) keep a register of Members of the Union;

(j) inform Members of relevant meetings called in accord with these rules;

(k) submit progress reports to the Union Executive and all other meetings of the Union as required or as determined by the Secretary to be necessary;

(l) in the event of the President's absence from Executive meetings or other public meetings at which the Union is officially present inform the President of the business conducted at such meetings;

(m) be the only authorised person of the Union in whose name Press or Public Statements shall be issued unless the Secretary delegates the authority;

(n) cause to be issued receipts where necessary and ensure the prompt banking of all monies received by the Union;

(o) be responsible for seeing the books are in readiness and make the necessary arrangements for the annual audit of the Union;

(p) keep or cause to be kept in appropriate books of account a correct statement of all monies received and expended by or on behalf of the Union;

(q) present to each ordinary meeting of the Executive a financial statement showing the total income and expenditure, general account bank balance and balance of all investments, to the date of the statements;

(r) present the accounts for each month to the Executive, for the ratification of payments made;

(s) ensure that all cheques issued in the name of the Union shall be signed by at least two of the following: President, Branch Secretary, or Vice President, or any person authorised by the Executive;

(t) present to the Executive a financial statement and balance sheet for the preceding financial year duly audited by qualified auditors appointed by the Executive;

(u) present to the Executive a budget for the next financial year for its deliberation;

(v) ensure that payments from the funds of the Union are made in the manner specified in the Rules;

(w) perform such other duties as may from time to time be determined by the Executive;

(x) summons members by written notice to attend meetings called pursuant to these Rules.
Rule 8.2(a), Rules of the IEUA WA Branch

8.1 The duties of the Branch Secretary shall:

(a) be the Chief Administrative Officer of the Branch;

(b) subject to the Rules be empowered to make any decisions as necessary in the day to day affairs of the Branch including the serving of letters of demand and logs of claims;

(c) be responsible for the employment and dismissal of administrative staff of the Branch, in consultation with the President and Vice President.

(d) have the right to define the duties and direct the work and function, subject to these rules, of the Branch officials and employees.

(e) undertake necessary administrative action to implement Executive decisions and carry out the instructions of the Branch Executive, or Federal Council or Federal Executive;

(f) be responsible for keeping or causing to be kept all documents, papers, correspondence and records of the Branch;

(g) attend, where possible, all meetings of the Branch Executive and be responsible for the keeping of, or causing to be kept, correct minutes of the proceedings of such meetings;

(h) be entitled to attend all meetings of the Branch;

(i) keep a register of Members of the Branch;

(j) inform Members of relevant meetings called in accord with these rules;

(k) submit progress reports to the Branch Executive and all other meetings of the Branch as required or as determined by the General Secretary to be necessary;

(l) in the event of the President's absence from Branch Executive meetings or other public meetings at which the Branch is officially present inform the President of the business conducted at such meetings;

(m) be the only authorised person of the Branch in whose name Press or Public Statements shall be issued unless the Branch Secretary delegates the authority;

(n) cause to be issued receipts where necessary and ensure the prompt banking of all monies received by the Branch;

(o) be responsible for seeing the books are in readiness and make the necessary arrangements for the annual audit of the Branch;

(p) keep or cause to be kept in appropriate books of account a correct statement of all monies received and expended by or on behalf of the Branch;

(q) present to each ordinary meeting of the Branch Executive a financial statement showing the total income and expenditure, general account bank balance and balance of all investments, to the date of the statements;
(r) present the accounts for each month to the Branch Executive, for the ratification of payments made;

(s) ensure that all cheques issued in the name of the Branch shall be signed by at least two of the following: President, Branch Secretary, or Vice President, or any person authorised by the Branch Executive;

(t) present to the Branch Executive a financial statement and balance sheet for the preceding financial year duly audited by qualified auditors appointed by the Branch Executive;

(u) present to the Branch Executive a budget for the next financial year for its deliberation;

(v) ensure that payments from the funds of the Branch are made in the manner specified in the Rules;

(w) perform such other duties as may from time to time be determined by the Branch Executive;

(x) summons members by written notice to attend meetings called pursuant to these Branch Rules.

(y) be responsible for appointing workplace representatives and where 50% or more of members in a workplace request that an election be held to replace a workplace representative be responsible for the conduct of that ballot.
IEUwa: Deputy Secretary

IEUA WA Branch: Deputy Secretary
Rule 9(4)

(4) The Deputy Secretary shall:

(a) assist the Secretary in the performance of his or her duties; and

(b) in the absence of the Secretary, have all the duties and powers of the Secretary.
Rule 8.4, Rules of the IEUA WA Branch

(4) The Deputy Secretary shall:

(a) assist the Secretary in the performance of his or her duties; and

(b) in the absence of the Secretary, have all the duties and powers of the Secretary.
IEUwa: Ordinary Members

IEUA WA Branch: Ordinary Executive Members
Rule 9(5)

(5) The duties of Ordinary Members shall be to attend meetings of the Executive.
Rule 8.5, Rules of the IEUA WA Branch

(5) The duties of Ordinary Members shall be to attend meetings of the Branch Executive.

11 It is apparent from the above table, apart from r 8.1(y), dealing with the duties of the Branch Secretary of the federal Branch referred to above, the functions and powers of the offices of the applicant and the federal Branch are identical. In accordance with the approach to be adopted in comparing the respective offices, the Commission in Court Session can conclude that for each office in the applicant, there is a corresponding office in the federal Branch. Accordingly, declarations now issue.