WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2011 WAIRC 00422

DELIVERED : THURSDAY, 16 JUNE 2011

FILE NO. : FBM 15 OF 2010

Applicant

AND

(Not applicable)

Respondent

Catchwords : Industrial law (WA) - Application pursuant to s 71 for a declaration relating to qualifications of persons for membership of a State Branch of a Federal organisation and offices that exist within the Branch - qualifications for membership rules substantially the same - not satisfied offices are the same or can be deemed to be the same.

Legislation : Industrial Relations Act 1979 (WA) – s 7(1), s 62, s 71, s 71(1), s 71(2), s 71(3), s 71(4), s 71(5)(a);

Interpretation Act 1984 (WA) – s 16(3).

Result : Application dismissed

Representation:

Counsel:

Applicant : Mr S Millman (of counsel)

Solicitors:

Applicant : Slater & Gordon Lawyers

Case(s) referred to in reasons:

Gordon v Carroll (1975) 6 ALR 579

Jones v Civil Service Association Inc (2003) 84 WAIG 4

Re an application by the Civil Service Association (1993) 73 WAIG 2931

Re Bonny [1986] 2 Qd R 80

Re Western Australian Municipal, Administrative, Clerical and Services Union of Employees [2011] WAIRC 00111; (2011) 91 WAIG 331

Reasons for Decision

THE FULL BENCH:

The Application

1          The Full Bench has before it an application made under the Industrial Relations Act 1979 (WA) (the Act) in which the applicant (the State organisation) seeks the following orders:

(a) A declaration pursuant to s 71(2) of the Act that the Construction Forestry Mining and Energy Union, Construction and General Division Western Australian Branch is the counterpart Federal body (the counterpart Federal body) of The Construction, Forestry, Mining and Energy Union of Workers (the State organisation);

(b) A declaration pursuant to s 71(2) of the Act that the rules of the counterpart Federal body relating to the qualifications of persons for membership are the same, or in the alternative deemed to be the same as the qualifications of persons for membership within the State organisation; and

(c) A declaration pursuant to s 71(4) of the Act that the offices within the counterpart Federal body are the same as, or in the alternative deemed to be the same as the offices within the State organisation.

2          Section 71 of the Act provides:

(1) In this section — 

Branch means the Western Australian Branch of an organisation of employees registered under the Commonwealth Act;

counterpart Federal body, in relation to a State organisation, means a Branch the rules of which — 

(a) relating to the qualifications of persons for membership; and

(b) prescribing the offices which shall exist within the Branch,

are, or, in accordance with this section, are deemed to be, the same as the rules of the State organisation relating to the corresponding subject matter; and

State organisation means an organisation that is registered under Division 4 of Part II.

(2) The rules of the State organisation and its counterpart Federal body relating to the qualifications of persons for membership are deemed to be the same if, in the opinion of the Full Bench, they are substantially the same.

(3) The Full Bench may form the opinion that the rules referred to in subsection (2) are substantially the same notwithstanding that a person who is — 

(a) eligible to be a member of the State organisation is, by reason of his being a member of a particular class of persons, ineligible to be a member of that State organisation's counterpart Federal body; or

(b) eligible to be a member of the counterpart Federal body is, for the reason referred to in paragraph (a), ineligible to be a member of the State organisation.

(4) The rules of a counterpart Federal body prescribing the offices which shall exist in the Branch are deemed to be the same as the rules of the State organisation prescribing the offices which shall exist in the State organisation if, for every office in the State organisation there is a corresponding office in the Branch.

(5) Where, after the coming into operation of this section — 

(a) the rules of a State organisation are altered pursuant to section 62 to provide that each office in the State organisation may, from such time as the committee of management of the State organisation may determine, be held by the person who, in accordance with the rules of the State organisation's counterpart Federal body, holds the corresponding office in that body; and

(b) the committee of management of the State organisation decides and, in the prescribed manner notifies the Registrar accordingly, that from a date specified in the notification all offices in the State organisation will be filled in accordance with the rule referred to in paragraph (a),

the Registrar shall issue the State organisation with a certificate which declares — 

(c) that the provisions of this Act relating to elections for office within a State organisation do not, from the date referred to in paragraph (b), apply in relation to offices in that State organisation; and

(d) that, from that date, the persons holding office in the State organisation in accordance with the rule referred to in paragraph (a) shall, for all purposes, be the officers of the State organisation,

and the certificate has effect according to its tenor.

(6) A State organisation to which a certificate issued under this section applies may, notwithstanding any provision in its rules to the contrary, make an agreement with the organisation of which the State organisation's counterpart Federal body is the Branch, relating to the management and control of the funds or property, or both, of the State organisation.

(7) Where a memorandum of an agreement referred to in subsection (6) is — 

(a) sealed with the respective seals of the State organisation and the other organisation concerned;

(b) signed on behalf of the State organisation and the other organisation by the persons authorised under their respective rules to execute such an instrument; and

(c) lodged with the Registrar,

the Full Bench may, if it is satisfied that the terms of the agreement are not detrimental to the interests of persons who are eligible to be members of the State organisation and of its counterpart Federal body and will not prevent or hinder the State organisation from satisfying any debt or obligation howsoever arising, approve the agreement.

(8) Where the Full Bench approves an agreement under subsection (7) the Registrar shall — 

(a) register the memorandum as an alteration to the rules of the State organisation;

(b) amend, where necessary, the certificate issued to the State organisation under subsection (5) by declaring that the State organisation is, from the date of registration of the memorandum, exempted from compliance with such provisions of this Act and to such an extent as the Full Bench may, having regard to the terms of the memorandum, direct; and

(c) notify the State organisation in writing of the matters referred to in paragraphs (a) and (b).

(9) After the issue to a State organisation of a certificate or an amended certificate under this section — 

(a) the rule referred to in subsection (5)(a) and a memorandum registered under subsection (8)(a) shall not be altered unless the alteration is approved by the Full Bench;

(b) an alteration to any rule of the State organisation other than the rule referred to in paragraph (a) may be registered by the Registrar if he is satisfied that the rule as so altered is the same as a rule of the State organisation's counterpart Federal body; and

(c) every member of the State organisation's counterpart Federal body who is eligible to be a member of the State organisation shall, for all the purposes of this Act and of any award, industrial agreement or order, be deemed to be a member of the State organisation.

(10) Before granting approval to an alteration of the rule or memorandum referred to in subsection (9)(a), the Full Bench may require compliance by the State organisation with such conditions as the Full Bench considers appropriate.

3          The declaration is sought so that the State organisation can obtain a s 71 certificate to enable offices that exist in its rules to be held by persons holding corresponding offices in its counterpart Federal body.  A certificate will also enable it to make an agreement with its Federal organisation relating to the management and control of funds.

4          Prior to the issuance of a certificate, the State organisation's rules must be altered and the Full Bench issue a declaration pursuant to s 71 of the Act.  An application to alter its rules is the subject of FBM 6 of 2009 which is made pursuant to s 71(5)(a) of the Act which requires the rules of the State organisation to be altered pursuant to s 62 of the Act to provide that each office in the State organisation may, from time to time as the committee of management of the State organisation may determine, be held by the person who, in accordance with the rules of the State organisation's counterpart Federal body, holds the corresponding office in that body.  This application has been adjourned and is yet to be determined by a Full Bench.

5          No objections have been received from any person to the application for a declaration in FBM 15 of 2010.

Application for a declaration – FBM 15 of 2010

6          Pursuant to s 71(1) of the Act a Branch of a Federal organisation means the Western Australian Branch of an organisation of employees registered under the Commonwealth Act.  The Commonwealth Act is defined in s 7(1) of the Act to mean the Workplace Relations Act 1996 (Cth).  In Re Western Australian Municipal, Administrative, Clerical and Services Union of Employees [2011] WAIRC 00111; (2011) 91 WAIG 331 the Full Bench found that whilst the provisions of s 71(1) of the Act and the definition of 'Commonwealth Act' in s 7(1) of the Act require that the counterpart Federal body of the applicant be registered under the Workplace Relations Act, by operation of s 16(3) of the Interpretation Act 1984 (WA) the meaning of the Workplace Relations Act can be construed as a reference to the Fair Work (Registered Organisations) Act 2009 (Cth).  In making this finding the Full Bench found [6]:

Pursuant to s 16(3) of the Interpretation Act, a reference in a written law of the State to a Commonwealth Act, is to be construed so as to include a reference to such Act or provision as it may from time to time be amended.  Prior to the enactment of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) the provisions of the Workplace Relations Act provided for the registration of organisations of employees and employers were provided for in sch 1 and sch 10 of the Workplace Relations Act.  The Workplace Relations Act is Act No 86 of 1988 and was named the Industrial Relations Act 1988 (Cth) when first enacted.  On the coming into operation of s 3 of sch 22 of the Fair Work (Transitional Provisions and Consequential Amendments) Act, the whole of the Workplace Relations Act was repealed except for sch 1 and sch 10 and s 1.  Section 1 of the Workplace Relations Act contained the name of the Act.  Section 3 of sch 22 of the Fair Work (Transitional Provisions and Consequential Amendments) Act amended s 1 of the Workplace Relations Act by renaming the Workplace Relations Act the Fair Work (Registered Organisations) Act 2009.  The Fair Work (Registered Organisations) Act 2009 remains as Act No 86 of 1988.  The headings to sch 1 and sch 10 of the Workplace Relations Act were also amended by the Fair Work (Transitional Provisions and Consequential Amendments) Act by renumbering.  Given that the provisions of sch 1 and sch 10 of the Workplace Relations Act were not repealed but amended, s 16(3) the Interpretation Act is enlivened so as to enable the definition of the 'Commonwealth Act' in s 7(1) of the Act to refer to the Fair Work (Registered Organisations) Act. 

7          By operation of s 71(2) of the Act, the rules of a State organisation and its counterpart Federal body relating to the qualifications of persons for membership are deemed to be the same if, in the opinion of the Full Bench, they are substantially the same.  In addition, s 71(3) of the Act provides that the Full Bench may form the opinion that the rules referred to in subsection (2) are substantially the same notwithstanding that a person who is –

(a) eligible to be a member of the State organisation is, by reason of his being a member of a particular class of persons, ineligible to be a member of that State organisation's counterpart Federal body; or

(b) eligible to be a member of the counterpart Federal body is, for the reason referred to in paragraph (a), ineligible to be a member of the State organisation.

(a) Are the qualifications of persons for membership substantially the same?

8          'Substantial' means what is 'real or of substance as distinct from ephemeral or nominal' or 'considerable' or 'in the main essentially':  Re an application by the Civil Service Association (1993) 73 WAIG 2931; Re Bonny [1986] 2 Qd R 80 (82).

9          Both the State organisation and the counterpart Federal body cover a wide variety of businesses, callings, trades, manufacturers, undertaking industries, occupations, vocations and industrial pursuits.

10       Attached to a statutory declaration made by Kevin Noel Reynolds, the Secretary of the State organisation and the counterpart Federal body, is a document titled 'Comparison of the Rules Relating to the Qualification of Persons for Membership'.  That document sets out in detail a table of persons who are qualified for membership of the State organisation and the counterpart Federal body.  In the affidavit of Mr Reynolds he states that in summary that document confirms that, in general terms, the following are eligible to be members of the State organisation and the counterpart Federal body ([10] of statutory declaration):

(a) Bricklayers;

(b) Builders labourers;

(c) Painters and Decorators;

(d) Plasterers;

(e) Carpenters and Joiners;

(f) Engine drivers.

11       The rules of the State organisation and the counterpart Federal body however are not identical.  Mr Reynolds in his statutory declaration deposes that the following are eligible to be members of the State organisation, but may not be eligible to be members of the counterpart Federal body (r 4(4) of the rules of the State organisation):

Workers employed in timberyards, sawmills, box factories, plywood and veneer mills and particle board factories.

12       Mr Reynolds also deposes that the following are eligible to be members of the counterpart Federal body, but may not be eligible to be members of the State organisation:

(a) persons employed in the brick, tile or pottery industry:  r 2(N) of rules of the Construction, Forestry, Mining and Energy Union which are part of the rules of the counterpart Federal body;

(b) persons who are members of the Construction and General Division who are residing or employed in the Northern Territory:  r 29 of the Construction and General Division rules which are part of the rules of the counterpart Federal body and will hereinafter be referred to in these reasons as the rules of the counterpart Federal body.

13       Mr Reynolds also deposes in his statutory declaration that he had been advised and verily believes that the membership search of the records of the Branch indicates there are 16 members employed in the brick, tile or pottery industry, who are members of the Branch who may not be eligible to be members of the State organisation and there are approximately 133 members residing or employed in the Northern Territory who are members of the Branch who may not be eligible to be members of the State organisation.  He also said that there are four members employed in timberyards, sawmills, box factories, plywood and veneer mills, or particle board factories, who are members of the State organisation who may not be eligible to be members of the counterpart Federal body.

14       On 14 December 2010, Mr Reynolds directed staff of the State organisation and the counterpart Federal body to perform a search of the list of members in the State organisation and the counterpart Federal body and was informed that the total number of members of the State organisation and the counterpart Federal body was 13,458 members.

15       Given the small number of occupations in the discrete industries involved in timberyards and like industries and in the small industry of brick, tile and pottery, it is clear that there is a substantial similarity of coverage between both organisations.  It is our view that it is not material that persons who are members of the Construction and General Division who are residing or employed in the Northern Territory are excluded from eligibility to be members of the State organisation as it is highly unlikely that the rules of the applicant would by operation of law be able to extend to those persons who are employed in the Northern Territory.  For this reason we are of the view that the evidence establishes that the eligibility rules of both the State organisation and the counterpart Federal body are substantially the same as required by s 71(2) and s 71(3) of the Act.

(b) Are the offices that exist in the counterpart Federal body the same as the offices of the applicant?

16      When determining whether the offices that exist in the counterpart Federal body are the same as the offices of the State organisation, it is necessary for the Full Bench to consider the functions and powers of each office based on a consideration of the similarity or otherwise of the content of the rules:  Jones v Civil Service Association Inc (2003) 84 WAIG 4 [35] (Pullin J).

17      Pursuant to s 71(4) of the Act, the rules of the counterpart Federal body prescribing the offices which shall exist in the Branch are deemed to be the same as the rules of the State organisation prescribing the offices which shall exist in the State organisation if, for every office in the State organisation there is a corresponding office in the Branch.

18      Pursuant to r 16 of the rules of the State organisation the offices that exist consist of:

(a) President

(b) Senior Vice President

(c) Vice President

(d) Secretary

(e) Two Assistant Secretaries

(f) Treasurer

(g) Two Trustees

(h) Two Ordinary Executive Members.

19      The offices of the Branch are prescribed by r 42(a)(v) of the rules of the counterpart Federal body.  The offices that exist within the Branch are as follows:

(a) Divisional Branch President

(b) Divisional Branch Senior Vice President

(c) Divisional Branch Vice President

(d) Divisional Branch Secretary

(e) Two Divisional Branch Assistant Secretaries

(f) Divisional Branch Treasurer

(g) Three Divisional Branch Trustees

(h) Five Divisional Branch Management Committee members.

20       Although submissions were made on behalf of the State organisation that there is no requirement to consider the terms of office, powers of the Committee or powers to remove officers, as the offices of each of the organisations comprise the management committees of their respective bodies, the powers and functions of the management committees are relevant when considering the powers and functions of each of the offices.  This in part arises because, pursuant to s 7(1) of the Act the definition of 'office' in relation to an organisation registered under the Act, the only offices to be considered in a s 71 application for a declaration are those offices that have a vote on the management committee of the organisation.  However, we do agree that the terms of office and power to remove officers are not in this matter relevant to a consideration whether the powers and functions of the offices are the same or can be deemed to be the same.  Notwithstanding, it is notable that:

(a) Pursuant to r 38(b) of the rules of the counterpart Federal body the term of office of each office except the Divisional Branch Vice Presidents and Divisional Branch Trustees is four years.  The Divisional Branch Vice Presidents and Divisional Branch Trustees are also elected for four years but they are elected from among and by the members of the Divisional Branch Management Committee (r 42(q) of the rules of the counterpart Federal body).

(b) Each member of the Executive of the State organisation is required to be elected every four years (r 16(1) of the rules of the State organisation).

21      Under r 16(7) of the rules of the State organisation in all matters that arise between General Meetings of the union and subject to the control of General Meetings of the union, the Executive has the control and conduct of the business of the union and is required to act on its behalf in all matters.  It also has the daily management of the business of the union and is bound to observe the decisions of General Meetings of the union and is required to meet once a fortnight (r 16(5) of the rules of the State organisation).

22      The powers and functions of the offices of the State organisation are provided for in r 25 of the rules of the State organisation.  Rule 25(1), (2), (3), (5) and (6) provide as follows:

(1) President and Vice-Presidents

(a) The President shall preside at all meetings conducted under the auspices of the Union and shall preserve good order so that the business may be conducted properly.

(b) He or she shall see that the minutes of the meeting are read and confirmed and upon such reading and confirmation shall sign them, and endorse all accounts marked for payment.

(c) He or she shall have a deliberative vote only.

(d) In the absence of the President, his or her duties shall be performed by the Senior Vice President. In the absence of both the President and the Senior Vice President the Vice President shall perform the duties of the President. In the simultaneous absence of the President, Senior Vice President and Vice President, the Executive may appoint a member to carry out the duties of the President.

(2) Secretary

The Secretary, who shall be the Principal Officer of the Union, shall:

(a) attend all meetings of the Union and prepare documents for Union and executive meetings and for the Auditor and Trustees;

(b) conduct and file all correspondence and summon members to all meetings;

(c) issue all summonses and keep all documents and accounts, books and papers belonging to the Union;

(d) submit to the President any urgent information he or she may officially receive and the President, together with the Secretary, shall decide on the best course to be pursued until the next meeting of the Executive;

(e) keep a register of the names and addresses of the officers and members of the Union;

(f) in conjunction with any one of the Trustees sign all cheques;

(g) the Secretary may sue or be sued on behalf of the Union;

(h) the Secretary shall be the principal spokesperson for the Union.

(3) Treasurer

The Treasurer shall:

(a) draw up a report and balance sheet for submission to members in the months of January and July and submit his or her books and accounts to the Auditor half-yearly;

(b) receive all moneys and pay the them into the bank account of the Union immediately, with the exception of petty cash not exceeding five hundred dollars ($500.00) at any one time;

(c) keep a distinct and intelligible account of all moneys received and expended, with vouchers detailed therefore;

(d) submit a statement of his or her receipts and expenditure every three months to the members of the Union attending a General Meeting;

(e) not make any payment, other than for his or her own travelling and accommodation expenses incurred whilst on Union business, exceeding twenty dollars ($20.00) except by cheque;

…

(5) Trustees

Any one of the Trustees shall sign all cheques in conjunction with the Secretary.

(6) Assistant Secretaries

The Assistant Secretaries shall, subject to direction from the Secretary, assist the Secretary in the performance of his or her duties.

23      There is no requirement in the rules of the State organisation for members of the Executive to meet at any particular time.  However, under r 26 of the rules of the State organisation, the union is required to hold General Meetings for the transaction of business on the second Wednesday of each calendar month at such time and place as the Executive or the Secretary may fix.

24      Under the rules of the counterpart Federal body the management committee of the Branch is the Divisional Branch Management Committee.  Pursuant to r 42(c) of the rules of the counterpart Federal body, the Divisional Branch Management Committee is required to meet at least once each month and subject to a review of their actions by the Divisional Branch Council shall have the care, control, superintendence, management and administration in all respects of the affairs, funds and property of the Divisional Branch and shall have all the powers of the Divisional Branch Council including, without limiting, the power, subject to r 16, to amend or add to the rules.  Meetings of the Divisional Branch Management Committee shall be held at such time and place as shall be decided by the Divisional Branch Secretary and the Divisional Branch President.  The committee is required to carry out any duties which they have been directed to perform by the Divisional Branch Council under r 13.  The Divisional Branch Management Committee is composed of the Divisional Branch President, the Divisional Branch Senior Vice President, the Divisional Branch Vice President, the Divisional Branch Secretary, two Divisional Branch Assistant Secretaries, the Divisional Branch Treasurer, three Divisional Branch Trustees and five Divisional Branch Committee members.

25      Whilst the duties of the State management committee are not prescribed by the rules other than a general duty, the Divisional Branch Management Committee of the counterpart Federal body does have specific duties as well as their general obligation to manage and control the union.  Their duties are as follows (r 42 of the rules of the counterpart Federal body):

(e) They shall be responsible for the control and supervision of all officers. They may delegate this responsibility in respect to nominated classes of officers to the Divisional Branch Secretary for the exercise of this responsibility on a daily basis in between meetings of the Divisional Branch Management Committee on a temporary or ongoing basis and upon any terms or conditions they see fit; provided that such delegation may be revoked at any time by a subsequent meeting of the Divisional Branch Management Committee.  They shall also deal with the proposed Divisional Branch Council Agenda prepared by the Divisional Branch Secretary.

(f) They shall deal with applications for membership, claims for Tool and Funeral Benefit, also grants from Contingent Funds.

(g) They shall issue instructions for prosecution for recovery of arrears and fines of members if, after due consideration such prosecution is deemed warranted; also for breaches of legislation, Awards, agreements and all matters in connection with Worker's Compensation Act.

(h) They shall make provision for the registration of members for employment and issue instructions to the Divisional Branch Assistant Secretary for the supervision of the engagement of labour.

(j) They shall be responsible for convening and conducting general meetings of the members, as provided for in the Rules.

(k) They shall be responsible for the calling of any meetings necessary for the proper administration of the Divisional Branch, including meetings of members or stewards.

(l) (i) They may impose penalties, including fines not exceeding the sum of $100.00 on Divisional Branch Officers, councillors, members, committee persons or delegates representing the Divisional Branch for knowingly refusing to comply with the Rules, or the decisions of Divisional Branch Council or the Divisional Branch Management Committee, or knowingly refusing to carry out the policy of the Divisional Branch, provided that the Rules, decisions of Divisional Branch Council or Divisional Branch Management Committee are available to members in the minutes of the Divisional Branch Council or Divisional Branch Management Committee at the Divisional Branch Office.

(ii) They may suspend, expel or dismiss from office, divisional branch officers, divisional branch councillors, members, committee members or delegates representing the Divisional Branch for misappropriation of the funds of the Divisional Branch or for a substantial breach of the rules of the Divisional Branch or for gross misbehaviour or gross neglect of duty.

(m) Upon a petition being forwarded to the Divisional Branch Secretary, signed by 10% of the financial members, in respect of any district or any zone, except in the case of the Sydney zone where the petition must be signed by 5% of the financial members convene a special meeting of the membership, in that zone or trade district. The financial members, signing the petition must come from the zone or craft district for which a special meeting is being petitioned.

(n) They shall satisfy themselves as to the integrity of employers of juvenile labour based upon a report of job or shop stewards or full-time officials.

(o) They shall inform Apprenticeship Councils of the unsuitability of an employer to train apprentices.

(p) A special meeting of the Divisional Branch Management Committee may be called by the Divisional Branch President and shall be called by the Divisional Branch President if he is so requested by not less than 40% of the representatives on the Divisional Branch Management Committee.

(q) They shall from among themselves elect a Divisional Branch Vice President and Divisional Branch Trustees such Divisional Branch Vice Presidents and Divisional Branch Trustees shall be elected for a 4 year term of office.  Any member of the Divisional Branch Management Committee may nominate themselves for any such position by notice in writing to the Divisional Branch Returning Officer.  In any election the procedure to be followed shall be, the necessary changes being made, the procedure for the election of Divisional Executive in accordance with Construction and General Divisional Rule 9 which shall occur at the first meeting of the Divisional Branch Management Committee after the assumption of office of that Committee following the general elections.

(r) The Divisional Branch Management Committee shall have the power to appoint temporary organisers whenever this is considered necessary.  They shall not, by virtue only by their appointment as temporary organisers, be Officers of the Branch nor shall they, by virtue only by their appointment as temporary organisers, exercise any function of management, but shall act as directed by the Divisional Branch Secretary.  Such appointments are subject to satisfactory performance of their allocated duties. Except where the context otherwise necessitates, the term 'organiser' where used in these Rules shall not include temporary organisers.

The Divisional Branch Management Committee may, with the consent of a state registered counterpart union and an officer or employee thereof, by resolution, appoint the said officer and/or employee, or any one of them, as an employee of the Divisional Branch, and for that purpose reach agreement with the said officer/employee and the said state registered counterpart union as to how much, if any, of the wages of the person/s so appointed shall be contributed by the Divisional Branch.

In such case such an appointee shall:-

(i) be an employee of the Divisional Branch if and only if, and only to the extent that they are performing functions that are necessarily and expressly functions of the Divisional Branch and not the state registered counterpart union;

(ii) during that period, be subject to the direction and control of the governing bodies of the Divisional Branch in accordance with these rules, but only when acting in that capacity, and

(iii) be entitled to those rights conferred on employees of a registered organisation by the Workplace Relations Act 1996 or any successor legislation thereto.

(s) A loan, grant or donation of an amount exceeding $1,000 shall not be made by this Divisional Branch unless the Divisional Branch Management Committee -

(a) has satisfied itself -

(i) that the making of the loan, grant or donation would be in accordance with the rules of the Union; and

(ii) in relation to a loan - that, in the circumstances, the security proposed to be given for the repayment of the loan is adequate and the proposed arrangements for the repayment of the loan are satisfactory; and

(b) has approved the making of the loan, grant or donation.

(t) The Divisional Branch Management Committee, on receipt of a petition signed by not less than 10% of the financial members of the Divisional Branch, shall convene a special Divisional Branch Council meeting or conduct a ballot of Divisional Branch Council in respect of any matter determined by the Divisional Branch Management Committee, to which members are objecting.

26      The specific duties of the individual officers of the Branch are provided for in the rules of the counterpart Federal body.  Rule 43 contains the duties of the Divisional Branch President which are as follows:

(a) The Divisional Branch President shall preside at meetings of the Divisional Branch Council or Divisional Branch Management Committee and meetings convened by the Divisional Branch Council or Divisional Branch Management Committee.

(b) (i) The Divisional Branch President, during such term of office shall hold no other position within the Divisional Branch provided for in these Divisional Branch Rules.  Provided however that the position of Divisional Branch delegate to Divisional Conference shall not be considered as a position within the Divisional Branch for the purpose of this sub-rule. Further provided that in the case of the NSW Divisional Branch, this sub-rule shall not prevent the Divisional Branch Management Committee from designating the Divisional Branch President as Acting Divisional Branch Secretary in accordance with Rule 47(b) herein, or the Divisional Branch President so designated from acting in that capacity.

(ii) In New South Wales and Victoria the Divisional Branch President shall be employed in a full-time capacity.

(c) The Divisional Branch President shall carry out such duties as may be assigned from time to time by the Divisional Branch Management Committee, and by the Divisional Branch Secretary acting on their behalf.

(d) The Divisional Branch President shall conduct business in accordance with Rules laid down for his/her guidance.  The Divisional Branch President shall not enter debate on any question except by leave of the Divisional Branch Management Committee, but shall endeavour to bring the business to a satisfactory conclusion.  The Divisional Branch President shall have a casting vote only.

(e) The Divisional Branch President shall sign the minutes of proceedings of Divisional Branch Council, Divisional Branch Management Committee, or any meeting convened by the Divisional Branch Council or Divisional Branch Management Committee when same have been duly confirmed.

(f) The Divisional Branch President shall examine bank vouchers setting out bank balance, record of each banking transaction, countersign all orders of payment of any money authorised by the Divisional Branch Council or Divisional Branch Management Committee which is in accordance with Rules.

(g) The Divisional Branch President shall cause to be entered in the minutes of the Divisional Branch Management Committee a record of all payments, monies received and banked and statement of cash in hand.

(h) The Divisional Branch President may be required by resolution of the Divisional Branch Council or Divisional Branch Management Committee to attend to any business concerning the finances and administration of the Divisional Branch either in connection with the Divisional Branch Council, Divisional Branch Management Committee or District Committees, and shall if so required submit a report in writing of the findings to the Divisional Branch Council and Divisional Branch Management Committee members.

(j) The Divisional Branch President shall be an ex-officio member of all Committees of the Divisional Branch.

(k) In the New South Wales Divisional Branch, in the absence of the Divisional Branch President the Divisional Branch Management Committee shall designate one of the Divisional Branch Assistant Secretaries as the Acting Divisional Branch President.

27      The functions and powers of the Divisional Branch Vice President in Western Australia is provided for in r 44(i) of the rules of the counterpart Federal body which provides:

(i) Except in the New South Wales Divisional Branch, the Victorian Divisional Branch, the Queensland Builders Labourers Divisional Branch and the ACT and Western Australian Divisional Branches the Divisional Branch Vice-President shall be elected by the Divisional Branch Management Committee from among its members and shall preside at meetings in the absence of the Divisional Branch President, and shall carry out the duties of the Divisional Branch President and such duties as may be required by resolution of the Divisional Branch Council or Divisional Branch Management Committee which are in accordance with these rules.

28      Rule 45 – Divisional Branch Trustees of the rules of the counterpart Federal body provides:

(a) Except in the case of the South Australian Divisional Branch the Divisional Branch Management Committee shall elect from among themselves, three trustees.  The election shall be conducted in accordance with Rule 42(q).  Provided however that there shall be no trustees in the New South Wales Divisional Branch.

On a written authority signed by the Divisional Branch President and the Divisional Branch Secretary any two of the three Divisional Branch Trustees shall sign cheques for such sums as may be voted by the Divisional Branch Council or Divisional Branch Management Committee in accordance with these Rules.  Such cheques to be counter signed by the designated Divisional Branch Assistant Secretary. The designated Divisional Branch Assistant Secretary will be determined by the State Management Committee or equivalent body.

…

(c) The funds of the Divisional Branch shall be banked in an account styled in the name of the Divisional Branch.

(d) The Divisional Branch Trustees shall have powers and immunities as conferred by statute on such Trustees.

29      Rule 46 – Duties of Divisional Branch Secretary of the rules of the counterpart Federal body provides:

(a) The Divisional Branch Secretary shall be under the control of the Divisional Branch Council and the Divisional Branch Management Committee and shall be employed in a full time capacity, and shall conduct correspondence in connection with all industrial matters and in general administration of the Divisional Branch.

(b) The Divisional Branch Secretary shall be responsible for the carrying out of the decisions made by the Divisional Branch Council or Divisional Branch Management Committee.

(c) The Divisional Branch Secretary shall be responsible for the enforcement of all Awards and Industrial Agreements and shall supervise the conduct of all wages claims, compensation matters and legal matters coming within the jurisdiction of the Divisional Branch Council or Divisional Branch Management Committee.

(d) The Divisional Branch Secretary shall cause to be prepared and forwarded to the Industrial Registrar, returns as required by law.

(e) The Divisional Branch Secretary shall have prepared a properly audited financial statement of receipts and payments and all the funds and effects of the Divisional Office, together with a statement of the assets and liabilities of the Divisional Office for the year ending 31st December.

(f) The Divisional Branch Secretary shall prepare the agenda for and minutes of each Divisional Branch Council meeting; and shall attend meetings of the Divisional Branch Council, Divisional Branch Management Committee and other meetings called by the Divisional Branch Council or Divisional Branch Management Committee.

(g) The Divisional Branch Secretary shall be responsible for the production of Divisional Branch publications.

(h) The Divisional Branch Secretary shall be responsible for the itinerary of organisers duties.

(j) The Divisional Branch Secretary shall be an ex officio member of all committees of the Divisional Branch.

(k) The Divisional Branch Secretary shall be an elected delegate to Divisional Conference by virtue of his/her office.

30      The rules of the counterpart Federal body do not prescribe any duties for the office of Divisional Branch Treasurer or for the office of Divisional Branch Senior Vice President.

31      Rule 47 – Duties of Divisional Branch Assistant Secretary of the rules of the counterpart Federal body provides:

(a) The Divisional Branch Assistant Secretary/ies (if any) shall be under the control of the Divisional Branch Council and the Divisional Branch Management Committee, and shall work under the direction of the Divisional Branch Secretary.  They shall attend all meetings of the Divisional Branch Council and the Divisional Branch Management Committee.

(b) The Divisional Branch Assistant Secretary/ies shall, in the absence of the Divisional Branch Secretary, fulfil the office and perform the duties of the Divisional Branch Secretary. Where there is more than one Assistant Secretary, the Divisional Branch Management Committee shall designate one of the Assistant Secretaries to perform the duties. Provided however that in the case of the NSW Divisional Branch, the Divisional Branch Management Committee shall designate from amongst the Divisional Branch President and the Divisional Branch Assistant Secretaries, the officer who shall fulfil the office and perform the duties of the Divisional Branch Secretary. Further provided that in the case of the Queensland Builders Labourers Divisional Branch, the Divisional Branch Management Committee shall designate from amongst the Divisional Branch President and the Divisional Branch Assistant Secretary, the officer who shall fulfil the office and perform the duties of the Divisional Branch Secretary.

32      Under r 50 of the rules of the counterpart Federal body the members of the Divisional Branch Management Committee are required to attend meetings of the Divisional Branch Management Committee and of the Divisional Branch Council.

33      Under r 69 – Special Rules of the rules of the counterpart Federal body Divisional Branch meetings are required to be held on the second Wednesday of each month and be held at the union's office, or at such time and place as the Divisional Branch Management Committee may determine.

34      The Divisional Branch meetings have the power of recommendation to the Divisional Branch Management Committee.

35      The Divisional Branch Council under r 41 of the rules of the counterpart Federal body meets at least biennially.  Under r 40 they are the supreme governing body of each Divisional Branch.  Under r 40(2)(iii)(A)(v) the Divisional Branch Council of Western Australia consists of the Divisional Branch Management Committee together with a further 20 delegates elected from the whole of Western Australia.

36      We are satisfied that there is an office for every office in the State organisation in the Branch in two respects:

(a) the names of each of the offices are in essence the same; and

(b) the functions and powers of each of the offices are the same insofar as the offices of the State organisation and the Branch are each respectively the management committee of the State organisation and the Branch.

37       However, we are not satisfied that for each of the offices prescribed in the State organisation there is a 'corresponding office' in the Branch within the meaning of s 71(1), s 71(2) and s 71(3) of the Act as we are not satisfied that the offices of Treasurer and Divisional Branch Treasurer are the same or can be deemed to be the same.  Nor are we satisfied that the offices of Senior Vice President and Divisional Branch Senior Vice President are the same or can be deemed to be the same.  In particular, when regard is had to the functions and powers of the Treasurer of the State organisation and the Divisional Branch President and the Divisional Branch Treasurer we are not satisfied that functions and powers of the office of Treasurer and Divisional Branch Treasurer to be sufficiently similar.  Similarly when the office of Senior Vice President and the Divisional Branch Senior Vice President are compared it cannot be said that the powers and functions of each office are the same or substantially the same.

38       In r 25(3) of the rules of the State organisation, the functions and powers of the Treasurer are very specific.  The functions and powers prescribed in r 25(3) require the Treasurer to keep the books and accounts of the State organisation; to draw up reports and balance sheets; to receive monies and make payments.  The Treasurer is also required to submit a statement of his or her receipts and expenditure every three months to the members of the union attending a General Meeting (r 25(3)(d)).  The rules of the counterpart Federal body prescribe no functions and powers to be carried out by the Divisional Branch Treasurer.  However, the Divisional Branch President is empowered with some powers and functions of a 'treasurer' which are in part similar to the powers and functions of the Treasurer in r 25(3)(d) of the rules of the State organisation.  Pursuant to r 43(g) of the rules of the counterpart Federal body, whilst not required to keep records of payments and monies received and banked the Divisional Branch President is required to cause to be entered in the minutes of the Divisional Branch Management Committee a record of all payments, monies received and banked and statement of cash in hand.  The Divisional Branch President is also required under r 43(h), if directed by resolution of the Divisional Branch Council or Divisional Branch Management Committee, to submit a report in writing of any business concerning the finances and administration of the Divisional Branch.

39       It could be said that it may be open to imply a term into the rules of the counterpart Federal body that the powers and functions of the office of Divisional Branch Treasurer is to establish records and keep proper books and accounts of the funds of the Branch as part of a fiduciary duty that would attach to such an office: see the discussion in Gordon v Carroll (1975) 6 ALR 579 (593 - 594) and (606) (Full Court).  However, s 71(1) and s 71(4) of the Act do not enable the Full Bench to have regard to the principles that apply to the implication of terms.  Section 71(1) and s 71(4) require the Full Bench to examine only the express rules of the State organisation and the Branch.

40       Whereas r 25(1)(d) of the rules of the State organisation provide that in the absence of the President, the Senior Vice President is to perform the duties of the President, no powers and functions are conferred on the office of Divisional Branch Senior Vice President other than that office is to form part of the Divisional Branch Management Committee; and in that capacity, the office of Divisional Branch Senior Vice President has the powers and functions conferred by r 42 of the rules of the counterpart Federal body.

41       As the Full Bench has heard submissions about the powers and functions of all offices of the State organisation and the Federal Branch.  We are of the opinion that it is appropriate to consider all of the offices in the State organisation and the Branch.

42       Except for the offices of Treasurer and Divisional Branch Treasurer and Senior Vice President and Divisional Branch Senior Vice President when the rules in respect of each of the offices of the State organisation and the Branch are examined, we are of the opinion that the offices of the State organisation and the Branch can be deemed to be the same.  The reasons why we make this finding is as follows:

(a) President/Divisional Branch President

43       Both the President of the State organisation and the Divisional Branch President are required to preside at meetings and have a deliberate or casting vote only.  They also are both required to sign the minutes of meetings and endorse or countersign orders for payment of money.  The Divisional Branch President has some other functions which relate to records of payments, monies received and banked and cash in hand and may be directed to carry out delegated duties assigned by the Divisional Branch Management Committee or the Divisional Branch Secretary or directed to report on any business concerning finances and administration of the Divisional Branch.  We do not consider the review of financial transaction functions to be delegated.  We also do not consider these functions together with the delegated duties to be material as such functions do not derogate from the function of the Divisional Branch President as the chairperson of meetings of the Divisional Branch Management Committee and the Divisional Branch Council.  It is also not material that the Divisional Branch President is an ex officio member of all committees of the Divisional Branch.  The State President also has one additional function.  Pursuant to r 25(2)(d) of the rules of the State organisation, the President with the Secretary has power to decide upon a course of action where urgent information comes to the knowledge of the Secretary of the State organisation until a meeting of the Executive.  Although the Divisional Branch President does not have this power, a finding can be made that the offices can be deemed to be the same as both the President of the State organisation and the Divisional Branch President of the counterpart Federal body share a common and important function of presiding at meetings of the respective management committees.

(b) Vice President/Divisional Branch Vice President

44       In the absence of the President and the Senior Vice President, the Vice President of the State organisation is required to carry out the duties of the President: r 25(1)(d) of the rules of the State organisation.  Similarly under r 44(i) of the rules of the counterpart Federal body, the Divisional Branch Vice President is required to preside at meetings in the absence of the Divisional Branch President and carry out duties given by resolution of the Divisional Branch Council or the Divisional Branch Management Committee.  Whilst the Divisional Branch Vice President of the Branch has duties which are in addition to the functions in common with the Vice President of the State organisation, it is apparent that there is sufficient similarity in the shared central function of the offices which is to act in place of the President and the Divisional Branch Vice President respectively.

(c) Secretary/Divisional Branch Secretary

45       Pursuant to r 25(2) of the rules of the State organisation the Secretary is the principal officer of the union whose functions and powers are largely administrative.  However the Secretary does have the power with the President in respect of any urgent information to decide on and implement a course of action until the next meeting of the Executive.  The Divisional Branch Secretary is also charged with the function of conducting the general administration of the Branch: r 46(a) of the rules of the counterpart Federal body.  Rule 46 of the rules of the counterpart Federal body also contains a list of functions and powers of the office of Divisional Branch Secretary that are sufficiently similar to the functions and powers of the Secretary of the State organisation.

(d) Assistant Secretary/Divisional Branch Assistant Secretaries

46       The Assistant Secretaries of the State organisation and the Divisional Branch Assistant Secretaries are required by the rules to work under the direction of the Secretary in the case of the State organisation (r 25(6) of the rules of the State organisation) or the Divisional Branch Secretary (r 47(a) of the rules of the counterpart Federal body).  The offices of the Divisional Branch Assistant Secretaries are also under the control of the Divisional Branch Council and the Divisional Branch Management Committee and are to perform the duties of the Divisional Branch Secretaries in the absence of the Divisional Branch Secretary:  r 47 of the rules of the counterpart Federal body.  Whilst the offices of the Divisional Branch Assistant Secretaries are empowered with these functions and the Assistant Secretary is not given these functions under the rules of the State organisation, it is apparent that the powers and functions of the Assistant Secretary and the Divisional Branch Assistant Secretaries are sufficiently similar.

(e) Trustees/Branch Trustees

47       Whilst there are some minor differences in procedures to be followed by the Trustees of the State organisation and the Branch Trustees it is clear that the central role of the offices of Trustees is to sign cheques with the Secretary in the case of the State organisation (r 25(5) of the rules of the State organisation) and with the Divisional Branch Secretary (r 45(a) of the rules of the counterpart Federal body).  Consequently it is clear that the powers and functions of these offices can be said to be sufficiently similar.

(f) Ordinary Executive Members/Branch Committee Management Committee Members

48       Although the rules of the State organisation and the counterpart Federal body do not expressly provide the powers and functions of these offices it is apparent from not only the title of each of the offices but from the fact that these offices form part of the offices of the management committee of the State organisation and the Branch, which is in each case to respectively control and conduct the business of the State organisation and the Branch, it can be said these offices are sufficiently similar.

Conclusion – Not satisfied the offices of the State organisation and Branch are the same and cannot be deemed to be the same

49       Once the task of the Full Bench as set out earlier by Pullin J is understood, it is apparent that in the absence of any functions or powers for the position of Divisional Branch Treasurer, the Full Bench cannot find that the rules of the counterpart Federal body prescribing the offices which shall exist in the Branch are deemed to be the same as the rules of the State organisation prescribing the offices which shall exist in the State organisation.  The absence of any functions or powers for the position of Divisional Branch Treasurer in Western Australia is striking when contrasted with the fact of the prescription of functions and powers for the Divisional Branch Treasurer (South Australia) in r 48A of the rules of the Federal organisation and the content of those functions and powers.

50       It should be remembered that the purpose of this application is for the applicant to be in a position where each office in the applicant may be held by the person who, in accordance with the rules of the Union's counterpart Federal body, holds the corresponding office in that body.  It cannot be said that the Divisional Branch Treasurer is the corresponding office of the Treasurer of the applicant, particularly when some of the functions or powers of the Treasurer's position are able to be exercised by the Divisional Branch President

51       In the circumstances where no functions or powers of the Divisional Branch Treasurer and the Divisional Branch Senior Vice President are prescribed in the rules of the counterpart Federal body (other than common duties as a member of the Divisional Branch Management Committee), and where specific functions and powers of the office of Treasurer and the Senior Vice President in the State organisation are prescribed and vested specifically in each office, we are unable to form the opinion that the rules of the counterpart Federal body prescribing offices are the same or can be deemed to be the same as the rules of the State organisation.  For these reasons we are of the opinion that an order should be made that the application be dismissed.