APPLICATION FOR ALTERATION OF REGISTERED RULES

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2024 WAIRC 00713

DELIVERED : Wednesday, 24 July 2024

FILE NO. : CICS 10 OF 2023

Applicant

AND

(Not Applicable)

Respondent

CatchWords : Industrial Law (WA) - Application pursuant to s 62(2) to vary Union rules - Alteration of registered rules to change name, qualification of persons for membership, and matters relating to ss 71(2) and 71(5) of the Industrial Relations Act 1979 - Application granted

Legislation : Fair Work (Registered Organisations) Act 2009 (Cth)

Industrial Relations Act 1979 (WA) s 6, s 6(ab), s 6(e), s 6(f), s 6(g), s 55, s 55(2), s 55(3), s 55(4)(a), s 55(4)(b), s 55(4)(b), s 55(4)(c), s 55(4)(d), s 55(5), s 56, s 58(3), s 62(2), s 66, s 71, s 71(2), s 71(5)

Result : Order issued

Representation:

Counsel:

Applicant : Mr C Fogliani of counsel

Solicitors:

Applicant : Fogliani Lawyers

Case(s) referred to in reasons:

Steven McCartney v The Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers, Western Australian Branch [2022] WAIRC 00877; (2022) 103 WAIG 18

Reasons for Decision

COMMISSION IN COURT SESSION:

The application

1         Before the Commission in Court Session is an application under s 62(2) of the Industrial Relations Act 1979 (WA) for authorisation to be given to the Registrar to alter Rules of the applicant that relate to its name, qualification of persons for membership, and matters relating to ss 71(2) and 71(5) of the Act.  To the extent that they are relevant, the terms of ss 55, 56 and 58(3), with any necessary modifications, also apply to an application of the present kind.

2         The application seeks alterations to rule 2 – Eligibility for Membership to add the calling of ‘railway fettlers’ in rule 2(1)(a)(i) and to also incorporate substantial parts of the eligibility for membership of the WA Branch of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the AMWU, into the applicant’s eligibility for membership rule.  The AMWU is an organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth) and is the applicant’s counterpart federal body.

3         The applicant also seeks to renumber the eligibility for membership rule as a part of a larger exercise of renumbering and reformatting its Rules more generally.  The applicant also seeks to alter the present rule 9 – State Officials and re‑number and rename it as new rules 14.1 to 14.3 – Joint Elections of the Union and its federal counterpart, for the purpose of ultimately obtaining a s 71 certificate under the Act.

4         As an organisation registered under the Act, we are satisfied that the applicant has standing to commence these proceedings to seek approval for the Registrar to alter its Rules under s 62(2) of the Act.

5         The grounds of the application are set out as follows:

Grounds

1. The Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers - Western Australian Branch (the AFMEPKIU) seeks an order from the Commission in Court Session, pursuant to section 62(2) of the Industrial Relations Act 1979 (WA), authorising the Registrar to register alterations to the following of the AFMEPKIU’s rules:

Particulars

A. The AFMEPKIU is an organisation registered under the Industrial Relations Act 1979 (WA). Its counterpart federal body is the WA Branch of the ‘Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers’ Union (the AMWU).

B. The background in relation to this application was set out in proceedings under section 66 of the Industrial Relations Act 1979 (WA) in Steven McCartney v the AFMEPKIU (2022) 103 WAIG 18. In essence, the AMWU’s rules have changed substantially over the course of around 23 years or so, and the AFMEPKIU’s rules were not altered over that period to keep them in alignment with those of the AMWU. This has left the AFMEPKIU without a valid section 71 certificate.

C. The AFMEPKIU seeks to amend its eligibility rule to:

i. Renumber the eligibility sub-rules. This is part of a broader reformatting and renumbering of the entire set of rules. The numbering changes are intended to improve the readability of the rules.

ii. Add an express reference to railway fettlers to the existing rule 2(1)(a)(i) (which will be the new rule 3.1(a)(i)). The inclusion of the reference to ‘railway fettlers’ in the existing rule 2(1)(a)(i) is to cement the AFMEPKIU’s longstanding practice of using the term ‘fettler’ in the existing rule 2(1)(a)(i) to enrol railway track workers as members of the AFMEPKIU and the AMWU.

iii. Add the AMWU’s eligibility rules into the AFMEPKIU’s eligibility rule. The incorporation of the AMWU’s eligibility rules into the AFMEPKIU’s eligibility rule is to enable the AFMEPKIU to:

a. obtain a section 71 certificate; and

b. exercise State OHS rights (as defined in section 494 of the Fair Work Act 2009 (Cth)) under section 49I of the Industrial Relations Act 1979 (WA) in relation to federal-system members of the AMWU.

D. The AFMEPKIU also seeks to amend the wording contained in the existing rule 9 (which will move to the new rules 14.1 to 14.3) as a part of a tidying up of the wording of the rules.

Background

6         The background to the present application was set out by Kenner CC in Steven McCartney v The Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers, Western Australian Branch [2022] WAIRC 00877; (2022) 103 WAIG 18.  That matter was an application under s 66 of the Act, seeking orders for the establishment of an Interim Branch Executive to conduct the affairs of the applicant, pending the process of alteration of its Rules to update and align them with the relevant Rules of the AMWU, and to enable the obtaining of a new s 71 certificate under the Act.  The Chief Commissioner set out the relevant background at [2]-[10] as follows:

2 In short, the grounds for the application are that in November 1999 the Full Bench of the Commission made a declaration that prescribed offices of the respondent and the respondent’s counterpart federal body, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, were the same, as were the rules for eligibility for membership. The declaration led to the grant of a certificate under s 71 of the Act by the Registrar. Since that time, the federal WA Branch has had many changes made to its registered Rules.

3 In support of the application, evidence was adduced by affidavit from the applicant and Mr Andrew Dettmer, the National President of the federal union. Mr Dettmer set out in his affidavit in some detail, the history of rule changes over the past 23 years or so, in the federal WA Branch and in the federal union generally. I do not need to traverse all the changes set out in Mr Dettmer’s evidence. Suffice to say, some key changes which have been made to the federal WA Branch Rules now likely mean that the s 71 certificate no longer has any operative effect. Some of these include changes to the composition of offices within the federal WA Branch, which are inconsistent with the respondent’s office structure. For example, only one Assistant State Secretary position exists in the federal WA Branch under rule 5H3(1)(a) of its Rules. However, by rule 9 of the respondent’s Rules, three Assistant State Secretary positions remain.

4 Furthermore, the divisional structure of the federal WA Branch and the respondent is different. The respondent has a Technical and Supervisory Division and a Printing Division, along with relevant offices. No such divisions exist in the federal WA Branch. Also, the respondent retains a structure of State zones, from which officers from each zone were represented at the respondent’s State Conference. No such zone structure exists in the Rules of the federal WA Branch.

5 As set out in Mr Dettmer’s affidavit, other significant changes have occurred to the structure of the federal WA Branch in relation to the constitution of its State Conference and its State Council. The changes made to these decision making organs of the federal WA Branch have not been replicated in the same decision making organs of the respondent. Furthermore, significant changes have been made to the Administrative Committee structure within the federal WA Branch, which is now different to the Administrative Committee of the respondent.

6 Additionally, as Mr Dettmer deposed, there are several offices within the federal WA Branch which do not exist within the respondent. These include Western Australian Branch Delegates to the union’s National Conference and Western Australian Branch Woman Delegates to the National Conference. The numbers of these delegates are variable.

7 In addition to the significant changes to the offices within the federal WA Branch, not reflected within the respondent, as set out in Mr Dettmer’s affidavit, there have also been changes to the eligibility rules of the federal WA Branch. For example, by rule 1G(a) of the federal WA Branch eligibility rules, the union can enrol employees who are employed in or in connection with the food industry in Western Australia. There is no corresponding eligibility within the respondent. The same applies to employees engaged in the confectionery industry in Western Australia, and those engaged in work in preparing motor vehicles for sale and related activity. The federal WA Branch Rules also enable it to enrol as members, persons who are engaged as independent contractors who, if they were employees, would be entitled to become a member of the federal WA Branch.  No such rule exists within the respondent.

8 The applicant gave evidence that he has been a member of the respondent for many years and commenced employment as an organiser with the respondent and the federal WA Branch in February 2001. It was his view that during his time with the respondent, both organisations operated as one entity. The applicant subsequently became the President of the federal WA Branch and maintained his understanding that both the State and federal organisations operated as one. In September 2008, the applicant became the Secretary of the federal WA Branch and assumed office in January 2009. He has remained in that position and was most recently re-elected in July 2019. Whilst by this stage the applicant said he understood that both the State and federal organisations were separate legal entities, he believed that the s 71 certificate, issued in 1999, enabled the organisations to be conducted jointly.

9 It was the applicant’s evidence that since taking up the position of State Secretary, and until recently, he understood that the effect of the s 71 certificate was that the elected office holders elected to office in the federal WA Branch became elected to corresponding offices within the respondent, and the business of the respondent was conducted on that understanding. The applicant’s evidence was that he had no reason to doubt the effectiveness of the s 71 certificate and assumed that it operated according to its terms.

10 In early 2022 queries were raised by the Registrar of the Commission in relation to annual returns filed by the respondent, including that the annual returns did not report on several positions which are contained within the respondent’s Rules. The applicant gave evidence that he engaged the union’s National office in correspondence with the Registrar and took independent legal advice. The applicant’s evidence was that based on this legal advice, it now appears that the s 71 certificate issued in 1999, given the number of changes made to the federal WA Branch Rules, is likely to be no longer effective. Accordingly, the applicant said that he has brought this application to create an Interim Branch Executive.

…

Evidence in support of the application

7         Evidence in support of the present application was adduced from the applicant’s Secretary Mr McCartney. He referred to the procedural steps undertaken by the applicant to progress the Rules alteration process, including decisions by the relevant decision making bodies of the applicant and steps subsequently taken to inform its members in relation to the proposed alterations to the Rules.  Mr McCartney also gave oral evidence before the Commission in Court Session in relation to the proposed alteration to the existing rule 2(1)(a)(i) to include the calling of ‘railway fettlers’.

8         Mr McCartney’s evidence in summary, was in the following terms:

(a) In accordance with rule 6 – Powers of State Conference, on 28 June 2023, Mr McCartney attended a meeting of the applicant’s State Conference, as constituted by the Interim Branch Executive formed by order of the Chief Commissioner in applications PRES 12 of 2022 and PRES 14 of 2023.  The other members of the Interim Branch Executive were in attendance at the meeting.  In accordance with rule 6(2)(d) the State Conference unanimously resolved to:

(i) alter and amend the applicant’s rules;

(ii) refer the resolution of the State Conference to the State Council for approval in accordance with rule 6(5) of the applicant’s rules; and

(iii) authorise the State Secretary and the State Assistant Secretary of the applicant to do all things necessary in order to commence proceedings before the Commission to give effect to the proposed Rules alterations.

(A copy of the resolution of the State Conference meeting dated 28 June 2023 to the above effect, was annexure SM1 to Mr McCartney’s statutory declaration).

(b) In accordance with rule 6(5) later on 28 June 2023, Mr McCartney attended a meeting of the applicant’s State Council.  Again, the State Council was constituted by the Interim Branch Executive, whose members were present.  As a result of the meeting, the State Council unanimously resolved:

(i) to approve the alterations and amendments to the applicant’s Rules as set out above; and

(ii) to circulate to all members of the applicant the proposed alterations and amendments to the rules in accordance with rule 6(5).

(A copy of the State Council’s resolution dated 28 June 2023 was annexure SM2 to Mr McCartney’s statutory declaration).

(c) Subsequently on 6 September 2023, Mr McCartney informed members of the applicant of the proposed amendments and alterations to the applicant’s Rules.  By email of the same date to members Mr McCartney included:

(i) a written notice to members explaining the nature of the changes to the Rules, the reasons for them and how members may object to the proposed alterations;

(ii) a copy of the proposed Rules as sent to members;

(iii) a copy of the current Rules as sent to members; and

(iv) a copy of the current Rules with tracked changes setting out the proposed alterations.

(d) In Mr McCartney’s notice to the applicant’s members, they were informed of the right to object to the proposed alterations or to the making of an application to register the proposed alterations with the Commission.  If any objections were forthcoming, they were to be made to the Registrar of the Commission within 21 days of the date of Mr McCartney’s notice.

(e) Mr McCartney also said that on or about 28 September 2023, the applicant’s solicitors were informed by Deputy Registrar Kemp, that the Registrar had not received any objections from members to the proposed alterations to the applicant’s Rules.

Submissions on behalf of the applicant

9         The applicant made a number of submissions in connection with the application.  It was contended that the notice requirements under s 55(2) of the Act had been met in that the Deputy Registrar published a Notice in the Industrial Gazette dated 22 December 2023, notifying of the present application and the applicant seeking approval from the Commission in Court Session to amend its Rules under s 62(2) of the Act.  At the same time, a full copy of the application was published.  More than 30 days passed after the publication of the Notice, before the matter was listed for hearing before the Commission in Court Session, satisfying the requirements of s 55(3) of the Act.

10      In relation to compliance with the applicant’s Rules, the applicant contended that in accordance with s 55(4)(a) of the Act, the Commission must be satisfied that the application has been made in accordance with the Rules of the applicant.  In this respect, the applicant submitted that the evidence of Mr McCartney, set out above, refers to compliance with rule 6(2)(d) and rule 6(5), in relation to the authority to alter the Rules, consultation with members and approval to seek the alterations by application to the Commission.

11      Further, it was submitted that reasonable steps have been taken by the applicant to notify its members of its intention to amend its Rules, the nature of the proposed amendments, and that members may object by written objection to the Registrar in accordance with s 55(4)(b) of the Act and members have been given a reasonable opportunity to object.

12      The proposed inclusion of ‘railway fettlers’ into existing rule 2(1)(a)(i) requires consideration of s 55(5) of the Act.  This provision requires the Commission in Court Session to refuse an application to alter its eligibility rule, if such alteration would enable an organisation to enrol persons as members, who are eligible to be a member of another registered organisation(s). This is subject to the qualification that the Commission in Court Session may permit the alteration, if it is satisfied that there is good reason, consistent with the objects of the Act in s 6, to do so.

13      As to this matter, the applicant referred to the evidence of Mr McCartney, of the longstanding history of the term ‘fettler’ as relating to the applicant’s existing rule (2)(1)(a)(i), enabling it to enrol as a member, ‘fettlers’, as railway track workers, as with the AMWU.  The applicant submitted that whilst there appears to be no other organisation which has a specific calling of ‘railway fettler’ in its Rules, there are two organisations whose eligibility for membership rules may be relevant.  The first is the Australian Workers’ Union, West Australian Branch, Industrial Union of Workers, which has eligibility to enrol workers employed in the industry of ‘the construction, maintenance, conduct, and operations of railways’ in rule 4(2).  Secondly, is the Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch, which can enrol employees engaged ‘in or in connection with the Railway or Tramway industry or industries’ in rule 3.4(ii).

14      Given the potential for overlapping coverage, the applicant submitted that the Commission in Court Session needs to consider whether, for the purposes of s 55(5) of the Act, there is good reason, consistent with the objects of the Act in s 6, to permit the alteration of the applicant’s Rules to include the calling of ‘railway fettlers’.

15      The applicant made a number of submissions as to why it contends that the Commission in Court session should conclude that there is good reason, consistent with s 6 of the Act, to authorise this alteration to the Rules.  It was submitted that on the evidence, it has been a longstanding practice that both the applicant and the AMWU, have enrolled as members, railway fettlers within its existing eligibility for membership rule which refers to ‘fettlers’.  In this respect, the applicant submitted that there is already overlapping coverage between it, the AWU and the RTBU.  The submission was put that the effect of this alteration is not to enlarge its rules, but to make clear its existing coverage.  Additionally, it was contended that no objection has been made by any member of the applicant, nor any other registered organisation, including the AWU and the RTBU.  Further, not only does the alteration to include railway fettlers, reflect the status quo, but also, is consistent with the objects of the Act, in ss 6(ab), 6(e), 6(f), and 6(g) in enabling the applicant to represent these employees and to ensure that they can take part in the democratic processes of the applicant.

16      As to any possible overlapping membership arising from the incorporation of eligibility rules from the AMWU, the applicant submitted that if there is such overlapping coverage, then without it, it would not be possible for the applicant to obtain a s 71 certificate under the Act.  Furthermore, despite the publication of the application and the proposed alterations to the Rules, again, there has been no objection lodged with the Registrar, in relation to these matters.

17      For all of the above reasons, the applicant submitted that the Commission in Court Session should authorise the alterations to rules 2 and 9 of the applicant’s Rules.

Consideration

18      In relation to the procedural requirements of the applicant’s Rules, and those imposed by the Act, we are satisfied that the proposed alterations to the Rules of the applicant have been properly authorised.  As noted above, there have been no objections lodged with the Registrar in relation to the proposed alterations, and members of the applicant have been given a reasonable opportunity to do so.  We are therefore satisfied that the requirements of ss 55(4)(b), 55(4)(c) and 55(4)(d) of the Act have been met.

19      In relation to the inclusion of the ‘railway fettler’ calling in the eligibility for membership rule, and the incorporation of relevant parts of the eligibility rules of the AMWU, we are also satisfied that to the extent that there may be overlapping coverage with any other organisation registered under the Act, there is good reason, consistent with the objects of the Act in s 6, to authorise the alterations.  We accept that on the evidence it has been a long standing practice that the term ‘fettler’, presently in the applicant’s eligibility for membership rule, has included those engaged on work as ‘railway fettlers’.

20      In relation to the incorporation of parts of the eligibility rule of the AMWU, by letter dated 20 March 2024 the Associate to the Commission in Court Session wrote to the applicant’s solicitors about that matter.  The correspondence raised some concerns that aspects of the proposed alterations referred to other States and Territories of the Commonwealth, which appeared to have no relevance to Western Australia. Those parts of the proposed altered eligibility rule were identified and a request made to the applicant to consider removal of the relevant parts, to enable the application to progress.

21      By letter of 22 March 2024 the applicant’s solicitors wrote in reply that the Interim Branch Executive, meeting as the State Conference and the State Council of the applicant, passed resolutions giving effect to the eligibility rule changes as suggested by the Commission in Court Session, that members would be duly notified in accordance with the Rules, and a further statutory declaration would be filed.

22      On 20 June 2024, a further statutory declaration of Mr McCartney was filed. This confirmed that the further altered proposed eligibility rule of the applicant had been circulated to and endorsed by members of the applicant without objection.  We are satisfied that the applicant has complied with its Rules in relation to that further consultation with, and approval given by, its members.

Conclusion

23      Accordingly, we will make an order authorising the Registrar to register the alterations to rules 2 and 9 of the applicant, which have been renumbered rules 3 and 14 respectively, as published in the Notice dated 22 December 2023, and as varied by request of the Commission in Court Session.