ORDER PURSUANT TO S.66

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2024 WAIRC 00841

DELIVERED : THURSDAY, 19 SEPTEMBER 2024

BETWEEN : ROMINA RASCHILLA

APPLICANT

-v-

AUSTRALIAN NURSING FEDERATION INDUSTRIAL UNION OF WORKERS PERTH

RESPONDENT

THE REGISTRAR, WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

INTERVENOR

FILE NO.  PRES 12 OF 2024

PARTIES  REGISTRAR, WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

APPLICANT

-v-

ROMINA RASCHILLA

FIRST RESPONDENT

AUSTRALIAN NURSING FEDERATION INDUSTRIAL UNION OF WORKERS PERTH

SECOND RESPONDENT

FILE NO. PRES 13 OF 2024

Catchwords :  Industrial Law (WA) – Applications under s 66 Industrial Relations Act 1979 (WA) seeking an urgent interim order – Alleged non-compliance with organsiation’s Rules – Relevant principles in relation to interim orders considered and applied – Evidence established prima facie case and balance of convenience lay with the making of an order

Legislation : Industrial Relations Act 1979 (WA) s 66    

Result : Order issued

Representation:

Counsel:

Case(s) referred to in reasons:

Bowen v The Australian Workers’ Union (No. 2) (1948) 77 CLR 601

Carter and Ors v Drake (1991) 72 WAIG 2501

Quickenden v Federated University Staff Association (1988) 25 IR 440

Reasons for Decision

Ex Temporé

1         There are two applications before me under s 66 of the Industrial Relations Act 1979 (WA).  The first is PRES 12 of 2024 brought by Ms Raschilla against the Australian Nursing Federation.  The second is PRES 13 of 2024 brought by the Registrar against the Australian Nursing Federation.

2         Both applications seek urgent interim orders to prevent the Council of the ANF from considering and determining a Summons to Show Cause issued to Ms Raschilla on 28 August 2024 by letter of the same date.  That Summons was issued under rule 25 – Suspension, Removal from Office and Expulsion of Branch Officers, of the ANF Rules.  The Summons to Show Cause is to be considered by the Council tomorrow evening, on Friday 20 September 2024.

3         Both of these matters were listed for directions before me on Friday 13 September 2024.  Given the commonality between the matters, the Registrar was granted leave to intervene in application PRES 12 of 2024 and directions were made for the filing of affidavits and submissions.  Two affidavits are relied on.  One is an affidavit of Ms Raschilla and the other is an affidavit of Mr Olson, the appointed Secretary of the ANF.

Standing

4         The first question is that of standing.  I am satisfied Ms Raschilla, as a member of the ANF, has standing to bring application PRES 12 of 2024 under s 66(1)(a) of the Act.  The Registrar has standing under s 66(1)(c) of the Act to bring an application of her own motion, which she has done.  Given the urgency of the matters, both applications have been listed for hearing today, with written submissions having been filed late yesterday afternoon.

Relevant principles

5         The relevant principles to apply in relation to applications for interim orders are not in contest.  A party seeking orders under s 66(2) of the Act must establish that the orders sought relate to the rules of an organisation, their observance or non-observance or the manner of their observance, either generally or in the particular case. I am satisfied based on the evidence and submissions made that this requirement is met in both of these matters.

6         Second, the seeking of interim orders involves the application of principles applicable to the granting of interlocutory injunctions.  It goes without saying of course, that the Commission must also consider the applications and exercise its jurisdiction in accordance with equity and good conscience, as s 26(1)(a) of the Act requires.  For present purposes, I refer to the decision in Quickenden v Federated University Staff Association (1988) 25 IR 440, where French J referred to the two criteria for the grant of interim orders at pp 446-447 of his judgment.  These two criteria are firstly, the existence of a prima facie case or put differently, serious issues to be determined, and secondly, that the balance of convenience favours the grant of relief.  This case was cited with approval by the Industrial Appeal Court in Carter and Ors v Drake (1991) 72 WAIG 2501 at 2846.

7         I turn now to the evidence in summary.  Ms Raschilla is a Vice President of the ANF and was elected in October 2022 for a four year term.  She gave evidence that she attended an Annual General Meeting of the union on 17 November 2022 at the union premises.  Before the meeting commenced, Mr Olson who was then the Chief Executive Officer of the union, invited questions from those present.  The meeting did not reach a quorum and the President, Ms Fowler declared the meeting inquorate.  Ms Reah was the Secretary of the ANF at that time, but Ms Raschilla’s evidence is that she does not recall her being present at the meeting.

8         In the course of the question and answer session, Mr Olson’s evidence is that Ms Raschilla is alleged to have made a number of accusations against Mr Olson, to the effect that Mr Olson received money from the union’s holiday units and that he was a liar. Another allegation is that Ms Raschilla made accusations to an auditor for the union, that Mr Olson was keeping ‘two sets of books’, with the inference being that those submitted for audit were misleading.  I note there is no evidence from the auditor before me in these proceedings.

9         It seems the next relevant event was a Council meeting on 17 March 2023 at which Ms Raschilla says she was asked by the President Ms Fowler, ‘whether she had any evidence to support her allegations’, to which Ms Raschilla responded, ‘no comment’.  At a subsequent Council meeting on 28 July 2023, a motion was passed, moved by Mr Olson and seconded by Ms Reah, to the effect that a Summons to Show Cause issue to Ms Raschilla under rule 25 of the union’s rules.  I set out rule 25 which is as follows:

25 - SUSPENSION, REMOVAL FROM OFFICE

AND EXPULSION OF BRANCH OFFICERS

(1) Any member of Council shall cease to hold office immediately in any of the following circumstances:-

(a) if he or she ceases to be a financial member of the Union,

(b) if his or her office is declared vacant under sub-rule (2) of this Rule,

(c) if by notice in writing to the President or Secretary, he or she resigns,

(d) if he or she is removed from office under sub-rule (3) of this Rule.

(e) if he or she has ceased according to the Rules to be eligible to hold office.

(2) If any member of the Council is absent for three consecutive meetings of the Council without first obtaining leave of the Council, Council may declare his or her office vacant and he or she shall cease to be a member of the Council from that moment.

(3) If any member of Council is alleged to be guilty of:-

(a) Misappropriation of the funds of the Union,

(b) A substantial breach of the Rules of the Union,

(c) Gross misbehaviour in relation to his or her office, or

(d) Gross neglect of duty in the conduct of his or her office,

That member shall be summoned in writing by direction of Council to attend a Council meeting to show cause why he or she should not be dealt with in accordance with this Rule.

(4) The summons to show cause shall:

(a) state the allegation including all the particulars of the offence;

(b) state the evidence on which the allegation is based;

(c) be signed by the Secretary or President;

(d) state the time, date and place of the Council meeting at which the Council member is to show cause;

(e) be delivered personally to the Council member concerned, or posted by registered mail to his or her last known address, at least 21 days before the meeting at which the matter is to be determined;

(f) have attached to it a copy of this Rule.

(5) Should any person against whom an allegation is made fail to appear at the hearing and fail to provide a satisfactory explanation for his or her non-attendance, Council may proceed with the hearing of the allegation in his or her absence provided it is first satisfied that notice of the hearing in accordance with this Rule has been served on that person.

(6) The evidence relating to the alleged offence should be heard by Council and the person concerned shall be heard in his or her defence personally and/or in writing.

(7) If in the opinion of the Council that person is guilty of the alleged offence it may:-

(a) reprimand that person,

(b) suspend that person for a period not exceeding 3 months,

(c) dismiss that person from office, or;

(d) expel that person from the Union.

(8) The Secretary shall promptly inform that person by registered letter of the decision of Council. That decision shall become effective immediately after it is made.

(9) If Council suspends any person from office under this Rule it shall immediately appoint a financial member of the Union to hold that office for the duration of the suspension.

(10) Any person expelled by Council under this Rule shall not be readmitted for membership except by vote of Council.

(11) No person suspended under this Rule shall attend any meeting of the Union unless requested to do so by the relevant meeting.

(12) Any person suspended or removed from office or expelled from the Union under this Rule shall have a right of appeal to a General Meeting of the Union called and held in accordance with Rule 27 of these Rules, provided that the decision of Council or the written request of the required number of members to call such a meeting is made or received within 28 days of the decision against which the appeal is made.

10      Nothing further appears to have been done about this until 28 August 2024, when Ms Raschilla was informed by an employee of the union that a show cause letter was to be delivered to her, which it was on that day.  The letter dated 28 August 2024, a copy of which was annexed to Ms Raschilla’s affidavit, is in the following terms:

Dear Ms Raschilla,

Summons to Show Cause - Rule 25 ANFIUWP Rules

As you are aware, on 28 July 2023 the Council of the ANFIUWP directed me to summon you in writing to attend a Council meeting to show cause why you should not be dealt with in accordance with Rule 25 of the ANFIUWP Rules.

A copy of ANFIUWP Rule 25 (Attachment 1) and the minutes of the Council meetings dated 20 January 2023 (Attachment 2), 17 March 2023 (Attachment 3) and 28 July 2023 (Attachment 4) recording that direction are attached for your reference.

Summons

This is the summons.

The Allegation

You are alleged to be guilty of:

(c) Gross misbehaviour in relation to your office

The Particulars of the Allegation

The attached minutes of the 2022 ANFIUWP AGM (Attachment 5) show that it was conducted on 17 November 2022 at the ANFIUWP premises.

You attended the AGM as is evident from the attached sign in sheets (Attachment 6). At the council meeting on 28 July 2023 (Attachment 4) the ANFIUWP Council resolved that you should be sent a show cause letter in relation to the following allegations:

A. Allegations made at the ANFIUWP AGM on 17th November 2022 where Ms Raschilla stated that Mark Olson was receiving monies from the Holiday Units in addition to his regular pay.

B. Allegations made at the ANFIUWP AGM on 17th November 2022 where Ms Raschilla stated several times that Mark Olson was a liar.

C. Allegations made to the ANF auditors that Mr Olson is keeping two sets of books for the holiday units with the implication that the books shown to the auditors do not reflect all the income received from the ANF Holiday Units.

The Evidence on Which the Allegation is Based

A. There are witnesses to you having said these words at the AGM, specifically Michael Clancy and Trish Fowler

B. You alleged over the telephone whilst speaking to the auditor nominated by the ANF Council, namely Richard Gregson, that Mark Olson was operating "2 sets of books" with regard to the ANF holiday units.

C. You have previously been given an opportunity to provide evidence of what your allegations are based on namely:

a. In the minutes of 20 January 2023, Council directed you to provide evidence on which you made your allegations.

b. In the minutes of 17 March 2023, when questioned by the President as to your evidence, your response was minuted "I have no comment".

Date, Time and Place of the Council Meeting at Which You are to Show Cause

The Council of the ANFIUWP will meet on:

Date: 20 September 2024

Time: 1800

Place: ANF, 260 Pier Street

And you are to show cause as to why you should not be dealt with in accordance with Rule 25.

Yours sincerely

11      The letter purports to allege that Ms Raschilla is guilty of ‘gross misbehaviour in relation to your office’ in reliance on r 25(3)(c) of the ANF rules.

12      At about the same time of the service of the Summons on Ms Raschilla, other matters of some significance occurred within the ANF.  On 27 August 2024, results were declared for a half Council election and the election of a President and Executive members.  On 30 August 2024 the Secretary, Ms Reah, suddenly resigned.  Also on 30 August 2024, at an urgent Council meeting, Mr Olson  was appointed to fill the casual vacancy of Secretary of the union, caused by Ms Reah’s resignation. And finally on 31 August 2024, Ms Raschilla viewed a press conference conducted by Mr Olson, in the course of which he referred to a telephone conversation two days after the election with Ms Reah, in relation to what Ms Raschilla described as ‘strategies to deal with the Council’.

13      No evidence is before me from either Ms Fowler or Ms Reah, both of whom signed the Summons to Show Cause on behalf of the union’s Council.  I must say this is somewhat surprising.  As the President of the ANF and the presiding officer of the Council, it is Ms Fowler who should speak on behalf of the Council on a matter of such seriousness as the present matter.

14      This is all the more surprising given that the ANF relies upon the evidence of Mr Olson, who was the subject of the allegations allegedly made by Ms Raschilla and who moved the motion at the Council meeting on 28 July 2023, for the Council to issue a Summons to Ms Raschilla in the first place.  Mr Olson has also commenced defamation proceedings in the Western Australian Supreme Court, filed on 15 November 2023.

15      In my view, in light of these events, Mr Olson has a conflict of interest in this matter.  Not only is he the subject of allegations of Ms Raschilla and moved the motion of the Council meeting that Ms Raschilla be disciplined, but he also has a vested financial interest in his defamation action against Ms Raschilla.

16      I have reservations as to Mr Olson’s capacity to speak for the Council in these proceedings for the reasons I have referred to.  Whilst at the end of the hearing today, counsel for the ANF advised that Mr Olson would not sit on the Council tomorrow, for reasons identified in the Registrar’s supplementary brief submissions, what that means, given that it was not made in evidence and could not be explored or tested, leaves me with some reservations.

Consideration

Prima facie case

17      I will turn now to my consideration of the first issue, that is whether there is a prima facie case, or there are serious issues to be determined.

18      The first matter to be considered is whether there is a prima facie case on the non-observance by the ANF of r 25 of its Rules.  Rule 25(3)(c) is relied on.  There are two elements to r 25(3)(c).  Firstly, there must be identified the gross misbehaviour.  Secondly, that gross misbehaviour must be in relation to the office holder’s office.  Rule 25(4) requires a number of things, but most importantly, the Summons must firstly state the allegations, including all the particulars of the offence and secondly, state the evidence on which the allegation is based. 

19      Whilst the allegation in the letter recites the terms of r 25(3)(c) verbatim, there is nothing in the letter that sets out how it is asserted that the relevant allegations bear upon Ms Raschilla’s position as a Vice President.  This is most important.  And it is one of the essential aspects of r 25(3)(c) of the Rules.  Whilst in Mr Olson’s evidence reference was made to the ‘gravitas’ of the Vice President’s position held by Ms Raschilla, he accepted when questioned further, that there is no reference to this in the Summons.

20      Also, what are said to be the particulars of the allegation, refer to alleged comments by Ms Raschilla at the Annual General Meeting on 17 November 2022.  Arguably, it could be said that these also constitute the evidence on which the allegation is based, for the purposes of r 25(4)(b), when read in conjunction with the further matters raised on page two of the letter of Summons. Furthermore, as to the first requirement of r 25(3)(c), the matter of gross misbehaviour, this is not set out at all in the Summons, apart from the recitation of r 25(3)(c) itself.  That is, how was the conduct gross misbehaviour?

21      For Ms Raschilla to answer the Summons, natural justice requires her to know with a degree of certainty the case she has to meet.  As a matter of fairness, the specific gross misbehaviour in relation to her office as Vice President should be set out.  It is not.  It is beyond question that natural justice applies to the circumstances of this case, given the potential drastic consequences of an adverse decision of the Council for Ms Raschilla under r 25.  To her credit, the ANF’s counsel did not cavil with this.

22      There are two other issues that bear upon the prima facie case requirement.  The first is the issue of apprehended or actual bias.  The ANF submitted that as the ANF Council is a domestic tribunal and is not a court, a lesser standard applies.  In this respect the ANF relied on the decision of the High Court in Bowen v The Australian Workers Union (No. 2) (1948) 77 CLR 601 in support of this contention.  In this case, involving not dissimilar circumstances to the present, a number of members of the union were expelled for disciplinary reasons.  The matter ultimately found its way to the High Court.  Whilst the ANF relies on this case to suggest that in the case of domestic tribunals, often persons who are involved in matters take part in decision making, the case is not in my view, authority for the proposition that bodies such as the ANF Council may not attract the principle of bias. 

23      In this case, whilst Mr Olson has now indicated he will not participate in the Council meeting tomorrow evening, Mr Olson’s evidence today is that this is not the case in respect of Mr Clancy and Ms Fowler.  Both Mr Clancy and Ms Fowler have been involved in these matters from the very beginning.  Both are referred to as witnesses of fact in the Summons.  Both have participated in Council meetings on 17 July 2023, where the allegations against Ms Raschilla were raised, and both were present and voted for the resolution on 28 July 2023, for the issue of the Summons.  Given both of these officers, including the most senior, the President, may participate in the Council meeting tomorrow evening as witnesses of fact and supporters of the Summons, the conclusion is irresistible that an apprehension of bias arises in this matter.  Also, as I have said, it is unclear to me what Mr Olson not sitting tomorrow actually means, and whether he may have some influence on others in their deliberations. 

24      A further issue emerging on the evidence today from Mr Olson, and which is reflected in some of the Council meeting minutes, is that it appears likely that a matter that will be considered by the Council tomorrow, is Ms Raschilla’s failure to respond to requests by the ANF Council to provide evidence for her allegations against Mr Olson at the Annual General Meeting on 17 November 2022. This is problematic, as nowhere in the Summons, is this matter raised as part of the allegation of gross misbehaviour in relation to Ms Raschilla’s office as a Vice President of the union.

25      A final submission on behalf of both Ms Raschilla and the Registrar, is that given the timing of the issuance of the Summons over a year after the resolution of the Council made in July 2023, in conjunction with the recent half Council election, it is open to infer that the Summons issuance was motivated to silence Ms Raschilla as a critic of some on the Council and to take the opportunity to fill a casual vacancy by her removal, if it were to occur. 

26      Given this interlocutory hearing, and the necessity for more limited evidence, in the absence of a full hearing on the merits, it is difficult to reach any firm conclusions on this question.  However, while the ANF in its written submissions referred to the seriousness of the allegations against Ms Raschilla, this begs the obvious question, if that is so, then why have the allegations sat unacted upon for so long?  In conjunction with the evidence of Mr Olson’s recent media interview, referring to discussions with Ms Reah as to the composition of the new Council following the recent election, the timing of events may give rise to some suggestion of manipulation. 

27      I am therefore satisfied on the basis of the matters before me that there is a prima facie case, or there are serious issues to be determined in relation to firstly, whether the allegations in the Summons, even if established, could constitute gross misbehaviour in office under r 25(3)(c). Secondly, the existence of bias or apprehended bias and therefore, potential invalidity of the Summons.  And thirdly, the timing of the events and the absence of a real explanation for the extensive delay in the issuance of the Summons, leaves me with a sense of unease.

Balance of convenience

28      As to the question of the balance of convenience, in my view, the balance of convenience is heavily weighed in favour of Ms Raschilla.  Given the potentially extremely serious consequences for her if the Council upholds the Summons tomorrow evening, including not just removal from office, but expulsion from the union, there is the risk to Ms Raschilla of irrecoverable harm.  This includes loss of benefits as a member of the union as referred to at par 3 of her affidavit.  In this respect, I also refer to r 25(7) of the Rules, which only requires the ANF Council to form an opinion as to guilt, a standard more difficult to challenge on appeal in my view. 

29      On the other hand, the ANF has not raised any issue of possible harm in the event interim orders are made. Any such submission however, would be heavily outweighed by the extensive delay in issuing the Summons for over a year, and the fact that the allegations themselves arise from events said to have taken place one year and ten months ago.

Conclusion

30      In all of the circumstances of this case, as a matter of equity and good conscience, I consider that an interim order should be made.