2024 WAIRC 00887
ORDER PURSUANT TO S.66
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2024 WAIRC 00887

CORAM
: CHIEF COMMISSIONER S J KENNER

HEARD
:
THURSDAY, 3 OCTOBER 2024

DELIVERED : THURSDAY, 10 OCTOBER 2024

FILE NO. : PRES 10 OF 2024

BETWEEN
:
ROMINA RASCHILLA
APPLICANT
AND

MARK OLSON
FIRST RESPONDENT

AUSTRALIAN NURSING FEDERATION INDUSTRIAL UNION OF WORKERS PERTH
SECOND RESPONDENT

THE REGISTRAR, WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
INTERVENOR


Catchwords : Industrial Law (WA) – Application under s 66 Industrial Relations Act 1979 (WA) for interim orders – Appointment of union Secretary to casual vacancy – Alleged non observance of union rules – Relevant principles applied – Serious issues to be determined and balance of convenience in favour of granting relief – Orders made
Legislation : Health Practitioner Regulation National Law (Cth) s 178(2)(a)
Industrial Relations Act 1979 (WA) s 6(e), s 6(f), s 26(1)(a), s 66, s 66(2)
Trade Practices Act 1974 (Cth)
Result : Order issued
REPRESENTATION:

Applicant In person

First Respondent Mr N Parkinson of counsel

Second Respondent Mr M Clancy

Intervenor Mr J Carroll of counsel

Case(s) referred to in reasons:
Federated Clerks’ Union of Australia (WA Branch) v Cary (1977) 57 WAIG 585
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Liquor, Hospitality and Miscellaneous Union, West Australian Branch v The Minister for Health [2011] WAIRC 00192; (2011) 91 WAIG 291
New South Wales Nurses’ Association v Health Administration Corporation & Ors (1987) 23 IR 17
OD Transport Pty Ltd v Western Australian Government Railways Commission (1986) 13 FCR 270
Pigozzo v Mineral Resources Ltd (No 2) [2023] FCA 1489
Quickenden v Federated University Staff Association (1988) 25 IR 440
Raschilla v ANF and Registrar; Registrar v Raschilla and ANF [2024] WAIRC 00841
Re New South Wales Nurses’ Association (1987) 23 IR 468
Robertson v Civil Service Association of Western Australia Incorporated [2003] WAIRC 10158; (2003) 83 WAIG 3938
Stacey v Civil Service Association of Western Australia (Incorporated) [2007] WAIRC 00568; (2007) 87 WAIG 1229
State School Teachers Union of WA (Inc) (1998) 78 WAIG 1123
World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181
Reasons for Decision

The application
1 By an amended application made on 1 October 2024, the applicant Ms Raschilla, a Vice President and Council member of the second respondent, the Australian Nursing Federation, Industrial Union of Workers, Perth seeks an order under s 66 of the Industrial Relations Act 1979 (WA) challenging the appointment by the Council of the ANF, of Mr Olson to the position of Secretary of the union, made on 30 August 2024. The appointment of Mr Olson by the Council to the position of Secretary, was to fill a casual vacancy arising from the resignation of the incumbent Secretary, Ms Reah, on the same date. In these proceedings, the applicant seeks interim orders, pending the final determination of the application, in the following terms:
2.1 THAT Mr Mark Olson is removed from the office of Secretary of the Australian Nursing Federation, Industrial Union of Workers Perth until further order of this Commission.
2.2 THAT the Council of the Australian Nursing Federation, Industrial Union of Workers Perth is able to fill the casual vacancy in the office of Secretary created by order (1) above by appointing an eligible member, other than Mr Mark Olson, to the casual vacancy under rule 24 of its registered rules, however, the term of any such appointment must be subject to any further order of this Commission.
2.3 THAT the parties have liberty to apply on short notice.
2 Affidavit evidence was filed by Ms Raschilla on her own behalf, by Ms Pontifex on behalf of the Registrar and by Mr Olson on his own behalf. The ANF did not file any evidence. Given the urgency of the matter, I listed the application for hearing for interim orders on 3 October 2024. The Registrar supported Ms Raschilla’s application for interim orders, which were opposed by both Mr Olson and the ANF. In addition to her own affidavit, Ms Raschilla relied on the affidavit filed by Ms Pontifex.
Factual background
3 The evidentiary material filed in these proceedings was substantial, with the affidavits in support of and in opposition to the interim orders sought, running to some 744 pages of material. Whilst I have considered all of the affidavit evidence, given the nature of the present proceedings, and the relative urgency of the matter, what follows is a summary of the essential features of that evidence.
4 Ms Raschilla was elected as a Vice President and as a Council member, following the election of senior officers and half of the Council members, the results of which were declared on 17 October 2022. Ms Reah was at that time elected as the Secretary of the ANF. Both Ms Raschilla and Ms Reah were elected for a four year term.
5 Prior to this election, on 11 August 2022, the Registrar received correspondence from the ANF, to the effect that Mr Olson had resigned as the Secretary of the ANF on 28 July 2022 and Ms Reah had been appointed to fill the casual vacancy as the Secretary. At about the same time, Mr Olson was appointed to the position of Chief Executive Officer of the ANF. He subsequently resigned from this position in January 2023 and he appeared (at least initially) to cease duties in that position in about mid-July 2023. Since about late September 2023 or early October 2023, Mr Olson commenced performing casual work for the ANF, until about late July 2024.
6 In July 2024, a further election was held for offices in the ANF for the office of President, three Executive members and the other half of the Council. On 27 August 2024, the result of that election was declared. On 30 August 2024, the Secretary of the ANF, Ms Reah, resigned effective immediately. At an urgent Council meeting of the ANF held on the evening of 30 August 2024, the resignation of Ms Reah was accepted and Mr Olson was appointed by the Council to the office of Secretary, by the filling of a casual vacancy. This appointment was confirmed in a letter from the ANF to the Registrar dated 2 September 2024.
7 As the factual background from 2022 is quite complex, based on Ms Pontifex’s affidavit, the Registrar provided a chronology of relevant factual matters which was annexed to her written submissions. The chronology provided a summary of relevant events from April 2022 to the most recent events in September 2024, in table form. The chronology is in date order, from the most recent events. For the purposes of understanding the submissions made, in the context of the relevant factual history, the chronology annexed to the Registrar’s written submissions will be annexed to these reasons for decision.
8 As this is an application for interim orders, it is not appropriate for me to make findings on contested matters of fact. The application is to be decided on the affidavit evidence, without the rigour of a contested final hearing. The statements made in the affidavit evidence, for the purposes of determining the application, are to be accepted as true, subject to certain conditions: Pigozzo v Mineral Resources Ltd (No2) [2023] FCA 1489 per Feutrill J at [15]. As to these matters, the evidence contained in Ms Pontifex’s affidavit did not conflict with the evidence adduced by Mr Olson, and as I have already observed, there was no evidence put on by the ANF. I will return to this observation later in these reasons.
9 Mr Olson first joined the ANF in May 1994. He has been a registered nurse since 1984, and was registered with the Nurses Registration Board of New South Wales, and subsequently the Nurses Board of Western Australia, now the Australian Health Practitioners Regulatory Authority. Mr Olson has been a financial member of the ANF since 1994 to date. The meaning and effect of ‘a financial member of the union’, for the purposes of the ANF Rules, is a matter in contest in these proceedings, and I will consider it further below.
10 Apart from the evidence as to Mr Olson’s professional and work history, I touch on some of the other evidence before me. Ms Raschilla referred to a number of allegations against Mr Olson as Secretary of the ANF, by staff of the Union. These relate to allegations of bullying and harassment over the course of 2021 and 2022, which led to regulatory bodies including WorkSafe Western Australia and the AHPRA taking some action. Additionally, workers’ compensation claims were referred to by Ms Raschilla, made by staff of the ANF, arising from similar allegations.
11 According to Ms Raschilla, these matters led to the issuance by WorkSafe of two Provisional Improvement Notices to the ANF in February 2022, in relation to psychosocial hazards in the workplace. Reference was also made by Ms Raschilla to a caution issued to Mr Olson under s 178(2)(a) of the Health Practitioner Regulation National Law. Despite these events, Ms Raschilla testified that no mention of these matters has been made by Mr Olson to the Council, and she could find no record of them in Council meeting minutes, from October 2022 to date.
12 Some other matters were raised by Ms Raschilla. These included Mr Olson, in a meeting on 20 September 2024, proposing expenditure of $3m for a campaign in the upcoming public health enterprise bargaining negotiations. Ms Raschilla said that at the meeting, she requested the production of a business plan as to how such a sum of money should be expended, and Mr Olson refused to do so. The Council endorsed the motion for this expenditure. Ms Raschilla maintained that as a result, Mr Olson has $3m of ANF funds to spend without proper Council oversight. I should add that in the course of the hearing, counsel for Mr Olson tendered as an exhibit (exhibit FR1) email correspondence between Ms Raschilla and the newly elected President of the ANF, Mr Poole. In Mr Poole’s email of 2 October 2024, he informs Ms Raschilla that he had followed up with Mr Olson and ‘secured assurances from him that any major expenditure at and above $50,000 for each of these campaigns, will be referred to the Executive for prior approval going forward’.
13 Other matters raised by Ms Raschilla concerned a general complaint regarding a lack of openness and transparency by Mr Olson, when dealing with the Council, concerning matters such as expenditure by the ANF on strata fees for holiday accommodation owned by the union; proceedings in the State Administrative Tribunal in relation to some of the holiday units; and additionally, potential liability of the ANF to the Australian Taxation Office, regarding a tax audit. Other allegations made by Ms Raschilla also include claims of nepotism, with members of the Council and Mr Olson’s wife, being employed by the ANF in various positions, leading to conflicts of interest.
14 Much of Mr Olson’s evidence in his affidavit dealt with his involvement in enterprise bargaining negotiations on behalf of the ANF, from 1998 to 2022. He referred to the industrial agreement negotiations in the public health service, as being the pace setter for the private health sector, with such industrial agreement negotiations being the most important work of the union. He said that this has been affirmed by the Council, the Executive and members of the ANF. Mr Olson referred to these industrial agreement campaigns as hard fought and of great significance for the union.
15 He noted that the current WA Health System industrial agreement for nurses and midwives, is due to expire on 10 October 2024. The negotiations for its replacement commenced in mid-September 2024. As the leader of the campaign, Mr Olson expressed the view that if he were to be removed from the office as Secretary, on an interim basis, then this may have a serious compromising effect on the ANF’s capacity to prepare for and to negotiate the new public health industrial agreement. His evidence was this could be potentially prejudicial for the members of the ANF.
16 As to his appointment to fill the casual vacancy caused by Ms Reah’s sudden resignation, Mr Olson testified that the then President convened an urgent meeting of the Council on 30 August 2024 at 7.00 pm. The ANF Senior Vice President, Ms Murphy, moved a motion to accept Ms Reah’s resignation and to appoint Mr Olson to the casual vacancy as Secretary. The motion was seconded, and members of the Council spoke both in favour of and against the motion. The motion was put to a vote and it was carried by a majority of 10 to eight votes.
Relevant principles
17 Recently, in Raschilla v ANF and Registrar; Registrar v Raschilla and ANF [2024] WAIRC 00841, in Summons to Show Cause proceedings, I referred to the relevant principles in relation to the grant of interim orders under s 66 of the Act at [5] - [6] as follows:
[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.
18 I adopt and apply this approach for present purposes. Of note, in considering each criterion as to a serious question to be tried, and the balance of convenience, they are not independent. As was observed by French J in Quickenden at 446:
The two criteria are not independent:
“ … an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises ‘a serious question to be tried’) may still attract interlocutory relief if there is a marked balance of convenience in favour of it.” - Bullock v Federated Furnishing Trades Society of A/asia (No. 1) (1985) 10 IR 18 at 22; 5 FCR 464, 472.
19 Additionally, the effect of the proposed restraint on third parties was also noted by French J at 446, in citing OD Transport Pty Ltd v Western Australian Government Railways Commission (1986) 13 FCR 270 at 282 – 283. In that case, brought under the then Trade Practices Act 1974 (Cth) for the acceptance of an undertaking, resulting from an agreement between the parties in lieu of an injunction, French J noted the need for the court to consider, in proceedings under the Trade Practices Act, not just the interests of the parties, but also the public interest, citing World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181 at 186 and 203 - 204.
20 This broad principle will be conditioned by any relevant statutory context. Under the Act, this is made explicitly clear in that the Commission, in the exercise of its jurisdiction, ‘must have regard for the interests of the persons immediately concerned whether directly affected or not and, where appropriate, for the interests of the community as a whole; …’: s 26(1)(c) Act. In this case, these interests obviously include Ms Raschilla, Mr Olson and the ANF. Given that the ANF Rules in r 3 - Objects makes it clear that the organisation exists for the benefit of its members, then the impact on members of the ANF must also be considered in the exercise of my discretion in this matter. As to the public interest, it is clearly in the public interest that registered organisations under the Act, observe their Rules and that they be ‘kept on track’: Stacey v Civil Service Association of Western Australia (Incorporated)[2007] WAIRC 00568; (2007) 87 WAIG 1229. Such considerations are also consistent with the objects of the Act in ss 6(e) and 6(f).
Relevant rules of the ANF
21 A number of the ANF rules were referred to in argument by the parties in the proceedings. It is convenient to set them out now. The first is r 4 - Membership which is in the following terms:
4 - MEMBERSHIP
Membership of the Union shall be open to all persons who fall within the categories set out in sub-rules (1) and (2) below:
(1) (a) A member shall be a person who is an employee within the meaning of the Act:
(i) employed in the profession or industry of nursing and being registered or entitled to be registered with the Nurses Board of WA; or
(ii) a student nurse training in a school for nurses registered with the Nurses Board of Western Australia, or persons who have left their training schools after having completed the prescribed period of training in Western Australia and who intend to sit for examinations arranged by the Nurses Board until such persons are entitled to be registered as nurses.
(b) A person who has been appointed to a paid position as an employee of the union and who by virtue of such appointment is not eligible to be a member of any other registered organisation pursuant to the Act whether or not such person is entitled to be registered as aforesaid.
(2) Honorary members who shall not be entitled to take any part in any elections or to vote on any matter.
(i) who have left the profession or industry of nursing, or
(ii) Providing that no form of honorary membership shall be open to such persons who come within the definition of "employer" within the meaning of the Industrial Relations Act 1979 as amended,
(iii) who have had conferred upon them by the Council the title of "Distinguished Honorary Member" for distinguished service in or for the nursing profession. Not more than three persons shall be accorded this category of membership in any year.
Providing that no form of honorary membership shall be open to such persons who come within the definition of "employer" within the meaning of the Industrial Relations Act 1979 as amended.
(3) A Member who has ceased to be an "employee" in the profession or industry of nursing shall not be entitled to retain membership under the provisions of sub rule (1) of this Rule and the Council may terminate the membership of any such member upon written advice to the member of its intention so to do.
22 Rule 9 - Termination of Membership deals with how a person’s membership of the ANF may cease. It is relevantly provided in r 9(1) as follows:
(1) A member shall cease to be a member when:
(a) he or she is expelled for a breach of these rules, or
(b) the period of notice of intention to resign (unless previously withdrawn) has expired, or
(c) he or she is unfinancial for a period of more than three months, or
(d) being eligible for membership solely because he or she was appointed to a paid position as an employee of the Union and is no longer so eligible, or
(e) he or she dies.
23 Qualification for election to office in the ANF is dealt with in r 19 - Qualification For Office And Nominations. The relevant sub-rule for present purposes is r 19(2) which is as follows:
(2) A candidate for election to the office of Secretary shall have been a financial member of the Union for a period of two years immediately preceding the date of nomination for office, providing that where such a candidate has been a financial member of a nursing organisation in another state, and such membership was transferred to the Union under the provisions of Rule 8 of these Rules, one year's financial membership of the Union since the date of transfer shall suffice.
24 Casual vacancies in office occurring within the ANF, and how they are filled, is the subject of r 24 - Casual Vacancies. It relevantly states:
24 - CASUAL VACANCIES
(1) Where any casual vacancy occurs in any elected office of the Union and the unexpired part of the term of the office does not exceed:
(a) 12 months; or
(b) three quarters of the term of the office, whichever is the greater, the Council may fill that casual vacancy by appointing thereto a person who is eligible to nominate for and hold the office in question.
…
(7) In this Rule the expression 'term', in relation to an office, means the total period for which the last person elected to the office by an election (other than an election to fill a casual vacancy in the office) was entitled by virtue of that election to hold the office without being re-elected.
25 Reading rules 19(2) and 24(1)(b) together, it is clear that the Council may only appoint a person to a casual vacancy as Secretary of the union, if the person has ‘been a financial member of the Union for a period of two years immediately preceding the date of nomination for office’. In my view, reading the Rules sensibly, in the case of an appointment to a casual vacancy under r 24(1)(b), the words ‘preceding the date of nomination for office’, in s 19(2) should be read as ‘preceding the date of appointment to the casual vacancy’ in question. In this case, that means Mr Olson must have been eligible to be a member of the ANF for two years immediately preceding the date of his appointment to the casual vacancy on 30 August 2024.
26 A further issue arising in this case, is the nature of work performed by Mr Olson when he commenced undertaking casual employment with the ANF, from about late September or early October 2023. A contention advanced by both Ms Raschilla and the Registrar, was that in applying r 4(1)(b) of the ANF membership rule, the exclusion in that rule operated. The union concerned is the Western Australian Municipal, Administrative, Clerical and Services Union of Employees. Rule 5 - Membership of the WASU Rules provides relevantly:
The Union shall also consist of:
a. persons, male or female, engaged in any clerical capacity, including telephonists, or in the occupation of shorthand writing or typing or calculating, billing or other machines designed to perform, or assist in performing any clerical work whatsoever within the State of Western Australia, but excepting that portion of the State within the 20th and 26th parallels of latitude and the 125th and the 129th meridians of longitude.
b. provided that no person shall be a member who is not an employee within the meaning of the "Industrial Relations Act, 1979". (My emphasis)
Contentions of the parties
27 Ms Raschilla maintained that the terms of r 4 - Membership, properly construed, requires that a person is eligible for membership of the union if the person is an employee within the meaning of the Act; and is employed by an employer in the industry of nursing; or is employed by an employer in the profession of nursing; and the person is registered with AHPRA or is entitled to be registered. Alternatively, that the person has been appointed to a paid position within the ANF and that person is not eligible to be a member of another organisation registered under the Act.
28 Based upon the chronology provided by the Registrar, Ms Raschilla submitted that it is evident that there are two significant gaps in Mr Olson’s employment history affecting his eligibility for membership of the ANF. The first is from about 9 July 2023, when Ms Raschilla alleged Mr Olson ceased being the CEO of the union to about 4 October 2023, when he commenced casual employment, a gap of about eight weeks. Secondly, the period from when Mr Olson’s casual employment seemed to have ceased, on about 23 July 2024, until he was appointed to the casual vacancy as Secretary on 30 August 2024, a further gap of about five weeks.
29 It was Ms Raschilla’s contention that even if employment with the ANF could be characterised as employment in the industry or profession of nursing, which Ms Raschilla contests, then there is a serious question to be determined as to whether Mr Olson could have been so employed. On this basis, Ms Raschilla contended that regardless of whether one considers r 4(1)(a) or (b), there is a serious question to be determined whether Mr Olson was employed as an employee over this entire period and therefore, whether he met the minimum two year eligibility requirement for membership.
30 Regardless of this, Ms Raschilla contended that employment by the ANF does not constitute employment ‘in the profession or industry of nursing’, for the purposes of r 4(1)(a)(i). She submitted that a person employed by the ANF is employed in the industry or profession of the labour movement, because the ANF provides industrial services and social benefits to members as a union, and could not be properly characterised as a body engaged in the profession or industry of nursing as such.
31 Ms Raschilla contended that the meaning of this subrule is that a person must be employed in the professional calling as a nurse and the terms of r 4 cannot be construed reasonably otherwise. As to the nature of employment by a union, Ms Raschilla referred to the decision of Sharkey P in State School Teachers Union of WA (Inc) (1998) 78 WAIG 1123, at 1126 and 1127. Reference was also made to Re New South Wales Nurses Association (1987) 23 IR 468 at 469-470 in relation to how a similar rule of the nurses’ union in New South Wales should be construed.
32 As to the terms of r 4(1)(b), Ms Raschilla contended, in reliance upon the Registrar’s submissions, that if consideration needs to be given to this subrule regarding Mr Olson’s eligibility for membership, then it is also not satisfied. This is because, as the Registrar submitted, performing the work that he did as a casual employee, could only be reasonably characterised as ‘clerical work’ for the purposes of the eligibility for membership rule of the WASU, set out above.
33 On these bases, Ms Raschilla contended there are serious issues to be determined as to Mr Olson’s eligibility to be a member of the ANF at the material time and thus, whether his appointment by the Council to the casual vacancy of Secretary, was a valid appointment.
34 As to the balance of convenience, Ms Raschilla generally adopted the submissions of the Registrar. She submitted that as the principal officer of the ANF, largely in control of the operations of the union and its finances, it is important that there be no doubt as to the validity of the appointment. Ms Raschilla also referred to the evidence, summarised above, regarding allegations that Mr Olson has a history of not fully informing the Council of significant matters affecting the union and its governance.
35 On behalf of the Registrar, a number of contentions were advanced. It was submitted that there are serious questions to be determined as to whether Mr Olson was eligible to be a member of the ANF under either r 4(1)(a)(i) or r 4(1)(b), over the two year period prior to 30 August 2024, when he was appointed by the Council. Reference was made to the requirements of r 19(2) and r 24(1), to the effect that when read together, Mr Olson could only have been validly appointed to the casual vacancy in the office of Secretary if he had been a ‘financial member of the (ANF) for a period of two years immediately preceding’ his appointment.
36 The Registrar contended that r 19(2) clearly requires, not just that a person be ‘financial’ and be on the ANF’s register of members, but they must also have been eligible for membership over the two year period. In reliance on r 9(1)(d) of the ANF Rules, the Registrar submitted that this rule is to the effect that where a person is only entitled to be a member of the ANF under r 4(1)(b), being appointed to a paid position, on any day when the person is not employed by the ANF, their membership of the union is terminated and thus, the continuity of membership for the purposes of r 19(2), is interrupted. It was accepted in the course of argument that in the case of causal employment, a person could still be regarded as an ‘employee’ as long as their usual status is such, for the purposes of the definition of ‘employee’ in s 7 of the Act.
37 The Registrar referred to three relevant time periods giving rise to serious questions to be determined as to Mr Olson’s eligibility to be a member of the ANF. The first time period was from the cessation of his service as the ANF CEO, which the Registrar, upon all of the initial evidence, appeared to be in or about late July 2023. This was based in part on a resolution of the ANF Council on 28 July 2023, to the effect that Mr Olson could retain the use of his ANF laptop computer and retain access to the ANF computer systems, in order for him to ‘assist the ANF staff when required’ (see the affidavit of Ms Pontifex annexure SP10 at p 264).
38 Between about 1 July 2023 and 30 June 2024, various payments were made to Mr Olson for long service leave on termination of employment and sick and annual leave entitlements for the same. The Registrar noted that in accordance with the directions made by the Commission, there had been no discovery given by Mr Olson or the ANF, of a payslip(s) identifying the actual date that any such payments were made. During the course of the hearing, further documents were produced by Mr Olson and tendered as exhibit FR2.
39 These documents were payslips reflecting payments made to Mr Olson by the ANF on 13 July 2023, 26 July 2023, 9 August 2023, 23 August 2023 and seemingly, a final payment on 6 September 2023, including amounts for long service leave, sick leave and annual leave on termination of employment. The Registrar therefore contended that if such payslips are evidence of work performed and not just payments made, then at the latest, Mr Olson completed his employment as the CEO on 6 September 2023. It was contended that this confirms there was a break in Mr Olson’s employment, given he did not commence any casual work until the pay period commencing on 18 September 2023 (see affidavit of Ms Pontifex at p 518).
40 Such a break on the Registrar’s case, would engage r 9(1)(d) of the Rules, therefore making Mr Olson ineligible for appointment as the Secretary by the Council. The Registrar contended therefore that a serious question arises as to a break in employment of Mr Olson by the ANF either from late July 2023, or from 6 September 2023, to when he first commenced casual employment.
41 Neither Mr Olson nor the ANF, despite the opportunity to do so, gave any evidence in relation to Mr Olson’s employment with the union up until his appointment by the Council to the casual vacancy of Secretary on 30 August 2024.
42 The second basis advanced by the Registrar, was that at the time of performing casual work for the ANF from about late September to early October 2023, the nature of the work performed, even given the very limited evidence, was not work performed in the profession or industry of nursing. From the discovered documents it appears that this work included a new ANF invoice system; the SAT hearing; staff pays; attache training; EBA queries and queries from staff; drafting emails to members regarding election changes; industrial advice; holiday unit matters; finalising wording for emails to members; extracting a distribution list and sending an email; drafting a Facebook post; industrial matters; draft correspondence; AGM material; and work on Helpline etc (see affidavit of Ms Pontifex at annexure SP12 pp 516-517; p 527; pp 529-551). If reliance is placed on r 4(1)(b) to establish membership, the Registrar submitted that this gives rise to whether, in performing the above casual work, Mr Olson was ineligible to be a member of the ANF, because he was at that time engaged in the performance of ‘clerical work’, and eligible to be a member of the WASU.
43 The Registrar contended therefore, in reliance upon Federated Clerks’ Union of Australia (WA Branch) v Cary (1977) 57 WAIG 585, that based on the broad description of the work performed by Mr Olson from the ANF records, there is a serious issue to be determined that the work performed was clerical work, bringing into play the exclusion in r 4(1)(b). Additionally, from the documentary evidence as to the casual work performed by Mr Olson, it is not clear whether the engagements were in accordance with a continuous contract or whether they were one off contracts.
44 The third basis for supporting a serious issue to be determined, on the Registrar’s submissions, is the period from Mr Olson’s cessation as a casual employee on or about 23 July 2024 on the evidence, to his purported appointment as the Secretary, on 30 August 2024. The Registrar contended that based on the material annexed to Ms Pontifex’s affidavit, the conclusion is open that Mr Olson performed no further casual work for the ANF on or after this date. As to the letter from Peregrine Medical, dated 16 September 2024, (see Ms Pontifex’s affidavit annexure SP10 at p 262), the Registrar submitted it raises more questions than it provides answers. At face value, it refers to Mr Olson being engaged as a casual with Peregrine Medical from August 2024 however, a serious issue arises as to what that in reality means, and whether this constituted continuous eligibility for membership of the union.
45 The questions arising from this letter on the Registrar’s submissions, included why the letter was issued on 16 September 2024, when reference is made to alleged casual engagement from August 2024. It was contended that there is no documentary or other evidence about the offer of casual employment, nor is there any evidence before the Commission of payslips or records of hours worked. The Registrar’s submission on this issue was there is simply no evidence before the Commission from Mr Olson, as to his employment, if any, by this organisation, giving rise to a further serious issue to be determined as to Mr Olson’s employment status from on or about 23 July to 30 August 2024.
46 As to the balance of convenience criterion, the Registrar advanced four reasons why this criterion is strongly in favour of the grant of an interim order.
47 The first point relates to the nature of the office of Secretary of the ANF and the importance of the position to the ongoing day to day management of the organisation. In this regard, reference was made to the delegated powers to the Secretary as the principal officer of the ANF, in addition to the important responsibilities set out in the Rules themselves. It was submitted that the proposed order 2, enabling the Council to appoint a person to the casual vacancy of Secretary would protect the union and enable a Secretary to be appointed, as well as enabling Mr Olson to be returned to his position, if final relief is not granted.
48 As an extension of the first issue, the Registrar submitted that given the extensive powers of the office of Secretary, and the effect of the exercise of those powers on the union, its members and also third parties, then this is strongly in favour of the grant of an interim order. It was submitted that there would be serious questions over the validity of Mr Olson’s decisions on behalf of the union and the members, if his appointment is ultimately held to be invalid.
49 The third issue raised was that whilst ordinarily, the removal of a person temporarily from a position would generally weigh against the grant of relief, the present situation is unique. It was contended that Mr Olson is only occupying a casual vacancy and has not been elected by the union’s membership. Additionally, the evidence is that Mr Olson originally expressed his desire to retire from involvement with the ANF. His election as a member of the Council, was an unpaid position.
50 The fourth issue initially raised by the Registrar, was that a strong inference is open that discovery from Mr Olson and the ANF has not been complete. Reference was made to the absence of bank records or payslips, showing when Mr Olson was paid out his final entitlements as the CEO. As noted however, payslips relating to this issue were produced late in the day, and tendered in evidence by Mr Olson.
51 Also, given that there is no evidence that Mr Olson was recruited from another paying position to take up the appointment to the casual vacancy, and given the suddenness of the events following Ms Reah’s unexpected and immediate resignation, Mr Olson could have had no expectation of holding the office of Secretary and earning the remuneration payable in that office, according to the Registrar’s submissions.
52 Mr Olson firstly contended that the interim relief sought, that being his removal as the appointed Secretary of the ANF, was in reality the final relief sought. On this basis, the interim relief should not be granted. Furthermore, the contention was advanced that no serious questions to be determined had been established.
53 Whilst Ms Raschilla made an allegation in the amended application that there was a denial of procedural fairness at the Council meeting on 30 August 2024, this was not pressed in Ms Raschilla’s submissions in support of interim orders. Mr Olson contended there was no denial of procedural fairness. Based upon the conduct of the meeting, Mr Olson submitted that the process was in accordance with the usual procedures for a Council meeting under the ANF Rules. Even if it was inappropriate for Mr Olson to remain in the meeting and to vote for himself, which arguably it was, Mr Olson submitted that this would have made no difference to the outcome, as the motion for his appointment would still have passed by a majority vote.
54 Secondly, Mr Olson submitted that on a proper construction of the Rules, the meaning of ‘a financial member of the Union’ in r 19(2), does not mean, contrary to the Registrar’s submission, that a person must also be eligible to be a member of the ANF. It was contended that viewing the Rules as a whole, once a person’s application for membership has been accepted by the Secretary, and that person has paid their membership fees they are a ‘financial member’. This is so, as Mr Olson’s submissions went, until such time as the Council, under r 4(3) of the Rules, terminates the membership of a member who has ceased to be eligible under r 4(1). Until such time, Mr Olson contended that a person remains a ‘financial member’ of the ANF despite the fact that they may not be eligible to be a member.
55 As to the argument of the Registrar that r 9(1)(d) of the Rules operated in this case, Mr Olson submitted that this rule had no application to him. This was on the basis that Mr Olson contended that r 9(1)(d) only applies effectively on a ‘one off’ basis. As I understood the submission, it was that r 9(1)(d) would only operate where, at the time of an application for membership, the person was only eligible to be a member of the ANF due to being appointed to a paid position as an employee. It is only on this basis, that a person becomes ineligible for membership because they no longer hold a paid position.
56 It was submitted that at the time Mr Olson first became a member of the ANF, he was eligible under r 4(1)(a)(i) of the Rules, being employed as a nurse in the profession of nursing and being registered by the then Nurses Board of WA. This was his sole eligibility for membership and not his subsequent appointment to a paid position with the union. Mr Olson submitted that it is immaterial that he subsequently became eligible to be a member under r 4(1)(b), as a paid employee.
57 On this construction of the Rules, Mr Olson contended that the only way in which his membership could cease, is a determination of the Council under rule r 4(3) or the operative parts of r 9(1), other than (d). Accordingly, Mr Olson submitted that he was a financial member of the ANF for the required time and was eligible to be appointed to the casual vacancy of Secretary under r 24(1) on 30 August 2024.
58 As to the balance of convenience, Mr Olson submitted that there is no identified damage to Ms Raschilla, but Mr Olson the ANF would suffer significant damage. It was contended that Mr Olson would suffer financially in the event that the interim orders were granted. This is particularly so, given the absence of any undertaking as to damages, accepting that in this jurisdiction, there is no requirement for such and there is uncertainty as to whether any such undertaking could be received or enforced: Liquor, Hospitality and Miscellaneous Union, West Australian Branch v The Minister for Health [2011] WAIRC 00192; (2011) 91 WAIG 291. It was contended that the failure of any such undertaking being given, weighs heavily against the grant of relief.
59 A major factor relied on by Mr Olson and also the ANF, was Mr Olson’s expertise and experience in negotiating enterprise agreements in the WA public health system, and the importance of this role for members of the ANF. It was submitted that if Mr Olson was not able to undertake this task, this would seriously compromise the process for bargaining for a replacement industrial agreement in circumstances where such matters would be hard fought. Furthermore, given the pace setting nature of negotiating in the public health sector, the impact on the private health sector is also a matter of significance.
60 Mr Olson was also critical of aspects of Ms Raschilla’s affidavit, raising matters such as those relating to the lack of transparency regarding strata levies for the holiday units and the SAT proceedings for example, and suggested these and some other matters were broad, vague and speculative and should not be given any weight. I should note however, that conclusions of independent bodies such as WorkSafe and AHPRA, cannot be placed in that category and are matters of some relevance. Additionally, if a tax audit, potentially exposing the union to penalties, has not been disclosed to the Council, this would be a matter of concern. The manner of obtaining the $3m very recently, for funding the ANF enterprise bargaining campaign, is clearly of significance and is relevant to these proceedings. I will comment specially on that matter further below.
61 As to the allegation in Ms Raschilla’s affidavit that Mr Olson did not disclose to the Council at its meeting on 20 September 2024, my reasons for decision and orders in applications PRES 12 of 2024 and PRES 13 of 2024, this was clearly of concern to me, given the orders I made in those applications, in the directions hearing listed immediately prior to the hearing in this matter commencing. I should note that Mr Olson had the opportunity, through his counsel in these proceedings, to contest Ms Raschilla’s allegations in this regard, and to seek leave to put on evidence rebutting them, but no such submission or application was made.
62 The ANF generally adopted and supported the submissions and evidence of Mr Olson and opposed the interim orders being sought. The ANF placed emphasis on the current negotiations for a new public sector health industrial agreement to replace the current agreement, which expires on 10 October 2024. The ANF referred to Mr Olson’s extensive experience in negotiating industrial agreements on behalf of the ANF, and submitted that those negotiations would be seriously compromised if the interim orders were made.
63 Furthermore, the ANF submitted that Mr Olson would be deprived of his income as the Secretary if the orders were made, and that the Council meeting leading to his appointment on 30 August 2024, was made in accordance with the Rules. Accordingly, the balance of convenience weighs against the grant of interim relief.
Consideration
Serious issues to be determined
64 Whilst Mr Olson contended that the interim orders sought in this case are tantamount to final relief, the orders sought by the Registrar (and Ms Raschilla in her amended application) are interim in nature. The orders sought enable the ANF to appoint another person to the casual vacancy created by Ms Reah’s resignation, pending the final hearing of the matter. It must be borne in mind that Ms Reah’s term of office of Secretary was until October 2026. In the event Ms Raschilla and the Registrar are unsuccessful in terms of final relief, there would be nothing standing in the way of Mr Olson being restored to the position of Secretary, for the remainder of the term.
65 In my view, for the following reasons, there are serious issues to be determined in this matter, as to whether Mr Olson was validly appointed by the ANF Council to the vacant position of Secretary, on the basis that he met the requirement to be a financial member of the ANF for two years immediately prior to the appointment. The fact that apart from the tender of some payslips in exhibit FR2, neither Mr Olson nor the ANF have sought to put on any evidence as to Mr Olson’s employment with the ANF after he ceased as the CEO, when such evidence was plainly open for them to lead, leaves open a Jones v Dunkel ([1959] HCA 8; (1959) 101 CLR 298) inference that such evidence would not have assisted them in this matter. I draw such an inference.
66 It was open to Mr Olson to contest the allegations based on Ms Pontifex’s affidavit as to the gaps in his employment history with the ANF in the period after he ceased as the CEO, but he elected not to provide such evidence. Nor has the ANF sought to put on any evidence before me as to these matters, when it could have done so. There is also no independent evidence from the ANF as to the importance to the union of the negotiations for a replacement industrial agreement, its campaign and its impact on members. Such evidence could have easily been led, given the evidently self-serving nature of that evidence adduced through Mr Olson.
67 I consider there are serious questions to be determined as to the proper construction of the ANF Rules concerning eligibility for membership under r 4. A focus of Ms Raschilla’s case was that work performed by Mr Olson for the ANF was not work done as an employee ‘employed in the profession or industry of nursing’ for the purposes of r 4(1)(a)(i) of the Rules. I do not suggest this issue is conceded by Mr Olson. But in my view, given the nature of the ANF as a registered industrial organisation, the principal purpose of which organisation under the Act is to promote and protect the industrial interests of its members, and given the ordinary meaning of the phrases ‘profession of nursing’ and ‘industry of nursing’, there is a live issue as to whether an employee of the ANF can be held to be so engaged: SSTU; New South Wales Nurses’ Association v Health Administration Corporation & Ors (1987) 23 IR 17; Re New South Wales Nurses’ Association .
68 The thrust of Mr Olson’s case turns on the meaning of the phrase ‘financial member of the Union’ for the purpose of r 19(2). As noted, once Mr Olson became a member of the union by reason of his prior employment as a nurse, and continued to pay his subscriptions, on Mr Olson’s case, whatever occurred after this had no impact on his status as a financial member for the purposes of the Rules. Thus on this footing, Mr Olson contended that it was not necessary to consider the evidence led in these proceedings, as his view of the operation of the Rules provides a complete answer. This does not however, alter my view as to the drawing of an adverse inference as above, given it was open in the alternative, to both Mr Olson and the ANF to put on evidence to rebut Ms Raschilla’s and the Registrar’s evidentiary cases.
69 Mr Olson conceded that if his view of the proper interpretation of the relevant Rules is correct, then some odd results may follow. As I put to Mr Olson’s counsel in the course of the hearing, it could mean that a person who was a nurse in the profession, as a member of the ANF, decided to retrain in another profession or calling, as a teacher, engineer or in a trade, that person would continue to be eligible to be a member. On Mr Olson’s view of the Rules, if that person continues to pay their subscriptions, they simply continue as a ‘financial member’ despite patently, them no longer being eligible for membership under r 4, as not being employed in the industry or profession of nursing. It was submitted that unless the Council acts to terminate a member’s membership in these circumstances under r 4(3), this will be the result. In my view this would be an extraordinary outcome. It means that the character of the ANF could be changed fundamentally, from an organisation representing nurses and midwives, to something else.
70 Allied to this, is the fact that such a person, on the basis of the requirements of r 19, would be entitled to nominate for election to the highest offices in the ANF, for example as the President or Secretary or other Executive office, without having any association with the profession or calling of nursing at all. I think considered from the perspective of the reasonable person, given the ANF is a democratic organisation comprised of members engaged in the industry or profession of nursing, it would be expected that senior officeholders come from the ranks of the profession or the industry in relation to which the union is registered as an organisation under the Act.
71 As to the effect of r 4(3) as advanced by Mr Olson, the Registrar contended that whilst taken literally r 4(3) confers a discretion to act to terminate a person’s membership, construed in the light of the matters I have just discussed immediately above, the Registrar submitted this is a case where ‘may’ should be construed as ‘shall’, to make the Rules workable as a whole. The Registrar also submitted that the situation and outcomes contemplated on Mr Olson’s case, would be inconsistent with the objects of the Act in s 6(e), requiring the Commission to discourage overlapping membership. Also, in the event that the Council of the ANF failed to act to terminate a membership under r 4(3), and the person sought office as purportedly eligible under r 19 of the Rules, the Registrar contended there would be a contravention of the Rules and any such appointment would be held to be void. I think there is a strong argument that this would be so.
72 As to the r 9(1)(d) point, I consider there is a serious issue to be determined as to whether, as on Mr Olson’s case, coming into the ANF initially as a member under r 4(1)(a)(i), as a nurse, means that forever after, regardless of what employment occurs subsequently, r 4(1)(a)(i) can only apply and r 4(1)(b) can never apply. That is the import of Mr Olson’s submissions. The Registrar contended that this would require reading words into r 9(1)(d), that do not exist, such as a qualification to reflect something along the lines that ‘in the course of a member’s entire period of membership of the ANF, the member was eligible for membership solely because …’. It is important to observe that whilst r 4(3) contemplates a process of giving notice to a member, r 9(1)(d) is self-executing. If the facts satisfy r 9(1)(d), as with the rest of r 9(1), the person ceases to be a member. Nothing further is required. This and the above issues, involve substantive questions of construction that require to be determined.
73 On the evidence before me at this stage of the matter, there are serious questions as to whether the gaps in employment of Mr Olson by the ANF, identified by the Registrar in Ms Pontifex’s affidavit evidence, and in exhibit FR2, broke his continuity of membership. If so, and I think there is a substantive case for concluding that it did, Mr Olson could not have satisfied the eligibility requirement for appointment to the casual vacancy of Secretary, as required by r 19(2) of the Rules. This view is fortified by the absence of any evidence from Mr Olson as to his post CEO employment by the ANF, despite every opportunity to adduce it. As I have noted above, the same observation applies to the ANF.
Balance of convenience
74 I turn now to consider the balance of convenience. As noted above, the main focus of Mr Olson and the ANF in this respect, is the impact of the absence of Mr Olson from the current enterprise bargaining agreement campaign and negotiations for a replacement industrial agreement in the public health system. I accept the Registrar’s criticisms, that the evidence as to these matters, is solely from Mr Olson and no other senior officer of the ANF, such as the President. To this extent, as I have noted earlier, this evidence is self-serving and there is no independent evidence before me as to these matters, and certainly no evidence from any rank and file member(s) of the ANF, for example.
75 However, the larger issue with this factor is the nexus sought to be drawn by Mr Olson, between the necessity for him, as an individual, to be involved in the campaign and negotiations for the benefit of the ANF, and the associated detriment to the ANF if he is not involved. The case is not advanced on the basis of the necessity of the holder of the office of Secretary to lead the enterprise bargaining campaign and negotiations. This is an important distinction. Nowhere in r 16 - Duties of the Secretary, is it specified that it is the sole responsibility of the Secretary to undertake this work on behalf of the ANF.
76 The duties and responsibilities of the Secretary of the union are silent as to this. The only reference to industrial matters is r 16(1)(l), that provides that the Secretary is to provide written authority to the Industrial Relations Commission as to who may initiate matters before the Commission or appear on behalf of the union. In other respects, r 16 provides for management responsibilities of the Secretary, as one would expect of the principal officer of the union.
77 In my view this dichotomy, between the individual and the office, significantly undermines the balance of convenience criterion relied on by Mr Olson and the ANF. There would appear to be no reason, in the event that an interim order is made in these proceedings, precluding Mr Olson from representing the ANF in the current enterprise bargaining agreement campaign and negotiations, in another capacity. This could be either as a senior employee of the union or as an agent acting on behalf of the union. If this was to occur, it is difficult to see how the enterprise bargaining agreement campaign and negotiations would be compromised at all, and the process could largely continue without missing a beat.
78 Had there been an inextricable link between the occupancy of the office of Secretary, and the necessity for the occupant of the office, and only the occupant, to undertake the responsibilities regarding the enterprise bargaining agreement campaign and negotiations, then the balance of convenience criterion would be weighted more in favour of Mr Olson and the ANF, but there is no such link.
79 In addition to the above, there are other issues with the matter of bargaining for a replacement industrial agreement. As was contended by the Registrar, until very recently, Mr Olson would have had no involvement in the bargaining process. Mr Olson said publicly he was supportive of another person being appointed to the casual vacancy and did not initially put himself forward for the position. It was noted also that Mr Clancy has been appointed as acting State Secretary, while Ms Reah was on leave. The obvious inference to be drawn from this is that the ANF Council had sufficient confidence in Mr Clancy to do so.
80 I accept that if an interim order is made Mr Olson will not continue to receive his current salary as the Secretary. However, given what I have said at [77], it is not the case that Mr Olson is precluded from earning an income from the ANF as a result of an interim order being made. Secondly, I think it is relevant to note that only very recently, Mr Olson had no intention to occupy the office of Secretary, and he was not, on the evidence, persuaded to leave another position to take up the casual vacancy of Secretary of the union. Mr Olson had only recently undertaken some casual employment to complete some projects, after the time he ceased as the CEO of the union. Based on previous public statements in evidence, for all intents and purposes Mr Olson told the members of the ANF and the public, that he was going to retire, spend more time with his family, play the piano and go kite surfing (see Ms Pontifex affidavit annexure SP4A at pp 39-40).
81 There are therefore inconsistencies on the evidence between Mr Olson’s stated indispensability to the ANF on the one hand, and his very recent statements of wanting to have no further involvement with the union, on the other.
82 There are significant and weighty factors in favour of Ms Raschilla and the Registrar on the balance of convenience criterion. With any registered organisation, but especially a very large and well-resourced organisation such as the ANF, there should be no question mark over the validity of the appointment of the most senior and principal officer of the organisation. This is especially the case given the very wide powers and resources at the disposal of the Secretary under the Rules. A clear illustration of this is the evidence of the $3m allocated by the Council to Mr Olson for the enterprise bargaining campaign. Whilst this was the subject of exhibit FR1, the email from the President to Ms Raschilla, there is nothing in this email that suggests the Council has imposed conditions on the expenditure.
83 The point of this is however, that Mr Olson, as the Secretary, was able to obtain such a large sum of money to be expended on the campaign, it seems with relative ease. This only underscores the need for there to be no question regarding the validity of the appointment of the person in such a position of authority and influence, regarding the finances of the union.
84 As to Mr Olson’s submission that Ms Raschilla has not demonstrated any damage she may suffer if the interim orders are not made, I make three comments. First, it is not necessary, given the statutory framework of the Act, for an individual member such as Ms Raschilla, under s 66 of the Act, to establish personal loss or damage. But second, and in any event, as a member of the ANF, along with all of the members, Ms Raschilla is entitled to expect that her union will ensure that the highest office holder is validly appointed and that decisions about the substantial resources of the organisation, contributed to by her and other members’ subscriptions, are validly taken on her behalf. Thirdly, as a senior office holder herself as a Vice President of the ANF, Ms Raschilla is entitled to expect that there will be no reputational damage to the organisation if it is subsequently determined that the Secretary was never validly appointed in the first place.
85 As to third parties, in this respect, I include the State Government, represented by the Department of Health, when negotiating a replacement industrial agreement in the public health sector. Whilst Mr Olson referred to the doctrine of ostensible authority, as to dealings with third parties, I do not consider that this should be able to be relied on for the reasons I have mentioned above, given the statutory framework and the importance of the observance of union rules under s 66 of the Act. Even if the doctrine did apply, it does not operate in circumstances where the third party concerned, having dealings with the corporation or other entity, has knowledge of the lack of authority of the relevant office holder. Given the existence of these proceedings, held in public and the publication of my decision and any orders that may be made arising from the proceedings, it is doubtful that any third party would not be aware of the issue.
86 On the basis of the important matters Mr Olson himself and the ANF rely on for the purposes of the balance of convenience criterion, that being participation in the enterprise bargaining campaign, it is essential that there be no doubt over the validity of his appointment as the Secretary.
87 A further contention advanced by Mr Olson was that r 10(3) of the ANF Rules, dealing with the validity of acts of the Council, despite an informality in the election or appointment of a person to an office may apply, I do not think it would in the present circumstances. First, the issue in these proceedings does not relate to a mere informality. It relates to the fundamental non observance of the ANF rules. Second, as was accepted by counsel for Mr Olson, this provision only extends to decisions or acts of the Council, as a collective body.
88 Also, as I noted earlier, it is important in the public interest and in the interests of the members of the ANF, having regard to s 26(1)(c) of the Act, that the appointment of the principal officer of the ANF be beyond question. This is also important for the Registrar, given her responsibilities under the Act in relation to registered organisations, that there be compliance with the Rules of an organisation, and that senior officeholders, validly hold their offices. It is of fundamental importance for this Commission, by way of these proceedings under s 66 of the Act, to ensure compliance with the law and that registered organisations operate with integrity and in accordance with their Rules.
89 Mr Olson proffers the possibility of protective orders that could be made, such as if any major matters arise or major decisions need to be made, they could be referred to the Executive of the ANF, and limits could be imposed on expenditure, such as in exhibit FR1. However, the practicality of such orders is a matter that I would have concerns with. Who decides what is or is not a ‘major matter’ and if there is a dispute as to this, how would such a dispute be resolved? Exhibit FR1, if it is complied with, does not prevent expenditure, it just slows it down.
90 As noted earlier in these reasons, in this jurisdiction there is no requirement, and there is significant doubt as to the Commission’s jurisdiction and power to accept, an undertaking as to damages. That is not the nature of a matter under s 66 of the Act. If it appears to the Chief Commissioner that orders under s 66(2) should be made, and the orders proposed to be made concern the observance, or non-observance or the manner of the observance of the rules of an organisation, which in this case they plainly do, then it is doubtful, if the requirements as to the grant of interim orders are met, that orders could still be refused because of the absence of an undertaking as to damages. Whilst this is the position at common law for the grant of interlocutory injunctions, there appears to be no place for such a course under s 66 of the Act. If it appears to the Chief Commissioner that a case is made out for orders to be made under s 66, then the discretion should be exercised and the orders should be made: Robertson v Civil Service Association of Western Australia (Incorporated) [2003] WAIRC 10158; (2003) 83 WAIG 3938 per EM Heenan J at [52] and [56] (Hasluck J agreeing).
Conclusion
91 In my view, in this case, balancing the various interests and factors I am required to take into account, the requirement for the existence of serious issues to be determined and the balance of convenience, are both weighted substantially in favour of the grant of an interim order, in the terms as sought by Ms Raschilla and the Registrar. I propose to make the orders. Additionally, given what occurred in applications PRES 12 of 2024 and PRES 13 of 2024, when interim orders restraining the Council of the ANF from proceeding against Ms Raschilla by way of a Summons to Show Cause, were seemingly not brought to the attention of the Council, I will also order that these reasons for decision and orders when made, be distributed to both members of the Council and also the membership of the ANF. As to the latter, given the significance of the issue for the organisation, the members of the union are entitled to know both the reasons for my decision, and the orders that I have made.
ANNEXURE – Chronology of relevant factual matters


Date
Event
Evidential Reference
1
1.9.24
Mr Olson holds a media conference after being reinstated as Secretary.
Pontifex Affidavit, SP-15
2
30.8.24
Ms Reah resigns as Secretary.
Pontifex Affidavit, SP-6 (p 51)
3
30.8.24
Mr Olson appointed Secretary as casual vacancy for the remainder of the term expiring 29 September 2026.
Pontifex Affidavit, SP-6 (p 51)
4
8.24 - (date unclear)
Letter confirming offer of casual Employment as Registered Nurse at Peregrine Medical (no evidence of ever having worked any shift or been paid any salary or wages.)
Pontifex Affidavit, SP-10 (p 262) (Letter from Dr Flahive of Peregrine Medical)
5
7.8.24
Mr Olson interview with 6PR Mornings where there is a discussion of work Mr Olson has done with the ANFIUWP after finishing up as CEO (past tense): “the last job I had, the last paid job, was on the Helpline for the last 6 months fixing it and making some changes and it was great.”
Pontifex Affidavit, SP-14 (around 2:40)
6
23.7.24
Ms Reah informs Mr Olson that his casual engagement had ended and there are no more casual hours available and ‘you are no longer required to do any work for the ANF.’
Pontifex Affidavit, SP-10 (p 344) (email from Ms Reah to Mr Olson on 23 July 2024)
7
23.7.24
Ms Reah removes Mr Olson’s access/privileges to Attache
Pontifex Affidavit, SP-12 (p 561) (email from Ms Reah on 23 July 2024)
8
22.7.24
Date of approval of last / latest log of casual hours worked provided in discovery bundle (showing last date of casual hours being on 19 July 2024).
Pontifex Affidavit, SP-12 (p 511)
9
19.7.24
Council meeting: Mr Olson moves a motion that is carried which restricts the Secretary from removing or suspending ANFIUWP staff without prior approval of the ANF Executive. (Agenda Item 14)
Pontifex Affidavit, SP-10 (p 259) (ANF Council meeting minutes dated 19 July 2024)
10
24.6.24
Mr Olson hands over remaining jobs assigned to him except for the ATO
Pontifex Affidavit, SP-10 (p 350) (email on 24 June 2024)
11
20.6.24
Mr Olson emails Ms Reah asking to stay on for 4 more weeks to resolve ATO issue. Ms Reah agrees and indicates that any other remaining industrial matters are referred to the Helpline team. Mr Olson confirms he will send his casual hours at the end of each week.
Pontifex Affidavit, SP-10 (p 353) (emails on 20 June 2024)
12
18.6.24
Mr Olson’s last Helpline Shift.
Pontifex Affidavit, SP-10 (p 354) (Inferred from copy of email thread between Mr Olson and Ms Reah on 16 June 2024)
13
13.6.24
Ms Reah emails Mr Olson and informs him he is relieved from Helpline duties with his last day to be 18 June 2024. Ms Reah identifies other areas he can assist with but Mr Olson declines by email and says once finished with Helpline he will finish with the ANF.
Pontifex Affidavit, SP-10 (p 356) (Email correspondence)
14
19.1.24
Ms Fowler provides a current staffing profile to Ms Raschilla.
Pontifex Affidavit, SP-7B (p 113) (email and attachment


Mr Olson does not appear on the list as being an employee as of that date.

15
4.10.23
Mr Olson requests Ms Reah's approval for casual hours worked.
Pontifex Affidavit, SP-10 (p 360) (Email from Mr Olson to Ms Reah)
16
28.7.23
Council meeting where Mr Olson is permitted to retain the use of work laptop and access to the ANF computer system 'so that he is able to assist the ANF staff when required and other miscellaneous details relating to his ANF possessions. (Agenda Item 8 - last item)
Pontifex Affidavit, SP-10 (p 195-196) (ANF Council meeting minutes dated 28 July 2023)
17
31.3.23
Announcement to media of appointment of Jason Leeder as CEO.
Pontifex Affidavit, SP-7B (p 111) (ANF media release)
18
30.3.23
On 9 June 2023 ANF Council endorses executive decision to employ Mr Jason Leeder as CEO with handover period.Resolution that Council "agrees to the current CEO concluding his contract on 6 September 2023, or earlier if decided by the current CEO, and Council approves payout of all entitlements.
Pontifex Affidavit, SP-10 (p 181) (ANF Council meeting minutes dated 9 June 2023); also see SP-7B (p 109) (Executive meeting minutes dated 30 March 2023)
19
20.1.23
Council meeting where Council agrees to request from Mr Olson to conclude contract as CEO on or before 12 July 2023 - date to be determined by the CEO - Council authorised to pay out all entitlements accrued by the CEO as at his final day of his employment. (Agenda Item 8)
Pontifex Affidavit, SP-10 (p 169) (ANF Council meeting minutes dated 20 January 2023)
20
11.8.22
Ms Reah sends letter to the Registrar to inform there has been a change in Office of Secretary.
Pontifex Affidavit, SP-2 (p 36)


Mr Olson resigned effective from 28 July 2022, and Ms Reah has been appointed from 28 July 2022.

21
28.7.22
Mr Olson resigns as Secretary effective at 11PM, Thursday 28 July 2022.
Pontifex Affidavit, SP-10 (p 300) (Letter from Mr Olson to President of ANF)
22
28.7.22
Ms Fowler confirms offer to Mr Olson of Chief Executive Officer of the ANFIUWP. The offer is a full-time fixed term contract of 2 years, commencing 1 May 2022.
Pontifex Affidavit, SP-10 (p 296) (Letter from ANF President to Mr Olson)-
23
1.5.22
Mr Olson commences position as Chief Executive Officer, simultaneously as Secretary of ANFIUWP.
Pontifex Affidavit, SP-10 (p 296) (Letter from ANF President to Mr Olson)
24
22.4.22
Council meeting where position of CEO is created and Olson is given appointment for 2 years effective from 1 May 2022. (Agenda Item 6)
Pontifex Affidavit, SP-7B (p 58-59) (ANF Council meeting minutes of 22 April 2022)