ORDER PURSUANT TO S.66

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2024 WAIRC 00900

DELIVERED : FRIday, 11 OCTOber 2024

FILE NO. : PRES 2 OF 2023, PRES 3 OF 2023, PRES 4 OF 2023, PRES 5 OF 2023, PRES 6 OF 2023, PRES 8 OF 2023, PRES 9 OF 2023, PRES 10 OF 2023, PRES 11 OF 2023, PRES 12 OF 2023

Applicants

AND

Australian Nursing Federation Industrial Union Workers Perth

Respondent

Catchwords : Industrial Law (WA) – Application under s 66 of the Industrial Relations Act 1979 – Alleged failure to observe union rules – Eligibility for membership – Annual general meetings – Control of union funds – Principles as to s 66 of the Act – Relevant principles applied – Principles as to interpretation of union rules - Relevant principles applied – Ineligibility for office not established – Direction to alter rules – Order and directions to be made

Legislation : Health Practitioner Regulation National Law 2009 (Qld) s 113

Health Practitioner Regulation National Law Application Act 2024 (WA)

Industrial Relations Act 1979 (WA) s 27(1)(a), s 66(1), s 66(2), s 66(2)(a)(v), s 66(2)(b)

Public Health Act 2016 (WA)

Result : Orders to issue

Representation:

Counsel:

Applicants : Mr D Stojanoski of counsel and with him Mr R Jones as agent

Respondent : Ms B Burke of counsel

Solicitors:

Applicant : Slater and Gordon

Respondent : Burke Legal Services

Case(s) referred to in reasons:

Arnott v Western Australian Police Union of Workers [2022] WAIRC 00208; (2022) 102 WAIG 369

Carter v Drake (1992) 72 WAIG 3308)

Christine Anne Miles and Richard Glinton Miles t/as Milesaway Tours v Melrose Farm Pty Ltd t/as Milesaway Tours [2007] WAIRC 01230; (2007) 87 WAIG 2991

Clancy v The Australian Nursing Federation Industrial Union of Workers Perth [2022] WAIRC 00325; (2022) 102 WAIG 1235

Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd v Dulux Group (Australia) Pty Ltd [2022] FCAFC 101

Construction, Forestry, Mining and Energy Union v CSBP Ltd [2012] FCAFC 48

Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95

Federated Clerks’ Union of Australia (WA Branch) v Cary (1977) 57 WAIG 585

Fenn v The Australian Nursing Federation, Industrial Union of Workers Perth & Ors [2023] WAIRC 00806; (2023) 103 WAIG 1793

Harken and Dornan and Ors v State School Teachers Union of WA (1991) 72 WAIG 1727

Melrose Farm Pty Ltd t/as Milesaway Tours v Milward [2008] WASCA 175; (2008) 88 WAIG 1751

New South Wales Nurses’ Association v Health Administration Corporation & Ors (1987) 23 IR 17

Percy v Church of Scotland Board of National Mission[2006] 4 All ER 1354

Raschilla & Ors v Australian Nursing Federation Industrial Union of Workers Perth [2023] WAIRC 00891; (2023) 103 WAIG 2027

Re Anti-Cancer Council of Victoria; Ex Parte State Public Services Federation (1992) 175 CLR 442

Re New South Wales Nurses’ Association (1987) 23 IR 468

Royal Australian Nursing Federation v Private Hospitals and Nursing Homes Association of Australia & Ors (1984) 11 IR 231

Stacey v Civil Service Association of Western Australia (Incorporated) [2007] WAIRC 00568; (2007) 87 WAIG 1229

The Construction, Forestry, Mining and Energy Union & Anor v Kemerton Silica Sand Pty Ltd (2005) 86 WAIG 571

The Federated Engine Drivers and Fireman’s Union of Workers of Western Australia v Mt. Newman Mining Company Pty. Ltd. (1977) 57 WAIG 794

The Metals and Engineering Workers Union, Western Australia v Centurion Industries Ltd (1996) 76 WAIG 1287

The Registrar, Western Australian Industrial Relations Commission v The Australian Nursing Federation Industrial Union of Workers Perth [2022] WAIRC 00681; (2022) 102 WAIG 1315

Reasons for Decision

Applications and history

1         The present applications made under s 66 of the Industrial Relations Act 1979 (WA) have some history. Regrettably, they reflect ongoing tension within the respondent’s Council. In an earlier decision in these proceedings dated 13 November 2023, in relation to an application by the respondent under s 27(1)(a) of the Act to dismiss the substantive claims, I set out the respective claims of the applicants and the history of the proceedings: Romina Aida Raschilla and Ors v Australian Nursing Federation Industrial Union of Workers Perth [2023] WAIRC 00891; (2023) 103 WAIG 2027.  At [1] - [6] of that decision I observed as follows:

[1] Ten applications are before me under s 66 of the Industrial Relations Act 1979 (WA). The applicants are Romina Aida Raschilla, Amanda de Feularde, Kim Maree Luby, Christian Pansini, Anne Lorna Best, Kammy Rachel Cassey, Sylvia Marlies Demer, Stewart John Gill, Terry Jongen and Lee Ernest Collison. All are members of the respondent. I am satisfied that they have standing to bring the proceedings under s 66(1)(a) of the Act.

[2] The applications as originally filed made unspecified allegations of non-compliance with the Rules of the respondent. As a result of a directions hearing on 26 April 2023, orders were made that given the applications are in identical terms, they be joined and be heard and determined together. Additionally, directions were made for the applicants to file further and better particulars, specifying with particularity their claims as to the observance or non-observance of the respondent’s Rules; specifying those rules of the respondent said to be contrary to s 66(2)(a) of the Act; and that the respondent file an amended response. The applicants filed further and better particulars of their claims on 15 May 2023. On 6 June 2023, the respondent filed an amended response, contesting the applicants’ claims.

[3] A further directions hearing was listed on 21 June 2023. The respondent filed written submissions on 20 June 2023, and an application to the effect that the applications should be dismissed under s 27(1)(a) of the Act. The respondent contended that the applications should be dismissed under either or all ss 27(1)(a)(i), (ii) and (iv) of the Act. The respondent maintained that the applications, notwithstanding the further and better particulars, amounted to a ‘set of grievances from the applicants to the effect of being a complaint as to how the ANF is being run’ (see respondent’s written submissions at [9]). It was submitted by the respondent that s 66 of the Act does not provide a vehicle for the airing of such grievances; rather, it is, for present purposes, to provide relief regarding the observance or non-observance of an organisation’s rules, the manner of their observance, or remedies where rules may be contrary to s 66(2) of the Act.

[4] Considering the above matters, I made further directions on 21 June 2023 enabling the applicants to file submissions in response to the s 27(1)(a) application. An opportunity was also given for the applicants to file amended claims, and for the respondent to file further submissions in response to any amended claims and a response to the applicants’ submissions on the s 27(1)(a) application.

[5] On 28 July 2023, the applicants filed proposed amendments to their claims, in which they advanced largely new claims. The six proposed amended claims were:

Claim 1

14. The Respondent failed to observe its rules by allowing persons to be members of the Respondent organisation when those persons were ineligible to be members, the particulars of which are:

a. The incumbent Secretary, Janet Reah was ineligible to be a member of the Respondent organisation before she was elected Secretary;

b. Prior to becoming the Secretary, Ms Reah was in various paid positions as an employee of the Respondent employed as the ANF COVID Enquiries Support Team, the ANF WA Aged Care Campaign Coordinator, and also as an Industrial Officer;

c. Ms Reah did not meet the eligibility criteria of the Respondent under rule 4(1)(b) of the Respondent’s rules because before being elected Secretary Ms Reah was eligible to [sic] a member of an organisation other than the Respondent;

d. Ms Reah was eligible to be a member of:

i. The Australian Municipal, Administrative, Clerical and Services Union (commonly referred to as the Australian Services Union or ‘ASU’) 3; and or

ii. The Association of Professional Engineers, Scientists and Managers Australia (commonly referred to as Professionals Australia or ‘APESMA’) 4; e. Ms Reah was not entitled to be a member of the Respondent under any other rule of the Respondent’s rules.

Claim 2

15. The Respondent failed to observe its rules by allowing persons that did not qualify for office to nominate and hold office, the particulars of which are: a. Pursuant to rule 19(2) the incumbent Secretary Janet Reah was ineligible to be a candidate for election to the office of Secretary because she was not a financial member, or was ineligible to be a financial member preceding the date of nomination for office.

Claim 3

16. The Respondent failed to observe its rules by allowing persons to be members of the Respondent organisation when those persons were ineligible to be members, the particulars of which are:

a. The following persons that are currently on the register of members with the Respondent did not meet any eligibility criteria of the Respondent under rule 4:

i. Peter Fanning, member no. 139905;

ii. Darrell Esparon, member no. 134382;

iii. Daniel Bernhard, member no. 123394;

iv. Shane Taylor, member no. 123497;

v. Madhu Achuthan, member no. 123679;

vi. Luciano Del Pio, member no. 123936;

vii. Glenys Castle, member no. 128176;

viii. Nolvia Rivas-Lemus, member no. 129563;

ix. Geoffrey Ryan, member no. 124688.

b. They are not registered or entitled to be registered with the Nurses of Board of WA, which is today the Western Australian Board of the Nursing and Midwifery Board of Australia, and [sic] arm of the Australian Heath Practitioner Regulation Agency more commonly referred to as AHPRA: Rule 4(1)(a)(i).

c. They are not nurses in training: Rule 4(1)(a)(ii).

d. They are not in paid employment for the Respondent: Rule 4(a)(b).

e. They are not honorary members: Rule 4(2).

Claim 4

17. The Respondent failed to observe an object of its rules under rule 3(1) in that it failed to promote and protect the interests of members, the particulars of which are as follows:

a. The Respondent did not completely obey Order 2 of the orders made by the Commission in The Registrar, Western Australian Industrial Relations Commission v The Australian Nursing Federation, Industrial Union of Workers Perth.

b. The Requirement on the Respondent pursuant to Order 2 was ‘that the Respondent take all reasonable steps (including by distributing a copy of the herein reasons for decisions and declaration and orders) to notify its members of its failure to comply with rule 20 of its registered Rules.’

c. The Respondent sent an email to the members on 20 October 2022 with [sic] subject heading ‘ANF Election Results’. The email concerned and contained details about the election results and at the end of the body of the email it says, ‘please also find attached the decision of the WAIRC in relation to the timing of the election.’ The emails [sic] says nothing further about the decision and orders.

Claim 5

18. The Respondent has failed to observe its requirement under rule 27 to hold Annual General Meetings, the particulars of which are [sic] follows:

a. No Annual General Meetings or any valid Annual General Meetings were held in 2020, 2021, and 2022.

Claim 6

19. The Respondent has failed to observe and act in accordance with rule 30(1), the particulars of which are as follows:

a. Rule 30(1) says that cheques drawn on the Respondent’s account shall be signed by any two of the President, Secretary, Senior Vice President and Vice Presidents.

b. At a meeting of the Council of the Respondent on 22 April 2022 the Respondent carried a motion to have persons other than those listed at rule 30(1) to be signatories.

c. Current Vice Presidents, Romina Raschilla and Terry Jongen (being Applicants in this proceeding) have not been authorised to be signatories to the Respondent’s account(s) for the purposes of being able to fulfil their duties under rule 30(1).

d. The Respondent is not drawing cheques but utilising electronic transfer, contrary to the requirement of the rule.

[6] On 7 August 2023, I ordered that the proposed amended claims stand as the applicants’ claims under s 66 of the Act. Given that the respondent maintained that the amended claims should be dismissed under s 27(1)(a), I also ordered that the respondent’s original application under s 27(1)(a) be taken to be the application to dismiss the applicants’ amended claims and the s 27(1)(a) application was listed for hearing. In the interim, I also directed that the filing of any evidence in support of or in opposition to the s 27(1)(a) application be by way of affidavit.

2         As a result of my decision in the s 271(a) application, claim 4, set out above, was dismissed, but otherwise the s 271(a) application was not successful.

3         The applications (excluding application PRES 7 of 2023 which was discontinued) were listed for hearing on 23 April 2024. Directions were made for the hearing of the matters on 15 December 2023, including the inspection of documents; the filing of witness outlines of evidence and written outlines of submission. The matter proceeded to a hearing on 23 April 2024 and my decision was reserved on that date.

4         I do not propose to set out the applicants’ amended claims once again but rely on my summary of them in the s 271(a) application referred to above. The respondent opposed all of the applicants’ claims and maintained there was no basis for orders to be made under s 66 of the Act.  The applicants seek relief by way of various declarations and orders regarding the alleged noncompliance by the respondent with its Rules.

5         Since these proceedings were heard and the Commission’s decision was reserved, Ms  Reah, the subject of Claims 1 and 2, resigned from office as Secretary on 30 August 2024 with immediate effect. The former Secretary of the respondent, Mr Olson, was re-appointed to the position of Secretary on 30 August 2024, by way of the filling of a causal vacancy. Additionally, in a decision dated 10 October 2024, I made interim orders, removing Mr Olson from the position of Secretary, on the basis that there were serious issues to be determined that the respondent had not complied with its Rules in appointing Mr Olson to the position of Secretary, to fill the casual vacancy arising from Ms Reah’s resignation.  I also considered the balance of convenience favoured the grant of the interim orders: Raschilla v Mark Olson and Australian Nursing Federation Industrial Union of Workers Perth and Registrar, Western Australian Industrial Relations Commission  [2024] WAIRC 00887.

Relevant rules

6         It is convenient to set out the provisions of the respondent’s Rules that are in issue in these proceedings. They are r 4 - Membership, r 19 - Qualification for Office and Nominations, r 27 - Meetings and r 30 - Control of Funds. These rules relevantly provide as follows:

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.

…

(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.

…

19 - QUALIFICATION FOR OFFICE AND NOMINATIONS

(1) A candidate for election to the office of Executive member or Councillor shall have been a financial member of the Union for a period of one year immediately preceding the date of nomination for office.

(1A) A candidate for election to the office of Senior Vice President or Vice President shall have been a financial member of the Union for a period of two years immediately preceding the date of nomination for office.

(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.

(3) A candidate for the office of President shall meet the same qualifications for office as for Secretary, except in respect only of the election for President held in 1989 under Rule 18 'Transition Provisions' of these rules, where it shall be the same as for the Vice President.

(4) Nomination for election to any of the above offices shall be in writing and signed by at least three other financial members of the Union.

…

27 - MEETINGS

(1) Regular meetings of the Council shall be held at such times and places as Council may decide from time to time.

(2) Meetings of the Union shall be the Annual General Meeting, General Meetings or Urgent General Meetings.

(3) The Annual General Meeting shall be held at a time and place determined by the Council.

(4) A General or urgent General Meeting may be called by Council as often as it sees necessary.

(5) The President shall, on the written request of at least five per cent (5%) of the members of the union, convene a General Meeting to be held within 28 days of that request being received, provided always that 75% of those members calling the meeting shall attend otherwise the meeting shall be null and void.

(6) Such a request in writing shall state the object of the meeting to be convened and the business of the meeting shall be confined to that purpose alone.

(7) An Urgent General Meeting of the Union may be called by the Executive in circumstances where the Executive is satisfied the matter cannot wait for the deliberations of the Council.

(8) A decision of the Executive to call such an Urgent General Meeting may be made at a meeting of the Executive or by way of a telephone poll of Executive members or any other practical method which results in a majority decision of the Executive.

(9) Notification to members of an urgent General Meeting shall be as determined by the Executive and shall include the publication or broadcasting of the date, time and place of the meeting and the purpose or purposes for which the meeting has been called.

(10) Notification of other General Meetings and Annual General Meetings shall be either in writing to the members of the Union by publication in The West Australian newspaper or, time permitting, in the official journal 25 or newsletter of the Union. Notice concerning a General Meeting called under sub-rule (4) above shall include the business for which that meeting has been called.

(11) At any meeting of the Union 5% of the membership shall form a quorum. If within half an hour from the time appointed for the meeting a quorum of members is not present, the meeting shall lapse.

(12) At any meeting the President, if present, shall preside. In the absence of the President, the Senior Vice President shall preside. If neither the President nor Senior Vice-President are present, one of the Vice Presidents shall preside, and in the absence of the President or all the Vice Presidents a chairperson shall be elected by resolution of the majority of those present at the meeting.

(13) Any duly constituted meeting of the Union under this Rule shall have the power to direct the Council on matters of policy and administration and the Council shall carry into effect all decisions of such meetings.

(14) Every resolution proposed at any meeting of the Union shall be carried by a simple majority of those voting at the meeting and at any such meeting the chairperson shall have a deliberate as well as a casting vote.

(15) With the consent of the members present at any meeting, the Chairperson may adjourn the meeting from time to time and from place to place but no business shall be transacted at an adjourned meeting except that business left unfinished at the meeting from which the adjournment took place.

(16) Except as otherwise provided for in these Rules, every financial member shall have one vote at any meeting of the Union.

(17) Unfinancial and Honorary members of the Union shall have no voting rights whatsoever.

…

30 - CONTROL OF FUNDS

(1) The Council shall control and administer the funds of the Union and cheques drawn on the Union's account shall be signed by any two of the President, Secretary, Senior Vice President and Vice Presidents.

(2) The books of the Union shall be audited annually. An audited report and balance sheet shall be presented at the Annual General Meeting of the Union.

(3) The funds of the Union shall be disbursed so that an amount equal to the capitation fees as determined from time to time by the Federal Council of the Australian Nursing Federation (a federally registered organisation) in accordance with its Rules shall be deposited to the credit of the W A Branch of the Australian Nursing Federation, and in addition to the foregoing such disbursements as the Council considers necessary for the effective operation of such organisation.

Principles to apply

7         Section 66 of the Act is as follows:

66. Power of Chief Commissioner to deal with rules of organisation

(1) The following persons may apply to the Chief Commissioner for an order or direction under this section -

(a) a person who is or has been a member of an organisation; or

(b) a person who has applied for and not been admitted to membership in an organisation; or

(c) the Registrar acting on the complaint of or on behalf of a person referred to in paragraph (a) or of the Registrar’s own motion.

(2) On an application made pursuant to this section, the Chief Commissioner may make such order or give such directions relating to the rules of the organisation, their observance or non-observance or the manner of their observance, either generally or in the particular case, as the Chief Commissioner considers to be appropriate and without limiting the generality of this subsection may –

(a) disallow any rule which, in the opinion of the Chief Commissioner –

(i) is contrary to or inconsistent with any Act or law, or an award, industrial agreement, order or direction made, registered or given under this Act; or

(ii) is tyrannical or oppressive; or

(iii) prevents or hinders any member of the organisation from observing the law or the provisions of an award, industrial agreement, order or direction made, registered or given under this Act; or

(iv) imposes unreasonable conditions upon the membership of a member or upon an applicant for membership; or

(v) is inconsistent with the democratic control of the organisation by its members;

and

(b) instead of disallowing a rule under paragraph (a), direct the organisation to alter that rule within a specified time in such manner as the Chief Commissioner may direct; and

(c) disallow any rule which has not been altered by the organisation after a direction to do so pursuant to paragraph (b); and

(ca) where the Chief Commissioner disallows any rule under paragraph (a) or (c), give such directions as the Chief Commissioner considers necessary to remedy, rectify, reverse or alter or to validate or give effect to, anything that has been done in pursuance of the disallowed rule; and

(d) declare the true interpretation of any rule; and

(e) inquire into any election for an office in the organisation if it is alleged that there has been an irregularity in connection with that election and make such orders and give such directions as the Chief Commissioner considers necessary –

(i) to cure the irregularity including rectifying the register of members of the organisation; or

(ii) to remedy or alter any direct or indirect consequence of the irregularity;

and

(f) in connection with an inquiry under paragraph (e) –

(i) give such directions as the Chief Commissioner considers necessary to the Registrar or to any other person in relation to ballot papers, envelopes, lists, or other documents of any kind relating to the election;

(ii) order that any person named in the order must or must not, as the case may be, for such period as the Chief Commissioner considers reasonable in the circumstances and specifies in the order, act or continue to act in and be taken to hold an office to which the inquiry relates;

(iii) declare any act done in connection with the election to be void or validate any act so done.

[(3) deleted]

(4) Any person to whom an order or direction given or made under this section applies must comply with that order or direction whether or not it is contrary to or inconsistent with any rule of the organisation concerned.

[(5) deleted]

(6) A rule disallowed pursuant to subsection (2)(a) or (c) is void.

[(7), (8) deleted]

(9) The power of the Chief Commissioner under subsection (2)(d) may, on a reference made under section 27(1)(t), be exercised by the Commission in Court Session.

8         There is no controversy in this matter as to the relevant principles that apply to the exercise of jurisdiction and powers under s 66 of the Act. In Arnott v Western Australian Police Union of Workers [2022] WAIRC 0028; (2022) 102 WAIG 369, in referring to observations made by Ritter AP in Stacey v Civil Service Association of Western Australia (Incorporated) [2004] WAIRC 00568; (2007) 87 WAIG 1227, I said at [17] - [21]:

[17] The scope of s 66 was examined in detail by Ritter AP in Stacey v Civil Service Association of Western Australia [2007] WAIRC 00568; (2007) 87 WAIG 1229. In Stacey the applicant, who was an Executive Officer of the CSA, and a member, made a claim for compensation on the ground that the CSA had committed past breaches of its rules in relation to alleged failures to pay Mr Stacey overtime as one of its employees; that it also failed to provide funding for representation in relation to a denied contractual benefits claim before this Commission brought by Mr Stacey; and by failing to provide funding to Mr Stacey to conduct his s 66 application.

[18] An issue brought into focus by Mr Stacey’s claims, was whether there existed power under s 66 of the Act to make orders in the nature of damages or compensation for the non-observance of an organisation’s rules. Whilst concluding that the Commission’s powers under s 66(2) are broad, Ritter AP said they are not unlimited. In the statutory context in which s 66 appears, Ritter AP considered that the focus of the section is on the rules of an organisation.

[19] Having regard to the statutory context, and the focus on the registered rules of an organisation, Ritter AP, when considering the extent of the jurisdiction, observed at [273] to [274] as follows:

273 A significant touchstone of the general power under s66(2) is the concept of the “observance” of an organisation’s rules. This demonstrates in my opinion that a key part of the s66 jurisdiction is, to put it colloquially, to keep an organisation “on track” - running in accordance with its rules. This also suggests some contemporary connection between a s66 application, any conduct said to give rise to it, and any orders or directions to be made. The parties named in s66(1) can via s66(2) seek the assistance of the President to disallow/alter prohibited rules, to declare the interpretation of rules, inquire into election irregularities and make other orders to assist or require an organisation to observe its rules. The text and context suggests that any corrective orders are limited to those which have some present connection with the activities of the organisation and the observance of its rules.

274 In my opinion the purpose of s66 is not to correct long ago breaches which now have no relevance to how an organisation is running. Also, the ordering of compensation or damages for old breaches of the rules is beyond the scope and purpose of a s66(2) order. In my opinion the applicant is attempting to squeeze out of the words of the section remedies which are beyond what the legislature intended as being the jurisdiction, purpose and operation of the section.

[20] Ritter AP also, after considering several decisions of the Industrial Appeal Court in relation to s 66 and its powers, postulated that from those decisions several principles had emerged. At [279] his Honour observed:

279 The cases which have been decided by the IAC provide insight into the nature of the jurisdiction and the type of orders which can be made under s66(2) of the Act. The following relevant principles can be distilled from the authorities:-

(a) An order for the purposes of the section must involve a command to someone to do something. (CMEWUA v UFTIU (1991) 71 WAIG 563).

(b) Section 66(2)(d) empowers the President to interpret a rule for the purpose of deciding whether to make an order or direction (UFTIU at page 569). Further or alternatively in the case of controversy an interested party may seek a declaration about the true interpretation of a rule. (Robertson at paragraph [54])

(c) The President may exercise jurisdiction under s66 where there has been an improper exercise of powers, contrary to the rules. (Carter v Drake (1991) 72 WAIG 2501 at 2504)

(d) Sections 66(2)(e) and (f) contain the only powers which the President may exercise under s66 in connection with election irregularities. (Harken v Dornan and Others (1992) 72 WAIG 1727)

(e) Declarations about the validity of meetings by an organisation are outside the power of the President under s66 unless as a matter of law the meetings were invalid. (Carter v Drake (1993) 73 WAIG 3308 at 3311, and see below). Therefore the President may declare invalid resolutions passed at meetings where the meetings were conducted in breach of the rules and the breach had the legal effect of invalidity. (WALEDFCU v Schmid (1996) 76 WAIG 3380 at 3382)

(f) An order for the purpose of requiring an organisation to act in accordance with its rules is within power. (WALEDFCU v Schmid (1996) 76 WAIG 639)

(g) If the grounds have been established for the making of an order under s66, the President does not have a discretion to refuse to make such an order. (Robertson)

(h) The purpose of the power given in s66(2) is to ensure that the persons identified in s66(1) have a means of enforcing the rules of an organisation. (Robertson)

(i) Due to s26(2) the President in considering what order to make under a s66 application is not restricted to the specific claim made. (Robertson)

[21] Reference was made by Ritter AP to the cases of WALEDFCU v Schmid (No.1) (1996) 76 WAIG 639 (IAC) and Luby v Secretary, the Australian Nursing Federation Industrial Union of Workers, Perth (2002) 82 WAIG 2124 (Sharkey P), to the effect that both cases lent support to the proposition that orders may be made under s 66 of the Act, in relation to past breaches of union rules, only in cases where the purpose of such orders is to ensure compliance with existing obligations: Stacey at [291] to [302].

9         Consistent with these principles, the applicants contended that in circumstances where ongoing compliance and observance of an organisation’s rules is an issue in a s 66 application, then orders should be made to keep the organisation ‘on track’. Furthermore, in this case, each of the claims made relates to the respondent’s current operations and compliance with and observance of the respondent’s Rules.

10      Specifically, it was submitted that Claim 1 is directly relevant to the current operations of the respondent because it deals with Ms Reah’s eligibility to hold the office of Secretary of the respondent. The allegations in Claim 3, in conjunction with the allegations in Claim 1, on the applicants’ submissions, demonstrate a pattern of conduct by the respondent in failing to observe its Rules regarding eligibility for membership and directly relates to the respondent’s ongoing compliance with its Rules concerning its present and future operations.

11      Both Claim 5, in relation to the alleged failure of the respondent to hold annual general meetings and Claim 6 regarding non-compliance with r 30 - Control of Funds, were also contended by the applicants to relate to the need to keep the respondent on track and operate in accordance with its Rules.

12      In addition to these matters, it was also part of the applicant’s case that s 66 of the Act needs to be applied consistent with the objects of the Act in s 6. In this respect the applicants referred to Arnott and also to Clancy v Australian Nursing Federation Industrial Union of Workers Perth [2022] WAIRC 00325; (2022) 102 WAIG 1235. In Arnott, as to the objects of the Act, I observed at [74] - [75]:

[74] It is trite that the powers in s 66 of the Act, are to be exercised consistent with the objects of the Act in s 6 and consistent with s 26(1) of the Act. A principal object of the Act in s 6(e) concerns the formation of representative organisations of employers and employees … and their registration under the Act. Additionally, s 6(f), importantly for present purposes, provides as follows:

(f) to encourage the democratic control of organisations so registered and the full participation by members of such an organisation in the affairs of the organisation; and

[75] These are important objects of the Act in relation to organisations. Free and fair elections, and encouraging full participation by members of an organisation in its affairs, is a touchstone of the democratic process. It is a condition of registration of an organisation under Part II Division 4 of the Act, that the rules of the proposed organisation make provision for a proper voting system, subject to independent scrutiny. Civil penalty provisions exist in the Act for contraventions of voting processes or where threats or forms of intimidation of candidates or voters occur. These various provisions of the Act, underscore the importance placed on democratic principles and the full participation of members of an organisation in its affairs, consistent with the principal objects of the Act in ss 6(e) and (f).

13      As to the application of this approach to s 66, the applicants submitted that it could not be consistent with the democratic control of the respondent for there to be members and senior office holders, such as the Secretary, who are ineligible to be members of the organisation. Furthermore, it was contended that members of the respondent could not participate in its affairs, nor take part in its democratic control if annual general meetings of the organisation are not properly and regularly held.

Claims 1 and 2

14      As there is a degree of overlap between Claims 1 and 2, it is convenient to deal with them together. The applicants contended that on a proper construction of the respondent’s Rules, Ms Reah was ineligible for membership of the respondent at the time she worked in various paid positions prior to her election to the office of Secretary in October 2022. As a result, given that a candidate nominating for election to the office of Secretary of the respondent must have been a financial member of the respondent for two years immediately prior to their nomination for office, the applicants submitted that Ms Reah was not eligible to nominate and was therefore not validly elected to the office of Secretary.

15      Ms Reah’s evidence was that she has been a registered nurse for approximately 17 years. After obtaining a nursing degree she commenced as a graduate nurse at Royal Perth Hospital. She remained at RPH for about four and a half years. Ms Reah then worked in nursing at the Swan Districts Hospital for approximately five years. Following this, Ms Reah worked at the St John of God Hospital Midland for about six and a half years. It was not in dispute that Ms Reah has been and remained registered with the former Nurses Board of Western Australia, now the Australian Health Practitioners Regulatory Authority (see exhibits R3 and R4). Ms Reah also stated that she has been a financial member of the respondent since her registration as a nurse and has paid her registration fees up to November 2024 (see exhibits R1 and R2). I pause to add that this is subject to the challenge as to the eligibility of Ms Reah to be a member at the material times. The act of payment of membership fees in and of itself, does not establish membership in accordance with the respondent’s Rules.

16      In February 2022 Ms Reah accepted a position with the respondent as an industrial officer. The letter of offer to Ms Reah from Mr Olson, the then Secretary of the respondent, dated 3 February 2022, described the position as ‘a full time permanent position as an Industrial Officer Level 4 … Your duties and responsibilities will be in accordance with your job description and include other duties as directed by the State Secretary from time to time’ (see exhibit R6). Ms Reah’s evidence was that despite the letter of offer to her for appointment as an industrial officer, she never performed any industrial officer type of work. She performed various duties for the respondent in positions titled as ‘professional officer’; ‘ANF COVID Enquiries Support Team’; and ‘Aged Care Campaign Coordinator’. These duties were performed over the period from 4 February 2022 up to 20 May 2022.  From the latter date, Ms Reah was appointed to the position of Assistant Secretary of the respondent.

17      She described most of the above work as a ‘clinical resource’, including being involved in assisting members during the COVID-19 pandemic with matters such as personal protective equipment, including appropriate fit testing for masks; how to claim tax deductions for the purchase of rapid antigen tests; the preparation and updating of ‘clinical reference cards’ for members, which is a quick reference source of information for nurses in relation to particular topics such as cardiac, pressure area injuries and blood results. This work involved providing advice to members and also loading the updated information into the respondent’s ‘iFolio’ system for access by members. In relation to the work on the patient ratios project, Ms Reah said in cross-examination that she would liaise with the expert, Professor Della, about survey information from members.  She would collate this information. Ms Reah said she would co-ordinate aspects of the project, in conjunction with Mr Olson. Ms Reah would communicate information to members about this project, again, in conjunction with Mr Olson.

18      In relation to the aged care co-ordinator work, which took place at the time of the federal election in 2022, Ms Reah said that as part of the role she would communicate with members about the union’s activities from the federal union branches, answer queries from members, and co-ordinate the campaign, again in conjunction with Mr Olson, from the ANF office.  One communication to members was put to Ms Reah in cross-examination as follows at p 62 of the transcript:

These are the ads on TV, radio, social media reminding the public of the problems in aged care as we approach the final four weeks of the federal election campaign. All the ANF branches across Australia involved in this advertising blitz with advertising happening in every state and territory. This latest advertising blitz builds on the work done by all the ANF branches over the last two years to highlight significant changes needed in the aged care sector and to lobby politicians to actually support and implement meaningful solutions. Our aim over the coming four weeks is to further increase the public’s awareness of aged care issues as they head to the polling booths or as they cast their postal ballot. The four key areas that we are focusing on are: improved wages and conditions; (2) mandated staffing ratios and the right skills mix; (3) RN 24/7 at least one registered nurse onsite at all times; (4) greater transparency of the funding tied to care.

…

There’ll be more updates on this ANF campaign in the coming weeks as well as details on what the major political parties are offering as we head to the polls.

19      The range of non-industrial officer duties Ms Reah performed was also referred to in the evidence of Ms Raschilla, one of the applicants. She referred to various emails from Ms Reah to members of the respondent over the period February to July 2022, describing Ms Reah in positions broadly consistent with Ms Reah’s evidence (see exhibits A1 to A4). Ms Reah described industrial officer work for the union as including processing membership fees and banking, helping members with industrial queries on the ‘Helpline’, attending enterprise bargaining agreement meetings and doing other administrative work associated with this. She did not perform any of this work.

20      As noted above, Ms Reah was appointed by the respondent’s Council to the employed position of Assistant Secretary from 20 May 2022. In that position Ms Reah testified that she was, as the name suggests, assisting the Secretary, by undertaking various duties as directed by the Secretary from time to time. Ms Reah said that from time to time, she would do some of the former jobs she was undertaking, such as assisting members with COVID inquiries.  On 29 July 2022, Ms Reah was appointed to fill a casual vacancy in the office of Secretary of the respondent, following the resignation of the then Secretary Mr Olson (see exhibits R6 and R7).

21      Prior to her employment at the respondent, Ms Reah gave evidence that in about mid-February 2022, she joined the casual employment pool at SJGH Midland, in order to do some casual shifts from time to time. Ms Reah testified that this system worked on the basis that she would contact the manager and ask whether any shifts were available in the emergency department, where she wished to work. If there were, then she would contact the pool manager and if a shift were confirmed, Ms Reah would work the casual shift. Over the period from February to July 2022, it seems that Ms Reah only performed a couple of casual shifts and on 4 July 2022, she was notified by SJGH Midland that her casual engagement had been terminated, because she had not worked any casual shifts for at least three months over that period (see exhibit R5).

22      The nature of casual pool work was also the subject of evidence from Ms Raschilla. She was in the casual pool at Princess Margaret Hospital and the Perth Children’s Hospital. Ms Raschilla described the system of work broadly in line with Ms Reah’s evidence. Ms Raschilla said she would make contact with the relevant manager to indicate that she was available for casual shifts. If a shift came up and she worked it she was paid for that shift only. Ms Raschilla referred to the casual pool arrangement at SJGH Subiaco as a similar system. She said that if a nurse is not available for a period of time the person is ‘off boarded’ and terminated from the casual pool. According to Ms Raschilla’s evidence, this is because of the training costs incurred by the employer to maintain nurses in the pool, to ensure that they retain their various competencies.

23      Helpfully, the respondent in its written submissions at [23], set out a table containing Ms Reah’s employment history, that was not controversial. Leaving aside the generic description of the ‘industrial officer’ position, which has been mentioned above, the table is as follows:

24      In light of the evidence, the applicants submitted that on its proper construction, r 4 - Membership of the respondent enables a person to be a member if the person is:

(a) employed in the profession or industry of nursing and is registered or entitled to be registered with AHPRA; or

(b) a student nurse; or

(c) a paid employee of the respondent and they are not eligible to be a member of another union registered under the Act, irrespective of whether they are entitled to be registered with AHPRA.

25      Leaving aside the student nurse criterion, which is not relevant, the applicants contended that Ms Reah did not meet either criterion in (a) or (c) at the time prior to her election to the position as Secretary of the respondent in October 2022. It was submitted by the applicants that from the time when she commenced employment with the respondent in February 2022, and performed the various duties that she did until her election to the position of Secretary, Ms Reah was not employed in the ‘profession or industry of nursing’. This is because Ms Reah was employed in ‘the administration of a trade union’ which cannot be considered to be employment in the ‘profession or industry of nursing’. On the applicants’ construction of r 4(1)(a)(i), the concept of the ‘profession or industry of nursing’ means being employed in a health care setting or otherwise performing the work of a nurse, in accordance with the ordinary and natural meaning of the phrase.

26      Furthermore, on the applicants’ contentions, in the period prior to her election as the Secretary, Ms Reah also did not meet the criterion for membership in r 4(1)(b). This was because during her employment over the period February to October 2022, Ms Reah was performing work making her eligible for membership of another union registered under the Act, the Western Australian Municipal, Administrative, Clerical and Services Union of Employees. This was so because the applicants submitted by r 5 of the WASU Rules, a person is eligible to join the WASU if they are employed in ‘any clerical capacity’. Given the breadth of the meaning of this term, this would include any person employed in the work of administration. Accordingly, on the applicants’ submissions, from February 2022 up until her election as the Secretary of the respondent, Ms Reah was engaged in administration and clerical work, making her ineligible to be a member of the respondent.

27      On this basis, the applicants contended that as Ms Reah was not eligible to be a member of the respondent during either the entire or some of the time from February 2022.  Therefore, by r 19 of the respondent’s rules, Ms Reah was not entitled to nominate for election to the office of Secretary as she was not eligible to be a financial member for two years immediately prior to her nomination for office.

28      To buttress their argument as to Ms Reah’s ineligibility to be a member of the respondent, the applicants also contended that working occasional shifts as a nurse as a part of a casual pool, as Ms Reah did, could not constitute employment in the profession or industry of nursing. The submission was that simply being part of a casual employment pool does not constitute working in the profession or industry of nursing. As I understood the argument, it was submitted that even if working a shift as a casual pool nurse could be said to be working in the profession or industry of nursing, once that shift is completed, and the contract of casual engagement ends, the person can no longer be regarded as working in the industry.

29      On behalf of the respondent, a number of submissions were made as to these issues. The respondent contended that at all material times Ms Reah was eligible to be a member of the respondent. It was submitted that for the purposes of r 4(1)(a)(i) Ms Reah was an ‘employee’ as defined in s 7 of the Act and her work for the respondent in the various positions that she held from February to October 2022, in conjunction with her engagement in the casual nursing pool at SJOGH Midland in the period from February to July 2022, met the requirement of being ‘employed in the profession or industry of nursing’. Furthermore, the respondent submitted that Ms Reah’s period of office as the Secretary also constituted employment in the profession or industry of nursing. At all times Ms Reah remained registered with the AHPRA.

30      It was also contended by the respondent that r 4(1)(a)(i) is to be read together with r 4(1)(b) of the Rules, such that work by an employee of the respondent should be regarded also as work in the profession or industry of nursing. On the respondent’s submissions, the terms of r 4(1)(a) and r 4(1)(b) are not to be construed as mutually exclusive. It was contended that on their proper construction, a person who is not registered or entitled to be registered with the AHPRA, but who works as a paid employee of the respondent, remains eligible to be a member.

31      As to the proper meaning of ‘employed in the profession or industry of nursing’, the respondent contended that this should be accorded a broad meaning. It referred to the definition of ‘nursing practice’ as adopted by the Nursing and Midwifery Board of Australia (Fact Sheet - Recency of Practice, Nursing and Midwifery Board of WA March 2023) which is as follows:

Practice means any role, whether remunerated or not, in which the individual uses their skills and knowledge as a health practitioner in their profession. Practice in this context is not restricted to the provision of direct clinical care. It also includes using professional knowledge (working) in a direct non-clinical relationship with clients, working in management, administration, education, research, advisory, regulatory or policy development roles, and any other roles that impact on the safe, effective delivery of services in the profession.

32      On the basis of the foregoing, the respondent submitted that at all material times Ms Reah was eligible to be a member of the respondent and the applicants’ contentions to the contrary should be rejected.

33      The approach to the interpretation of union rules is not in contest in this matter and they are well known. Recently in The Registrar, Western Australian Industrial Relations Commission v The Australian Nursing Federation Industrial Union of Workers Perth [2022] WAIRC 00681; (2022) 102 WAIG 1315 I referred to the approach to be taken as to these matters and I said at [13] as follows:

[13] The principles applicable to the interpretation of union rules are well settled and I only need to advert to them briefly.  As was stated by Ritter AP in Stacey v Civil Service Association of Western Australia (Incorporated) [2007] WAIRC 00568; (2007) 87 WAIG 1229 at [89] ‑ [93]:

89 The way in which a Court or Industrial Commission should approach the question of the construction of the rules of an organisation is well established.

90 Brinsden J with whom Smith J agreed in Hospital Salaried Officers Association of Western Australia (Union of Workers) v The Hon Minister for Health (1981) 61 WAIG 616 at 618 said:-

“Generally speaking the correct approach to the interpretation of a union rule is to interpret it in the same manner as any other document.  It must be remembered however that union rules are not necessarily drafted by skilled draftsmen.  It is therefore necessary I think in construing a union rule not to place too literal adherence to the strict technical meaning of words but to view the matter broadly in an endeavour to give it a meaning consistent with the intention of the draftsman of the rule.  This approach has been endorsed in relation to awards: see Geo A.  Bond & Co.  Ltd.  (In Liq.) v McKenzie (1929) A.R.  499 at 503-4 referred to in Federal Industrial Law by Mills and Sorrell 5th Ed.  at p522.  I also said much the same thing in the unreported decision of Bradley v The Homes of Peace 1005/1978, judgment delivered 21st December, 1978 at p.13-14.”

91 These observations have been cited and applied in s66 applications.  An example is Williams v SDAEAWA (2005) 85 WAIG 1963.

92 A similar approach has been adopted by the High Court in the construction of union eligibility rules.  In Re Anti-Cancer Council of Victoria; Ex Parte State Public Services Federation (1992) 175 CLR 442 at 448, Mason CJ, Brennan and Gaudron JJ said it ‘is well settled that union eligibility rules are to be interpreted liberally and according to their ordinary and popular meaning’.  Their Honours cited a number of decisions in support of this proposition including The Queen v Isaac; Ex Parte Transport Workers’ Union (1985) 159 CLR 323 decision, where Wilson J at 340 said:-

“In construing the eligibility clause in the constitution of an organization, it is necessary to bear in mind the nature of the instrument in which the words appear and the purposes that it is intended to serve.  The rule now in question bears ample indication on its face that it has been prepared without the assistance of a skilled draftsman.  It has been amended from time to time, probably in response to the exigencies attending the industrial affairs of the union and without regard to the effect of the amendment on the internal consistency of the clause as a whole.  It follows that the words of the rule should be given a wide meaning and interpreted according to their ordinary or popular denotation rather than by reference to some narrow or formal construction: Reg.  v Cohen; Ex parte Motor Accidents Insurance Board ; Reg.  v McKenzie; Ex parte Actors and Announcers Equity.  Nevertheless, notwithstanding this generosity of approach, the meaning of the words remains a legal question to be determined by the application of the ordinary rules which govern the construction of written documents: Reg.  v Aird; Ex parte Australian Workers' Union; McKenzie.” (Footnotes omitted)

93 French J in Re Election for Office in Transport Workers’ Union of Australia, Western Australian Branch (1992) 40 IR 245 at 253 said that the “preferred approach to the construction of union rules which requires them to be construed not technically or narrowly but broadly and liberally and not “subjected to the same meticulous scrutiny as a deed carefully prepared by lawyers.””.  His Honour cited r v Holmes; Ex Parte Public Service Association (NSW) (1977) 140 CLR 63 per Gibbs J at 73 and Re An Election in the Australian Collieries Staff Association (NSW Branch) (1990) 26 FCR 499 per Lockhart J at 502.  The reasons of French J were cited with approval by Mansfield J in Thomas v Hanson [2001] FCA 539 at [20].  Authorities cited by the applicant set out a similar method of approach.  (Delron Cleaning Pty Ltd T/A Delron Hospitality Management (2004) 84 WAIG 2527 at [40] and FMWU v GW Smith and KJ Rose (1988) 68 WAIG 1010.

34      Additionally, words used in a rule of a union, should be given their ordinary and natural meaning, unless the context indicates to the contrary: Re Anti-Cancer Council of Victoria; Ex Parte State Public Services Federation (1992) 175 CLR 442 at 448 per Mason CJ, Brennan and Gaudron JJ.

35      In r 4(1)(a)(i), there are four requirements for this category of membership. The first is that the person must be an employee within the meaning of the Act. Section 7 of the Act as to the definition of employee provides:

employee means —

(a) a person who is employed by an employer to do work for hire or reward, including as an apprentice; or

(b) a person whose usual status is that of an employee;

36      Second, such an employee ‘shall’ (i.e. must) be ‘employed’. Third, the person must be employed ‘in the profession or industry of nursing’. Fourth, the person who satisfies the first three requirements of the definition, must also be registered with the AHPRA or entitled to be registered. The subrule appears, from the ordinary meaning of the words used, at first blush, to draw a distinction between the ‘profession’ on the one hand and the ‘industry’, of nursing, on the other. The fact that the draftsperson of the sub-rule has drawn this distinction, rather than just refer to one or the other, even adopting a broad approach to the interpretation, may suggest that some difference in meaning was intended. However, for the following reasons, I do not consider that such a distinction, despite the use of different words, is material.

37      In its ordinary meaning, a ‘profession’, in accordance with the Shorter Oxford Dictionary, means relevantly ‘II. The occupation which one professes to be skilled in and to follow a. a vocation in which a professed knowledge of some department of learning is used in its application to the affairs of others, or in the practice of an art founded upon it.  Applied spec. To the three learned professions of divinity, law, and medicine; also to the military profession. b. in wider sense: any calling or occupation by which a person habitually earns his living …  c.  The body of persons engaged in a calling...’. Unlike the meaning to be given to ‘employee’ in r 4(1)(a)(i) as referred to the above definition in the Act, the meaning of ‘industry’ is not expressly so defined.  In its ordinary meaning, in the Shorter Oxford Dictionary ‘industry’ is relevantly defined to mean ‘…3. Diligence or assiduity in any task or effort; close and steady application to the business in hand … 4.  Systemic work or labour; habitual employment, now esp. in the productive arts or manufactures … entitled 5.  A particular branch of productive labour; a trade or manufacture …’.

38      In my view, the concept of ‘industry’ consistent with its ordinary meaning, should be construed as not referring to any business or undertaking of employers, whether that be private or public, but rather the industry of the employee. This is consistent with the definition of ‘industry’ in s 7 of the Act in par (c) which refers to ‘any calling, service, employment, handicraft or occupation or vocation of employees’. This would more naturally be the result, as it is not readily envisaged that there would be an employer’s industry in relation to nursing. This conclusion was reached by a Full Bench of the former Australian Conciliation and Arbitration Commission, when considering the meaning of the then rule 6 - Eligibility for Membership of the federal Australian Nursing Federation: Royal Australian Nursing Federation v Private Hospitals and Nursing Homes Association of Australia & Ors (1984) 11 IR 231 at 245 per Coldham and Maddern JJ and Turbet C at 245.

39      The sub-rule also requires a direct connection between the employment of the person and the profession or the industry, on the basis that the person must be so employed ‘in the profession or the industry of nursing’. In its ordinary sense, in the context of its use, ‘in’ means ‘I. Of position or location.  1. within the limits or bounds of …’ (Shorter Oxford Dictionary). Thus a person must have more than just a mere connection or association with the profession or industry of nursing to fall within the subrule.

40      Whilst the respondent referred to the Nursing and Midwifery Board (a part of AHPRA) description of ‘nursing practice’, there is no definition in r 4 as to what is within the scope of ‘nursing’ for the purposes of admission to membership. Accordingly, in the absence of any indication the phrases ‘profession of nursing’ or ‘industry of nursing’ were intended to have a particular or technical meaning, then they should be given their ordinary meaning. The relevant definition of ‘nurse’ in the Macquarie Dictionary Third Edition is ‘1. A person who has the care of the sick or infirm…’. ‘Nursing’ is defined to include ‘…7. To tend in sickness or infirmity…’. It is reasonably clear that these definitions have a clinical focus, with what the ordinary person in the street would associate with the role of a nurse, being to assist in the care and treatment of those who are ill, injured, or infirm. This would ordinarily be work performed in a healthcare setting.

41      The approach adopted by the respondent in reliance upon the Nursing and Midwifery Board definition of ‘nurse practice’ attempts to give the broadest possible meaning to incorporate many non-clinical functions or endeavours, branching into education, administration and management, research and even policy, that may ‘impact on the safe, and effective delivery of services in the profession’. This latter statement in the definition relied upon by the respondent immediately illustrates the problem with this approach. This last sentence of the definition relied upon, appears to be much broader than the requirement in r 4(1)(a)(i) for a person to be employed ‘in’ the profession or industry. It contemplates persons employed more in connection with, or who may only have a tangential relationship with, the profession or industry, beyond the ordinary meaning of r 4(1)(a)(i).

42      Looking at r 4 in the context of the Rules as a whole, the objects of the respondent in r 3 - Objects, refers to a range of matters that one would expect to see in a union’s Rules, including the improvement of terms and conditions of employment for members and the representation of members in industrial matters (see r 3(1) in part, (5) and (11)). Other objects such as r 3(1) in part, and (6)-(8), refer to broader non-industrial matters, including education and professional development, and the promotion of high standards of professional practice. Whilst on first appearances the latter objects may be seen to be more consistent with the broader meaning urged on me by the respondent, when one reflects on them further, they are also consistent with the promotion of those particular matters in respect of nurses seen in the narrower sense, focussing on clinical and related work in a health care setting. Accordingly, I consider r 3 - Objects of the respondent’s Rules to be neutral in the task of interpretation.

43      Furthermore, while the broad description advanced by the respondent, in line with the Nurses Board definition, includes reference to matters such as ‘education’, taking this to its ultimate conclusion, this may suggest that even those engaged in the teaching of nursing as part of a degree course in tertiary institutions, should be seen to fall within the meaning of ‘the profession or industry of nursing’, for the purposes of r 4(1)(a)(i), and therefore, be eligible to be members of the respondent. In my view, such a proposition would be a bridge too far and has been rejected in the past, for example in Re New South Wales Nurses Association (1987) 23 IR 468 per Sweeny J at 470.  In that case Sweeny J held that persons teaching nursing courses in universities, technical colleges or similar types of institutions, were engaged in the academic or teaching profession and not the nursing profession. I agree with that view.

44      Some consideration has been given to the meaning of phrases including the ‘profession of nursing’ or the ‘industry of nursing’, when construing the rules of the federally registered nurses union and the respondent’s State counterpart in New South Wales. In New South Wales Nurses’ Association v Health Administration Corporation & Ors (1987) 23 IR 17, the Full Bench of the Industrial Court of New South Wales in Court Session, on appeal, considered a coverage dispute in relation to persons employed as residential care assistants, residential care workers and residential care managers, employed in community residential units. The dispute arose at first instance between the New South Wales Nurses’ Association and the Health and Research Employees Association, as to which union should have coverage of such employees. The background to the matter was that in New South Wales, as a result of a policy change, persons with a mental illness or with a developmental disability, were shifted from institutional care into community based care. The community residential units were established more in the nature of home care residential facilities, and were intended to create a ‘homemaking’ environment.

45      The two primary levels of staff in the community residential units included firstly those who had training to a level equivalent to what was then described as a mental retardation nurse, with the second level being those persons not requiring formal qualifications. It was held at first instance that the Nurses’ Association should be granted coverage. The Full Bench examined the job requirements for residential care assistants and residential care workers and also residential care managers. The Full Bench concluded that although residential care workers may be qualified mental health or registered general nurses, based on the evidence, it observed at pp 20-21:

The thrust of the material is that it is not intended the positions are ones requiring qualification of duties appertaining to those trained or skilled in the profession or calling of nursing employed in a hospital or institution.

The staff are required to be familiar with resuscitation techniques, familiar with management of epilepsy, and have first aid knowledge, and where necessary give medication or assist residents to self-administer medication. These duties require knowledge and adaption, but could not be categorised as the duties which devolve on a nurse or nursing aid employed in a professional capacity at a hospital or institution environment.

Employees have been appointed to various residence staff positions without nursing qualifications and, whilst hospital or institution nursing qualifications and experience may be of assistance in such employment, it is not a requirement for appointment. It is proposed that all residential service workers, including those employed by non-government organisations which are receiving departmental funds for the provision of those services, should be given the opportunity and encouraged to attend department and externally-supported training activities conducted on residential services and related areas, which will not, on the evidence, go to the academic standard required for a registered nurse.

Mr Kenzie of Queens Counsel, who appeared for the Nurses' Association, asserted that the Nurses' rule embraced everyone who was employed in the profession or calling of nurses skilled or unskilled. The evidence and exhibits do not substantiate that the duties required of resident staff are in that category. However, if a registered nurse or trainee is required, and is appointed as such, and is also required to use the skills of the profession or calling, then that could be a different situation. The current three positions to be determined in this matter do not fall into that category. Those employed in RCUs will generally be supported by a multi-disciplinary development disability team which includes, or has available to it, professional categories such as — mental retardation nurse, registered general nurse, psychologist, social worker, social educator, and program officer.  (My emphasis)

46      At the material time, the relevant rule of the Nurses’ Association regarding constitutional coverage was in r 2 - Constitution and it provided:

2.  CONSTITUTION

The Association shall consist of:

(a) Persons engaged in the profession of nursing as trained nurses, trainees and assistants in nursing employed in or in connection with the profession or calling of nursing [other than those employed in Government hospitals and Government institutions].

(b) Persons employed in State mental hospitals engaged in the profession of mental nursing as follows:

(i) Nurses holding mental nurses' certificate issued by the Nurses' Registration Board of N.S.W.

(ii) Nurses holding mental nurses' certificate issued by the Department of Mental Hospitals of N.S.W.

(iii) Persons undergoing training in the State Mental Hospital for the profession of mental nurses.  (My emphasis)

47      Whilst not in the same terms as r 4(1)(a)(i) of the respondent’s Rules, there is considerable similarity with regard to the inclusion of the phrase ‘profession of nursing’ and the ‘profession or calling of nursing’ in par (a) of the above rule. The Nurses’ Association argued in that case that despite the setting of the community residential units being in the nature of a residential or home-making parental type environment, residential care workers and residential care managers should be seen as eligible to be members of the Association.  This was rejected by the Full Bench.  The Full Bench held that such employees were not engaged in the profession of nursing or in connection with the profession or calling of nursing (at p 25).

48      In my view, for the purposes of r 4(1)(a)(i) of the respondent’s Rules, to be eligible for membership of the respondent, an employee must be professionally qualified as a nurse (in the description of ‘nurse’ in its ordinary and statutory sense as set out below) and be engaged in work involving the exercise of professional skill and judgement in the care and/or treatment of persons who are ill or injured, in the sense that the person is suffering a disturbance of the body or the mind, or those who are infirm. This does not, self-evidently need to be in a hospital. There are many other settings in which a nurse may exercise their professional skill and judgment in respect of those in their care.  For example, a nurse working in a school, caring for ill or injured students, is doing so in a different kind of health care setting, in the profession or industry of nursing.

49      As to the definition of a ‘nurse’, this has also been referred to for classification purposes in s 4 of the Public Health Act 2016 (WA).  It now appears as s 113 in the Health Practitioner Regulation National Law 2009 (Qld) as adopted and applied in this State in the Health Practitioner Regulation National Law Application Act 2024 (WA). This includes the ‘protected title’ of ‘nurse, registered nurse, nurse practitioner, and enrolled nurse’.

50      I do not consider a person, even one registered or entitled to be registered with AHPRA, but who works for the respondent, which is an industrial union of employees, is by that employment, thereby engaged in the profession or industry of nursing. It is what the person does, that is important in determining the industry of the employee. Registration or eligibility for registration by itself, is not sufficient. A person working for a union as an employed ‘industrial officer’, is engaged in the industry of trade unions and professional associations, which bodies’ principal purposes are to advance the industrial and professional interests of their members. Despite the various titles that Ms Reah had performing the various duties she did, in the period from February to July 2022, she was not engaged in the profession or industry of nursing in her work for the respondent.  Subject to what I say below in relation to the casual pool at SJGH Midland, Ms Reah did not, though her employment with the respondent, engage in any work in the nature of caring for the injured, ill or infirm.

51      From 20 May 2022, as the Assistant Secretary, Ms Reah was assisting the Secretary of the respondent, under r 16(3) of the Rules. Under this sub-rule, the duties of an Assistant Secretary are to ‘manage or to assist the Secretary to manage, some or all of the day to day affairs of the union’. The Council may also, under r 16(3)(b), delegate such duties of the Secretary as it deems fit. An Assistant Secretary so appointed, is engaged in the industry of trade unions and professional associations and, by the express terms of r 16(3), performs management and administration duties to assist the Secretary in the management of the union. For the purposes of s 7 of the Act, this is the ‘industry’ engaged in.

52      Rule 16 - Secretary sets out the duties of the Secretary of the respondent. It relevantly provides as follows:

16 - DUTIES OF THE SECRETARY

The Secretary shall be the principal officer of the Union and shall be subject to the control of the Council.

(1) The Secretary shall:

(a) attend each meeting of the Council and Executive unless granted leave of absence

(b) sign or countersign as the case may be, everything requiring the signature of the Secretary;

(c) produce for audit at least once a year, and at any additional times as directed by Council, all books and documents of the Union in his or her custody;

(d) arrange to call all meetings as directed by the Council, the Executive or the President;

(e) arrange meetings of the Council and Executive in accordance with these rules;

(f) prepare and forward to the proper authorities all returns required by law;

(g) ensure that all books and financial statements show a true and correct record of financial transactions of the Union.

(h) prepare and present a Treasurer's report;

(i) make all financial documents available to the auditors when required;

(j) invest funds as directed by the Council;

(k) lodge for safekeeping all securities and other legal documents of the Union with the Bankers of the Union;

(l) authorise in writing to the Industrial Relations Commission those people who may sign applications, notices or other documents in the Industrial Relations Commission or act on behalf of the Union in any matter or proceedings under the Industrial Relations Act;

(m) perform any other duties relating to the office of Secretary as the Council or Executive may direct from time to time.

(2) The Secretary shall be responsible for:

(a) the making and keeping of a correct record of proceedings of the Council;

(b) the conduct of the correspondence of the Council and the Executive;

(c) collecting and receiving all monies payable to the Union, issuing receipts and banking that money into the bank account of the Union as determined by Council from time to time;

(d) the preparation of all cheques, money orders or the like drawn on the Union's funds;

(e) the maintenance of a true account of all monies he or she receives on behalf of the Union and all monies disbursed from funds;

(f) keeping all records of members required by legislation;

(g) making available to members a copy of these Rules.

(3) (a) The Council may, in accordance with sub-rule (17) of Rule 11 of these Rules, appoint a person to manage or assist the Secretary to manage, some or all of the day to day affairs of the Union.

(b) where such a person is appointed, the Council may delegate to that person those of the duties and responsibilities of the Secretary as it sees fit, providing that any such delegation may be evoked by the Council at any properly constituted Council meeting.

(4) The Secretary should be paid whatever salary or allowance and allowed leave of absence as the Council may determine.

53      A person who is elected to the office of Secretary of the respondent, is not by reason of that office alone, engaged in the profession or industry of nursing. The Secretary, as r 16 makes plain, is the principal officer of the respondent, and has management duties across the range of managerial functions including general administration, financial management, and other duties as may be directed by the Executive. Accordingly, I do not accept the contention advanced by the respondent that work performed by employees and officers of the union constitutes ‘employment in the profession or industry of nursing’ for the purposes of r 4(1)(a)(i) of the Rules.

54      The question that now arises for consideration is whether Ms Reah, by being enrolled in the casual nursing pool and working a couple of shifts as a casual nurse at SJGH Midland, over the period 22 February to early July 2022, constituted her working in the profession or industry of nursing. If the conclusion is that this work, albeit sporadic, is sufficient, then Ms Reah can be regarded as having been employed in the profession or industry of nursing. A related issue is, can simply being in the casual nursing pool, without performing any nursing work, be sufficient?

55      Given the definition of ‘employee’ in s 7 of the Act, in the case of a person engaged on a casual basis, who may work for periods of time and also have periods of time not working, I do not consider the period of time not working, necessarily deprives the person of the status of ‘an employee’ within the meaning of 4(1)(a)(i) of the Rules. I reach this view because even though a person’s work performed may be intermittent, this does not deprive them of having the ‘usual status’ of an employee.

56      It seems uncontroversial on the evidence, that Ms Reah only worked ‘a couple of shifts as a casual’ at SJGH Midland (see p 44 transcript). Because it was required that she work at least one casual shift in any three month period, and as Ms Reah had not done so between April and July 2022, her participation in the casual nurse pool was terminated in early July 2022. Thus, there was a period of about three months, when Ms Reah performed no nursing duties, which ultimately led to her no longer being in the pool and being considered for offers of engagement (see p 44 and pp 67-68 transcript).

57      As I have mentioned above, the nature of this type of casual pool arrangement was also the subject of Ms Raschilla’s evidence. Ms Raschilla is employed full time as a nurse, but she also did some casual pool nursing work from time to time at PMH and PCH. Once in the casual pool, her evidence was she would let the Nurse Manager know that she was available for shifts.  She would then receive a text message and, if she were available to accept the offer, she would work the shift. As with Ms Reah, many other nurses were also in the casual pool and were available presumably, to work on the same basis. Given Ms Raschilla had other work as a nurse, her evidence was she was not always available. Ms Raschilla received a letter that if she wanted to continue in the casual pool, she would have to work at least one shift each fortnight. As she could not do this, her participation in the casual pool was terminated (see pp 19-21 transcript).

58      The notion of casual employment has no fixed meaning in Australian law: Melrose Farm Pty Ltd t/as Milesaway Tours v Milward [2008] WASCA 175; (2008) 88 WAIG 1751 per Le Miere J (Steytler P agreeing) at [103]. In the decision of the Full Bench of the Commission on appeal in Melrose Farm, in Christine Anne Miles and Richard Glinton Miles t/as Milesaway Tours v Melrose Farm Pty Ltd t/as Milesaway Tours [2007] WAIRC 01230; (2007) 87 WAIG 2991, Ritter AP (with whom Smith SC and Wood C agreed) discussed at some length the concept of casual employment, both at common law, and for the purposes of awards and relevant statutory definitions.

59      Prior to Melrose Farm, the Full Bench, in a line of cases commencing from Metals and Engineering Workers Union, Western Australia v Centurion Industries Ltd (1996) 76 WAIG 1287, considered that the essence of casual employment was an employee who works under a series of separate and distinct contracts of employment for a fixed period, to meet the contingencies of the particular case, and not under a single and ongoing contract: at 1288. This approach was not followed by the Full Bench in Melrose Farm. Acting President Ritter concluded, in that case, after an extensive review of the authorities, at [165-168] as follows:

165 The lack of a single meaning of “casual” was addressed by the Full Commission of the Industrial Relations Commission of New South Wales (Bauer and Hungerford JJ, Murphy CC) in Ryde-Eastwood Leagues Club when it said at 401/2:-

“It is apparent that two classes of employee colloquially described as “casual” can readily be identified in the organisation of industrial relationships. The first class refers to those employees who are truly casual in the sense that there is no continuing relationship between the employer and the employee. The second class is where there is a continuing relationship which amounts to an ongoing or continuing contract of employment; it is this second class of contract which, for the reasons set out earlier by us, is of such a nature as to attract the Commission’s jurisdiction under Pt 8 of Ch 3 of the Act.”

166 The “jurisdiction” referred to included the power to reinstate a dismissed employee. I agree that there are at least two ways in which casual employment is commonly thought of or defined in legislation/awards.

167 The Full Commission in Ryde-Eastwood Leagues Club also gave an example of an ongoing contract of casual employment as follows at page 399:-

“… in consideration of a payment by X to Y, in accordance with the relevant award or enterprise agreement for work actually performed, X agrees to employ Y as a casual employee on work as mutually agreed as and when it arises from time-to-time pursuant to a weekly roster published by X at least seven days in advance of such work and Y agrees to make himself available to perform such work subject to the release of Y allowed by X for illness, holidays and other reasonable cause. Such a contract, in our opinion, would represent an appropriate common law contract of employment to give effect to an ongoing or continuing enforceable contract of casual employment. It would not conflict with nor be contrary to the Award here.”

168 I agree with Ryde-Eastwood Leagues that casual employment or engagement is not a description which only applies to employment on the basis of a series of single contracts. For example in my opinion there can be a single contract of employment between parties where the days and hours which an employee might work is on an as and when required basis. The terms of the contract will include the rate of pay and in effect specify that the days and times when work will be done are to be arranged in the future. The dates and times of work are not therefore fixed. The dates and times of employment may depend on the nature of the employer’s business which has for example a fluctuating and not necessarily predictable trade. The Industrial Appeal Court in Federated Clerks Union of Australia, Industrial Union of Workers, WA Branch v Automatic Totalisators Ltd (Sloan’s Case) (1978) 58 WAIG 1452 at 1454 contemplated that a continuing casual contract could exist on an “as and when required” basis.

60      On the facts of that case, Ritter AP concluded that given over a period of time between January 2001 to May 2004, the employee concerned worked reasonably consistently each week, generally three days per week, although there was some variation, that the employee was party to a continuing contract of employment from the commencement of his employment until his employment was terminated.  Acting President Ritter’s reasons in this respect are at [207-224].

61      On the appeal to the Industrial Appeal Court, whilst Le Miere J had doubts as to the correctness of Ritter AP’s finding that the employee in question was engaged on an ongoing contract, his Honour observed at [106] that:

106 There is no one definitive test to distinguish between casual and permanent employees. There are several features characteristic of casual employment. These were discussed by Acting President Ritter, with whom the other members of the Full Bench agreed, in the course of his reasons. The essence of casual employment is the absence of a firm advance commitment as to the duration of the employee's employment or the days (or hours) the employee will work. It is not a necessary characteristic of casual employment that the employee work under a series of separate and distinct contracts of employment each entered into for a fixed period.

62      And further, at [109] - [110] Le Miere J said:

109 The appellants submit that the Full Bench erred by not following its earlier decision in Centurion Industries where it said that the concept of casual employment is generally taken to connote an employee who works under a series of separate and distinct contracts of employment entered into for a fixed period rather than under a single and on-going contract of indefinite duration.

110 The Acting President found that there was a continuing contract of employment between Mr Sladden and the appellants from the commencement of his employment until its termination. That finding does not of itself mean that Mr Sladden was not a 'casual worker'. There may be a continuing contract one term of which is that the employer can elect to offer work on a particular day or days and when offered the employee can elect to work or not. Such a contract might create a casual employment relationship.

63      The pattern of employment of Ms Reah, as a part of the casual pool at SJGH Midland, on the evidence, stands in stark contrast to the facts as found in Melrose Farm. On her evidence Ms Reah only worked two to three shifts over the period from February to May 2022. Over the three months from May to July 2022, Ms Reah did not perform any casual nursing work. Her participation in the casual pool then ended because she was not performing any work as a nurse.

64      The concept of a ‘pool’ of candidates for employment is one in which a group of persons who are qualified for an appointment to a position, may be offered an appointment over a period of time. The concept is sufficiently understood to involve pools of potentially qualified employees, who may be offered full time, part time, casual or fixed term contracts of employment. In my view, the concept of a pool is analogous to a register of suitably qualified employees, who may be offered work from time to time, which offers the person is free to accept or reject.

65      It is clear on the evidence, that as and when the occasion for a casual shift arose, in the case of Ms Reah, an offer was made to her, which offer could have been either accepted or declined. In the case of an acceptance, a casual shift was worked and payment made for it. Such an engagement in my view, constituted a separate and discrete casual contract of employment on each occasion. There was no evidence before the Commission in Ms Reah’s case, other than her not performing any work for three months, that there was any particular understanding or commitment to perform future casual shifts, such as the existence of a roster, in order for there to be some basis to conclude that there would be regular and systematic work performed over a defined period of time. Indeed on the evidence, the opposite was the case.

66      Given that Ms Reah was only engaged on two or three occasions to work a casual shift at SJGH Midland, over the entire period from February to July 2022, and no work was performed over the three month period from May to July inclusive 2022, I do not consider that this entire period could be regarded as an ongoing contract, such that it constituted Ms Reah being ‘employed in the profession or industry of nursing’ for the purposes of r 4(1)(a)(i), over this period. Alternatively, even if the two or three shifts Ms Reah worked in the period from February to May 2022 could be regarded as work in the profession or industry of nursing, then the following period from May to July 2022 could not be, as there was no nursing work performed at all. This is despite the meaning of an employee in s 7 of the Act, as encompassing a person whose usual status is that of an employee. Whilst this may mean that someone who works regular, but intermittent shifts as a casual can still be classified as an employee for the purposes of r 4(1)(a)(i) of the Rules, in the case of Ms Reah, the length of the break in the employment was such as to sever the nexus between the very little work done and her ‘usual status’ as an employee, for the purposes of s 7 of the Act.

67      I consider that what is clearly contemplated by r 4(1)(a)(i), is a person who is substantially employed as a nurse, as for example, Ms Raschilla has been and is. This could be full time or part time, or engaged casually on a regular and systematic basis. I am fortified in this conclusion by r 4(3) of the respondent’s Rules. This provides, as set out above, that a person who has ceased to be an employee in the profession or industry of nursing, is not entitled to retain their membership of the respondent. What this sub-rule makes clear is the nexus between the need to be working in the profession of industry of nursing, and the retention of union membership.

68      Accordingly, I am not satisfied that the period of February to July 2022, can be taken into account in determining Ms Reah’s eligibility to stand for election to the office of Secretary of the respondent, for the election that took place in late 2022, on the basis of r 4(1)(a)(i). Alternatively, if I am incorrect as to this, then the period over May to July 2022 inclusive, cannot be taken into account in determining Ms Reah’s eligibility for membership of the respondent. The next issue is whether Ms Reah was eligible to be a member in reliance upon r 4(1)(b) of the Rules. I turn to consider that issue now.

69      The nub of the issue in relation to this sub-rule is whether, as on the applicants’ case, Ms Reah’s employment in the various positions she occupied from February to 20 May 2022 as an ‘industrial officer’, and then from 20 May 2022, as the Assistant Secretary, fell within the scope of r 4(1)(b) and did not enliven the exclusion in the sub rule.

70      In r 4(1)(b), a number of requirements need to be met for a person to be eligible to be a member of the respondent. First, the person must be ‘appointed’. The second is that the appointment must be to a ‘paid position’. The third is that the person must be an ‘employee’ (within the meaning of s 7 of the Act). The fourth is that the person must not be eligible to be a member of another registered organisation under the Act. Finally, if these criteria are met, there is no requirement that the person be registered by or be eligible to be registered by AHPRA. In short, this latter criterion means that there is no requirement that an employee of the respondent be a nurse.

71      Given my conclusion as to the proper construction of r 4(1)(a)(i) of the Rules, it follows that I reject the respondent’s contention that r 4(1)(b) is irrelevant for the purposes of the disposition of these proceedings.

72      On the basis of the evidence, I am satisfied that over the period of February to 20 May 2022, inclusive, Ms Reah met the first three criteria for membership of the respondent in that she was appointed to a paid position as an ‘industrial officer’, and was an employee of the respondent. Whether, over the period 20 May to 28 July 2022, when Ms Reah occupied the paid position of Assistant Secretary, this constituted eligibility for membership under r 4(1)(b) of the Rules, may be said to be an open question. Such appointments can be made by the Council exercising its powers of appointment of employees under r 11(17) of the Rules, which power may also be exercised by the Executive of the respondent under r 12(1). Given however there seemed to be no dispute that Ms Reah was ‘appointed’ to this position, and she was regarded as a paid employee, then I am prepared to accept that the first three criteria necessary for r 4(1)(b) to apply were  also satisfied.

73      Consideration now needs to be given to the applicants’ argument regarding the exclusion in r 4(1)(b). This excludes those persons from membership, despite being employed by the respondent, if they are eligible to be a member of another State union. In this respect, as noted above, the applicants relied on the eligibility for membership rule of the WASU, at rule 5 - Eligibility for Membership.  Relevantly, it provides as follows:

…

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”.

…

74      As noted earlier, the contention of the applicants was that the work Ms Reah performed in her ‘industrial officer’ role, and as Assistant Secretary, was ‘clerical work’ for the purposes of the above part of the WASU membership rule.

75      It is well settled that in the interpretation of an organisation’s eligibility for membership rule, in cases of an occupation or vocational rule, which this part of the WASU rule is concerned with, the focus is on the work to be performed, in terms of the ‘major and substantial part of the employment’ or the ‘primary or principal purpose’ of the employment: Federated Engine Drivers and Fireman’s Union WA v Mt Newman Mining Co Pty Ltd (1977) 57 WAIG 794 per Burt CJ at [794]; Construction, Forestry, Mining and Energy Union and Australian Workers Union, WA Branch Industrial Union of Workers v Kemerton Silica Sand Pty Ltd (2005) 86 WAIG 571 per Kenner C at [12] - [20]; Construction, Forestry, Mining and Energy Union v CSBP Ltd [2012] FCAFC 48 at [44]; CFMMEU v Dulux Group (Australia) Pty Ltd [2022] FCAFC 101 at [37].

76      In Mt Newman Mining the matter in issue was the scope of the ‘engine driver rule’ in the eligibility for membership rule of the CFMEU.  In determining this issue, Burt CJ observed at 794:

It was conceded that not every worker, who in doing the work which he is employed to do, drives an engine is an engine driver within the meaning of the eligibility rule of the appellant union…. The question in any particular case, is I think, whether the worker is employed to drive an engine so that he earns his wages by doing that, or whether he is employed to do something else. And if the answer is that he is employed to do something else, then he is not an engine driver merely because he operates a machine and drives the engine of that machine so as to do what he is employed to do’.

77      Appositely, in Federated Clerks Union v Cary (1977) 57 WAIG 585, a case decided shortly before Mt Newman Mining, the Industrial Appeal Court considered, on appeal from the Industrial Magistrate’s Court, whether an Industrial Magistrate had correctly held that a person was classified as a ‘clerk’ for the purposes of the scope clause of the relevant award. In dismissing the appeal, and upholding the Industrial Magistrate’s conclusion that the person concerned was not a clerk, Burt CJ, adopted the same broad approach as was subsequently applied in Mt Newman Mining and said at 586:

The word "clerk" like so many English words of common and ancient usage lacks definition. Its meaning is very much controlled by context. One dictionary meaning—the Shorter Oxford Dictionary—is "a subordinate employed to make written entries, keep accounts, etc." and the appellant in very general terms accepts this to be the meaning of the word for the purposes of this award. The submission made to us by the appellant's counsel was that the dictionary definition which I have set out "is the proper definition of a clerk" and "that the common thread which runs through the function of 'clerk' is the recording of information". Having taken that position he freely conceded that "at some stage in the hierarchy of either business or government administration the function of the worker ceases to be that of clerk and he graduates into the realm of something else".

If that is right, and I see no reason for supposing that it is wrong, then one judges the question as it may arise in any particular case simply by finding as a fact what it is that the worker was employed to do and then deciding whether upon the facts so found he was employed to "make written entries, keep accounts" and other work of that character. Of course one has regard to the substantial nature of the employment in terms of the purpose to be achieved by it, the question being, I think, very much controlled by the difference, which is not always accepted by philosophers but which serves the purposes of practical men, between ends and means. If in substance the worker's job is to write and the job is done when the writing has been done he is a clerk, but if in substance the writing done by the worker is but a step taken in the doing by him of something extending beyond it then he is not. The "substance" of the work identifies the question as being one of degree and it indicates the answer to it will be, or may be, very much the product of a value judgment.

78      At 587 Brinsden J observed:

The next question then is to consider what are the characteristics of the calling of clerk. In a New English Dictionary, Vol. 2, the history of the word is stated as follows:—

"The original sense was; (1) man in a religious order, cleric, clergyman;. As the scholarship of the middle ages was practically limited to the clergy, and these performed all the writing, notarial, and secretarial work of the time, the name "clerk" came to be equivalent to "scholar", recorder, accountant, or pen man. The last has now come to be the ordinary sense, all the others being either archaic, historical, formal, or contextual."

The current use of the word, therefore, according to this dictionary is as follows:—

(a) The officer who has charge of the records, correspondence, and accounts of any department, court, corporation, or society and superintends the general conduct of its business.

(b) One employed in a subordinate position in a public or private office, shop, warehouse, etc.; to make written entries, keep accounts, make fair copies of documents, do the mechanical work of correspondence and similar 'clerkly' work.

…

It is no doubt true that a person remains a clerk even though he may be obliged to exercise independent judgment and make decisions on his own initiative. Counsel for the appellant referred us to Federated Clerks Union of Australia. N.S.W. Branch v. Australian Workers' Union. Industrial Arbitration Service, 1971 p. 174 which supports the proposition that nowdays at least, a clerk though even in a subordinate position, may be called upon to exercise independent judgment and engage in decision making while still remaining a clerk. At p. 175 the Court remarked that an employee does not cease to be employed in a clerical capacity merely because his work includes many administrative and non-recording functions. Further, at the same page, the Court stated: "But the salient point is that for years clerical work has been regarded for industrial purposes as including more than mere recording and covers work of different kinds which no doubt leads to or results from recording but in fact is part of the general office administration system".

79      In this case, the question to be asked and answered is whether Ms Reah, in undertaking the work she did for the respondent as a paid employee between February and 28 July 2022 inclusive, she was engaged to undertake ‘clerical work’, such that this was the major and substantive aspect of her work, or it was the primary or principal purpose of her employment. Ms Reah was cross-examined at some length about aspects of her duties whilst in the ‘industrial officer’ role.

80      Whilst this is a value judgment to be made on the evidence, it seems that aspects of Ms Reah’s work did involve some clerical and administrative tasks. The issue for determination however, is what was the major and substantive nature, or the primary purpose of Ms Reah’s work for the respondent over this period in these positions? Was it just to write and record, even though this may have involved a degree of independent judgment, or did the work involve this function, as a step along the way to achieve something else?

81      Ms Reah’s work over this period was to assist members of the respondent in relation to several discrete areas of activity such as advising on COVID related matters, and working on specific union campaigns etc. Whilst this work that Ms Reah engaged in involved some clerical tasks, in my opinion, this was incidental. Ms Reah was not appointed and paid to do clerical work, as the major and substantive or principal purpose of her positions.

82      Similarly, in her position as Assistant Secretary, from 20 May to 28 July 2022, the major and substantive aspect or primary purpose of her position, as r 16(3)(a) of the Rules makes clear, was to assist the Secretary to ‘manage some or all of the day to day affairs of the Union’. Based on this, and the evidence, I am not persuaded that Ms Reah was ineligible to be a member of the respondent under r 4(1)(b) of the Rules, because she was eligible to be a member of the WASU over the period February to 28 July 2022.

83      There was little attention paid to the period when Ms Reah was appointed to the office of Secretary from 29 July 2022, to fill the casual vacancy that arose following the resignation of Mr Olson as Secretary. It was the applicants’ case that consideration of this issue was not necessary because the over the period before Ms Reah was appointed by the Council to the position of Secretary, she was ineligible to be a member of the respondent.

84      The nominations closed for the 2022 union election, on 12 September 2022: Samantha Fenn v The Australian Nursing Federation, Industrial Union of Workers Perth, The Returning Officer, Western Australian Electoral Commission, The Registrar, Western Australian Industrial Relations Commission [2023] WAIRC 00806; (2023) 103 WAIG 1793 at [18]. Under r 19(2) of the Rules a candidate for election to the office of Secretary of the respondent ‘shall have been a financial member of the Union for a period of two years immediately preceding the date of nomination for office…’. Accordingly, Ms Reah needed to be entitled to be a member under r 4(1)(b) up to the time she nominated for office.

85      Whilst it was a little unclear, Ms Reah testified that she nominated for the office of Secretary when the nominations opened, which she thought was about July or August 2022. She said she took up the appointed position of Secretary on 29 July 2022 (see transcript p 58). If the nomination was made prior to 29 July 2022, then for the foregoing reasons, Ms Reah was eligible to do so and satisfied the requirement of r 19(2). If not, then there is a prospect that part of the time prior to nominating, Ms Reah occupied the appointed position of Secretary.

86      In my view there are issues to be determined as to the status in law of the office of Secretary of the respondent, as an elected office. It does not matter whether someone is appointed to fill a casual vacancy or whether they are elected. It is an office established by the Rules, in relation to which, the terms of r 20(2) applies. It is not a position covered by r 11(17), under which the Council can appoint employees.  The office of Secretary is one office that is defined as such under the Act. In s 7, an ‘office’ and an ‘officer’ are defined as follows:

office in relation to an organisation means —

(a) the office of a member of the committee of management of the organisation; and

(b) the office of president, vice president, secretary, assistant secretary, or other executive office by whatever name called of the organisation; and

(c) the office of a person holding, whether as trustee or otherwise, property of the organisation, or property in which the organisation has any beneficial interest; and

(d) an office within the organisation for the filling of which an election is conducted within the organisation; and

(e) any other office, all or any of the functions of which are declared by the Commission under section 68 to be those of an office in the organisation,

but does not include the office of any person who is an employee of the organisation and who does not have a vote on the committee of management of the organisation;

officer means a person who carries out, or whose duty is or includes the carrying out of, the whole or part of the functions of an office in an organisation;

87      The office of Secretary of the respondent, is an ‘office’ as defined, by reason of the above definition in (a), (b) and (d).  The exception to constituting an office, is one that is occupied by an employee of the organisation, and who does not have a vote on the governing body of the organisation. A person who is elected to office under the Rules of the respondent, including members of the Executive, and the other Council members, may not, in the ordinary course, be regarded in law as an employee of the respondent. However, in general terms, the holding of an ‘office’, does not exclude the possibility that the office holder may also be an employee at common law. The qualification to the definition of ‘office’ mentioned above, would appear to recognise this. The issue is a difficult one to resolve. This may be subject to whether there is a separate contract of employment entered into with the person as the office holder, for the purposes of the performance of the responsibilities of the office, which contract satisfies all of the required indicia of a contract at common law: Percy v Board of National Mission of the Church of Scotland [2006] 4 All ER 1354.

88      Percy, which was a decision of the House of Lords in the United Kingdom, concerned a claim by an ordained minister of the Church of Scotland that the Church had taken action against her arising from certain allegations of misconduct whilst a minister, that the Church would not have taken if the appellant were male, contrary to the Sex Discrimination Act 1975. An issue of jurisdiction arose as to whether, as a minister of the Church, the appellant was also an employee. Decisions of the lower courts held that the appellant was not an employee. By a majority, the House of Lords upheld the appeal and reversed the decision below.

89      The House of Lords considered the nature of an ‘office’ and the nature of employment, with the notion that the holder of an office and employment are not mutually exclusive. As to this issue, Lord Nicholls said at [15] - [20] as follows:

[15] The distinction between holding an office and being an employee is well established in English law. An important part of the background to this distinction is that in the past an employer could dismiss a servant without notice, leaving the servant with any claim he might have for damages for breach of contract. Speaking in the 1960s, Lord Reid famously declared that a master could terminate the contract with his servant at any time and for any reason or for none: Ridge v Baldwin [1964] AC 40, 65-68. By way of contrast, some office holders could be dismissed only for good cause. Thereby they were insulated against improper pressures. So the focus in master and servant cases was often on the question whether, to adopt the words of Lord Wilberforce, there was an element of public employment or service, or anything in the nature of an office or status capable of protection: Malloch v Aberdeen Corporation [1971] 1 WLR 1578, 1595.

[16] In 1971 this focus was changed by the Industrial Relations Act 1971. Employees acquired a right not to be dismissed unfairly. In 102 Social Club and Institute Ltd v Bickerton [1977] ICR 911, 917, Phillips J drew attention to one of the practical consequences of this radical change in the law:

‘Before 1971 there was perhaps a tendency to find in contracts of employment elements of a public character which would enable the court to extend to the employee the protection flowing from “the right to be heard” enjoyed by the holders of an office. Since the fundamental change of the law brought about by the Industrial Relations Act 1971, which for the first time created the right of an employee not to be unfairly dismissed, the problem has arisen, which previously was not of much importance, of defining the circumstances in which an office-holder was said to be employed. Previously, it was a case of defendants seeking to deny an office-holder a right of complaint on the ground that he was party to a “pure contract of service”; now it is a question of defendants seeking to deny employees the right not to be unfairly dismissed on the ground that in reality they are not employees but “pure office-holders”.’

[17] So the purpose for which the distinction is relevant has changed. There is a further complication. The distinction between holding an office and being an employee has long suffered from the major weakness that the concept of an ‘office’ is of uncertain ambit. The criteria to be applied when distinguishing those who hold an office from those who do not are imprecise. In McMillan v Guest [1942] AC 561, 566, Lord Wright observed that the word ‘office’ is of indefinite content. Lord Atkin suggested, at page 564, that ‘office’ implies a subsisting, permanent, substantive position having an existence independent of the person who fills it, and which goes on and is filled in succession by successive holders. As Lord Atkin indicated, this is a generally sufficient statement of the meaning of the word. It is useful as a broad description of the ingredients normally present with any office.

[18] I am sure Lord Atkin would have been the first to recognise that a difficulty with this general description is that it is wide enough to embrace cases where the relationship between the parties is essentially contractual. In the McMillan case the context was liability to tax under Schedule E in respect of a public ‘office’. The issue was whether a taxpayer held a (public) office. So the question whether the taxpayer was also an employee was not directly in point. In the present case the nature of the issue is quite different. The question is not whether Ms Percy held an office. The issue is whether she had entered into a contract under which she agreed to provide defined services. Holding an office, even an ecclesiastical office, and the existence of a contract to provide services are not necessarily mutually exclusive.

[19] This requires elaboration. Sometimes the existence of an office is clear. An office may be of ancient common law origin, such as the office of constable. Indeed some offices were regarded by the common law as incorporeal hereditaments, belonging to the current office holder. A benefice in the Church of England is regarded as a freehold office belonging to the incumbent for the time being. Or an office may be created by statute, with attendant statutory functions. A superintendent registrar of births, deaths and marriages is an example: Miles v Wakefield Metropolitan District Council [1987] AC 539.

[20] Less clear cut are cases where an organisation, ranging from the local golf club to a huge multi-national conglomerate, makes provision in its constitution for particular posts or appointments such as chairman or vice-president. In a broad sense these appointments may well be regarded as ‘offices’. But caution needs to be exercised here, lest the use of this term in this context lead to a false dichotomy: a person either holds an office or is an employee. He cannot be both at the same time. This is not so. If ‘office’ is given a broad meaning, holding an office and being an employee are not inconsistent. A person may hold an ‘office’ on the terms of, and pursuant to, a contract of employment. Or like a director of a company, a person may hold an office and concurrently have a service contract. Whether there is a contract in a particular case, and if so what is its nature and what are its terms, depends upon an application of familiar general principles. That the appointment in question is or may be described as an ‘office’ is a matter to be taken into account. The weight of this feature will depend upon all the circumstances. But this feature does not of itself pre-empt the answer to the question whether the holder of the ‘office’ is an employee. This feature does not necessarily preclude the existence of a parallel contract for carrying out the duties of the office even where they are statutory: cf. Lord Oliver of Aylmerton in Miles v Wakefield Metropolitan District Council [1987] AC 539, 567.

90      To a similar effect, Lord Hope observed at [87]:

The holding of an office and being an employee are not necessarily inconsistent with each other, as my noble and learned friend Lord Nicholls of Birkenhead has explained. This is because it is possible to conceive of the existence of a contract which sets out the duties that are to be performed by the holder of an office which could lead to the conclusion that the office-holder was an employee. But the reasoning which led to the decision in Scottish Insurance Commissions v Church of Scotland, 1914 SC 16, was not called into question during the hearing before  your Lordships. The argument proceeded on the basis that the decision in that case was well-founded and that it would have to be distinguished if the appellant was to succeed in her appeal.  (My emphasis)

91      Similarly, in an earlier case in Australia in Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95, the High Court held that a minister of the Greek Orthodox Church was an employee, and an intention to create legal relations existed in that case.

92      What arises from these cases is that although a person may occupy an office, which has a separate and ongoing existence independent of the person who occupies it, that does not mean the person may not also perform the duties of the office under a contract of employment. It will be a question of mixed fact and law as to whether a contract of employment exists or not. It cannot be assumed that the relationship is also one of employment, but it may well be.

93      There was a paucity of evidence before me as to such matters. There was no evidence about whether Ms Reah, as the appointed Secretary, and the respondent were parties to an oral or written contract and if so, what were its terms. The only evidence before me is that of Ms Reah to the effect that, when she took up the appointed position, she continued to be paid the same pay she was receiving previously, as an industrial officer. Ms Reah also said that she was not paid at the Secretary’s pay level, until she was elected, (see transcript at p 59). Whilst by r 16(4) of the Rules, the Secretary of the respondent ‘should be paid whatever salary or allowance and allowed leave of absence as the Council may determine’, this is not decisive.

94      In the absence of evidence of any detailed written contract, on the current law, the proper characterisation of the relationship would depend on the application of the common law ‘multifactor test’ of employment. Whilst the respondent relied as a mainstay of its argument, that all employees and officers of the respondent are ‘employed in the profession or industry of nursing’, as with r 4(1)(b), the terms of r 4(1)(a)(i) of the Rules only extend to ‘employees’. In any event, for the reasons I have already identified above, unless an officer of the respondent can be regarded as a person who is employed in the profession or industry of nursing arising from employment external to the respondent, this membership criterion would not be satisfied.

95      Given the above, there was also insufficient before me to determine whether, for the purposes of r 4(1)(b) of the Rules, assuming she was appointed to the paid position of Secretary (as Ms Reah was paid) for the limited period to fill the casual vacancy, Ms Reah was not an ‘employee’, such that this period of time should not be taken into account in determining eligibility for membership.

96      It is the applicants that have commenced these proceedings and have claimed that Ms Reah was ineligible to be a member of the respondent, to enable her to nominate for elected office, having regard to r 19(2). It is for the applicants to establish their case, on the balance of probabilities.  On the state of the evidence, I cannot conclude on the balance of probabilities, that if the period after 29 July 2022 is to be take into account in determining Ms Reah’s eligibility for membership, that the applicants have established that this period could not be included in the requirement for membership for two years immediately prior to nominating for election to the office of Secretary.

97      For these reasons, Claims 1 and 2 have not been made out.

Claim 3

98      This claim arises from minutes of a meeting of the respondent’s Council on 15 July 2022. Ms Raschilla testified that when she was elected to the Council, she requested 12 months of Council meeting minutes, so she could familiarise herself with the activities of the respondent. Ms Raschilla said that she saw in the minutes of the meeting of 15 July 2022, that 10 people had been ‘endorsed’ by the Council as ‘workplace representatives’. When Ms Raschilla searched practitioners registered with AHPRA, she saw that only one of the 10 was a registered nurse. She testified that the other nine persons were not eligible to be members of the respondent in her view. Ms Raschilla said that most of the nine persons worked as orderlies, patient care assistants, or in other types of assistant positions in healthcare.

99      An application for membership Form for both the respondent and the Australian Nursing and Midwifery Federation (WA Branch) was referred to by Ms Raschilla (see exhibit A6). This Form referred to a single application for membership for both the respondent and the federal Branch. A box on the Form referred to ‘Certificate III’ and ‘Certificate IV’. Ms Raschilla testified that this covered persons working as nursing assistants, and orderlies etc, who are not eligible to be members of the respondent, and who are not eligible to be registered with the AHPRA. It was Ms Raschilla’s evidence that while such persons, by completing the Form, apply to become members of both the respondent and the federal Branch, they were not eligible to be members of the respondent. Ms Raschilla further testified that the Form had been on the respondent’s website, but the night prior to the hearing of this matter, she noticed that it had been removed.

100   This issue was also the subject of evidence from Ms Reah. She testified that she inspected two membership rolls, one for the respondent and one for the federal Branch (see exhibits R10 and R11). Ms Reah also gave evidence about a bundle of individual member records from the respondent’s membership system (see exhibit R9). On the top left hand side of the member records, are the membership numbers of the 10 members in question. Ms Reah testified that correlating this, she saw that the 10 persons, the subject of this claim, were members of the federal Branch.

101   It was Ms Reah’s evidence that the inclusion of the 10 persons in the minutes of the Council meeting was an administrative error. This occurred prior to her taking up the appointed position of Secretary. The error only came to light recently on her evidence, most probably as part of these proceedings and she said that it was intended that at the next Council meeting, the error would be rectified.

102   I am not persuaded this claim has any merit. I accept that the 10 persons referred to as ‘workplace representatives’ in the Council meeting minutes of 15 July 2022 were included by error. There was no evidence led by the applicants to contest Ms Reah’s evidence that the relevant persons were members of the federal Branch, and were not members of the respondent. I accept Ms Reah’s evidence that the respondent’s Council intended to correct this error.

Claim 5

103   This claim contends that the respondent has failed to observe its Rules in relation to AGMs.  The applicant’s contention was that on a number of occasions where an AGM has been called in past years, and was inquorate, some matters for the AGM were referred to the Council for consideration. The applicants submitted that because the functions of the Council in r 10(1) are subject to ‘controls’ in 27 - Meetings and r 29 - Control of Council Decisions, this means that matters cannot be referred to the Council in this manner.

104   Further, the absence of regular AGMs of the respondent, on the applicant’s submissions, deprives members of the opportunity to scrutinise the respondent’s finances, through reports from the Secretary to the AGM and the provision by the Council of the respondent’s Annual Report and other financial statements. The applicants contended that there exists an obligation on the respondent to try to reach a quorum and if one is not met on a particular occasion, then a further AGM should be arranged. It was submitted by the applicants that the failure of AGMs to reach a quorum and proceeding, interferes with the democratic control of the respondent by its members.

105   On behalf of the respondent, it was submitted that AGMs were held in 2019, 2021, 2022 and 2023, but on each occasion, a quorum was not achieved. These meetings were supported by minutes of the respective AGM. In 2020, due to the pandemic, an AGM was not held, based on advice not to hold large gatherings of people. The respondent agreed that AGMs are important to the operations of the respondent. However, it contended that there always has been difficulty in getting members to attend them.

106   Evidence as to this claim was given by Ms Raschilla and Ms Reah. Ms Raschilla referred to notices placed in the ‘West Australian’ newspaper for an AGM called for 15 January 2021, but then postponed to 12 February 2021. This was a very small notice in the Public Notices section of the newspaper (see exhibit A7). She also referred to copies of two further notices, one for 3 August 2022 and another for 16 November 2022 (see exhibits R11 and R12). Ms Raschilla testified that no other notification is given to members directly, regarding the holding of AGMs. She said that the union journal is hardly published and busy nurses do not have time to read newspapers.

107   Ms Raschilla testified that she attended the AGM on 16 November 2022. It was held in a large garage at the respondent’s premises, which she thought could house about 10 cars. She said that there would be no prospect of 2,000 plus people attending, which is the quorum requirement for an AGM under r 27(11) of the Rules. Ms Raschilla testified that only Mr Olson, as the then new Chief Executive Officer, Ms Fowler, the President, and a few other members attended. She said that the then newly elected Secretary Ms Reah was not present and only a few Council members were present. In cross-examination Ms Raschilla accepted that there was an AGM convened for 2023 at the WA Italian Club. She attended this meeting. It was also inquorate. She agreed that the venue was larger than the respondent’s garage at the union premises, but she did not think it would hold 2,000 people. Ms Raschilla also accepted that at a recent meeting of the Council, not identified on the evidence, the Council resolved by formal resolution, to hold future AGMs on the third Thursday of November in each year.

108   Ms Reah also gave some evidence as to this issue. Tendered through Ms Reah were copies of minutes of AGMs for 2019, 2021 and 2022, along with signed attendance sheets with some names on them. Ms Reah confirmed that the AGM for 2023, held at the WA Italian Club, was also inquorate (see exhibit R12). Advertisements were purchased for notices to go in the West Australian for these meetings, and the order confirmations and the invoices were tendered in evidence (see exhibits R13 and R14). Ms Reah in cross-examination, also agreed that AGMs are important for the democratic control of the respondent. She added that matters can be taken back to the Council and dealt with democratically in this way. She confirmed also that members have not been directly notified of AGMs in the past. Ms Reah also said that there has not been a lot of member interest in attending AGMs.

109   Participation by members in the affairs of an organisation is consistent with the objects of the Act in s 6(f). In Clancy I said at [34]:

[34] As to the orders sought by the parties, s 66(2) of the Act confers a broad power on the Chief Commissioner to make such orders as the Chief Commissioner considers appropriate in relation to the rules of an organisation, their observance or non‑observance or the manner of their observance, either generally or in a particular case. Section 66 of the Act must be applied consistently with the objects of the Act in s 6, in particular s 6(f), which encourages the democratic control of registered organisations and the full participation by members of registered organisations in the affairs of the organisation. A crucial means by which this object of the Act is achieved is the conduct by registered organisations of free, fair, and timely elections for officeholders to represent the interests of members.

110   Whilst that matter dealt with elections being held in a timely manner, the same observations apply to meetings of members of an organisation, as a means of enabling members to participate in the affairs of the organisation. However, it must be said that Rules of an organisation cannot force members to take part in or express an interest in its operations. Members must have a desire to do so. What the Rules of an organisation can do however, is to facilitate, and not work against, member participation by for example, attendance at AGMs.

111   Two rules are an issue in relation to this claim. The first is r 25(10), which deals with notification of an AGM to members. It requires a notice to be placed in the ‘West Australian’ newspaper, which on the evidence, has occurred for 2019, 2021 and 2022. It was common ground that for 2023, an AGM was convened at the WA Italian Club, but as with previous AGMs, the meeting was inquorate. In my view, this is because r 27(11) of the Rules requires at least 5% of the respondent’s members to attend, which is in excess of 2,000 members. This would be almost unachievable for most, if not all organisations.

112   There has not strictly been, on the evidence, non-observance of r 27 by the respondent. It has done the minimum of what the rule requires. However, under s 66(2)(a)(v) and (b) of the Act, the Chief Commissioner may take steps in relation to a rule(s) of an organisation, that the Chief Commissioner considers is inconsistent with the democratic control of an organisation. In my view, both r 27(10) and r 27(11) are inconsistent with the democratic control of the respondent.

113   Whilst r 27(10), enabling notice of an AGM to be published in the ‘West Australian’ may have been adequate in times past, with nurses being busy professionals, without other notice of an AGM, and the evidence was there had been none, it is likely that very many members would not think to look in the Public Notices section of the newspaper and find a very small notice announcing the holding of an AGM. Thus, the prospect of a significant majority of members of the respondent not being aware of an AGM is high. This is all the more so, given that in the past, all AGMs have been held on different dates and times of the year.

114   Whilst the decision of the respondent’s Council to hold the AGM on a set day, being the third Thursday of November in each year is a step forward, the means by which this is communicated to members of the respondent is in need of review. Given the ease of electronic communications with members in relation to many matters, r 27(10) should be altered to require the respondent to send a notice of an AGM to members by email by no later than 14 days prior to the date of the proposed AGM. A copy of the notice of the AGM should also be placed on the respondent’s website again, no later than 14 days prior to the AGM. The requirement for publication of notices in the newspaper should be removed. The same notice obligation should apply to general meetings of the respondent. In my view, such an alteration, along with the holding of the AGM on a set day each year, should assist in facilitating the democratic control of the respondent.

115   As to r 27(11), the quorum requirement of 5% of the respondent’s membership, which is presently a quorum in excess of 2,000 members, is also inconsistent with the democratic control of the respondent by its members. This may be a reasonable quorum for a small organisation to achieve. However, in an organisation as large as the respondent, this presents a very high, and almost unsurmountable hurdle to enabling an AGM to proceed. The history of AGMs, as revealed in the evidence in this matter, is testament to this.

116   I note that another large organisation in this State, the Civil Service Association, has a quorum for General Meetings of 50 members. Also, if a quorum is not reached on the first meeting date, the meeting is to stand adjourned, to a date within 14 days, with the adjourned meeting to be resumed. If that meeting is inquorate, the meeting is then adjourned sine die. In my view, it would also be consistent with the democratic control of the respondent, for such an approach to be adopted in r 27(11), requiring a quorum of 50 members, save that as in the current rule, if the resumed meeting is also inquorate, the meeting should lapse.

117   Consistent with s 66(2)(a)(v) and (b) of the Act, I will direct the respondent to alter r 27(10) and r 27(11) in this manner, with such alterations to be made, and an application lodged under s 62 of the Act, for the Registrar to alter the Rules, within four months of the date of this decision.

Claim 6

118   As to this final claim, the applicants contended that r 30 of the Rules provides for the control of the funds of the respondent, which is an important aspect of promoting accountability and transparency in the management of members membership fees. Reference was made to a resolution of the Council on 15 November 2013 to the effect that all bills of the respondent from that time, be paid by electronic funds transfer, instead of by cheque. The resolution further provided that at least two signatories of the four authorised signatories (as set out in r 30) must endorse the payment prior to it being made. The applicants maintained that this resolution was a contravention of r 30(1), which on the applicants’ case, requires all payments of bills etc to be by cheque, and cosigned by the approved signatories.

119   The respondent contended that the applicants’ claim in this respect was misconceived. It was accepted by the respondent that most accounts are now paid by electronic funds transfer, with very few being paid by cheque. Rule 30(1) authorised Ms Raschilla, as a Vice President of the respondent, to be a signatory to cheques drawn on the respondent’s bank accounts. No further authority is required. On the evidence of both Ms Raschilla and Ms Reah, Ms Raschilla and another Vice President, Mr Jongen, were provided by the respondent with the relevant forms in July 2023, from the respondent’s banks, to complete and return, along with completing relevant identification checks.

120   There was no dispute that this had been completed by Mr Jongen, but at the time of the hearing of this matter, Ms Raschilla had yet to sign and return the forms and complete the identification process at the bank. While some evidence was given by Ms Raschilla as to why she had not as yet signed the forms, and other matters concerning persons who may have been signatories to some of the respondent’s bank accounts, that evidence is not relevant to the particular allegation concerning this claim. The allegation is that electronic funds transfer payments, the subject of the Council resolution of 15 November 2013, are inconsistent with the requirements of r 30(1).

121   To the extent that Ms Raschilla complained that there was a delay in her receiving documents from the respondent to sign and return to the bank, whilst regrettable, this is not an issue of observance of r 30(1). I agree with the respondent’s submissions that the authority to sign is derived from r 30(1) of the Rules itself. No further authority is required. The bank forms are the administrative requirement to give effect to the authority conferred by r 30(1) on the nominated Executive Members there specified. The fact that Ms Raschilla has not completed and returned the forms, is not something that the respondent can be responsible for.

122   There is ambiguity in the Rules as to this matter. The gravamen of r 30 is that the control of the respondent’s funds rests with the Council. This is consistent with r 11(1) and r 11(5), dealing with the powers of the Council. Rule 11(1) provides that the Council shall have the power to ‘Carry on the financial administration of the Union’ and r 11(5) provides that the Council shall have the power to ‘Vote and expend monies which may be necessary for the conduct of the business of the Union’. These powers of the Council, by r 13(1), may be exercised by the Executive of the respondent. Also, by r 16(2)(d), the Secretary of the respondent is responsible for ‘the preparation of all cheques, money orders or the like drawn on the Union’s funds’.

123   Based on these provisions of the Rules, when taken together, it is unclear as to whether payment by cheque is the only means of expenditure of the respondent’s funds. It is clear however, that where a cheque payment is made, then the signatory requirement in r 30(1) must be met. It seems to me that the resolution of the Council in 2013, referred to above, to no doubt reflect more modern banking practices, adopted, as a matter of common sense, the same signatory requirement as provided for payment by cheque in r 30(1). At the end of the day, this is a security measure to ensure that the expenditure of the respondent’s funds are properly authorised by members of the Executive, on behalf of the Council.

124   I am therefore not persuaded that the applicants’ claim is made out in this respect. However, consistent with my proposed course above in relation to r 27 - Meetings, I consider that in accordance with the general power in s 66(2) of the Act, r 30(1) should be altered to make it clear that payments may be made by the Union by electronic funds transfer, consistent with modern banking practices, as long as the two signatory requirement in r 30(1) for cheques, is similarly met.

125   In my view, a direction to alter r 30(1) in these terms, in reliance on the general power in s 66(2), is consistent with  the specific powers in s 66(2)(a), (b) and (c), as was held by the Industrial Appeal Court in Harken and Dornan and Ors v State School Teachers Union of WA (1991) 72 WAIG 1727 per Rowland J (Franklyn and Ipp JJ agreeing) at 1731 - 1732 (as considered and affirmed in Carter v Drake (1992) 72 WAIG 3308 per Nicholson J (Rowland and Anderson JJ agreeing) at 3311. Additionally, in my view, such an alteration is also consistent with transparency, accountability and the democratic control of the organisation by its members, for the purposes of s 66(2)(a)(v) of the Act.

Conclusions

126   As was proposed during the course of the hearing of this matter, the parties are directed to confer and provide a minute of proposed declarations, directions and orders, consistent with these reasons for decision, within seven days.