2024 WAIRC 00960
APPLICATION FOR A DECLARATION AND CERTIFICATE ISSUED UNDER SECTION 71 IN ACCORDANCE WITH SECTION 52A(2)
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

COMMISSION IN COURT SESSION

CITATION : 2024 WAIRC 00960

CORAM
: CHIEF COMMISSIONER S J KENNER
COMMISSIONER T B WALKINGTON
COMMISSIONER T KUCERA

HEARD
:
TUESDAY, 3 SEPTEMBER 2024

DELIVERED : WEDNESDAY, 7 NOVEMBER 2024

FILE NO. : CICS 3 OF 2024

BETWEEN
:
WESTERN AUSTRALIAN POLICE UNION OF WORKERS
Applicant

AND

(NOT APPLICABLE)
Respondent

Catchwords : Industrial Law (WA) – Application pursuant to s 71 – Declaration sought – Qualifications of persons for memberships of a State branch of a federal organisation and offices that exist within the State organisation – Declaration issued
Legislation : Industrial Relations Act 1979 (WA)
Fair Work (Registered Organisations) Act 2009 (Cth)
Police Act 1892 (WA)
Result : Declaration issued
REPRESENTATION:
Counsel:
APPLICANT : MR D STOJANOSKI OF COUNSEL

Solicitors:
APPLICANT : SLATER & GORDON LAWYERS

Case(s) referred to in reasons:
Jones v Civil Service Association Inc [2003] WASCA 321; (2003) 84 WAIG 4
McGee v Western Australian Police Union of Workers [2023] WAIRC 00968; (2023) 104 WAIG 141
Re an application by the Civil Service Association (1993) 73 WAIG 2931
Re Bonny [1986] 2 Qld R 80
Western Australian Police Union of Workers (2018) WAIRC 00725; (2023) 98 WAIG 1111
Western Australian Police Union of Workers [2006] WAIRC 03610; (2016) 86 WAIG 402
Western Australian Police Union of Workers [2018] WAIRC 00738; (2018) 98 WAIG 1111
Western Australian Police Union of Workers [2024] WAIRC 00797; (2024) 104 WAIG 1857
Reasons for Decision

THE COMMISSION IN COURT SESSION:
Background
1 The application before the Commission in Court Session sought declarations under s 71 of the Industrial Relations Act 1979 (WA) in the following terms:
10. The applicant seeks the following declarations be made:
a. A declaration pursuant to section 71(2) and section 71(3) of the IR Act that the Police Federation of Australia – Western Australia Police Branch is the counterpart federal body of the Western Australian Police Union of Workers;
b. A declaration pursuant to section 71(2) and section 71(3) that the rules of the Police Federation of Australia – Western Australia Police Branch relating to the qualifications of persons for membership are deemed to be the same as the qualifications of persons for membership within the Western Australian Police Union of Workers; and
c. A declaration pursuant to section 71(4) that the offices within the Police Federation of Australia – Western Australia Police Branch are deemed to be the same as the offices within the Western Australian Police Union of Workers.
2 The applicant is a State organisation registered under the Act. It has a counterpart federal body, the Police Federation of Australia – Western Australia Police Branch, an organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth). The State organisation has held a certificate under s 71 of the Act, in conjunction with the federal Branch. As a consequence of amendments made to the registered rules of the federal Branch on 2 November 2023, there was no longer alignment between the offices in the State organisation and the federal Branch. Offices in the federal Branch no longer had a corresponding office in the State organisation. As a result, doubt existed over the continued effectiveness of the s 71 certificate.
3 In order to enable the State organisation to conduct its affairs, and to take the necessary steps to alter its Rules to bring them back into alignment with the federal Branch, the Chief Commissioner made an order on 18 December 2023 creating an Interim Board of Directors: McGee v Western Australian Police Union of Workers [2023] WAIRC 00968; (2023) 104 WAIG 141. Alterations to the Rules of the State organisation were certified by the Registrar on 6 March 2024. The applicant contended that for the purposes of s 71(2) of the Act the qualifications of persons for membership between the State organisation and the federal Branch are substantially the same. Secondly, it contended that for every office in the State organisation, there is a corresponding office in the federal Branch, as required by s 71(4) of the Act.
4 At the hearing of this application on 3 September 2024, the Commission in Court Session was satisfied that the requirements of the Act, for the declarations sought, were met. We concluded that for reasons to be published in due course, declarations would be made: Western Australian Police Union of Workers [2024] WAIRC 00797; (2024) 104 WAIG 1857. These are our reasons for so concluding.
5 Previously, the Full Bench has made declarations under s 71 of the Act in relation to the State organisation and federal Branch. This first occurred in January 2006 when the Full Bench made declarations under ss 71(2) and 71(4): Western Australian Police Union of Workers [2006] WAIRC 03610; (2016) 86 WAIG 402. Later, in 2018, the Full Bench again made declarations and a s 71 certificate was issued, following alterations to the State organisation’s Rules, restoring their alignment: Western Australian Police Union of Workers [2018] WAIRC 00738; (2018) 98 WAIG 1111.
6 In this matter, the application was accompanied by a statement from Mr Paul Gale, the President of the State organisation and the federal Branch at the time the application was made. Mr Gale stated that changes to the federal Branch Rules meant that there was no longer alignment with the State organisation’s Rules, and that the then s 71(5) certificate may no longer have been effective. Mr Gale referred to subsequent alterations to the Rules of the State organisation to restore the alignment with the federal Branch.
7 Given the realignment of the rules of the State organisation with the federal Branch, the applicant seeks a new s 71 certificate.
Statutory provisions
8 The relevant provisions of the Act for the purposes of this application are ss 71(2) and 71(4). They are in the following terms:
71. State branches of Federal organisations, rules as to membership and offices
…
(2) The rules of the State organisation and its counterpart Federal body relating to the qualifications of persons for membership are deemed to be the same if, in the opinion of the Commission in Court Session, they are substantially the same.
…
(4) The rules of a counterpart Federal body prescribing the offices which shall exist in the Branch are deemed to be the same as the rules of the State organisation prescribing the offices which shall exist in the State organisation if, for every office in the State organisation there is a corresponding office in the Branch.
9 The first issue to consider is whether the qualifications of persons for membership of the State organisation and the federal Branch are substantially the same.
Qualifications of persons for membership
10 It is well settled that for the purposes of s 71(2) of the Act, ‘substantial’ means ‘real or of substance as distinct from ephemeral or nominal’ or ‘considerable’ or ‘in the main or essentially’: Western Australian Police Union of Workers (2018) WAIRC 00725; (2023) 98 WAIG 1111 citing Re an application by the Civil Service Association (1993) 73 WAIG 2931 at 2932 and Re Bonny [1986] 2 Qld R 80 at 82.
11 To be a member of the State organisation, under r 5.1(a) or (b), a person must be either appointed under the Police Act 1892 (WA) and employed by the Commissioner of Police or, be a police recruit. The terms of r 3 – Eligibility for Membership of the federal Branch are much broader than the terms of r 5 of the State organisation, reflecting its national scope of coverage. However, by r 3(ii), (iii) and (iv), the eligibility for membership of the federal Branch substantially reflects the requirements for membership of the State organisation in r 5.1(a) and (b).
12 The fact that the federal Branch may admit persons as members who are not eligible to be members of the State organisation, is not a disqualifying factor. Section 71(3)(b) of the Act makes this clear. In particular, we note that r 3(iii) of the federal Branch Rules is virtually identical to r 5.1(a) and (b) of the Rules of the State organisation.
13 Accordingly, it is clear that the rules of the State organisation and the federal Branch in relation to the qualifications of persons for membership are substantially the same. The requirement in s 71(2) of the Act is met.
Offices in each organisation
14 The next issue to determine is whether for every office in the State organisation, there exists a corresponding office in the federal Branch.
15 For the purposes of determining whether the requirement of s 71(4) of the Act is met, it is necessary to focus on the functions and powers of the offices in both the State organisation and the federal Branch, in terms of the similarity or otherwise of the content of the Rules of the respective organisations: Jones v Civil Service Association Inc [2003] WASCA 321; (2003) 84 WAIG 4 per Pullin J at [35].
16 Under r 6.1 of the State organisation, provision is made for the constitution of an elected Board of Directors, responsible for the overall management and governance of the organisation. The Board of Directors consists of 15 directors, of whom 11 are to be from the metropolitan region and one member from each of the northern (Kimberly/Pilbara) region, the central (Midwest/Gascoyne/ Wheatbelt) region, the eastern (Goldfields/Esperance) region and the southern (South-West/Great Southern) region. It is from the Board of Directors, that the senior office holders of President, Senior Vice-President, Vice-President and Treasurer are elected.
17 Under the federal Branch Rules, r 52A provides for the establishment of an elected Branch Executive. As with the State organisation Board of Directors, the Branch Executive consists of 15 directors, broken down into the metropolitan and regional areas on the same basis as for the Board of Directors under r 6.1 of the State organisation. As with the State organisation, the federal Branch President, Senior Vice-President, Vice-President and Treasurer are elected from the Branch Executive.
18 The State organisation Rules and the federal Branch Rules establish and set out the duties of the various office holders. For the purposes of comparing the functions and powers of each office, it is convenient to compare them in the following manner:

WA Police Union Rules
PFA WA Police Branch Rules - Part CA
Office Holder Duties
President
Rule 7.3
The President shall:
(a) provide leadership to the Board of Directors, create board meeting agendas, ensure the Board stays focused on key duties, and be chairperson at all meetings of the Board and the Union to maintain order and administer these Rules impartially;
(b) report to the Board of Directors on all matters impacting on the objects of the Union and make appropriate recommendations to the Board of Directors;
(c) on behalf of the Board of Directors, provide direction to the Chief Executive Officer on the business and affairs of the Union in accordance with these Rules including, but not limited to, policy matters, liaison between the Board and the Chief Executive Officer, and media liaison;
(d) sign all Industrial Agreements, deeds or other instruments made on behalf of the Union by the Board;
(e) in conjunction with the Chief Executive Officer contribute to the preparation of an annual budget for approval by the Board;
(f) present a report on behalf of and as approved by the Board of Directors to each Annual Conference;
(g) on behalf of the Board of Directors, delegate to a Director, member, agent, or the Chief Executive Officer all such tasks and duties as may be necessary to properly conduct the affairs, financial and otherwise, of the Union and to pursue its Objects; and
(h) If employed, comply with the conditions and obligations within their contractual executive remuneration and employment contract.
Rule 8.2
(a) If the President or a majority of Branches consider that the Board is acting contrary to the best interests of the Union then they shall be empowered to instruct the Secretary to summon a Special Conference, and the Secretary shall within 30 days convene such a Conference.
(b) Entitlement to attend and vote at a Special Conference shall be the same as at an Annual Conference.
(c) At a Special Conference, at least twenty (20) Members entitled to attend and vote at the Special Conference must be present to form a quorum.
(d) The Board may be removed from office on the vote of a majority of those present at a Special Conference called for the purpose, and upon such removal those present shall elect a Governing Board of four (4) Members to conduct the affairs of the Union until only such time as an election has been conducted in accordance with these Rules.
Rule 8.4
…
(e) Special meetings of the Board must be convened by the:
(1) President whenever considered necessary by the President;
(2) Secretary, or in the absence of the Secretary then either the President, Senior Vice President or Vice President, within seven days of a requisition signed by at least five (5) Directors setting out the object of the meeting. No other business shall be transacted at the special meeting of the Board than that set out in the request for the meeting.
…
Rule 52AG
The President shall:
(1) be an ex officio member of all Committees;
(2) preside at all meetings of the Executive or of the Branch to maintain order and administer the Rules impartially, and upon the minutes being confirmed to sign the Minute Book in the presence of the meeting;
(3) on behalf of the Executive, provide direction to the Chief Executive Officer on the business and affairs of the Branch in accordance with these Rules including, but not limited to, policy matters, liaison between the Executive and Chief Executive Officer, and media liaison;
(4) sign all Industrial Agreements, deeds or other instruments made on behalf of the Branch by the Executive;
(5) in conjunction with the Chief Executive Officer, contribute to the preparation of an annual budget for approval by the Executive.
(6) present a report to each Annual Conference;
(7) be the appropriate officer to notify the Commission (in writing) of any industrial disputes involving the Branch or its members only of which he or she becomes aware, consistent with rule 28 (d);
(8) have the power to summon either a Special Executive or a Special Conference Meeting by reason of extraordinary circumstances existing, and shall state the special business requiring attention. Where such meetings have been called the business upon which such meetings were called must be dealt with; and
(9) delegate to the Chief Executive Officer, Senior Vice President, Vice President, Treasurer or an Executive Member all such tasks and duties as may be necessary to properly conduct the affairs, financial and otherwise, of the Branch and to pursue its Objects.

Senior Vice President and Vice President
Rule 7.4
(a) During any absence or incapacity of the President, the Senior Vice President has the authority to act for and on behalf of the President, and when so acting, shall have all the rights, powers, duties and responsibilities of the President whether implied or expressed under these Rules.
(b) In the absence or incapacity of both the President and the Senior Vice President from any meeting the Vice President shall take the chair and shall have all the rights, powers, duties and responsibilities of the President, whether implied or expressed under these Rules.
(c) The Senior Vice President and the Vice President shall be members, ex officio, of each Committee established by the Board.
(d) The Senior Vice President, if employed, shall comply with the conditions and obligations within their contractual executive remuneration and employment contract.
(e) In the absence or incapacity of the Treasurer from any meeting, the Vice President shall have all the rights, powers, duties and responsibilities of the Treasurer, whether implied or expressed under these Rules.
Rule 52AH
(1) During any absence or incapacity of the President the Senior Vice President has the authority to act for, and on behalf of the President when so acting, and shall have all the rights, powers, duties and responsibilities of the President, whether implied or expressed under the Rules.
(2) In the absence or incapacity of both the President and the Senior Vice President from any meeting the Vice President shall take the chair and shall have all the rights and responsibilities specified in sub rule (1) of this rule.
(3) The Senior Vice President and the Vice President shall be members, ex officio, of each Committee established by the Executive.
(4) The Senior Vice President, if employed, shall comply with the conditions and obligations within their senior executive contracts.
(5) In the absence or incapacity of the Treasurer from any meeting, the Vice President shall have all the rights, powers, duties and responsibilities of the Treasurer, whether implied or expressed under these Rules.
Treasurer
Rule 7.5
The Treasurer shall:
(a) keep a general oversight of the financial position of the Union;
(b) exercise proper control over the management of Union funds;
(c) ensure accounting records are kept in accordance with proper accounting principles and truly record and explain the financial transactions and financial position of the Union;
(d) present to each meeting of the Board appropriate accounting reports indicating the status of the funds and financial position of the Union, or other relevant reports as required by the Board;
(e) present to each Annual Conference an audited balance sheet of the assets and liabilities, a statement of the receipts and expenditure and a statement of the sources and application of funds of the Union;
(f) be entitled to inspect the books of the Union at any time and in the event of any irregularity shall immediately make a report to the Board of Directors;
(g) be an ex officio member of each committee established by the Board of Directors;
(h) chair the Union’s Risk and Audit Committee;
(i) assist the President prepare a report for the Annual Conference;
(j) assist the President in the preparation of an annual budget as well as the monitoring and control of the approved budget;
(k) be entitled to call for a full audit at any given time; and
(l) be responsible for senior executive contracts including:
(i) establishment of contracts on commencement; and
(ii) establishing a reporting, recording mechanism that enables the Board to adequately monitor, review and report on the performance of the President, the Chief Executive Officer, and Secretary against their key positional descriptions and/or contractual obligations.
Rule 52AI
The Treasurer shall:
(1) keep a general oversight of the financial position of the Branch and exercise proper control over the management of its funds and ensure accounting records are kept in accordance with proper accounting principles and truly record and explain the financial transactions and financial position of the Branch;
(2) present to each meeting of the Executive appropriate accounting reports indicating the status of the funds and financial position of the Branch, or other relevant reports as required by the Executive for the preceding period;
(3) present to each Annual Conference an audited balance sheet of the assets and liabilities, a statement of the receipts and expenditure and a statement of the sources and application of funds of the Branch;
(4) be entitled to inspect the books of the Branch at any time and in the event of any irregularity shall immediately make a report to the Branch Executive;
(5) be an ex officio member of each Committee established by the Executive;
(6) in conjunction with the President prepare an annual report;
(7) assist the President in the preparation of an annual budget as well as the monitoring and control of the approved budget; and
(8) be entitled to call for a full audit at any given time.
(9) be responsible for senior executive contracts including:
(i) establishment of contracts on commencement; and
(ii) establishing a reporting, recording mechanism that enables the Board to adequately monitor, review and report on the performance of the President, the Chief Executive Officer, and Secretary against their positional descriptions and/or contractual obligations.

19 A comparison of the above offices clearly shows that the functions and powers of the respective offices in the State organisation and the federal Branch are substantially the same. In the case of r 52AG(8) of the federal Branch, enabling the President to summon meetings, the same duty of the State organisation President is to be found in r 8.2 and 8.4(e) of the State organisation’s Rules. In the case of the Treasurer of the State organisation, whilst under r 7.5(h), the Treasurer chairs the organisation’s Risk and Audit Committee, no such committee exists under the federal Branch Rules. Therefore, this difference is not material.
20 On the basis of the above, the Commission in Court Session formed the opinion that for each office in the State organisation, there is a corresponding office in the federal Branch.