ORDER PURSUANT TO S.66

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2025 WAIRC 00255

DELIVERED : MONday, 28 April 2025

FILE NO. : PRES 3 OF 2025

Applicants

AND

Building Trades Association of Unions of Western Australia (Association of Workers)

Respondent

Catchwords : Industrial law (WA) – Application under s 66 for appointment of Interim Management Committee – Prior orders under s 66 – Quorum requirement of organisation’s Rules – Whether officeholders continue to hold office – Application to alter Rules and whether valid – Compliance with r 14 and r 18 of the BTA Rules – Order issued to re-establish Interim Management Committee

Legislation : Industrial Relations Act 1979 (WA) s 62, s 66, s 66(1)(a)

Result : Order issued

Representation:

Applicants : Ms Fraser Hardy of counsel

Respondent  : No appearance

Case(s) referred to in reasons:

CFMEUW, PGEU v BTA [2018] WAIRC 00909; (2019) 99 WAIG 28

CFMEUW, PGEU v BTA [2022] WAIRC 00233; (2022) 102 WAIG 471

CFMEUW v BTA [2023] WAIRC 00013; (2023) 103 WAIG 22

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

Reasons for Decision

The application

1         The applicants in these proceedings have standing to seek orders under s 66(1)(a) of the Industrial Relations Act 1979 (WA) as the members of the Building Trades Association of Unions of Western Australia (Association of Workers) as a result of orders made by the Commission in 2018 and 2022:  CFMEUW, PGEU v BTA [2018] WAIRC 00909; (2019) 99 WAIG 28 and CFMEUW, PGEU v BTA [2022] WAIRC 00233; (2022) 102 WAIG 471.

2         As set out in the particulars of the application, on 10 January 2025, an application was made by the BTA under s 62 of the Act to alter its rules in APPL 1 of 2025. In response to that application, by letter dated 28 January 2025, the Registrar informed the solicitors for the BTA that there was a difficulty in progressing the proposed alterations to the BTA Rules as the requirements of r 18 of the Rules, in relation to a meeting of the ‘full Executive’ of both applicants, had not been met at a Special Meeting of the BTA held on 6 June 2023, to authorise the proposed alterations. As a result, the Registrar suggested, to overcome the issues raised, that an application be made under s 66 of the Act for an Interim Management Committee of the BTA to be established, along with other necessary supplementary orders, to progress and finalise the alterations to the Rules and related matters. That application is before me now.

3         The application for orders under s 66 of the Act is supported by an affidavit of Mr Michael Buchan, the Secretary of the Construction, Forestry, Mining and Energy Union of Workers made on 10 April 2025.  Additionally, the applicants and the respondent filed a joint outline of submissions in support of the orders sought.

Brief background

4         The matters arising and related to the application have a considerable history. The history is set out in some detail in Mr Buchan’s affidavit and I do not need to recite it at any length.  A number of applications under s 66 of the Act have been brought before the Commission.  At [6] of Mr Buchan’s affidavit he refers to the relevant procedural history in these matters between December 2018 and June 2022, which was set out by me in CFMEUW, PGEU v BTA (2022).  In that matter, I observed at [1] - [9] as follows:

[1] This application under s 66 of the Industrial Relations Act 1979 (WA) has some history. In application PRES 4 of 2018 the applicants sought and obtained orders under s 66 of the Act for the appointment of an interim Management Committee of the respondent, in order that steps could be taken to enable the election of office bearers and to make necessary changes to the respondent’s Rules. On 20 December 2018 Smith AP made orders to this effect, which were to continue to 14 June 2019.

[2] On 13 June 2019, Scott CC extended the operation of a part of the original order so that necessary steps could be completed. A further extension order was made on 28 November 2019. Those extension orders had the effect of waiving compliance with rule 6(e) of the respondent’s Rules, dealing with the quorum required for a meeting of the respondent’s Management Committee.

[3] By letter of 29 March 2022, the Secretary of the respondent wrote to my Chambers seeking a further extension of the order to waive compliance with rule 6(e). Given that the most recent order made on 28 November 2019 expired on 27 January 2020, I formed the view that the Commission was then functus officio and was unable to further deal with application PRES 4 of 2018.

[4] Accordingly, the current application was made. The grounds in support of the application note that the applicants are the only members of the respondent. A meeting of the Management Committee of the respondent is required under rule 18 of the respondent’s Rules, to approve proposed amendments to the Rules. As rule 6(e) of the respondent’s current Rules requires a quorum of seven members of the Management Committee, or a representative of four affiliated unions at any meeting of the Management Committee, a quorum is currently impossible to form. This is because the applicants are the only two affiliated members. Accordingly, a further waiver of rule 6(e) is requested, to finalise the rule amendment process.

[5] In support of the application, an affidavit of Mr Stephen Catania was filed. Mr Catania is employed by the Construction, Forestry, Mining and Energy Union, Construction and General Division, WA Divisional Branch, as its Coordinator – Political and Industrial. Mr Catania referred to the history of application PRES 4 of 2018, as I have recited it above. Mr Catania gave evidence that on 11 June 2019, the respondent’s interim Management Committee was replaced by an elected Management Committee under rule 14 of the respondent’s Rules. On 24 January 2020, a special meeting was convened to approve the proposed amendments to the Rules of the respondent.

[6] However, it transpired that the meeting that took place on 24 January 2020 did not constitute a special meeting of the Management Committee in accordance with rule 18 of the respondent’s Rules. On Mr Catania’s evidence, what in fact occurred was two separate meetings of the CFMEUW Executive and the Executive of the Plumbing and Gasfitters Union of Australia, West Australian Branch, Industrial Union of Workers. Accordingly, as there was no special meeting of the Management Committee of the respondent to approve the proposed rule amendments, they could not proceed.

[7] The difficulty remains that as the only two members of the respondent, the applicants are unable to form a quorum for a special meeting of the Management Committee of the respondent, under the current Rules, to consider and approve the proposed rule amendments. Mr Catania indicated that if this application is granted and orders made, it is anticipated that such a special meeting of the respondent’s Management Committee could be conducted within two to four weeks.

[8] I am satisfied that the applicants have standing to bring these proceedings under s 66(1)(a) of the Act. I am further satisfied on the evidence that as presently constituted, a special meeting of the Management Committee of the respondent cannot be held, as there are an inadequate number of members of the respondent to achieve a quorum for a special meeting under rule 6(e) of the respondent’s Rules. I am further satisfied on the evidence that whilst an attempt was made to conduct such a meeting on 24 January 2020, it was not a valid meeting in accordance with rule 18 of the respondent’s Rules. No proposed changes to the respondent’s Rules can be progressed until such time as a special meeting of the Management Committee can be conducted.

[9] Given the terms of s 66 of the Act, and the powers conferred on me under it, I am satisfied that the order sought by the applicants should be made. This will enable a properly constituted special meeting of the Management Committee of the respondent to be held to deal with the proposed amendments to the respondent’s Rules, and any other necessary business.

5         The difficulty with the quorum requirement of the BTA’s Rules for the purposes of a special meeting of the Management Committee was addressed by waiving the requirements of r 6(e) of the BTA’s Rules by my order: [2022] WAIRC 00245.  Subsequently, in further proceedings in PRES 14 of 2022, I made an order largely in the same terms as the order in PRES 4 of 2022, waiving other requirements and compliance with r 6(e), with such order having effect until 30 June 2023:  CFMEUW v BTA [2023] WAIRC 00013; (2023) 103 WAIG 22.

6         A little later in February 2023, the BTA conducted an election for officeholders at a meeting of the Management Committee, leading to the persons set out in Mr Buchan’s affidavit at [10]-[13] being elected.

7         Whilst my order in PRES 14 of 2022 remained on foot, on 6 June 2023, a purported Special Meeting of the full Executives of both applicants was held to consider and approve the proposed alterations to the BTA Rules.  As set out in Mr Buchan’s affidavit, and his Statutory Declaration made in support of APPL 1 of 2025, at the meeting on 6 June 2023, whilst the full Executive of the PGEU were present at the meeting, three members of the Executive of the CFMEUW were unable to attend the meeting.  Only seven of the 10 members of the Executive of the CFMEUW were in attendance.

8         Following the meeting, on 30 June 2023, my order in PRES 14 of 2022, waiving the quorum requirement in r 6(e), ceased to have effect.  No further orders were sought or made.  Accordingly, being unable to form a quorum, no valid meetings of the BTA Management Committee have been able to be held since that time.

The issues

9         Two issues are raised in relation to the application and the seeking of orders under s 66 of the Act. The first issue relates to compliance with r 18 of the Rules of the BTA. That issue is whether reference to ‘any Special Meeting, of the full Executive of the member Unions’, means the entire Executive of the member unions or whether a quorum of members of the Executive of the CFMEUW under its Rules was sufficient for these purposes.  Secondly, whether, under r 14 of the BTA’s Rules, there is the necessity for two Vice President positions to be elected. There is presently only one Vice President holding office.

10      For the purposes of these proceedings, whilst the joint written submissions canvassed alternative approaches to the interpretation of the CFMEUW Rules, it is not necessary for me to determine either of these issues.  Nor should I attempt to do so in the absence of a contradictor.  However, based upon the affidavit evidence before me, which I have carefully considered, and the issues raised in the joint written outline of submissions, I am satisfied that there is sufficient uncertainty in connection with these issues, such that I should waive compliance with r 18 of the BTA Rules in relation to the 6 June 2023 meeting of the Management Committee.  It is clear on the evidence before me that the proposed alterations had the unanimous support of all of those present, being 15 of 18 of the members of the Executives of the applicants.  I also agree with the applicants that a waiver of r 18 will facilitate the resolution of the quorum issue, which has bedevilled the BTA for some years now.

11      As to the issue of two Vice President offices, there may be some conflict in the current Rules in rr 14(a) and (b), compared to r 14(2).  However, the proposed alterations to the Rules will ultimately resolve the matter.    

12      Additionally, as set out in Mr Buchan’s affidavit, the Rules of the BTA in r 14(a) and (b) require that elections of officeholders be conducted annually. Given that since 30 June 2023, on the expiry of my order in PRES 14 of 2022, meetings of the Management Committee have not been able to occur, there must now be considerable doubt as to whether those persons earlier elected to office in the BTA continue to hold office.  Additionally, an issue also arises from this same point as to whether APPL 1 of 2025, seeking the alteration to the Rules of the BTA, has been validly commenced.  I note that on the evidence before me, those persons as referred to at [10] of Mr Buchan’s affidavit, previously elected, have held and are prepared to continue to hold office and act accordingly.

Conclusion

13      I will exercise my discretion under s 66 of the Act to make orders establishing an Interim Management Committee of the BTA in the terms as sought in the application.  It is hoped that in making the orders that I now propose to make, the issues that have arisen can now be promptly resolved and the organisation be placed on a stable footing to conduct its affairs, and to ‘keep it on track’:  Stacey v Civil Service Association of Western Australia (Incorporated) [2007] WAIRC 00568; (2007) 87 WAIG 1229. 

14      As to the operative date of the order, it was originally proposed in the application that the orders operate until 27 June 2025. That date was extended to 27 September 2025 in the joint written submissions. However, given the history of the matters that have come before me in the earlier s 66 proceedings, I consider that the prudent course would be to specify that the order operate until 31 October 2025, with a liberty to apply.  A minute of proposed order now issues.