ORDER PURSUANT TO S.66

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2025 WAIRC 00306

DELIVERED : FRIDAY, 16 MAY 2025

FILE NO. : PRES 11 OF 2024

Applicant

AND

The Construction, Forestry, Mining and Energy Union of Workers

Respondent

Catchwords : Industrial Law (WA) – Application for order under s 66 of the Act – Establishment of an Interim Committee of Management for respondent – Whether s 71 certificate remains in effect – Change to the Rules for offices of the respondent’s counterpart federal body and appointment of an Administrator – Effect of the Fair Work (Registered Organisations) (CFMEU Construction and General Division Administration) Determination 2024 – No basis to make orders under s 66

Legislation : Industrial Relations Act 1979 (WA)

Fair Work (Registered Organisations) Act 2009 (Cth)

Fair Work (Registered Organisation) CFMEU Construction and General Division Administration) Determination 2024

Fair Work Act 2009 (Cth)

Industrial Relations Legislation Amendment Act 2021 (WA) 

Result : Application dismissed

Representation:

Counsel:

Applicant : Mr S Pack of counsel

Respondent : Mr E Heenan SC of counsel and with him Mr D Rafferty of counsel

Solicitors:

Applicant : Francis Burt Chambers

Respondent : Eureka Lawyers

Case(s) referred to in reasons:

Barnes v Barnes (2003) 214 CLR 169

Bergesio v United Workers Union (WA) [2023] WAIRC 00095; (2023) 103 WAIG 230

CFMM & EU [2023] FWCG 5

CSR Ltd v Eddy (2005) 226 CLR 1

Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd (2011) 243 CLR 492

Dekuyer v The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch [2022] WAIRC 00697; (2022) 102 WAIG 1313

D.J. Stanton, L.G. Searle, G.K. Palmer and G.T. Kennedy v O.S. Middleton, President, The Civil Service Association of Western Australia Incorporated (1991) 71 WAIG 46

Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52

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

Jarrett v The Western Australian Locomotive Engine Drivers’, Firemens’ and Cleaners’ Union of Workers (1997) 77 WAIG 1386

Jones v Civil Service Association [2003] WASCA 321; (2003) 83 WAIG 4

Jones v Civil Service Association of Western Australia Incorporated [2003] WAIRC 08115; (2003) 83 WAIG 1146

McCartney v The Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers - Western Australian Branch [2022] WAIRC 00877; (2023) 103 WAIG 1

Michael Frederick Williams v The Shop, Distributive and Allied Employee’s Association of Western Australia [2005] WAIRC 00854; (2005) 85 WAIG 1961

Plumbers and Gasfitters Employees Union of Australia, Western Australian Branch, Industrial Union of Workers [2014] WAIRC 00439

Programmed Industrial Maintenance Pty Ltd v Construction Industry Long Service Leave Payments Board [2020] WAIRC 00758; (2020) 100 WAIG 1300

Re Her Honour Judge Schoombee; ex parte Attorney General for Western Australia [2011] WASCA 129

Re Western Australian Prison Officers Union of Workers [2014] WAIRC 00006; (2014) 94 WAIG 62

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

The Australian Rail, Tram and Bus Industry Union of Employees, Western Australia Branch [2023] WAIRC 00226; (2024) 104 WAIG 685

The Construction Forestry Mining and Energy Union of Workers [2011] WAIRC 00422; (2011) 91 WAIG 1034

Tilbury v Western Australian Police Union of Workers [2015] WAIRC 00392; (2015) 95 WAIG 705

United Voice WA [2012] WAIRC 00880; (2012) 92 WAIG 1722

Victoria v Sutton (1998) 156 CLR 587

Reasons for Decision

Application and background

1         This application made by the Registrar under s 66 of the Industrial Relations Act 1979 (WA), seeks orders for the establishment of an interim committee of management for the respondent.  The Registrar has standing to make this application under s 66(1)(c).  The issue raised by the application is whether I should exercise my discretion to make an order under s 66 of the Act on the basis that a certificate issued under s 71 of the Act in 2011, relating to the respondent, may no longer be effective.  If the s 71 certificate is no longer effective, this means that the filling of offices in the respondent, by persons occupying corresponding offices in the counterpart federal body, is also not effective. The usual course in such circumstances, or even where there is a substantial doubt as to these matters, is the making by the Chief Commissioner of an order under s 66 of the Act, that an interim committee be established, to exercise all of the powers of an organisation’s executive, to enable the organisation to conduct its affairs and to bring about any necessary alterations to its Rules.

2         The relevant events leading to the present proceedings are twofold.  The first is a change to the Rules of the respondent’s counterpart federal body, the Construction, Forestry, Mining and Energy Union, Construction and General Division, Western Australian Divisional Branch.  I will refer to this organisation as the Federal branch.  On 6 February 2023, the Fair Work Commission, under the Fair Work (Registered Organisations) Act 2009 (Cth), approved an alteration to the Federal branch Rules in relation to officeholders, by abolishing one of two Assistant Secretary offices:  CFMM & EU [2023] FWCG 5.  As the respondent still retains two Assistant Secretary offices under its Rules, the effect of the alteration to the Federal branch Rules, is that there is no longer an office in the Federal branch, for each office in the respondent.

3         Well after the February 2023 alteration to the Federal branch Rules, in August 2024, the respondent made an application to the Registrar, to register an alteration to its Rules, to also abolish one Assistant Secretary office.  That application remains on foot, pending the determination of the present matter.

4         The second event relied on by the Registrar in bringing this application, is the appointment of an Administrator to the Construction and General Division of the CFMEU on 23 August 2024.  The administration of the organisation is given effect by the Fair Work (Registered Organisation) CFMEU Construction and General Division Administration) Determination 2024. Under the terms of the Determination, whilst the officeholders of the Federal branch in Western Australia are not removed from office, the powers of each officeholder are ‘temporarily divested’ to the Administrator and the Administrator may exercise all of the powers and functions of the officeholder of each office in the Federal branch.

5         In the circumstances, the applicant contends that there is considerable uncertainty as to any actions taken by the officeholders of the respondent, and it may be appropriate that this uncertainty be resolved by the making of the orders sought. The respondent opposes the application and maintains there is no uncertainty as to the validity and effectiveness of the s 71 certificate and that it has effect ‘according to its tenor’.

Agreed facts

6         The parties have agreed facts and documents as follows:

Documents

1. The documents listed in the attached index may be tendered by consent.

The Registrar

2. The Applicant is the Registrar of the Western Australian Industrial Relations Commission (WAIRC) and has standing to make this application pursuant to s 66(1)(c) of the Industrial Relations Act 1979 (WA) (IR Act).

The CFMEUW

3. The Respondent is an organisation of employees registered under s 53 of the IR Act.

4. The current registered rules of the Respondent are Document 1.

5. The Construction, Forestry and Maritime Employees Union, Construction and General Division Western Australian Divisional Branch (Federal WA Branch) is a Western Australian branch of an organisation of employees registered under the Fair Work Act Registered Organisations Act 2009 (Cth) (FWRO Act).

6. The current certified rules of the Federal WA Branch are Document 2.

Issue of s 71 certificate

7. On 21 December 2011, the Full Bench of the WAIRC in FBM 7 of 2011 accepted that the Federal WA Branch (then named the Construction, Forestry, Mining and Energy Union, Construction and General Division Western Australian Divisional Branch) was the counterpart federal body of the Respondent, and made declarations

(a) the rules of the Respondent and the Federal WA Branch relating to the qualification of persons for membership are deemed to be the same, in accordance with s 71(2) of the IR Act; and

(b) the rules of the Federal WA Branch prescribing the offices which exist in the Federal WA Branch are deemed to be the same as the rules of the Respondent, prescribing the offices which exist in the Respondent, in accordance with s 71(4) of the IR Act.

(Document 3)

8. On 22 December 2011, the Applicant issued the Respondent with a certificate pursuant to s 71 of the IR Act which provided that, from 9 January 2012:

(a) the provisions of the IR Act relating to elections for offices within an organisation do not apply in relation to offices in the Respondent; and

(b) the persons holding office in the Federal WA Branch shall for all purposes be the offices of the Respondent.

(Document 4)

9. At the time the declarations were made in FBM 7 of 2011, and when the certificate was issued by the Applicant pursuant to s 71 of the IR Act, the rules of the Respondent and the Federal WA Branch provided for the following offices:

2013 amendments

10. On 7 June 2013, on the application of the Respondent, the Applicant, following consultation with the President, and upon being satisfied that the requirements for registration had been complied with, registered alterations to the registered rules of the Respondent (Document 5).

11. From 7 June 2013 to 6 February 2023, the rules of the Respondent and the Federal WA Branch provided for the following offices:

Abolition of Federal WA Branch assistant secretary office

12. On 6 February 2023, the Fair Work Commission in R2022/120 certified an alteration to the rules of the Federal WA Branch which had the effect of abolishing one of the two Divisional Branch Assistant Secretary offices in the Federal WA Branch (Document 6).

13. As from 6 February 2023, the rules of the Respondent and the Federal WA Branch have provided for the following offices:

14. On 29 August 2024, the Respondent filed an application with the WAIRC seeking approval to alter its rules to abolish the second Assistant Secretary office (Document 7).  That application has not yet been determined by the Applicant.

Administration

15. With effect from 23 August 2024, the Construction and General Division of the Federal Construction, Forestry, Mining and Energy Union, including the Federal WA Branch, was placed into administration pursuant to the Fair Work (Registered Organisations) (CFMEU Construction and General Division Administration) Determination 2024 (Determination) (Document 8).

16. The administration under the Determination is continuing in respect of the Federal WA Branch.

17. The Administrator has not “otherwise agreed” that any holder of any office of the Federal WA Branch temporarily divested of each of their powers pursuant to the Determination not be divested of those powers for the purposes of cl 3(1)(f) of the Determination.

18. The Administrator has not ceased to act under the Determination.

19. On 12 September 2024, a letter dated 9 September 2024 from the Administrator addressed to Roger Cook, the Premier of Western Australia was tabled by the Premier in the Legislative Assembly of the Parliament of Western Australia (Document 9 & Document 10).

Relevant provisions of the Act

7         A number of provisions of the Act are relevant to the issues to be determined in these proceedings, and it is convenient to set them out now.  Part II Division 4 of the Act deals generally with registered organisations and associations.  As a result of the Industrial Relations Amendment Act 2021, a new s 52A, dealing with counterpart federal bodies, was inserted into the Act as follows:

52A. Counterpart federal body

(1) In this section —

rules, of a branch of a federal organisation, means —

(a) rules relating to the qualifications of persons for membership; and

(b) rules prescribing the offices that exist within the branch.

(2) A Western Australian branch of a federal organisation is a counterpart federal body in relation to a State organisation if the rules of the branch are, or in accordance with section 71(2) or (4) are taken to be, the same as the rules of the State organisation relating to the corresponding subject matter.

(3) A federal organisation is a counterpart federal body of a State organisation even though the body does not have or comprise a Western Australian branch of the federal organisation if the Commission in Court Session is of the opinion that the federal organisation is a counterpart federal body in relation to a State organisation.

(4) The Commission in Court Session may form the opinion referred to in subsection (3) only if —

(a) a substantial number of members of the State organisation are —

(i) members or eligible to be members of the federal organisation; or

(ii) engaged in the same work, in aspects of the same work or in similar work as members of the federal organisation; or

(iii) employed in the same or similar work by employers engaged in the same industry as members of the federal organisation; or

(iv) engaged in work or in industries for which there is a community of interest between the federal organisation and the State organisation;

or

(b) there is an agreement in force under the FW (Registered Organisations) Act section 151 between the federal organisation and the State organisation.

(5) The Commission in Court Session may form the opinion referred to in subsection (3) despite the fact that a person who is eligible to be a member of the State organisation is, by reason of being a member of a particular class of persons, ineligible to be a member of that State organisation’s counterpart federal body.

(6) The Commission in Court Session may form the opinion referred to in subsection (3) despite the fact that a person who is eligible to be a member of the counterpart federal body is, by reason of being a member of a particular class of persons, ineligible to be a member of the State organisation.

(7) A State organisation may apply to the Commission in Court Session for a declaration that, for the purposes of subsection (2) or (3), a Western Australian branch of a federal organisation, or a federal organisation, is a counterpart federal body in relation to the State organisation.

8         The most important provision for present purposes, is s 71 of the Act.  It relevantly provides as follows:

71. Rules of State and federal organisations as to membership and offices

[(1) deleted]

(2) The rules of a State organisation and a counterpart federal body described in section 52A(2) are taken to be the same if the rules of the organisation and the body —

(a) relate to the qualifications of persons for membership; and

(b) are, in the opinion of the Commission in Court Session, substantially the same.

(3) The Commission in Court Session may form the opinion that the rules referred to in subsection (2) are substantially the same notwithstanding that a person who is —

(a) eligible to be a member of the State organisation is, by reason of being a member of a particular class of persons, ineligible to be a member of that State organisation’s counterpart federal body; or

(b) eligible to be a member of the counterpart federal body is, for the reason referred to in paragraph (a), ineligible to be a member of the State organisation.

(4) The rules of a State organisation and a counterpart federal body described in section 52A(2) are taken to be the same if —

(a) the rules prescribe the offices existing in the body; and

(b) for every office in the organisation there is a corresponding office in the body.

(5) Where, after the coming into operation of this section —

(a) the rules of a State organisation are altered pursuant to section 62 to provide that each office in the State organisation may, from such time as the committee of management of the State organisation may determine, be held by the person who, in accordance with the rules of the State organisation’s counterpart federal body, holds an office described in subsection (5A) in that body; and

(b) the committee of management of the State organisation decides and, in the prescribed manner notifies the Registrar accordingly, that from a date specified in the notification all offices in the State organisation will be filled in accordance with the rule referred to in paragraph (a),

the Registrar must issue the State organisation with a certificate which declares —

(c) that the provisions of this Act relating to elections for office within a State organisation do not, from the date referred to in paragraph (b), apply in relation to offices in that State organisation; and

(d) that, from that date, the persons holding office in the State organisation in accordance with the rule referred to in paragraph (a) are, for all purposes, the offices of the State organisation,

and the certificate has effect according to its tenor.

(5A) The office referred to in subsection (5)(a) is —

(a) in the case of a counterpart federal body referred to in section 52A(2) — the corresponding office in the body;

(b) in the case of a counterpart federal body referred to in section 52A(3) — an office that is specified in the rules of the State organisation for the purposes of this subsection and in relation to which the members of the State organisation are, under the rules of the counterpart federal body, entitled to —

(i) nominate a person to be the office holder; and

(ii) vote for a person to be the office holder.

…

(9) After the issue to a State organisation of a certificate or an amended certificate under this section —

(a) the rule referred to in subsection (5)(a) and a memorandum registered under subsection (8)(a) must not be altered unless the alteration is approved by the Commission in Court Session; and

(b) an alteration to any rule of the State organisation other than the rule referred to in paragraph (a) may be registered by the Registrar if the Registrar is satisfied that the rule as so altered is the same as a rule of the State organisation’s counterpart federal body; and

(c) every member of the State organisation’s counterpart federal body who is eligible to be a member of the State organisation is, for all the purposes of this Act and of any award, industrial agreement or order, taken to be a member of the State organisation.

(10) Before granting approval to an alteration of the rule or memorandum referred to in subsection (9)(a), the Commission in Court Session may require compliance by the State organisation with such conditions as the Commission in Court Session considers appropriate.

Relevant provisions of the Determination

9         As to the Determination, as noted earlier in these reasons, the Federal branch offices have not been vacated, but the functions and powers of the offices have been affected.  In this respect, cl 3(1)(f) of the Determination provides as follows:

(f) during the period of administration as it relates to the Administered Division and each Administered Divisional Branch, the holder(s) of any office within the Administered Division and Administered Divisional Branches not declared vacant under subclause (3)(1)(a) shall be temporarily divested of each of their powers under the National Rules and the Divisional Rules while the administration is continuing in respect of that part of the CFMEU or until otherwise agreed by the Administrator.

10      Clause 6 - Powers, functions and duties of the Administrator provides as follows:

6 Powers, functions and duties of the Administrator

(1) The Administrator:

(a) has and may exercise all of the powers and duties of the Divisional Conference and the Divisional Executive as are conferred on those bodies under the National Rules and the Divisional Rules, and the FWRO Act;

(b) has and may exercise all of the powers and duties of the Divisional Branch Council and Divisional Branch Management Committee of each of the Administered Divisional Branches as are conferred on those bodies under the National Rules and the Divisional Rules, and the FWRO Act;

(c) has all of the powers and duties of all offices in the Administered Division and the Administered Divisional Branches under the National Rules and the Divisional Rules, and the FWRO Act, including the power to exercise voting rights attaching to such offices in decision-making bodies of the CFMEU and the Administered Division;

(d) has the power, without limiting anything in this Scheme, to appoint one or more persons as Divisional Trustee of the Administered Division, and/or as Divisional Branch Trustee of an Administered Divisional Branch, and at or after the time of such appointment to transfer into the name of that person any property held by the Administrator on trust for or on behalf of the CFMEU, the Administered Division or an Administered Divisional Branch;

(e) has the power, without limiting anything in this Scheme, to terminate the appointment of an auditor of the Administered Division or an Administered Divisional Branch, and appoint another person as auditor of the Administered Division or an Administered Divisional Branch;

(f) has the power, without limiting anything else in this Scheme, to suspend or offices or delegates, including persons whose offices were not vacated as a result of subclause 3(1)(a), of the Administered Division and any Administered Divisional Branch from office or positions respectively, in accordance with clause 12;

(g) has the power, without limiting anything else in this Scheme, to terminate the employment of employees of the CFMEU who work in the Administered Division and any Administered Divisional Branch, in accordance with clause 12;

(h) has the power to refer the conduct of current or former offices, officials, shop-stewards, delegates or employees (howsoever described) of the Administered Division or any of the Administered Divisional Branches, to any body established, or officeholder appointed, by or under any law of the Commonwealth or of a State or Territory.  Nothing in this Scheme limits the Administrator from also referring allegations or other information about unlawful conduct, or conduct requiring further investigation, of any other person, business, entity, organisation, to appropriate law enforcement agencies, regulators or decision-makers;

(i) has the power to commence and discontinue (including by way of settlement) proceedings in the name of the CFMEU, including for the recovery of any funds and/or property of the CFMEU, the Administered Division or any of the Administered Divisional Branches, to make rule changes, and for the imposition of penalties and the awarding of compensation or any other remedy as may be available under the FWRO Act or any other law; and

(j) may request the Minister exercise their power to vary or revoke this Scheme.

(3) The Administrator may, in writing, delegate to a person nominated by the Administrator, any of the powers, functions or duties of the Administrator under this Scheme or any powers or functions the Administrator may exercise under the FWRO Act.

11      Specific provision is made in the Determination in relation to offices not vacated by the administration. This is at cl 7 - Offices that are not vacated by this Scheme, which states:

7 Offices that are not vacated by this Scheme

(1) Where a person continues to hold office or employment in the Administered Division or an Administered Divisional Branch, the Administrator may exercise all the powers and functions afforded to the person by the rules of the CFMEU, the FWRO Act, and this Scheme, in respect of that person, including (but not limited to) directing that person —

(a) to take any leave to which that person is entitled, subject to that direction being made in accordance with the FW Act or any instrument made under the FW Act; and / or

(b) to perform no, or different, work; and / or

(c) not to attend the premises, or to access any property, information or system, of the Administered Division or some or all of its Administered Divisional Branches; and / or

(d) to return any property or information of the Administered Division or some or all of its Administered Divisional Branches; and / or

(e) not to hold themselves out as acting or speaking for or on behalf of the Administered Division or some or all of its Administered Divisional Branches

— for such time as the Administrator considers appropriate (but no later than the date upon which the Administrator ceases to act under this Scheme in respect of the Administered Division or, in the case of an office or employment in an Administered Divisional Branch, that Administered Divisional Branch).

(2) The term of any unvacated office that ends during the period of Administration may be extended, for a period of time set by the Administrator.

(3) An election may not be held in respect of any office that is not vacated by virtue of subclause 3(1)(a) without the written authorisation of the Administrator.

(4) For the avoidance of doubt, any exercise of power or function by the Administrator, as provided for under the FWRO Act or this Scheme, will prevail to the extent of any inconsistency with the National Rules, the Divisional Rules or actions taken by a person who continues to hold office or employment in the Administered Division or an Administered Divisional Branch.

(5) For the avoidance of doubt, and whilst the Administration continues in respect of the Administered Division or any Administered Divisional Branch, and notwithstanding any provisions of the National Rules or the Divisional Rules, the Administrator may appoint any person deemed suitable to them as a proxy to represent them at any meeting of the National Conference, National Executive, National Executive Committee or National Collegiate of the CFMEU, any State Conference constituted under rule 46 of the National Rules, any State Executive constituted under rule 47 of the National Rules, and any other decision-making body of the CFMEU or one of its Divisions or Branches under the National Rules or the Divisional Rules, and exercise the deliberative vote of such of the Administered Division or the Administered Divisional Branches that remain in administration (and their respective offices) provided that a separate written appointment is made for each such meeting. Each such instrument may provide instructions to the proxy as to how the proxy should vote and must do so in the event of a vote being required on any matter that, in the opinion of the Administrator, may adversely affect the interests of the members of the Administered Division or an Administered Divisional Branch. To avoid doubt, any such instructions may include a direction to abstain from voting.

Contentions of the parties

12      I have been assisted in this matter by thorough and well-argued cases by counsel for both parties.

The Registrar

13      The Registrar’s principal contention was that as a consequence of the two events referred to above, the s 71 certificate has ceased to operate.

14      In summary, in support of her position, the Registrar referred to the objects of the Act, and in particular, ss 6(e) and (f).  Emphasis was placed on the need for the democratic control of an organisation and the full participation by its members in the affairs of the organisation.  In this context, the Registrar noted the regime for the registration of organisations under the Act, and in particular, the detailed requirements in relation to the election of officeholders.  The submission was made that the effect of a s 71 certificate, once granted, is to excise an organisation from this regime, and enable it to operate with its counterpart federal body as, in practical terms, one organisation.  In this connection, the Registrar referred to the decision of the Full Bench of the Commission in Re Western Australian Prison Officers Union of Workers [2014] WAIRC 00006; (2014) 94 WAIG 62.  In this case, the Full Bench (Smith AP, Beech CC and Kenner C) at [21] observed as follows:

It is apparent from the scheme of the provisions of s 71 when read with the definition of 'office' in s 7(1) of the Act together with the provisions in the Act that deal with the subject matter of elections of office holders of an organisation (s 56, s 56A, s 57) and the provisions of s 71A which authorises a State organisation to adopt the rules of its counterpart Federal body, that it is intended that once a declaration is made by a Full Bench and a certificate is issued by the Registrar of the Commission under s 71(5) of the Act, a State organisation and its counterpart Federal body can effectively operate as one organisation.  If they wish to do so they can jointly manage the property and funds of both organisations by entering into a memorandum of agreement with the counterpart Federal body under s 71(6) and s 71(7) of the Act relating to the management and control of the funds or property, or both, of the State organisation.  It is also clear that by authorising persons holding office in a counterpart Federal body to hold office in a State organisation is that effectively the two organisations can be operated for many purposes as if the organisations were as one.

15      In particular, having regard to the terms of ss 52A and 71 of the Act, both the qualifications of persons for membership and the offices that exist in a counterpart federal body must be the same, or taken to be the same as the State organisation, in order for the former to be a counterpart federal body.  The Registrar emphasised the requirements of s 71(4).  It was contended that this provision requires that for every office in a State organisation, there must be a corresponding office in the counterpart federal body.  In reliance on a decision of the Industrial Appeal Court in Jones v Civil Service Association [2003] WASCA 321; (2003) 83 WAIG 4, the Registrar submitted that there may be some flexibility in the test of ‘correspondence’, of offices, in terms of the functions and powers exercised by each in the respective organisations.  However, in terms of the requirement that for every office in the State organisation there must be a corresponding office in the counterpart federal body, this requirement is absolute.

16      I agree.  Section 71(4) is clear in this respect.  It is not a question of the degree to which there is correspondence in offices.  In my view, if there is not an office in the counterpart federal body for every office in the State organisation, then on an application under s 52A(7) of the Act, the view could not be reached that for the purposes of ss 52A(2) and 71(4) of the Act, a Federal registered organisation is the counterpart federal body of a State organisation.  Therefore, in these circumstances, a precondition for the issuance of a s 71 certificate by the Registrar would not be met.

17      It was also contended by the Registrar that any s 71 certificate issued in accordance with the statutory regime set out above, only operates in respect of the respective offices in the State organisation and the counterpart federal body that have been held to be corresponding for the purposes of s 71(4).  I consider this must also be correct.  There are no other offices with which ss 52A and 71 of the Act deal, that form the basis of the statutory preconditions for the issuance of a certificate.

18      On the above footing, the Registrar submitted that in the context of first, decided cases of the Full Bench and the Commission in Court Session, and second, the approach to statutory construction, that the conclusion should be reached that the s 71 certificate issued in December 2011 in relation to the respondent, is no longer effective.

19      As to the cases, the Registrar referred to the following.  In Jones v Civil Service Association of Western Australia Incorporated [2003] WAIRC 08115; (2003) 83 WAIG 1146, it was held by Sharkey P that in circumstances where a State organisation’s counterpart federal body had ceased to exist, the relevant s 71 certificate had either expired or was a nullity and an election for offices in the State organisation was required:  at [71]-[73].  Sometime later, in United Voice WA [2012] WAIRC 00880; (2012) 92 WAIG 1722, there had been no change to the eligibility for membership rules of the respective organisations, or the rules of the organisations in relation to offices.  The only change was to the name of the State organisation.  In that case, the Full Bench (Smith AP, Beech CC and Scott A/SC) observed at [8]-[9] as follows:

[8] When this application was heard, the Full Bench was informed by counsel for the applicant that he was instructed that:

(a) Since the Full Bench made its declaration under s 71(2) and s 71(4) of the Act on 6 February 2001, there has been no change to the eligibility rules of the applicant or the eligibility rules of its counterpart federal body

(b) There has been no change in the rules prescribing the offices that exist in the applicant and the counterpart federal body or to the duties that attach to each of those offices.

[9] The Full Bench informed the applicant's counsel and secretary at the hearing that, if in its opinion the instructions were correct, the s 71 certificate issued by the Registrar of the Commission on 6 February 2001 would still have operative effect as a change in the name of the applicant would not result in an invalidity of the currency of the s 71 certificate as a new organisation had not been created by a mere name change. (My emphasis).

20      In the Plumbers and Gasfitters Employees Union of Australia, Western Australian Branch, Industrial Union of Workers [2014] WAIRC 00439, the Full Bench (Smith AP, Beech CC and Harrison C) expressed the view at [6]-[7], that given the State organisation in that matter had not altered its Rules as provided for in s 71(5)(a) of the Act, it could not rely on the ‘validity’ of the s 71 certificate in those circumstances.

21      Several other cases were referred to by the Registrar to a similar effect, where the Commission has held that a s 71 certificate may be ‘invalid’, ‘cease to apply’, ‘no longer had operative effect’, and ‘had been rendered nugatory’ as a result of a lack of correspondence between the offices of a State organisation and its counterpart federal body: Tilbury v Western Australian Police Union of Workers [2015] WAIRC 00392; (2015) 95 WAIG 705 at [2]-[3]; Dekuyer v The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch [2022] WAIRC 00697; (2022) 102 WAIG 1313; and McCartney v The Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers - Western Australian Branch [2022] WAIRC 00877; (2023) 103 WAIG 18 at [6]-[8].

22      In Bergesio v United Workers Union (WA) [2023] WAIRC 00095; (2023) 103 WAIG 230, in which case the counterpart federal body had abolished its State based structure, I held at [2] that in these circumstances, the s 71 certificate had been ‘rendered nugatory’ as there were simply no corresponding offices upon which the certificate could operate.

23      Finally in The Australian Rail, Tram and Bus Industry Union of Employees, Western Australia Branch [2023] WAIRC 00226; (2024) 104 WAIG 685, the Commission in Court Session, as a result of the previous rules of the State organisation and its counterpart federal body ‘not being the same in the necessary respect’, considered that the s 71 certificate ceased to have effect: at [6]-[7].

24      The Registrar referred to and relied on these cases to contend that there is ‘a consistent line of authority holding that a s 71 certificate may cease to be valid, or cease to have operative effect, if the preconditions upon which it was issued have fallen away’ (see written submissions at [43]).

25      Further submissions were made by the Registrar in relation to her contentions as to the proper construction of s 71 of the Act, on the basis that these proceedings are the first occasion, given the respondent’s opposition to the orders sought, where the issue has arisen for determination.  I have set out the relevant statutory provisions above and they are not repeated.  The Registrar argued that the essence of the scheme in s 71 is dependent on the continued existence of the circumstances prescribed in ss 71(5)(a) and (b).

26      That is, underlying s 71(5)(a) is the requirement that the alteration of the State organisation’s Rules, to provide for offices to be filled by persons elected to offices in the counterpart federal body, requires for its operation and effect, the continued correspondence of offices between the organisations, as required by s 71(4).  The Registrar contended that this is the foundation for the operation of ss 71(5)(c) and (d), and hence, the grant of a s 71 certificate.  Accordingly, for what may be a variety of reasons, such as the abolition of the counterpart federal body, the repeal of the rule referred to in s 71(5)(a), or the counterpart federal body ceasing to meet the criteria in ss 52A and 71 to continue to be regarded as a counterpart federal body, then s 71(5)(d) can no longer apply, given that the essential facts on which it operates would have ceased to exist.

27      On the above basis, the Registrar argued that once the s 71 certificate ceases to operate, and the offices of the State organisation are not filled by those in the counterpart federal body, then the exemption from the requirement for State elections, which only exists because of the s 71 certificate, also ceases.

28      As to the meaning of the phrase immediately after s 71(5)(d) that a ‘certificate has effect according to its tenor’, the Registrar submitted that this means no more than the certificate gives effect to the requirements of ss 71(c) and (d).  That is, its tenor.  If ss 71(a) and (b) are no longer satisfied, then the Registrar submitted that ss 71(c) and (d) cannot operate in the manner intended.

29      As to the Determination, the Registrar contended that it must be taken into account in the assessment of whether the respondent and the Federal branch offices continue to correspond.  The Registrar submitted that the effect of the Determination is not to simply require that an implication be drawn as to the operation of ss 71(2) and (4) of the Act, which approach was rejected by the Full Bench in The Construction Forestry Mining and Energy Union of Workers [2011] WAIRC 00422; (2011) 91 WAIG 1034.  The Registrar contended that the effect of the Determination does not give rise to a question of implication in the Rules of an organisation, but has legislative effect and it overrides and alters the Rules of the Federal branch.  It was submitted that the same broad approach should be adopted, as if a rule of a counterpart federal body had been declared void by the Federal Court, under s 163 of the FW (RO) Act, in which case the Commission would be obliged to disregard the rule for the purposes of ss 52A and 71 of the Act.

30      On this foundation, the Registrar submitted that it was clear, by the combined effect of s 323F of the FW (RO) Act, and the terms of the Determination in cl’s 4(1) and 7(4), that the Rules of the Federal branch, in relation to the functions and powers of its officeholders, are overridden.  The powers of each of the offices in the Federal branch are divested to the Administrator, and the Administrator may exercise those powers himself.

31      The Registrar contended these are matters that must be taken into account by the Commission as matters of law, in its assessment of whether the offices of the respondent and the Federal branch correspond, on the same basis as if a rule had been declared void under the FW (RO) Act.  Accordingly, the Registrar contended that the orders sought should be made.

The respondent

32      On the other hand, the respondent submitted that there was no basis to conclude that the s 71 certificate is invalid or not effective, in the present circumstances. In summary, it was submitted that the appropriate course is an alteration of the respondent’s Rules, to reflect the changes to the Rules of the Federal branch.  It was contended that this was contemplated by s 71(9)(b) of the Act.

33      The respondent does not take issue with the Registrar’s submissions in relation to the preconditions for the issuance of a certificate under s 71(5) of the Act.  The point of departure was the significance of the issuance of the certificate itself and the effect of the terms of s 71(5).  It provides that first, having been satisfied of the matters set out in ss 71(5)(a) and (b), the Registrar must issue a certificate.  Second, that having issued such a certificate, the making of the declaration set out in ss 71(5)(c) and (d), means that ‘the certificate has effect according to its tenor’.

34      The thrust of the respondent’s submissions in relation to the validity question, turned on four key points.  The first was that it is the certificate itself, and the certificate operating according to its tenor, which is the focus of s 71(5), and not the respective Rules of the respondent or the Federal branch, or any other matters giving rise to the Registrar’s duty to issue a certificate.

35      Continuing the theme in relation to the importance of the Rules themselves, the respondent’s second key point was that the required declaration contained in a certificate issued by the Registrar under s 71(5), is only made effective by the Rules of the respondent making provision for its offices to be held by persons who hold the corresponding office in the Federal branch.  In this sense, it is the Rules themselves, rather than the Registrar’s certificate, that result in the filling of the offices in the respondent by those holding counterpart offices in the Federal branch.

36      As to the words ‘the certificate has effect according to its tenor’, in s 71(5), the respondent referred to and relied upon the decision of the High Court in Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd (2011) 243 CLR 492.  In that case, which was an appeal from the Court of Appeal of New South Wales, in relation to a town planning matter, the Court referred to the words ‘shall have effect according to its tenor’, as used in s 28(3) of the Environmental Planning and Assessment Act 1979 (NSW).  It was held that in relation to the phrase at [21]:

…It may be accepted that ‘tenor’ may identify no more than the meaning of words actually used in an instrument.  But it may also identify the effect or drift of a provision, and the phrase in which ‘tenor’ appears in s 28(3) makes it plain that this is how it is to be read in s 28(3).

37      The fourth point developed by the respondent was that from its terms, neither the text nor context of s 71(5) means, contrary to the Registrar’s arguments, that once issued by the Registrar, a certificate under s 71(5) ceases to have any effect in the event that preconditions for its issuance can no longer be satisfied.  It was the respondent’s submissions, that to the contrary, the scheme of the Act points in the reverse direction.

38      As to the latter contention, the respondent placed significant weight, for the purposes of its arguments, on s 71(9) of the Act.  Section 71(9)(a), on the respondent’s argument, is to the effect that following the issuance of a certificate by the Registrar, there can only be a change to the Rules of a State organisation, providing that offices within it can be held by persons who hold the corresponding office in the counterpart federal body, with the permission of the Commission in Court Session.  The Commission may impose conditions in relation to such an approval, under s 71(10).  Thus, there cannot be a divergence between the Rules of a State organisation and its counterpart federal body in relation to offices, unless permitted by the Commission in Court Session.

39      It was submitted that as a practical matter, the only means of divergence between a State organisation’s Rules and the Rules of its counterpart federal body in relation to offices, is if the latter changes them.  It was submitted that this is dealt with in s 71(9)(b), that expressly recognises that the Rules of a counterpart federal body and the relevant State organisation, may have fallen out of alignment after the Registrar has issued a certificate, and the Registrar may register an alteration to the State organisation’s Rules, to realign them.  It was submitted that the effect of these provisions, carries with it the premise that the certificate issued by the Registrar will continue to have effect, despite any lack of alignment, which, by the operation of s 71(9)(b), can be remedied.  According to the respondent, these contextual matters were fatal to the Registrar’s contention that a certificate ceases to operate in the event that an alteration occurs to the Rules of a counterpart federal body in relation to its offices.

40      There were also submissions made by the respondent in relation to the cases referred to by the Registrar, in support of her arguments. The overarching contention was that none of the authorities to which reference was made in the Registrar’s submissions, involved a consideration of the effect of s 71 of the Act in particular, and the matters now argued did not arise for consideration.  The respondent referred to and relied upon the decision of the High Court in CSR Ltd v Eddy (2005) 226 CLR 1.

41      In that case, which was an appeal from the Court of Appeal of New South Wales, the issue arising was whether an earlier decision of the Court of Appeal dealing with the particular point in issue before the High Court, which adopted without argument earlier authority, should stand.  In reaching the conclusion that it should not, and in upholding the appeal, the Court (Gleeson CJ, Gummow and Heydon JJ) at [13] observed:

[13] These events placed the Court of Appeal in a difficult position.  It is of course commonplace for the courts to apply received principles without argument: the doctrine of stare decisis in one of its essential functions avoids constant re-litigation of legal questions (104).  But where a proposition of law is incorporated into the reasoning of a particular court, that proposition, even if it forms part of the ratio decidendi, is not binding on later courts if the particular court merely assumed its correctness without argument (105).  “[T]he presidents, … sub silentio without argument, are of no moment.” (106)

42      Notwithstanding this general submission, the respondent sought to distinguish the cases referred to by the Registrar.  In relation to Jones, it was submitted that in that matter, the circumstances were very different from the present case, in that the relevant counterpart federal body had ceased to exist.  In that case, there could be no filling of offices in the relevant State organisation by occupants of offices in a counterpart federal body.  In relation to the PGEU case, that matter is distinguishable because the finding was that the Rules of the relevant State organisation had never been altered as required by s 71(5)(a), as a necessary precondition for the issuance of a certificate by the Registrar. That is not the situation in this matter.

43      In the cases of Dekuyer and Bergesio there had been in the former, the cessation of the existence of the counterpart federal body, and in the latter, such a major alteration to the counterpart federal body’s structure and Rules that there could not be any correspondence between them and the relevant State organisation.  There were no persons holding office in the counterpart federal body which corresponded with the relevant State organisation.

44      It was on this basis, that the respondent submitted that there is no consistent line of authority supporting the Registrar’s contentions.

45      Finally as to the line of argument regarding relevant case law, the respondent contended that the argument of the Registrar, that it must be presumed that Parliament has been content with the line of cases referred to, in maintaining the statutory scheme largely as is, in subsequent amendments to the Act, should not be adopted.  It was submitted that at its highest, this approach is a guide and should not be used if the Commission accepts the respondent’s approach to statutory construction is to be preferred. 

46      In any event, the submission was made that a court should not in effect, perpetuate the approach to the interpretation of a statute which is considered to be erroneous: Barnes v Barnes (2003) 214 CLR 169 at [112]; Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52 at [63]; Re Her Honour Judge Schoombee; ex parte Attorney General for Western Australia [2011] WASCA 129 at [54].  I accept that this principle is a guide, and is subject to the interpretation of the relevant  provisions of the Act.

47      Despite the Registrar’s submissions to the contrary, the respondent contended that based on its construction of the Act, there is no absurdity or lacuna arising from its approach.  It was submitted that if the circumstances are such as in the cases of Jones, Dekuyer and Bergesio, where there is a radical change to the counterpart federal body’s Rules or the body ceases to exist altogether, then it is not possible for the offices of the relevant State organisation to be filled by the corresponding officeholders in the counterpart federal body, because they do not exist.

48      In these circumstances, the respondent contended that there is no need for a certificate issued by the Registrar to be revoked, and nor would it expire or be invalid, because the preconditions for its issuance no longer exist. On the respondent’s contention, the certificate simply ceases to apply, as there are no offices in a counterpart federal body upon which it can operate.

49      Alternatively, on the respondent’s argument, if there has been a change in the Rules of the counterpart federal body, but the body itself continues to exist or largely exist, then the appropriate step is an alteration of the Rules of the relevant State organisation, as contemplated by s 71(9)(b).  In relation to those offices continuing to exist in the counterpart federal body, the respondent contended there is nothing preventing the certificate continuing to have effect according to its terms with the relevant corresponding officeholders in the State organisation continuing to hold office.

50      It was submitted that it is only in the extreme circumstances such as in the Bergesio and Dekuyer cases, that consideration would need to be given to an order under s 66 of the Act, to appoint an interim management committee to run the State organisation.  It was submitted however, that these circumstances do not arise in this case, as there is only a small divergence between the Rules of the respondent and the Federal branch, which should be remedied in the manner set out in s 71(9)(b) and meanwhile, nothing prevents the certificate from continuing to operate.

51      The respondent also made responsive submissions on the Determination. The overarching submission was that it has no effect on the operation of the certificate issued by the Registrar to the respondent.  The concern of the Act, according to the respondent, for the purposes of ss 52A(2) and 71(4), is the rules of the Federal branch, and the Determination does not have the effect of altering them.

52      In reliance upon the decision of Pullin J in Jones, the respondent submitted that the focus of the exercise in comparing functions and powers in respect of offices of a State organisation and its counterpart federal body, lies in the content of the Rules of those organisations.

53      It was submitted that nothing in the Determination affects the Rules of the Federal branch and nor does it affect the status of those who hold offices in the Federal branch.  In particular, emphasis was placed on the fact that the Determination does not vacate the offices in the Federal branch. Furthermore, despite cl 4 of the Determination, dealing with inconsistency, the respondent submitted that there is no relevant inconsistency for present purposes. The respondent submitted that nothing in the Determination purports to rescind or otherwise make void, any of the Rules of the Federal branch.

54      It was accepted by the respondent that by cl 3(1)(f) of the Determination, the office holders in the Federal branch are temporarily divested of their powers.  The fact is however, that the current incumbents continue to hold corresponding offices in the Federal branch, which means that they continue to also hold the corresponding offices in the respondent, in accordance with the terms of the certificate.  There is also no modification of the Federal branch Rules by the Determination.

55      In the absence of any inconsistency, and the respondent submitted there is none, the Federal branch Rules continue to operate in accordance with their terms.  Additionally, the respondent contended that the effect of the Registrar’s interpretation of s 71 of the Act, would be to work the reverse of the effect of the Determination.  The latter expressly maintains the offices of the Federal branch and does not vacate them.  Despite this, it was contended that the Registrar’s submission has the opposite effect, that the Determination disturbs the occupancy of the respondent’s offices.

56      On the basis that the certificate continues to operate, the respondent contended that given that it has now altered its Rules to abolish the second Assistant Secretary office, in line with the Federal branch, the application presently before the Registrar under s 62 of the Act, should take its course.  There is no cause for an order to be made under s 66 of the Act and the application should be dismissed.

Consideration

Correspondence of offices

57      For the following reasons, having regard to s 71(5) of the Act, I consider the respondent’s contentions as to the operation of the Registrar’s certificate are to be preferred.  I do not consider that the abolition of one Assistant Secretary position in the Federal branch, which I accept means that the Federal branch no longer meets the description of a counterpart federal body under s 52A of the Act, has the consequence that the s 71 certificate issued by the Registrar on 22 December 2011 becomes invalid, defunct or no longer has any operation.

58      In the circumstances of this case, the s 71 certificate should be regarded as continuing to remain operative, in accordance with its tenor, to enable the Rules of the respondent to be brought back into alignment under the Act.  Given the relatively minor change to the Rules of the Federal branch, all of the other offices in the respondent continue to be filled in the manner declared by the certificate.

59      The starting point is the terms of the ss 71(2) and (4), which enable the Commission in Court Session to declare that the rules of a State organisation are, or are taken to be the same, as those of its Federal branch.  Once such a declaration is made, and the requirements of s 71(5) are met, then the Registrar must issue a certificate.  The Registrar has no discretion in this regard.  The content of the certificate, in terms of the declarations made by the Registrar, reflect the terms of ss 71(5)(a) and (b).  From that time, a State organisation is freed from the obligation to hold elections under the Act.  Secondly, persons elected to office in a Federal branch, ‘shall for all purposes’, be holders of office of the State organisation.

60      I consider a certificate issued by the Registrar must be accorded great weight, as its declaration reflects the terms of ss 71(5)(a) and (b) of the Act, and not the Rules of either a State organisation or of its counterpart federal body.  In using the words ‘and the certificate has effect according to its tenor’, Parliament appears to have been concerned to accord certainty to the effect of a certificate, once issued, for the benefit of the organisations to which it applies.  Viewed in this way, ‘according to its tenor’ means the certificate is given the meaning according to the words used in it: Cumerlong Holdings at [21].

61      One can see why this is so.  For example, if, some years after a certificate has issued, a change to the functions of an office in a counterpart federal body, such as the transfer of a function from one office to another, with the effect that the offices of the State organisation and the corresponding office in the federal body no longer align for the purposes of s 71(4) of the Act, may have dramatic consequences if the s 71 certificate was considered to no longer be effective and all holders of office in the State organisation ceased to hold office from that time.  It would mean that purported decisions taken and actions implemented by the State organisation, including major decisions regarding assets and financial affairs, would potentially be invalid and of no effect.

62      So too, purported decisions and actions taken by authorised officeholders in relation to the commencement and continuation of proceedings before the Commission, the Industrial Magistrates Court and the Industrial Appeal Court, instructions to solicitors and counsel, would arguably also be invalid.  The same would apply to the participation by a State organisation in bargaining for an industrial agreement and its making by an order of the Commission, and officers purporting to hold right of entry permits and to exercise right of entry under the Act.  One could readily foresee the need for applications under s 66 of the Act by organisations, in an attempt to retrospectively validate decisions and actions taken, potentially over some years, to avoid adverse consequences, some of which could be irretrievable.

63      Whilst of course, recognising that reasonable minds may differ as to how these provisions of the Act should be construed, as a matter of constructional choice, I consider that the statutory scheme under the Act should be interpreted in such a manner to avoid the above adverse consequences (see generally D C Pearce Statutory Interpretation in Australia 10th Edition at [2.61]-[2.65]).

64      I consider that the better view is that where the Rules of a State organisation and its counterpart federal body have fallen out of alignment, s 71(9) of the Act contemplates how this may be remedied.  There are three limbs to s 71(9) which apply after a certificate has issued by the Registrar.  Only the first two are relevant for present purposes.  The first, in s 71(9)(a), deals with alterations to rules of the kind specified in s 71(5)(a).  If there is to be any change to a rule of this kind, which enables offices of a State organisation to be filled by those elected to corresponding offices in the counterpart federal body, the approval of the Commission in Court Session is required.  The Commission in Court Session may impose conditions as it sees fit, in relation to any modification of this type of rule. This provision reflects the importance of maintaining the scheme reflected in ss 71(5)(a) and (b).

65      Accordingly as the respondent submitted, the only way there can be a departure from the alignment of rules of a State organisation and its counterpart federal body, is if the latter alters its Rules.  This is dealt with in the second relevant provision in s 71(9)(b).  This section enables the Registrar to alter a State organisation’s Rules, other than one of a kind referred to in s 71(9)(a), as long as the altered rule is the same as a rule of its counterpart federal body.  This section appears to contemplate that the two sets of Rules having fallen out of alignment, are brought back into alignment.

66      Subject to what I have said above about the factual circumstances, there appears to be nothing in s 71(9), when read with s 71 as a whole, to compel the conclusion that in the meantime, the certificate stops having any operation, such that the offices of the State organisation cease to be filled in the manner contemplated by s 71(5) of the Act, and as reflected in the certificate.  On the contrary, it would seem that it is intended that the certificate continues in effect, and the Registrar register any such rule alteration, as long as she is satisfied that the altered rule is the same as the rule in the counterpart federal body.

67      Such a construction is consistent with the certainty which I consider was intended by the Parliament, to avoid the need to lift the veil of the certificate and for detailed scrutiny each and every time there is a change to a counterpart federal body’s rules in relation to offices, however minor. There is something to be said for the respondent’s view that if a certificate simply ceased to operate in all circumstances where a federal organisation no longer meets the test of a counterpart federal body under the Act, then s 71(9) would appear to be superfluous.  A party would simply have to start again and seek a new s 71 certificate.

68      The above approach to the construction of the Act also avoids the need for an application under s 66  for interim orders, even if changes are minor and have no effect on a State organisation’s capacity to continue to function as an organisation and to discharge its obligations under the Act.  On the same basis, it also avoids the need for the State organisation to have to bring an application for a new s 71 certificate, before the Commission in Court Session, each time a relatively inconsequential change is made to its Rules regarding offices.

69      In the current circumstances, there is no suggestion that by the abolition of the one Assistant Secretary position, as a practical matter, the respondent is unable to function as an organisation under the Act.  The intention is to abolish the position.  To illustrate the point further, another example, from the agreed facts, is the existence of ordinary committee members in each of the respondent and the Federal branch under their respective current Rules.  For the purposes of the Act, the office of a member of the committee of management of a State organisation is an ‘office’ as defined in s 7.  It would attract consideration under s 71(4) of the Act, in relation to whether a federal organisation is a counterpart federal body: Re CFMEUW [2011] WAIRC 00422 at [48].

70      Presently, r 16 of the respondent’s Rules and r 42 of the Federal branch Rules provide that there are to be five ordinary members of the Executive and the Divisional Branch Management Committee, respectively.  If circumstances change and the Federal branch reduced the number of Management Committee members by one office to four and the office was abolished, there would no longer be alignment between the offices of respondent and the Federal branch for the purposes of s 71(4)(b) of the Act and the Federal branch would cease to be a counterpart federal body for the purposes of the statutory scheme under the Act.  In these circumstances, it would seem difficult to conclude that such a modest change would affect the capacity of the respondent to function as an organisation, with one ordinary member vacancy on the Executive.  The appropriate step would be for the respondent to apply under s 62 of the Act to alter its Rules, to bring the offices back into alignment with the Federal branch, using the mechanism in s 71(9(b).

71      Following this example to its logical conclusion, assume that the respondent had not been able to secure a simultaneous alteration to its Rules by the Registrar at the same time as the alteration to the Federal branch Rules, to reduce the number of ordinary Executive Members by one.  Assume also that the certificate then ceases to operate, and the offices in the respondent cease to be filled, because the offices of the respondent and the Federal branch no longer remain in alignment and the Federal branch ceases to be a counterpart federal body under ss 52A and 71 of the Act.  In these circumstances, any subsequent application by the respondent to the Registrar to alter its Rules would arguably be incompetent, as there would be no authorised officer, being the Secretary, holding office under the respondent’s Rules, with the authority to make such an application.

72      The only course open in this situation would seem to be an application under s 66 of the Act, for an order for an interim executive to be appointed to authorise and bring an application to alter the Rules.  The other consequences, mentioned above, would of course, also follow in such a situation. It seems to me that in such a circumstance, the better view is the certificate continues to operate and fill all of the other offices of the respondent, until the alignment is restored.

73      The better view appears to be that assuming the continued operation of a certificate according to its tenor under s 71(5) of the Act, the question for the Chief Commissioner under s 66 of the Act is whether, in the particular factual circumstances, as an exercise of discretion, an order is necessary as a practical matter, to keep the organisation ‘on track’: Stacey v Civil Service Association of Western Australia (Incorporated) [2007] WAIRC 00568; (2007) 87 WAIG 1229.  That conveniently leads me to the decided cases that both parties referred to in the course of argument.  I should add that the respondent submitted that these cases turned on their facts and none of them were wrongly decided.

74      I accept the proposition put by the respondent, that the cases referred to by the parties did not involve a consideration and determination of the arguments and issues now raised in relation to s 71 certificates.  In these circumstances, it is at least arguable that the decision of the High Court in CSR Ltd applies.  Whilst detailed arguments were put before Sharkey P in Jones, (as set out below) those matters related to the effect of the amalgamation of the federal organisation and agreements under the then federal legislation, between the federal organisation and the State organisation.  I note in passing however, that Sharkey P, at [29], expressed doubts as to whether the CSA had in fact altered its Rules and had satisfied ss 71(5)(a) and (b) of the Act, but despite this, was prepared to accept that the s 71 certificate ‘has effect according to its tenor, as s 71(5) prescribes’.

75      In the cases of Dekuyer and Bergesio, on the facts of each, the counterpart federal bodies of the State organisations either largely or totally ceased to exist, there being no ‘corresponding offices’ in existence for the purposes of s 71(4) of the Act.  They had ceased to function as organisations.  In those circumstances, as a practical matter, there were no longer any persons occupying offices in the counterpart federal bodies upon which the certificate could operate.

76      Likewise, in Jones, whilst the terms of the Act were not identical to those presently applying, the essential requirements as to whether a federally registered organisation was to be regarded as a counterpart federal body, was the same as it is now.  That is, the dual requirement for eligibility for membership and offices being the same or deemed to be the same.  In that case, a challenge was brought under s 66 of the Act, to the appointment of the General Secretary and Assistant General Secretary of the Civil Service Association.

77      The counterpart federal body to the CSA, the State Public Services Federation, an organisation registered under the then Commonwealth legislation, was declared to be such in November 1993 by the Full Bench, and a s 71 certificate issued shortly after. In 1994, the SPSF was amalgamated with another organisation, the Public Sector, Professional, Scientific Research, Technical, Communications, Aviation and Broadcasting Union to form the Community and Public Sector Union.  At the same time, the SPSF was deregistered.  On that event, the SPSF no longer was a registered organisation under the Commonwealth legislation.

78      The applicant in that case contended that the consequence of the deregistration of the SPSF was that it no longer was a counterpart federal body under the Act.  As to this matter, Sharkey P observed at [37] that:

[37] It is quite clear that unless the Counterpart Federal Body continues to exist, or that its successor is bound by its unequivocal obligations and rights as a Counterpart Federal Body, then the rules of the CPSU do not apply and/or cannot be used to enable its officers to become officers of the CSA without appointment or election in accordance with the CSA rules.

79      Having considered that the CSA no longer had a counterpart federal body in existence, in fact and law, at the time of the challenge to the appointments of the two officers of the union, his Honour then went on to conclude at [67]-[72] as follows:

[67] The s.71 certificate issued in respect of the SPSF, a Counterpart Federal Body whose rules the Full Bench has considered.  There may now be in existence a branch of a new amalgamated organisation.  What its rules are I do not know.  What offices are prescribed to exist by those rules I do not know either, since the rules were not before me.  What the qualifications for membership are also not clear because the rules are not before me.  Whether they are the same as the SPSF is not known.  What, of course, that establishes, is the necessity for the CSA to make an application afresh under s.71 of the Act and to establish to the Full Bench what s.71 requires. The necessity for such a view is borne out by the fact that an amalgamation under the WR Act which takes place under Part IX Division 7 of the WR Act may involve an amalgamation which in itself involves the extension of eligibility rules (see s.253A of the WR Act).

[68] Of course, by contrast, there may be a different eligibility rule for the CPSU than that which was a rule of the SPSF when the Full Bench determination as to a Counterpart Federal Body was made.  The same may apply to the offices in the CPSU.  Under s.72 of the Act, no amalgamation can take place where there is such an extension of eligibility (see s.72(1)).

[69] In this case it has not been made known to me whether the amalgamation which occurred extended the eligibility rules of the bodies which were replaced by the amalgamated body.  If, of course, the rules were extended the situation would be quite different from that which obtained when the Full Bench decided the matter.

[70] I now repeat what I said in preceding paragraphs.

[71] The SPSF was cancelled by de-registration and has not been an “organisation” under the WR Act since 1 July 1994.  Thus, since the SPSF is not and has not been an organisation since then, and is cancelled, there is no Western Australian branch and no Counterpart Federal Body and there has not been one since 1 July 1994.

[72] The Registrar’s certificate (exhibit 5) under s.71(5) of the Act has expired because there is no Counterpart Federal Body in existence to which it applies.  On the other hand, if it has not expired it is a nullity since there is no Counterpart Federal Body to which it might apply.

80      One can readily understand Sharkey P’s conclusion in that case that there was no longer an organisation in existence to which the s 71 certificate could have any application.  There were no longer any offices in the federal body upon which the certificate could operate, to fill offices in the State organisation.

81      In the PGEU case, the Full Bench observed at [6]-[8] that given the union in that matter had not altered its Rules to give effect to a certificate issued by the Registrar some years earlier, it ‘could not rely on the validity of the s 71 certificate…’.  One can appreciate the circumstances of that matter, where there was no rule in the State organisation’s Rules, enlivening the power to issue a certificate in the first place.

82      In McCartney, the evidence before me in that matter revealed that there had been wide ranging changes to the Rules of the counterpart federal body, not just in relation to offices, but also to eligibility for membership.  Very importantly in that case, the State organisation had not conducted elections for officeholders for some years and there were no persons in office able to conduct the affairs of the State organisation, to bring about the necessary changes to its Rules in order to then seek a new s 71 certificate.  I formed the view that in those circumstances, an order under s 66 of the Act was necessary.

83      In ARTBIU, the Commission in Court Session dealt with an application for declarations under ss 71(2) and (4), following the merger of the State organisation’s former counterpart federal body. The application followed the earlier proceedings before me in Dekuyer, in which case I made a s 66 order, for the reasons mentioned above.  It was in that context, that the Commission in Court Session made the observation it did at [6] of its reasons.

84      Ultimately, I consider that it will be a matter for the Chief Commissioner, depending on the circumstances of each case, as to whether the discretion to make a s 66 order should be exercised.  I am not persuaded that the change in the respondent’s offices in the present circumstances, warrants an order being made.

85      I now turn to deal with the second limb of the Registrar’s case, that being the effect of the Determination.

The Determination

86      The relevant provisions of the Determination have been set out above.  It is accepted that for the purposes of considering this issue, it is the Rules of the respondent in relation to its offices, as set out in s 71(4), that are to be considered.  The focus of my inquiry, for the purposes of determining the questions posed is the terms of the Act.  In this regard, I must keep in mind that s 66(2) of the Act, whilst conferring broad powers on the Chief Commissioner, is concerned with a State organisation in terms of ‘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…’.

87      It was common ground that the officeholders of the Federal branch continue to hold office in WA and that the effect of the Determination is that the officeholders have under cl 3(f), been divested of their powers and functions, which have been vested in the Administrator.  By cl 7(1), the Administrator may, but not must, exercise the powers and functions of officeholders not vacated by the Scheme.  The relationship between these two provisions is not entirely clear.  There is nothing before me in these proceedings to indicate in practical terms, what these provisions mean for the day to day operation of the Federal branch, if that were to be a relevant consideration.

88      For the purposes of the s 71 certificate, consideration of the Rules of the State organisation and its counterpart federal body in relation to their offices, under s 71(4) of the Act, as to whether they correspond, was dealt with by the Industrial Appeal Court in Jones.  In this case, Pullin J, in relation to the task to be undertaken for the purposes of s 71(4) of the Act said at [35]:

In my opinion, it is quite correct to say, as the appellant does, that the task is not one merely of seeing whether the names of the offices held in one organisation are the same or substantially the same as the offices in the other organisation.  It is necessary for the Full Bench to consider at least the functions and powers of the office based upon a consideration of the similarity or otherwise of the content of the rules.

89      His Honour did not elaborate on what this consideration may entail.  However, it is clear that the task is to examine the Rules of both the State organisation and the counterpart federal body, to determine the degree of correspondence.  This is what ss 71(4)(a) and (b) require.  As the Registrar correctly points out, there is no latitude in relation to the need for an office in the counterpart federal body for every office in the State organisation.  Some latitude exists in relation to functions and powers, but that inquiry must be based on the content of the Rules of each organisation, as they exist at the time of the inquiry.

90      It is not in contest that the Rules of the Federal branch have not been altered in the manner of alterations of Rules as required by the FW (RO) Act.  The contention of the Registrar is that the effect of the Determination has profoundly affected the operation of the offices of the Federal branch in such a way that for the purposes of s 71(4), the Federal branch can no longer be considered to be a counterpart federal body.  I accept, as submitted by the Registrar, and which seems to have been conceded by the respondent, that the Determination has had a profound effect on the Federal branch. However, consistent with my conclusions in relation to the continued operation of the certificate, notwithstanding the abolition of the one Assistant Secretary position, the question is whether the Determination has the effect of preventing the certificate remaining in operation.

91      Whilst the Registrar drew an analogy between the effect of the Federal Court declaring a rule of an organisation under s 163(6) of the FW (RO) Act as being ‘void’, with the effect of the Determination on the Federal branch Rules, I do not think its effect can be taken that far.  As to the meaning of ‘void’, in Victoria v Sutton (1998) 156 CLR 587, Windeyer J said that ‘it has never been an easy word’ and it may not mean something has no legal effect at all.  However, regardless of this, I do not consider that there is anything in the Determination to render the Rules of the Federal branch void or voidable, or that they have been, in their terms, expressly altered.  The Rules continue in effect, and the officeholders in the Federal branch continue in office.

92      What is said is that in the event of any inconsistency between the Determination and the Federal branch Rules, the former will prevail.  I do not think that can be construed as altering or revoking a rule of the Federal branch.  On that point, I do not think that because the Determination temporarily divests powers from the officeholders of the Federal branch, that sets up an inconsistency with its Rules.  This is because it is the intention of the Determination to have this effect, whilst in other respects, the officeholders continue in office, as is expressly stated in cl 3(2).

93      Previously the Full Bench, now the Commission in Court Session, when considering whether there are corresponding offices in both a State organisation and its counterpart federal body for the purposes of s 71(4) of the Act, in light of Pullin J’s observations as above, applies a practical approach to a comparison of the functions and powers of respective offices.  This approach is adopted because the effect of a s 71 certificate, as I have already observed above, enables a State organisation and its counterpart federal body to effectively operate as one.  For example, the Full Bench in Re WAPOU considered the practical effect of joint meetings of Executive of the State organisation and the Branch Executive of the Federal branch, in circumstances where the respective officeholders as President and Branch President, had different voting powers.  A circumstance may have arisen in that case where there is a conflict in an outcome.  The Full Bench could not reach the view that there was correspondence in these two offices (at [30] and [34]).

94      In Re CFMEU, the Full Bench found that the absence of any powers for the offices of Divisional Branch Treasurer and Divisional Branch Senior Vice President, as opposed to the presence of powers in the offices of Treasurer and Senior Vice President of the State organisation, prevented the Full Bench forming the opinion that the Rules of the counterpart federal body and the State organisation prescribing offices, were the same or could be deemed to be the same (at [49]-[51]).

95      Importantly, in both of the above cases, the focus of the inquiry by the Full Bench, was the content of the respective Rules of the organisations.  In this case, whilst the powers of the offices of the Federal branch are significantly impacted by the Determination for the period of the Administration, I am not persuaded that the Rules themselves have been altered.  For the purposes of the Act, I must take the Rules of both the respondent and the Federal branch as they currently exist and as I find them.  This is what the Act requires in s 71(4).

96      In terms of the certificate, under the Determination, the Federal branch remains in existence.  The offices remain and have not been vacated in Western Australia, as has been the case elsewhere in other State branches.  This is in contrast to the cases referred to above, in which there had been the abolition of offices in the relevant counterpart federal body, such that there was little or nothing on which the certificate could operate, to have any continuing effect.  Accordingly, the certificate continues to operate according to its tenor, and the offices of the respondent continue to be filled by those persons occupying the corresponding offices in the Federal branch.  Had the situation in Western Australia been the same as in other States where offices have been vacated, then my conclusions may have been different, based on the cases considered earlier in these reasons.

A further issue

97      In letters to the parties of 10 and 17 April and 2 May 2025 from my Associate, the question of the Federal branch holding elections and relevant rules, and the effect of cl’s 7(2) and (3) of the Determination were raised as possibly relevant issues and the parties were invited to make further submissions.  A further issue raised was whether an extension of office of officeholders of the Federal branch under cl 7(3), means that they hold office in accordance with the Determination, and not the Federal branch Rules, and if so, whether this has any consequences given the terms of s 71(5)(a) of the Act.  The parties made further written submissions in relation to these issues on 24 April and 9 May 2025.

98      Clarification was also sought as to whether the Administrator had extended the terms of office of the Federal branch officeholders.  A letter dated 7 May 2025, attached to the respondent’s further submissions of 9 May 2025, from the Administrator to the respondent’s solicitors, confirmed that the terms of office of the officeholders of the Federal branch have, under cl 7(2) of the Determination, been extended to 1 September 2025.  In the letter to the parties dated 17 April 2025, reference is made to the Fair Work Commission confirming that there has not yet been an election in the Federal branch, despite one being due, with successful candidates to take office by 2 January 2025.

99      In response to the invitation in the 10 and 17 April 2025 letters, the Registrar submitted that it is apparent that elections which ought to have been conducted by the Federal branch in 2024, did not take place.  She noted the effect of cl 7(3) of the Determination, which prohibits elections for offices in the Federal branch, unless a written authority is provided by the Administrator.  The Registrar also referred to cl 7(2) of the Determination, a power now confirmed by the Administrator to have been exercised, which is in the following terms:

(2) The term of any unvacated office that ends during the period of Administration may be extended, for a period of time set by the Administrator.

100   The Registrar contended that the significance of cl 7(3) of the Determination and the above matters just noted, are relevant in two respects.  First, if I conclude that the s 71 certificate is no longer operative, whether and if so what, orders should be made.  Second, if the s 71 certificate remains operative, a basis exists for further orders that could be made on separate and distinct grounds.  Given my conclusions in relation to the certificate, I do not need to consider the former.

101   If there continue to be officeholders of the Federal branch, now confirmed as a result of an extension under cl 7(2) of the Determination, having regard to the objects of the Act, the Registrar submitted a basis would exist for making orders under s 66.  The Registrar referred to her earlier substantive submissions in relation to the importance of the democratic control of a State organisation by its members, regardless of the existence of a counterpart federal body.  In reliance on the objects of the Act in s 6(f), which I have set out earlier in these reasons, the Registrar noted the powers of the Chief Commissioner under s 66(2)(a)(v), which enables an order to be made to disallow any rule of a State organisation which, in the opinion of the Chief Commissioner, is inconsistent with the democratic control of the organisation by its members.

102   In this regard, the Registrar referred to r 16(4A) of the respondent’s Rules, that I have referred to earlier in these reasons.  This enables an office in the respondent to be held by the corresponding officeholder in the Federal branch.  The Registrar submitted on the basis that:

(a) the present officeholders of the Federal branch, contrary to the Act and the FW (RO) Act, may continue to hold office beyond the maximum four year term for officeholders under the respective State and Federal branch Rules, and which terms may be extended indefinitely;

(b) the decision to hold elections in the Federal branch is at the sole discretion of the Administrator; and

(c) it appears that presently, there have been no steps taken to conduct an election,

it would be open for the Commission to conclude that r 16(4A) of the Respondent’s rules is inconsistent with the objects of the Act in s 6(f), regarding the democratic control of the respondent by its members, and should be disallowed under s 66(2)(a)(v) of the Act.

103   It was contended by the Registrar that such a course would involve no conflict with s 71(9)(a) of the Act, regarding the alteration of a rule such as r 16(4A) by the Commission in Court Session.  This is because s 71(9)(a) is a rule alteration as specified in s 62 of the Act, as opposed to a disallowance order made under s 66(2)(a).  In the event that a disallowance order was made, the Registrar further submitted that it would be appropriate for the appointment of an interim executive, until an election could be held.

104   On behalf of the respondent, in short, it was contended that cl 7(3) of the Determination is not relevant to the exercise of the discretion and powers of the Chief Commissioner under s 66 of the Act in the context of the present proceedings.  The respondent submitted that consideration of cl 7(3) of the Determination only arises in circumstances where the Commission determines that the s 71 certificate continues to be operative, which I have.  In these circumstances, it was submitted that there could be no conclusion reached that the Rules of the respondent, or their observance or manner of their observance, would give rise to any uncertainty or doubt, leading to the exercise of the discretion of the Chief Commissioner under s 66 of the Act.  It was submitted that the Determination, whether it may be inconsistent with the election scheme under the Act, is not a matter which gives rise to the exercise of power under s 66(2) of the Act, relating to the Determination itself.

105   Furthermore, in relation to ss 52A and 71 of the Act, any ‘scheme’ established by these provisions does not concern itself with the matter of regularity or frequency of elections of officeholders of a counterpart federal body. Rather, they concern themselves with rules in relation to eligibility for membership and the existence of offices within a Federal branch of a State organisation.  I agree that these provisions of the Act do not expressly deal with the frequency or regularity of elections for officeholders of counterpart federal bodies.  These are matters specified in the FW (RO) Act, the Federal branch Rules and the Determination.

106   The reason the respondent contends that cl 7(3) of the Determination is irrelevant to the exercise of the Chief Commissioner’s powers and discretion under s 66(2) of the Act, is that the s 71 certificate continues to operate and holders of office in the Federal branch continue to hold office in the respondent.  Those persons were duly elected prior to the commencement of the Scheme under the Determination.  In accordance with r 16(4A) of the respondent’s Rules, they continue to hold office in the respondent by the ongoing operation of the certificate.

107   The respondent submitted that the Scheme for the administration of the Federal branch under the Determination is not indefinite, and has an end date of no later than five years from its commencement under the FW (RO) Act.  Accordingly, the suspension of elections for officeholders of the Federal branch under the terms of cl 7(3) of the Determination, will cease to operate by that time or earlier.  Thus, the requirement to hold elections under the Federal branch Rules will come back into effect from no later than 23 August 2029.  In these respects, the respondent contended that the Administrator’s powers in relation to elections under the Determination, are not relevant to the provisions of the Act in ss 52A and 71, as they are not concerned with the calling of elections in a counterpart federal body.

108   In any event, the respondent contended that the officeholders of the Federal branch continue to hold office ‘in accordance with the rules of the State organisation’s counterpart federal body’ under s 71(5)(a) of the Act.  It was submitted this was because under r 38(b) of its Rules, there has been a delay in the conduct of an election, and, as is contemplated by r 38(b)(i), the incumbents in office will remain in office until a successor takes up office after an election is held.  Accordingly, on this footing, the respondent contended that as there has been no election because the Administrator has not authorised one, this constitutes a ‘delay’ for the purposes of r 38(b), upon which r 38(b)(i) operates to hold over existing office holders until the results of the next election are declared.

109   Irrespective of this, the respondent referred to its primary submissions above regarding the s 71 certificate operating according to its tenor.  It was said that even if the officeholders of the Federal branch have ceased to hold office as a result of s 71(5)(a), and do so under cl 7(2) of the Determination, the certificate continues to operate because it makes no mention of the Federal branch Rules or holding office in accordance with them.

110   The Registrar submitted that the letter from the Administrator means that the officeholders of the Federal branch hold office not under r 38(b)(i) of its Rules, but under cl 7(2) of the Determination.  On the basis that the Commission accepts that the Determination does not operate ‘over the top’ of the Rules of the Federal branch, the effect of the continuation in office of Federal branch officeholder is that they do not hold office ‘in accordance with the rules of the State organisation’s counterpart federal body’ for the purposes of s 71(5)(a) of the Act.

111   Furthermore, the Registrar contended the effect of rr 38(b) and 38(b)(i) is not as the respondent maintained.  The Registrar submitted that consideration must be given to the context of the Rules of the Federal branch as a whole, and s 145 of the FW (RO) Act.  The latter provides that rules of a federal organisation must provide that terms of officeholders are not to exceed four years.  Accordingly, read in this light, r 38(b)(i) is intended to operate only where an election is underway and is being finalised.  This is not the case in this matter, as there has been no election and there may not be one for several years.  Finally, as to the certificate and the respondent’s argument it operates according to its tenor, the Registrar referred to her earlier submissions that the ‘tenor’ of the certificate is set out ss 71(5)(c) and (d), and not otherwise.

112   On reflection, having carefully considered the arguments advanced by both the Registrar and the respondent, I must approach these matters with the jurisdiction and powers conferred on me under s 66 of the Act firmly in mind.  As noted earlier, s 66(2) enables the Chief Commissioner to ‘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…’.  Whilst very broad, the primary purpose, and scope, of the powers under s 66(2) of the Act, are to ensure the observance of a State organisation’s Rules and to keep an organisation ‘on track’: Harry Arnott v Western Australian Police Union of Workers [2022] WAIRC 00208; (2022) 102 WAIG 369 per Kenner CC at [67], citing and applying Stacey.

113   There is a power under s 66(2)(a)(v) to disallow a rule which is ‘inconsistent with the democratic control of the organisation by its members’.  It seems to me however, that the focus of the particular powers in s 66(2)(a) of the Act, to disallow a rule on the bases set out in (i) to (v), are directed to the circumstance where the content of a particular rule itself, would have the relevant effect, in relation to the members of the organisation: D.J. Stanton, L.G. Searle, G.K. Palmer and G.T. Kennedy v O.S. Middleton, President, The Civil Service Association of Western Australia Incorporated (1991) 71 WAIG 46; Michael Frederick Williams v The Shop, Distributive and Allied Employee’s Association of Western Australia [2005] WAIRC 00854; (2005) 85 WAIG 1961; Jarrett v The Western Australian Locomotive Engine Drivers’, Firemens’ and Cleaners’ Union of Workers (1997) 77 WAIG 1386. 

114   For example, in the SDA case, the issue was whether a rule banning a ‘known communist’ from nominating for office, was contrary to ss 66(2)(a) (ii) and (iv).  In the CSA case, the issue was whether rules enabling a life member to occupy the office of President, was contrary to the democratic control of the organisation.  In Jarrett, the matter in issue was whether a rule of the respondent union enabling the General President to suspend a member, was contrary to the democratic control of the organisation by its members.  In the present case, the issue is the effect of another instrument, the Determination, on the Federal branch Rules, and in turn, on the operation of a rule of the respondent, r 16(4A), for the purposes of the Act.  I think the connection is too remote.

115   However, irrespective of this particular issue of the scope of the powers in s 66(2)(a) of the Act, I consider the respondent’s general submissions are to be preferred.  In the present circumstances, the question is the effect of the Determination, and its impact on the operation of the Act.  I do not think that is a matter that would enliven my jurisdiction under s 66(2).  For the same reasons, nor do I think the operation of the Rules of the Federal branch in relation to elections, is a matter that I can inquire into for these purposes.

116   As long as there remain officeholders in the Federal branch, largely for the same reasons that I have concluded that there is no basis for me to go behind the s 71 certificate in relation to the first two issues considered in these proceedings, the certificate continues to have effect according to its tenor.  Those in office in the Federal branch have not had their offices vacated under the Determination and, as a result, continue to hold office in the respondent, under the certificate, ‘for all purposes’.  There is no proscription of elections under the Determination.  That is a matter for the Administrator to determine, no doubt in conjunction with the officers of the Federal branch, for as long as the Determination remains in effect. The Determination has an end date, and it may be concluded under its terms, prior to the end date.  Once the Administration ceases, the Federal branch Rules in relation to elections and r 16(4A) of the respondent’s Rules, will be re- enlivened.

Conclusion

117   For the foregoing reasons, I am not persuaded that there is a basis upon which I should exercise my discretion under s 66 of the Act. The application by the respondent to alter its Rules, presently before the Registrar, should proceed.  This application must be dismissed.