CITATION : 2014 WAIRC 00377 CORAM : THE HONOURABLE J H SMITH, ACTING PRESIDENT CHIEF COMMISSIONER A R BEECH COMMISSIONER S J KENNER HEARD : MONDAY, 16 DECEMBER 2013, MONDAY, 13 JANUARY 2014, THURSDAY, 1 MAY 2014 DELIVERED : TUESDAY, 6 MAY 2014 FILE NO/S : FBM 11 OF 2013, FBM 2 OF 2014 BETWEEN : WESTERN AUSTRALIAN PRISON OFFICERS' UNION OF WORKERS Applicant AND (NOT APPLICABLE) Respondent CatchWords : Industrial Law (WA) - Application pursuant to s 71 for declaration relating to qualifications of persons for membership of a State branch of a Federal organisation and offices that exist within the branch - Application to alter rules of an organisation to enable the holders of an office in the counterpart Federal body to hold an office in a State organisation Legislation : Industrial Relations Act 1979 (WA) s 55(4), s 55(4)(b), s 55(4)(c), s 55(4)(d), s 55(4)(e),, s 55(5), s 56(1), s 62, s 62(2), s 62(4), s 71, s 71(2), s 71(4), s 71(5), s 71(5)(a) Result : Order and Declaration made Representation: Applicant : Mr J Walker, Mr J Welch and Mr A Smith Case(s) referred to in reasons: Re Western Australian Prison Officers' Union of Workers [2014] WAIRC 00006; (2014) 94 WAIG 62 Reasons for Decision THE FULL BENCH: Introduction 1 The Full Bench has before it two applications made under the Industrial Relations Act 1979 (WA) (the Act). 2 In FBM 2 of 2014, the applicant (the State organisation) seeks the following declarations: (a) A declaration pursuant to section 71 of the Industrial Relations Act 1979 (WA) (the Act) that the Community and Public Sector Union [sic], SPSF Group, Western Australian Prison Officers' Union Branch is the counterpart 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 455 Federal body (the counterpart Federal body) of the Western Australian Prison officers' [sic] Union of Workers (the State Organisation). (b) A declaration pursuant to section 71(2) of the Act the rules of the counterpart Federal body relating to the qualification of persons for membership are the same as or deemed to be the same as the qualifications of persons for membership within the State Organisation; and (c) A declaration pursuant to section 71(4) of the Act that the officers [sic] within the counterpart Federal body are the same as or deemed to be the same as the offices within the State Organisation. 3 In FBM 11 of 2013, the State organisation makes an application pursuant to s 62(2) and s 71(5)(a) of the Act to insert a new r 14A between r 14 and r 15 of the rules of the State organisation. The proposed rule is as follows: (1) Each office within the Union may, from such time as the State Council may determine, be held by the person who, in accordance with the rules of the Community and public Sector Union, in respect of the CPSU, the Community public Sector Union, SPSF Group, Western Australian Prison Officers' Union Branch, holds the corresponding office in that body. (2) Where each officer of the Western Australian Prison Officers' Union of Workers is held in accordance with subsection (1) of this rule then the provisions in these rules relating to elections no longer apply. (3) This Rule does not affect the State Council's right pursuant with these Rules to expel the holder of an office of the Union. 4 Pursuant to s 62(2) of the Act, the Full Bench must authorise an alteration to the rules of an organisation if it relates to a matter referred to in s 71(2) or s 71(5) of the Act. Under s 71(5)(a) of the Act, the rules of a State organisation can be altered pursuant to s 62 to provide that each office in the State organisation may, from time to 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 the corresponding office in that body. FBM 2 of 2014 5 The State organisation is a registered organisation representing prison officers within the State of Western Australia. It has entered into an arrangement to create a counterpart Federal body by forming a Western Australian Prison Officers' Union Branch of the CPSU group of the Community and Public Sector Union. It has done this to protect and foster the interests of its members. It will have access to the Federal industrial system to represent the interests of current and future members who are national system employees within the Prison Service in the State of Western Australia. 6 On 4 November 2013, Fair Work Commission approved the creation of a Federal Branch of the Western Australian Prison Officers' Union by making amendments to the CPSU, the Community and Public Sector Union; Chapter C - SPSF Group Rules by creating a new Schedule B - SPSF Group Rules for the Western Australian Prison Officers' Union (WAPOU) Branch: 090V-SPSF. 7 The State organisation seeks a declaration pursuant to s 71(2) of the Act to facilitate the orderly and efficient administration and coordination of the State organisation and its counterpart Federal body. A certificate will also enable it to make an agreement with its Federal organisation relating to the management and control of funds. 8 Section 71 of the Act provides: (1) In this section — Branch means the Western Australian Branch of an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Commonwealth); counterpart Federal body, in relation to a State organisation, means a Branch the rules of which — (a) relating to the qualifications of persons for membership; and (b) prescribing the offices which shall exist within the Branch, are, or, in accordance with this section, are deemed to be, the same as the rules of the State organisation relating to the corresponding subject matter; and State organisation means an organisation that is registered under Division 4 of Part II. (2) The rules of the State organisation and its counterpart Federal body relating to the qualifications of persons for membership are deemed to be the same if, in the opinion of the Full Bench, they are substantially the same. (3) The Full Bench 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 his 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 counterpart Federal body prescribing the offices which shall exist in the Branch are deemed to be the same as the rules of the State organisation prescribing the offices which shall exist in the State organisation if, for every office in the State organisation there is a corresponding office in the Branch. (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 the corresponding office in that body; and 456 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. (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 shall 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) shall, for all purposes, be the officers of the State organisation, and the certificate has effect according to its tenor. (6) A State organisation to which a certificate issued under this section applies may, notwithstanding any provision in its rules to the contrary, make an agreement with the organisation of which the State organisation's counterpart Federal body is the Branch, relating to the management and control of the funds or property, or both, of the State organisation. (7) Where a memorandum of an agreement referred to in subsection (6) is — (a) sealed with the respective seals of the State organisation and the other organisation concerned; and (b) signed on behalf of the State organisation and the other organisation by the persons authorised under their respective rules to execute such an instrument; and (c) lodged with the Registrar, the Full Bench may, if it is satisfied that the terms of the agreement are not detrimental to the interests of persons who are eligible to be members of the State organisation and of its counterpart Federal body and will not prevent or hinder the State organisation from satisfying any debt or obligation howsoever arising, approve the agreement. (8) Where the Full Bench approves an agreement under subsection (7) the Registrar shall — (a) register the memorandum as an alteration to the rules of the State organisation; and (b) amend, where necessary, the certificate issued to the State organisation under subsection (5) by declaring that the State organisation is, from the date of registration of the memorandum, exempted from compliance with such provisions of this Act and to such an extent as the Full Bench may, having regard to the terms of the memorandum, direct; and (c) notify the State organisation in writing of the matters referred to in paragraphs (a) and (b). (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) shall not be altered unless the alteration is approved by the Full Bench; 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 he 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 shall, for all the purposes of this Act and of any award, industrial agreement or order, be deemed 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 Full Bench may require compliance by the State organisation with such conditions as the Full Bench considers appropriate. 9 This is the second application that the State organisation has made for declarations pursuant to s 71 of the Act. The first application was FBM 10 of 2013, which was heard by the Full Bench on 16 December 2013. On 13 January 2014, the Full Bench issued a decision dismissing FBM 10 of 2013: [2014] WAIRC 00006; (2014) 94 WAIG 62. 10 In its reasons for decision in Re Western Australian Prison Officers' Union of Workers in FBM 10 of 2013, the Full Bench found that the qualifications for persons for membership of the State organisation and its counterpart Federal body were substantially the same: [8] to [11]. However, it found after considering the functions and powers of each of the offices in the State organisation and the counterpart Federal body it was unable to make a finding that each of the offices could be said to be the same or deemed to be the same. In particular, it found that the offices of President and Branch President could not be deemed to be the same: [28] to [34]. Nor could it find that the followings offices could be said to be the same or deemed to be the same: (a) the offices of Vice-President and Branch Vice-President: [35] to [38]; (b) the offices of Treasurer and Branch Treasurer: [46] to [49]; and (c) the offices of Executive Members and Branch Executive Members: [50] to [52]. 11 After FBM 10 of 2013 was dismissed by the Full Bench, the State organisation made an application to the Registrar of this Commission to alter the powers, functions and duties of each of its offices in APPL 10 of 2014. The alterations sought to change the functions and powers prescribed for each of the offices of the State organisation to be the same as the functions and powers prescribed for each of the offices of its counterpart Federal body. These alterations to the rules of the State organisation were registered by the Registrar on 4 April 2014. The changes made were to rules 19, 20, 21, 21A, 22 and 23 which set out the functions and powers of the President, Vice-President, Secretary, Assistant Secretary, Treasurer and three Executive Members. 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 457 12 Having regard to the alterations to the rules of the State organisation which were registered by the Registrar of the Commission on 4 April 2014, each member of the Full Bench was satisfied that for each office in the State organisation there is a corresponding office in the Branch. For these reasons, the following declarations in FBM 2 of 2014 were made on 1 May 2014: (a) CPSU, the Community and Public Sector Union, SPSF Group, Western Australian Prison Officers' Union Branch is the counterpart Federal body (the counterpart Federal body) of the Western Australian Prison Officers' Union of Workers (the State Organisation). (b) The rules of the State Organisation and its counterpart Federal body relating to the qualification of persons for membership are deemed to be the same. (c) The rules of the counterpart Federal body prescribing the offices that exist in the counterpart Federal body are the same as the offices that exist in the State Organisation. FBM 11 of 2013 13 Section 62(2) of the Act prohibits the Registrar from registering any alteration to the rules of an organisation that is a matter referred to in s 71(5) of the Act unless so authorised by the Full Bench. Pursuant to s 62(4) of the Act, the requirements of s 55(4) of the Act must be complied with before the Full Bench can approve a rule alteration application. Section 55(4) of the Act provides that the Full Bench shall refuse an application by the organisation unless it is satisfied that: (4) Notwithstanding that an organisation complies with section 53(1) or 54(1) or that the Full Bench is satisfied for the purposes of section 53(2) or 54(2), the Full Bench shall refuse an application by the organisation under this section unless it is satisfied that — (a) the application has been authorised in accordance with the rules of the organisation; and (b) reasonable steps have been taken to adequately inform the members — (i) of the intention of the organisation to apply for registration; and (ii) of the proposed rules of the organisation; and (iii) that the members or any of them may object to the making of the application or to those rules or any of them by forwarding a written objection to the Registrar, and having regard to the structure of the organisation and any other relevant circumstance, the members have been afforded a reasonable opportunity to make such an objection; and (c) in relation to the members of the organisation — (i) less than 5% have objected to the making of the application or to those rules or any of them, as the case may be; or (ii) a majority of the members who voted in a ballot conducted in a manner approved by the Registrar has authorised or approved the making of the application and the proposed rules; and (d) in relation to the alteration of the rules of the organisation, those rules provide for reasonable notice of any proposed alteration and reasons therefor to be given to the members of the organisation and for reasonable opportunity for the members to object to any such proposal; and (e) rules of the organisation relating to elections for office — (i) provide that the election shall be by secret ballot; and (ii) conform with the requirements of section 56(1), and are such as will ensure, as far as practicable, that no irregularity can occur in connection with the election. 14 The first matter about which the Full Bench must be satisfied is the proposed rule alteration must be authorised by the organisation in accordance with its rules. The authority to alter the rules of the State organisation is found in r 34. Rule 34 provides: Subject to the provisions of the Act: (1) The rules of the Union may be altered, added to or amended by resolution of an Annual General Meeting, a General Meeting or a Special General Meeting. (2) The notice convening such a meeting shall specify the purpose of the meeting and the Secretary shall cause a copy of the proposed alterations or additions or amendments and reasons therefore to be forwarded to each prison institution, Branch representative and reasonable steps shall be taken to inform members of the proposal. (3) In the notice referred to in Sub-Rule 2, members are to be informed that they or any of them may object to the proposed alteration by forwarding a written objection to the Industrial Registrar to reach him no later than 21 days after the date of receipt of the notice. Members may raise the objection at the meeting convened to approve such changes and/or may forward a written objection to the State Executive. (4) In the notice referred to in Sub-Rule 2 and with respect to any proposed alteration of the rule relating to the qualification of persons for membership of the union, members are to be informed that they or any of them may object to the making of the application for the proposed alteration and/or object to the proposed alteration by forwarding a written objection to the Industrial Registrar to reach him no later than 21 days after the date of 458 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. receipt of the notice. Members may also raise the objection at the meeting convened to approve such changes and/or may forward a written objection to the State Executive. (5) No alteration to any Rules of the Union shall become effective until the Registrar has given to the Union a certificate that the alteration has been registered. 15 The facts supporting the application to authorise the addition of new r 14A are set out in a statutory declaration made on 2 December 2013 by Andrew James Smith, the Acting Secretary of the State organisation. The evidence of Mr Smith in the documents attached to his statutory declaration establishes the following relevant matters: (a) On 26 June 2013, the State organisation's State Council resolved for the Secretary to bring forward a rule change to allow the State Council to determine that a person elected to hold an office in accordance with the rules of the counterpart Federal body be held to be the same office in the State organisation. (b) On 17 July 2013, as required by r 34(2) of the rules of the State organisation, Mr Smith sent a notice in the form of a circular to all Union Delegates and workplaces, and a further notice by way of email to each member of the State organisation, both at work and to all private email addresses held by the State organisation. The circular and emails attached a notice of a special general meeting to be held on 25 July 2013 at the office of the State organisation. The purpose of the meeting was set out in the notice. The members were informed that the meeting was to consider the new proposed r 14A. The reasons for altering the rules to insert a new r 14A were clearly set out in the notice. Members were also informed in the notice that they could raise objections at the meeting or in writing to the State Union Executive, or they could also write to the Registrar of the Commission outlining objections no later than 21 days after the date of receipt of the notice. (c) Rule 29 of the rules of the State organisation also requires the State Executive to notify all members of any special general meeting by notice published in The West Australian newspaper at least seven days prior to such meeting. On Thursday, 18 July 2013, in compliance with this rule, a notice was placed in The West Australian newspaper providing details of the special general meeting, the reason for the proposed rule change and a copy of the proposed rule. (d) The minutes of the special general meeting held on 25 July 2013 record that 33 members attended the special general meeting. Pursuant to r 29, a quorum of 20 members forms a quorum including counting of the Secretary. Consequently, the quorum requirement was met. (e) The minutes of the special general meeting held on 25 July 2013 record that a motion was carried that the rules of the State organisation be amended by creating the new r 14A. A motion was also carried that the Secretary be authorised to make an application to the Commission to amend the rules of the State organisation at a time that coincides with the State organisation's s 71 certificate application. (f) No objection to the rule change has been received by the State organisation State Executive. 16 Having regard to this evidence, the Full Bench was satisfied that the application to alter the rules of the State organisation had been authorised in accordance with its rules. 17 No objections were received to the proposed amendment by the State organisation or by the Commission. 18 For these reasons, we were satisfied that s 55(4)(b), s 55(4)(c) and s 55(4)(d) of the Act have been complied with. We were also satisfied that the requirements of s 55(5) of the Act do not arise as the proposed rule changes do not change or seek to alter in any way the eligibility of persons eligible to be members of the organisation. Section 55(4)(e) and s 56(1) of the Act relate to procedural rules for the elections for election for office, including secret ballots. These are matters that do not arise in this application. 19 For these reasons, the Full Bench made the following order in FBM 11 of 2013 on 1 May 2014: The Registrar is hereby authorised to register the alteration to the rules of the applicant by inserting new rule 14A between rule 14 and rule 15 as follows: (1) Each office within the Union may, from such time as the State Council may determine, be held by the person who, in accordance with the rules of the Community and public Sector Union, in respect of the CPSU, the Community public Sector Union, SPSF Group, Western Australian Prison Officers' Union Branch, holds the corresponding office in that body. (2) Where each officer of the Western Australian Prison Officers' Union of Workers is held in accordance with subsection (1) of this rule then the provisions in these rules relating to elections no longer apply. (3) This Rule does not affect the State Council's right pursuant with these Rules to expel the holder of an office of the Union. 20 We note that there are typographical errors in the description of the counterpart Federal body in proposed r 14A. The Full Bench, however, has no power to alter the form of any proposed rule that has been authorised in accordance with the rules of an organisation. We also note that the State organisation undertook to take steps in due course to alter r 14A to correct the name of the counterpart Federal body. 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 459 2014 WAIRC 00361 APPLICATION FOR DECLARATION PURSUANT TO SECTION 71 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES WESTERN AUSTRALIAN PRISON OFFICERS' UNION OF WORKERS APPLICANT CORAM FULL BENCH THE HONOURABLE J H SMITH, ACTING PRESIDENT CHIEF COMMISSIONER A R BEECH COMMISSIONER S J KENNER DATE THURSDAY, 1 MAY 2014 FILE NO. FBM 2 OF 2014 CITATION NO. 2014 WAIRC 00361 Result Declaration issued Appearances Applicant Mr J Walker, Mr J Welch and Mr A Smith Declaration This matter having come on for hearing before the Full Bench on 1 May 2014, and having heard Mr J Walker, Mr J Welch and Mr A Smith on behalf of the applicant, the Full Bench, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby declares that — (a) CPSU, the Community and Public Sector Union, SPSF Group, Western Australian Prison Officers' Union Branch is the counterpart Federal body (the counterpart Federal body) of the Western Australian Prison Officers' Union of Workers (the State Organisation). (b) The rules of the State Organisation and its counterpart Federal body relating to the qualification of persons for membership are deemed to be the same. (c) The rules of the counterpart Federal body prescribing the offices that exist in the counterpart Federal body are the same as the offices that exist in the State Organisation. By the Full Bench (Sgd.) J H SMITH, [L.S.] Acting President. 2014 WAIRC 00362 APPLICATION PURSUANT TO S.62 - ADDITION OF NEW RULE - 14A - COUNTERPART FEDERAL BODY WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES WESTERN AUSTRALIAN PRISON OFFICERS' UNION OF WORKERS APPLICANT CORAM FULL BENCH THE HONOURABLE J H SMITH, ACTING PRESIDENT CHIEF COMMISSIONER A R BEECH COMMISSIONER S J KENNER DATE THURSDAY, 1 MAY 2014 FILE NO. FBM 11 OF 2013 CITATION NO. 2014 WAIRC 00362 Result Order made Appearances Applicant Mr J Walker, Mr J Welch and Mr A Smith 460 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. Order This matter having come on for hearing before the Full Bench on 1 May 2014, and having heard Mr J Walker, Mr J Welch and Mr A Smith on behalf of the applicant, the Full Bench, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders that — The Registrar is hereby authorised to register the alteration to the rules of the applicant by inserting new rule 14A between rule 14 and rule 15 as follows: 14A - COUNTERPART FEDERAL BODY (1) Each office within the Union may, from such time as the State Council may determine, be held by the person who, in accordance with the rules of the Community and public Sector Union, in respect of the CPSU, the Community public Sector Union, SPSF Group, Western Australian Prison Officers' Union Branch, holds the corresponding office in that body. (2) Where each officer of the Western Australian Prison Officers' Union of Workers is held in accordance with subsection (1) of this rule then the provisions in these rules relating to elections no longer apply. (3) This Rule does not affect the State Council's right pursuant with these Rules to expel the holder of an office of the Union. By the Full Bench (Sgd.) J H SMITH, [L.S.] Acting President. FULL BENCH—Unions—Cancellation of registration— 2014 WAIRC 00373 APPLICATION TO CANCEL THE REGISTRATION OF SALES REPRESENTATIVES' AND COMMERCIAL TRAVELLERS' GUILD OF W.A. INDUSTRIAL UNION OF WORKERS WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION FULL BENCH