CITATION : 2010 WAIRC 01208 CORAM : THE HONOURABLE J H SMITH, ACTING PRESIDENT CHIEF COMMISSIONER A R BEECH ACTING SENIOR COMMISSIONER P E SCOTT HEARD : MONDAY, 29 NOVEMBER 2010 DELIVERED : TUESDAY, 7 DECEMBER 2010 FILE NO. : FBM 12 OF 2010 BETWEEN : ASSOCIATION OF INDEPENDENT SCHOOLS OF WESTERN AUSTRALIA (INC) Applicant AND (NOT APPLICABLE) Respondent 90 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1853 CatchWords : Industrial law (WA) - Application pursuant to s 62(2) of the Industrial Relation Act 1979 (WA) for the Full Bench to authorise registration of alterations to registered rules - Qualification for membership rule - Statutory criteria satisfied - Application granted - Industrial Relations Act 1979 (WA) s 55(4), s 55(4)(a), s 55(4)(b), s 55(4)(c), s 55(4)(d), s 55(4)(e), s 55(5), s 56(1), s 62(2), s 62(4); School Education Act 1999 (WA) s 157. Result : Application granted Representation: Applicant : Mr I Curlewis (of counsel) Reasons for Decision THE FULL BENCH: Introduction 1 This application by the Association of Independent Schools of Western Australia (Inc) (the applicant) was filed on 8 October 2010 and was made pursuant to s 62(2) of the Industrial Relations Act 1979 (WA) (the Act). The applicant, as a registered association under the Act, seeks the authorisation of the Full Bench for the Registrar to register an alteration to its qualification for membership rule. The alteration the applicant proposes is to r 5 of its rules. The change sought is one of two matters before the Commission which, if approved, will effect a substitution of the entire rules of the applicant. Other than the proposed r 5, the remaining proposed changes are the subject of an application to the Registrar in APPL 147 of 2010. As the proposed alteration to r 5 seeks to alter the qualifications of persons for membership, r 5 can not be registered by the Registrar unless the registration is authorised by the Full Bench. After hearing counsel for the applicant, the Full Bench made the following order: The Registrar is hereby authorised to register the alteration to r 5 of the rules of the applicant as published in the Western Australian Industrial Gazette on 27 October 2010 (2010) 90 WAIG 1674. 2 These reasons set out the reasons why the Full Bench formed the view that the proposal to register an alteration to r 5 should be authorised by the Full Bench. 3 In this application the applicant seeks to delete the existing r 5 and substitute the following: 5 - MEMBERSHIP 5.1 The Association shall have two categories of Member, namely (a) Independent School (b) Affiliated Organisation 5.2 For admission as an Independent School Member, the School must 5.2.1 be registered under section 160 of the School Education Act, 5.2.2 provide full-time tuition with adequate staff, equipment and resources to students up to at least the completion of the first year of primary education (Year 1), 5.2.3 have educational and philosophical aims consistent with the objectives of the Association. 5.3 For admission as an Affiliated Organisation Member, the organisation must 5.3.1 have Advanced Determination pursuant to section 157 of the School Education Act 1999, or 5.3.2 provide education services which support the delivery of educational programs in Independent Schools, and, in both cases, have educational and philosophical aims consistent with the objectives of the Association. 5.4 Subject to meeting the criteria in Clause 5.2 or 5.3, the Board may admit as a Member the school or organisation in the applicable category of membership. 5.5 An Independent School Member is entitled to one vote at all meetings and elections of the Association. Provided an Independent School Member has been continuously financial during the twelve (12) months immediately preceding a nomination, an Independent School Member shall also be entitled to nominate any of its Governors or Principal as candidates for election to office on the Board and Committees of the Association and Governors or Principal or school staff as candidates for election to office on the Committees of the Association. 5.6 An Affiliated Organisation Member may not vote at any meeting or in any election of the Association and no person representing an Affiliated Organisation shall be eligible to be elected to office on the Board or Committees of the Association. 5.7 A Member’s membership of the Association shall terminate if:- 5.7.1 the Member ceases to satisfy any of the criteria of an Independent School Member in Clause 5.2 or an Affiliated Organisation Member in Clause 5.3; or 5.7.2 the Member brings the Association into disrepute, in the opinion of the Board, reasonably exercised, or 1854 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 90 W.A.I.G. 5.7.3 the Member’s annual subscription remains unpaid after 31 March of the year following that in which it was due. 5.8 A Member may end its membership by written note of resignation addressed to the Association. The notice of resignation shall be served on the Association by 5.8.1 delivering it personally to the Association’s address shown at Clause 3.1; or 5.8.2 sending it by certified mail to the postal address of the Association. 5.9 A notice of resignation takes effect on the day on which it is served on the Association or on a later day specified in the notice. 5.10 A Member which resigns its membership of the Association shall not be entitled to a refund of its annual subscription or any portion thereof. 4 The only change in substance to the membership rule in proposed r 5 of the applicant’s rules is the creation of a new category of membership, namely Affiliated Organisation. The Affiliated Organisation category of membership is to have no voting rights nor capacity to nominate for election to the Board or Committees of the applicant. 5 At the hearing of this application, counsel for the applicant explained that the proposed r 5 will create two categories of membership: (a) The first category will cover organisations who are a person or body of persons who have been granted an advanced determination to establish a non-government school under s 157 of the School Education Act 1999 (WA). Such an organisation will be an employer. However, at the time an advanced determination is granted the organisation may only employ a small number of persons as it will be in the process of establishing an independent school. (b) The second category will cover organisations that provide education services to the students of independent schools, such as boarding and tutoring facilities, after-school care, counselling and psychology services. The Applicant’s Rules about Alterations 6 Pursuant to s 62(4) of the Act, the requirements of s 55(4) of the Act must be satisfied before the Full Bench can approve a rule alteration application to alter the eligibility rules of an organisation. Section 55(4) of the Act provides that the Full Bench shall refuse an application by an organisation under this section unless it is satisfied that: (a) the application has been authorised in accordance with the rules of the organisation; (b) reasonable steps have been taken to adequately inform the members — (i) of the intention of the organisation to apply for registration; (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; (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; (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. 7 The first requirement pursuant to s 55(4)(a) of the Act, is that the Full Bench is required to refuse the rule alteration application unless it has been authorised by the organisation in accordance with its rules. In this matter, the Council of the applicant is the body who has power to approve changes to the rules of the applicant. Pursuant to r 7, the control of the applicant is vested in members who are represented by the Council. Under r 8.1 of the rules, the Council consists of two representatives appointed by each member in respect of each independent school at which such member is an employer of labour. Under r 8.3, the Council is the supreme governing body of the association. 8 The authority to alter the rules of the applicant is found in r 29 of the rules of the association. Rule 29 provides: The Council may from time to time amend any provisions of this Constitution. No amendment of this Constitution shall be made unless approved by the Council in general meeting of which not less than twenty one (21) days’ notice has been given specifying the reasons for such amendment. Such notice shall be sent to each Member at its address marked for the attention of the Member’s Representatives. 90 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1855 Such amendment shall not be effective until the Registrar has given the Association a certificate that the alteration has been registered. 9 Pursuant to r 30, notice can be given to a member personally or by sending it to the member at their registered address by post or by sending it to the member by electronic mail to the electronic mail address of the member. 10 Under r 9 - Meetings, at each meeting of the Council each member school has one vote. A quorum must be present to transact business. Rule 9.6 provides a quorum is 10% of the total number of voting rights entitled to be present and to vote at such meeting. The Evidence 11 At the time the Council considered the proposed alteration to r 5 they also considered a large number of other proposed variations which were sought to modernise requirements of the rules of the applicant. The proposed variations to the rules including the proposed r 5 were put to the Council as an entire document to alter its rules by substituting a new constitution for the applicant. 12 The facts supporting the applicant’s submission that it has complied with the rules of the applicant and the statutory requirements of the Act are set out in two statutory declarations. The first statutory declaration was made by Heather Yeates who is the Chair of the Board of the applicant. Pursuant to r 10, the Board is the management committee of the applicant. The evidence of Ms Yeates in her statutory declaration made on 10 September 2010 and attached documents establish the following relevant matters: (a) On 19 July 2010 a notice was given of a General Meeting of the Council to its 155 member schools by electronic email transmission to the two email addresses for each member school recorded in the applicant’s register of members. The material parts of the notice which relate to the variation of r 5 were as follows: Notice of General Meeting of the AISWA Council NOTICE IS HEREBY GIVEN that a General Meeting of the AISWA Council will be held at 4.30pm on 11 August 2010 at St Hilda's Anglican School for Girls, Bay View Terrace, Mosman Park for purpose of considering and then if deemed fit, passing the following resolutions: Resolution 1 1 Pursuant to Clause 29 of the AISWA Constitution, the entire registered Constitution of AISWA be and is hereby altered by substituting in its place, a new Constitution for AISWA identified by the words 'AISWA NEWCON'. Resolution 2 2 The Executive Director of AISWA be and is hereby authorised to make application to the Western Australian Industrial Relations Commission pursuant to the Industrial Relations Commission Regulations 2005 for approval to substitute the new Constitution identified with the words 'AISWA NEWCON' in place of the registered Constitution of AISWA. Resolution 3 3 The Executive Director be and is hereby authorised to instruct solicitors to appear before the Commission and do all things necessary to give effect to Resolutions 1 and 2. Each Member school of AISWA is entitled to one vote at the Meeting. A copy of the proposed new Constitution identified by the words 'AISWA NEWCON' is attached to and forms part of this Notice. The reasons for the substitution of the new Constitution are to • make clear the role of the Board of AISWA as the body responsible for the governing and direction of AISWA in accordance with AISWA's objectives, • remove all reference to the Council in the Constitution because its status in the Constitution has ceased to serve any practical purpose in the governance of AISWA, • modernise the composition, election to and tenure of the Board of AISWA, Education Policy Committee and Legal and Governance Committee, • introduce a new category of membership called Affiliated Organisation to permit membership to an organisation with Advance Determination for school registration or an allied education service provider, and • correct various grammatical and textual inconsistencies throughout the current Constitution. The changes to the current registered Constitution of AISWA which now appear in the new Constitution to be substituted, are summarised as follows: 1 The first page of the new Constitution outlines the contents and now reflects the Clause Headings and page numbers of the new Constitution. 2 The first three Clauses of the new Constitution will now be 2.1 NAME; 2.2 DEFINITIONS; 2.3 OFFICE. 1856 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 90 W.A.I.G. 3 The original Clause 3. INTERPRETATIONS, is changed to DEFINITIONS, and these are alphabetized. The change of order is to ensure the Definitions are clear before they are referred to in later Clauses of the new Constitution. The Definitions remove some terms, include some new terms and clarify others. • The term Rules, Representative and Council are removed; • Affiliated Organisation and Governor are added; • The Board of AISWA is changed to the Board; • The address of ISCA is removed; • The definition of Principal and Educator are amended; • The definition of an Independent School is expanded to be consistent with Clause 5.2.1 of the new Constitution. 4 OBJECTIVES • Clause 4.14 is moved to Clause 29 DISSOLUTION OF THE ASSOCIATION. 5 MEMBERSHIP • There are now two categories of Membership – Independent School and Affiliated Organisation. The latter category has no voting rights nor capacity to nominate for the Board or Committees. • Termination of Membership is clarified. (b) The notice was sent more than 21 days prior to the scheduled meeting on 11 August 2010. (c) The minutes of the meeting of the Council held on 11 August 2010 record that: (i) There were 41 persons present representing 35 member schools. Consequently, the requisite number of schools to satisfy the quorum requirement was present at the meeting as there were at least 22% of the member schools present; (ii) Each of the three resolutions of which notice had been given in the notice to members, was sequentially read to the meeting, separately proposed and seconded and then voted on separately. In each instance, the resolution was passed by unanimous vote by all 35 member schools entitled to vote at the meeting. There were no dissenting votes. 13 The second statutory declaration was made by Valerie Gould, an Executive Director of the applicant. The evidence of Ms Gould in her statutory declaration made on 11 November 2010 and attached documents establish that: (a) On 12 October 2010 the applicant gave notification by email to its 155 member schools about its proposed new constitution by electronic email transmission to the two email addresses for each member school recorded in the applicant’s register of members. (b) In the letter which constituted the notice that was sent by email to each one of the applicant’s members, the members were advised that: (i) At the general meeting of the applicant’s Council on 11 August 2010 the three resolutions set out in the notice sent on 19 July 2010 were passed; (ii) Because one aspect of the proposed new constitution relates to the introduction of a new category of membership under r 5, namely affiliated organisation, the proposed r 5 of the proposed new constitution is required to be determined by application to the Full Bench of the Commission and the remainder of the proposed new constitution will be determined by application to the Registrar of the Commission; (iii) Applications had been made to the Full Bench and to the Registrar to vary the applicant’s rules; (iv) Notwithstanding the passing of the resolutions on 11 August 2010, should any member of the applicant wish to object to the making of the application to the Registrar of the Commission and/or the application to the Full Bench of the Commission, they should do so by filing a notice of objection (form 13) with the Registrar of the Commission within 21 days of the receipt of the notice given on 12 October 2010. (c) A copy of the proposed new rules approved at the meeting on 11 August 2010 was attached to the email. The notice also repeated the reasons given in the notice sent on 19 July 2010 for each of the changes proposed to the rules including the proposed changes to r 5. 14 After having regard to this evidence we were satisfied that the application has been authorised in accordance with the rules of the applicant. We were also satisfied that: (a) reasonable steps had been taken to accurately inform the members of the intention of the organisation to apply for the registration of the proposed alteration to r 5 of the rules; (b) each member had been provided with a notice that sets out the proposed variations of the rules and their reasons for the variations; and (c) each member had been given notice that they could object to the variations of the rules by forwarding a written objection to the Registrar within 21 days of the receipt of the email sent on 12 October 2010. 15 We were also satisfied that the members of the applicant have been afforded a reasonable opportunity to make an objection and we noted that no member of the applicant has objected to the making of this application or to the proposed alteration of r 5. 16 For these reasons we were satisfied that s 55(4)(b), s 55(4)(c) and s 55(4)(d) of the Act had been complied with. We were also of the opinion that this alteration should be registered as the provisions of the Act do not exclude the registration of an organisation of employers whose qualifications for persons for membership rules, include affiliated organisations who do not have voting rights. We were also satisfied the requirements of s 55(5) do not arise as there is no evidence before the Full 90 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1857 Bench that the proposed new category of affiliated organisation member overlaps with any other registered organisation under the Act. 17 Section 55(4)(e) and s 56(1) of the Act relate to procedural rules for election for office, including secret ballots. The applicant’s rules currently provide for procedures required by the provision of the Act and the alteration sought to r 5 does not deal with the matters specified in these provisions of the Act. Consequently, no issue arises in this matter in relation to the requirements of these provisions of the Act. 2010 WAIRC 01136 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES ASSOCIATION OF INDEPENDENT SCHOOLS OF WESTERN AUSTRALIA (INC) APPLICANT -and- (NOT APPLICABLE) RESPONDENT CORAM FULL BENCH THE HONOURABLE J H SMITH, ACTING PRESIDENT CHIEF COMMISSIONER A R BEECH ACTING SENIOR COMMISSIONER P E SCOTT DATE MONDAY, 29 NOVEMBER 2010 FILE NO/S FBM 12 OF 2010 CITATION NO. 2010 WAIRC 01136 Result Application granted Appearances Applicant Mr I Curlewis (of Counsel) Order This matter having come on for hearing before the Full Bench on 29 November 2010, and having heard Mr I Curlewis (of Counsel) on behalf of the applicant, the Full Bench orders that:— The Registrar is hereby authorised to register the alteration to r 5 of the rules of the applicant as published in the Western Australian Industrial Gazette on 27 October 2010 (2010) 90 WAIG 1674. By the Full Bench (Sgd.) J H SMITH, [L.S.] Acting President. PRESIDENT—Matters dealt with— 2010 WAIRC 01111 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PRESIDENT