CITATION : 2007 WAIRC 00568 CORAM : THE HONOURABLE M T RITTER, ACTING PRESIDENT HEARD : THURSDAY, 22 JUNE 2006, FRIDAY, 4 AUGUST 2006, FRIDAY, 1 SEPTEMBER 2006, TUESDAY, 20 FEBRUARY 2007, WEDNESDAY, 21 FEBRUARY 2007, THURSDAY, 22 FEBRUARY 2007, WEDNESDAY, 7 MARCH 2007, THURSDAY, 26 APRIL 2007, FRIDAY, 27 APRIL 2007, FINAL SUBMISSIONS RECEIVED WEDNESDAY, 13 JUNE 2007 DELIVERED : THURSDAY, 28 JUNE 2007 FILE NO. : PRES 5 OF 2006 BETWEEN : STEPHEN DARROW STACEY Applicant AND CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA (INCORPORATED) Respondent CatchWords: Industrial Law (WA) - Application pursuant to s66 of the Industrial Relations Act 1979 (WA) - Alleged breach of organisation rules - Witnesses and evidence - Objections to evidence and application for further discovery Industrial Law (WA) - 3 alleged breaches of rules - Whether applicant appointed in accordance with rule "subject to the same conditions and restrictions as an Officer appointed under the Public Service Act" - Whether rule capable of practicable operation - Employment of public service officers pursuant to the Public Service Act 1978 (WA), Public Service Award 1992, Public Sector Management Act 1994 (WA), Workplace Agreements Act 1993, and agency specific agreements - Overtime allowances Industrial Law (WA) - Whether failure by organisation to provide financial resources to applicant to fund applications before Commission - Necessity to provide fair process 1230 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 87 W.A.I.G. Industrial Law (WA) - Remedies sought - Construction of the rules of an organisation - Nature of jurisdiction and powers of President under s66 - Statutory context Industrial Law (WA) - Whether jurisdiction to deal with "implied rules" and make "compensatory orders" for old breaches of rules Industrial Law (WA) - Conflict of interest of Workplace Delegate - Orders made in relation to other issues - Application otherwise dismissed Legislation: Industrial Relations Act 1979 (WA) (amended), s6, s7, s26(1)(b), s41, s53, s54, s55(1), s56, s57, s58, s61, s62, s62(3), s66(1)(a), (2), (3), (4), (6) Public Service Act 1978 (WA), s5, s14(3), s21, s22 Workplace Agreements Act 1993 (WA), s4, s5, s6, s24(1), s26, s28, s31, s32, s43(1), (2), s44(1), (2), s45(1)s103 Public Sector Management Act 1994 (WA), s3, s34, s35, s78, s80, s112(1) Result: Application dismissed Representation: Counsel: Applicant : Mr D Howlett (of Counsel), by leave Respondent : Mr P Fraser (of Counsel), by leave Solicitors: Applicant : Williams & Hughes, Barristers & Solicitors Respondent : Ilberys Lawyers Case(s) referred to in reasons: Alexander v Perpetual Trustees WA Limited [2001] NSWCA 240 Anthony Hordern and Sons v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 Belan v National Union of Workers [2001] FCA 724 Byrne v Garrisson [1965] VR 523 Carter and Others v Drake and Others (1993) 73 WAIG 3308 Carter v Drake (1991) 72 WAIG 2501 CMEWUA V UFTIU (1991) 71 WAIG 563 Conigrave v Tanner (1977) WAR 225 Cooma-Monaro Shire Council v Mannering (1986-1987) 7 NSWLR 258 Darroch v Tanner (1987) 16 FCR 368; 21 IR 284 Delron Cleaning Pty Ltd T/A Delron Hospitality Management (2004) 84 WAIG 2527 Department of Resources Development v CSA (1996) 76 WAIG 951 Director General of Social Services v Hangan 45 ALR 23 Drake v Carter and Others (1992) 73 WAIG 255 Elliot and Another v The WA Cleaners, Caretakers, Lift Attendants, Window Cleaners, Attendants and Watchmen’s Industrial Union of Workers, Perth and Others (1980) 60 WAIG 1487 Ex parte Provera; Re Wilkinson (1952) 69 WN (NSW) 242 Farrell v SSTUA (1989) 70 WAIG 55 FMWU v GW Smith and KJ Rose (1988) 68 WAIG 1010 Foss v Harbottle (1843) 2 Hare 461 Gordon v Carroll 91975) 6 ALR 579; 27 FLR 129 Harken v Dornan and Others (1992) 72 WAIG 1727 Hospital Salaried Officers Association of Western Australia (Union of Workers) v The Hon Minister for Health (1981) 61 WAIG 616 Jones v Civil Service Association Inc (2003 84 WAIG 4 Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; 24 ALR 513 Luby v Secretary, The Australian Nursing Federation, Industrial Union of Workers, Perth (2002) 82 WAIG 3226 Luby v Secretary, The Australian Nursing Federation, Industrial Union of Workers, Perth (2002) 82 WAIG 2124 Park v Secretary, Western Australian Carpenters, Joiners, Bricklayers and Stoneworkers Industrial Union of Workers (1983) 63 WAIG 2230 Perlman v Perlman (1984) 155 CLR 464 Porter v Dugmore (1984) 3 FCR 396 R v Commonwealth Court of Conciliation and Arbitration; Ex Parte Barrett 91945) 70 CLR 141 R v Holmes; Ex Parte Public Service Association (NSW) (1977) 140 CLR 63 R v Joske and Others; Ex Parte SDA and Others (1976) 135 194 87 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1231 Re An Election in the Australian Collieries Staff Association (NSW Branch) (1990) 26 FCR 539 Re Anti-Cancer Council of Victoria; Ex Parte State Public Services Federation (1992) 175 CLR 442 Re Application for an Inquiry in Relation to an Election for offices in the Australian Education Union, Queensland Branch, Becker [2004] FCA 1534 Re Election for Office in Transport Workers’ Union of Australia, Western Australian Branch (1992) 40 IR 245 Robertson v CSA (2003) 83 WAIG 3938; [2003] WASCA 284 Scott v Jess (1984) 3 FCR 263; 56 ALR 379; 8 IR 317 Short v Wellings (1951) 72 CAR 84 Singh v FMWU (1993) 73 WAIG 2674 The Queen v Isaac; Ex Parte Transport Workers’ Union (1985) 159 CLR 323 The Western Australian Public Sector (Civil Service Association) Enterprise Bargaining Framework Agreement 1995; CSA v Agriculture Protection Board and Others (1995) 75 WAIG 2500 WALEDFCU v Schmid (No 1) (1996) 76 WAIG 639 WALEDFCU v Schmid (No 2) (1996) 76 WAIG 3380 Wauhop v Civil Service Association of WA (2003) 83 WAIG 951 Williams v SDAEAWA (2005) 85 WAIG 1936 Williams v SDAEAWA (2005) 85 WAIG 1963 Wyatt v CSA (1997) 77 WAIG 3206 Case(s) also cited: Application for an Inquiry Relating to an Election in the Community Public Sector Union, WA Branch – SPSF Group; Margaret Jean Forbes Anor v Community Public Sector Union, WA Branch SPSF Group [1998] 1210 FCA (8 September 1998) Bull v Attorney General (NSW) (1913) 17 CLR 370 CSA of WA (Inc) v Country High Schools Hostels and Authority and Others 72 WAIG 244 Frank George Furey v CSA of WA (Inc) [1998] 733 FCA Jones v CSA [2003] WAIRC 08036 Kuligowski v Metrobus [2004] HCA 34 Luby v The Secretary of the Australian Nurses Federation (2002) 82 WAIG 2116 Minister for Productivity and Labour Relations v Trades and Labour Council of WA; Confederation of Western Australian Industry (Inc) and Australian Mines and Metals Association (Inc) (No 772 of 1991) Stacey v CSA No 1215 of 2004, Citation No 2006 WAIRC 03501 State Wage Decision 71 WAIG 1723 State Wage Decision 74 WAIG 198 State Wage Decision 75 WAIG 23 The Civil Service Association of Western Australia (Inc) v Western Australian Centre for Pathology and Medical Research and The Hospital Salaried Officers’ Association of Western Australia (Union of Workers) (No 1348 of 1995) The CSA of WA (Inc) v Department of Indigenous Affairs and Others (re Public Service General Agreement 2004 PSA Ag 2 of 2004) 84 WAIG 2535 The CSA of WA (Inc) v Public Service Board (No PSA A5 of 1986) 70 WAIG 3612 The CSA of WA Inc v Commissioner, Public Service Commission (No P4 of 1992) 14 August 1992 The CSA of WA Inc v N/A 65 WAIG 2045 The CSA of WA Inc v The Commissioner Public Service Commission (77 WAIG 1716) The CSA of WA Inc v The Commissioner Public Service Commission (84 WAIG 789) The CSA of WA Inc v The Commissioner Public Service Commission 70 WAIG 2193 The CSA of WA Inc v The Commissioner Public Service Commission 73 WAIG 301 Reasons for Decision RITTER AP: 1. Contents 1 Due to the length of the reasons I set out a list of contents for ease of reference. 2 1. Contents (paragraphs [1] and [2]) 2. Summary of Outcome (paragraphs [3], [4] and [5]) 3. The Application (paragraphs [6] – [9]) 4. Parties, Witnesses and Other Relevant People (paragraphs [10] – [18]) 5. Chronology (paragraph [19]) 6. Section 66 (paragraphs [20] – [25]) 7. First Alleged Breach – Rule 12(l)(vi) (paragraphs [26] – [29]) 8. Second Alleged Breach – Application 1215 of 2004 (paragraphs [30] – [35]) 9. Third Alleged Breach – Section 66 Funding (paragraph [36]) 10. Remedies Sought (paragraphs [37] – [38]) 11. The Answer of the CSA (paragraphs [39] – [45]) 12. Directions Hearings Before Substantive Hearing (paragraph [46]) 1232 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 87 W.A.I.G. 13. Evidence and Witnesses (paragraph [47]) 14. Objections to Evidence (paragraphs [48] – [54]) (a) Mr Best (b) Ms Robertson 15. The Adjournment of the Substantive Hearing (paragraphs 55] – [57]) 16. The Application for Further and Better Discovery (paragraphs [58] – [74]) 17. Post Hearing Communications and Submissions (paragraphs [75] – [78]) 18. Summary of Issues (paragraphs [79] – [88]) 19. The Construction of the Rules of an Organisation (paragraphs [89] – [94]) 20. Organisational Structure of the CSA (paragraphs [95] – [106]) 21. The First Alleged Breach - Construction of Rule 12(l)(vi) (paragraphs [107] – [112]) 22. Breach of Rule 12(l)(vi) – The Evidence (paragraphs [113] – [218]) (a) The Employment of Public Sector Employees (b) The Appointment and Employment of the Applicant (c) Overtime and Public Service Officers (i) The PSA 1992 (ii) Evidence from Witnesses (d) The History of Rule 12(l)(vi) (e) Ms Walkington’s Memorandum (f) The Alteration of the Rule (g) The Employment of CSA Employees Generally, Overtime and Rule 12(l)(vi) 23. Breach of Rule 12(l)(vi) – General Factual Findings (paragraphs [219] – [221]) 24. Was the Applicant Appointed in Accordance with Rule 12(l)(vi) (paragraphs [222] – [223]) 25. Operability of Rule 12(l)(vi) in September 1999 (paragraphs [224] – [237]) 26. Consequences of Breach of Rule 12(l)(vi) (paragraphs [238] – [242]) 27. Compensatory Orders Under Section 66 to Remedy a Breach of Rule 12(l)(vi) (paragraphs [243] – [248]) 28. Section 66 – The Nature of the Jurisdiction and the Powers of the President (paragraphs [249] – [303]) (a) Background (b) The Terms of the Section (c) “Relating to” (d) “Without Limiting the Generality of the Foregoing” (e) Limits to the Powers (f) Statutory Context (g) The Extent of the Jurisdiction (h) Orders Under Section 66(2) of the Act (i) Carter v Drake (1993) 73 WAIG 3308 (j) WALEDFCU v Schmid (No 2) (1996) 76 WAIG 3380 (k) Robertson v CSA (2003) 83 WAIG 3938; [2003] WASCA 284 (l) WALEDFCU v Schmid (No 1) (1996) 76 WAIG 639 (m) Luby v Secretary, The Australian Nursing Federation, Industrial Union of Workers, Perth and Others (2002) 82 WAIG 2124 (n) Conclusion on Orders Sought for Alleged Breach of Rule 12(l)(vi) 29. Breach of Rule 12(l)(vi) – Summary of Conclusions (paragraphs [304] – [306]) 30. The Second and Third Alleged Breaches (paragraph [307]) 31. The Meaning of Rule 3 and the Duties Relied On (paragraphs [308] – [336]) 32. Breach of Rules by Inadequate Resources to Support Application 1215 – Evidence (paragraphs [337] – [380]) (a) The Applicant (b) Ms van den Herik (c) Ms Robertson (d) Mr Best (e) Mr Ellis (f) Mr Cusack (g) Ms Walkington 33. Factual Findings on Second Alleged Breach of Rules (paragraphs [381] – [387]) 34. Conclusion on Second Alleged Breach of the Rules (paragraph [388]) 87 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1233 35. Breach of Rules by Failing to Provide Resources for Representation of s66 Application – Evidence (paragraphs [389] – [408]) (a) The Applicant (b) Ms van den Herik, Ms Robertson and Mr Best (c) Mr Ellis (d) Mr Cusack (e) Ms Walkington 36. Factual Findings on Third Alleged Breach of Rules (paragraphs [409] – [413]) 37. Conclusion on Third Alleged Breach of Rules (paragraph [414]) 38. Other Issues (paragraph [415]) 39. References in Rules to the Public Service Act 1978 (paragraph [416] – [418]) 40. Workplace Delegates and Conflict of Interest (paragraphs [419] – [426]) 41. Rule 12(m) (paragraph [427]) 42. Minute of Proposed Orders (paragraph [428]) 2. Summary of Outcome 3 This application was brought pursuant to s66 of the Industrial Relations Act 1979 (WA) (the Act). The applicant sought a variety of orders because of what was alleged to be three breaches of the rules of the respondent (the CSA). The primary orders sought were for the payment of money to the applicant to redress the consequences of those breaches. In my opinion, the applicant has not as a matter of law and fact established the breach of the rules he asserted. Additionally, for the reasons which are set out below in my opinion the applicant cannot in these proceedings, given the limited jurisdiction under s66, obtain the compensatory orders he sought. The orders sought by the applicant will therefore not be made. 4 In the course of the proceedings it became evident that there were rules and issues about which it was appropriate to make comment and in some cases orders and directions. These are set out near the end of the reasons. 5 A minute of proposed order is to be provided to the parties in the terms set out in the conclusion. The parties will be requested to advise if they wish to speak to the minute. 3. The Application 6 The application was filed on 7 June 2006. The application said the applicant had applied to the Commission for declarations and orders pursuant to s66 of the Act. The grounds of the application were contained in an attached schedule. 7 The applicant is a member of the CSA. The CSA is an organisation for the purposes of s66 of the Act as it is registered under Division 4 of Part II of the Act. (See the definition of “organisation” in s7 of the Act). The applicant therefore has standing to bring the present application pursuant to s66(1)(a) of the Act. 8 The rules of the CSA as certified by the Registrar on 18 October 2005 were exhibit 3. The parties agreed that these were the form of the rules which I should have regard to in determining the present application. 9 The schedule to the application contained a detailed statement of the breaches of the rules which the applicant contended the CSA had engaged in and the remedies sought. Specifically, the application complained of alleged breaches of rule 12(l)(vi) and rule 3(c). 4. Parties, Witnesses and other Relevant People 10 The applicant was not only a member of the CSA but also employed by it in the position of executive officer from 20 September 1999 to 24 March 2006. 11 Ms Toni Walkington is presently the general secretary of the CSA. She holds this position by virtue of her election as branch secretary of the Community and Public Sector Union SPSF Group (the CPSU). The CPSU is the counterpart Federal body of the CSA. A certificate has been issued to the CSA and the CPSU under s71 of the Act. Ms Walkington has been an employee of the CSA in a variety of roles since 1991. Ms Diane Robertson was the president of the CSA from 1993 to 2003 and Mr Colin Best was its treasurer from 2000 to 2004. Mr Brian Ellis was a vice president of the CSA from 2000 to 2006. Mr David (Dave) Robinson was the general secretary of the CSA at the time the applicant was first employed. Ms Walkington was then assistant general secretary. Mr Brendon Hewson is the current president of the CSA. Ms Jo Gaines was at all material times and is presently the assistant secretary of the CSA. 12 Ms Mabel van den Herik (who is known as Ms Jane van den Herik) was employed by the CSA as an industrial officer/advocate from 12 February 1991 to 18 October 2006. Ms van den Herik was also a CSA delegate for the employees of the CSA at relevant times. Mr Brendan Cusack is a senior industrial officer employed by the CSA. He has been employed by the CSA in this and other capacities since August 2000. Ms Pat Brewer is the human resources officer of the CSA and has held this position since the time the applicant was first employed by the CSA. 13 Mr David Howlett, the applicant’s present counsel, also represented the applicant in a previous application before the Commission. This was a denial of contractual benefits claim that was designated as APPL 1215 of 2004. I will refer to it as application 1215. Application 1215 was against the CSA and was heard and dismissed by Kenner C, as will be later set out in detail. It is relevant to mention Mr Howlett and application 1215 at this point as the applicant alleged the CSA breached its rules by the failure to financially support him in both application 1215 and the present application, by not agreeing to pay for Mr Howlett’s fees. In application 1215 Mr Cusack represented the CSA. 14 In application 1215 the applicant sought payment from the CSA for overtime that he had worked. The claim was based in part upon CSA rule 12(l)(vi). The claim for overtime based on this rule is also a major part of the present application as later set out in detail. 15 The applicant gave evidence in support of the present application and Ms van den Herik, Ms Robertson and Mr Best gave evidence on his behalf. 16 The respondent’s witnesses were Mr Ellis, Mr Cusack and Ms Walkington. 1234 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 87 W.A.I.G. 17 The main witness to give evidence on behalf of the CSA was Ms Walkington, although she gave her evidence last. Evidence was first given by Mr Ellis and then Mr Cusack. 18 The cross-examination of Ms Walkington was very extensive. Those aspects of Ms Walkington’s evidence which the applicant thought were particularly relevant were set out in an aide-mémoire which I will later refer to. I have considered all of the references to the evidence in the aide-mémoire, but I do not think it necessary to set out all of that evidence in these reasons. I will refer to what I consider to be the main parts of the evidence, with respect to each of the alleged breaches, when the evidence of Ms Walkington is discussed. 5. Chronology 19 As ordered during the course of the proceedings, a chronology of the events considered to be relevant by the applicant was filed after consultation with the respondent, who also filed a chronology. The chronologies have been helpful. Set out below is the applicant’s chronology with a few minor corrections, stylistic changes and additions. 16/05/1979 The Public Service Act 1978 (WA) commences (the PSA) 18/01/91 Ms Walkington commences employment with CSA 18/01/91 CSA letter of offer of employment to Ms van den Herik containing the words, "other conditions of service are similar to those applying within the State Public Service" 17/06/91 State Wage Decision (Structural Efficiency Principle) (71 WAIG 1723) 1991 Enterprise bargaining principle introduced (According to witness statement of Ms Walkington, paragraph [9]) 29/07/92 The CSA’s rules are altered to insert rule 12(1)(vi) into its registered rules 01/12/92 Public Service Award 1992 commences to operate ((1993) 73 WAIG 301/2 (the PSA 1992)) 12/93 Mr David Robinson becomes CSA General Secretary 01/12/93 Commencement of Workplace Agreements Act 1993 (See section 2 and Government Gazette 30 November 1993 page 160) 20/06/94 Applicant joins the CSA as a member 01/10/94 The PSA repealed by the Public Sector Management Act 1994 (WA) (the PSMA) (Government Gazette 30 September 1994 page 4948) 01/10/94 The PSMA (main provisions) commence to operate (Government Gazette 30 September 1994 page 4948) 31/08/95 The Western Australian Public Sector (Civil Service Association) Enterprise Bargaining Framework Agreement 1995 is made ((1995) 75 WAIG 2500) 22/09/95 The Department of Resources Development Enterprise Bargaining Agreement commences to operate ((1996) 76 WAIG 951) 18/03/96 Order made about Department of Resources Development Enterprise Bargaining Agreement ((1996) 76 WAIG 951) 19/06/97 The PSA 1992, scope clause amended to make reference to the PSMA ((1997) 77 WAIG 1716) (effective from 01/10/94) 25/11/1998 1998 CSA Enterprise Bargaining Agreement for employees agreed to by CSA council 23/08/99 Applicant interviewed for employment with the CSA in the position of executive officer 10/09/99 Applicant offered employment by the CSA 14/09/99 Applicant confirms acceptance of employment with the CSA 20/09/99 Applicant commences work with the CSA 03/11/1999 1999 CSA Enterprise Bargaining Agreement for CSA employees agreed to by council 24/05/00 The CSA codifies the overtime and time off in lieu conditions for its employees, in accordance with the 1999 EBA 22/03/02 Public Service General Agreement 2002 commences to operate 01/05/03 Ms Walkington becomes General Secretary of the CSA 14/09/03 Expiry of Workplace Agreements Act 1993 as legislated for by s4A of the Workplace Agreements Act 1993, inserted by s31 of the Labour Relations Reform Act 2002 (Act No 20 of 2002) 05/04/04 The PSA 1992 scope clause amended to current form ((2004) 84 WAIG 790) April 2004 In her role as workplace delegate, Ms van den Herik commences assisting the applicant in his claim for the payment of overtime. She continues to assist the applicant until she ceases her employment with the CSA on 18 October 2006 15/04/04 The applicant makes a request for overtime payment to Ms Walkington 16/04/04 The CSA agrees to pay overtime to the applicant from this date onwards 19/04/04 The CSA commences to pay overtime to the applicant for work done outside of his normal working hours, but the applicant’s claim for accrued overtime payments is not allowed by the CSA 28/07/04 Public Service General Agreement 2004 decision is made ((2004) 84 WAIG 2535) 30/07/04 Public Service General Agreement 2004 registered 16/09/04 The applicant files application 1215 – a denial of contractual benefits claim for non payment of overtime, with the WAIRC 16/06/05 Ms van den Herik provides a memorandum to Ms Jo Gaines, Acting Branch Secretary dated 16 June 2005: (a) Advising that she feels there is a conflict between her role as a delegate and as a member of staff to provide the role of advocate for the applicant in the Commission. (b) Seeking Council approval for funds for outside representation for the applicant. 22/08/05 The CSA’s executive considers the request by Ms van den Herik for funds for the external representation of the applicant and approves funds to $2,000, upon production of an invoice 23/08/05 Ms van den Herik informed by Ms Walkington of approval of $2,000 for the applicant 24/08/05 The CSA council adopts the funding recommendation of the executive 24/10/05 Ms Walkington revokes approval to pay the applicant overtime, which is to be reviewed again after the decision in application 1215 is delivered 24/10/05 Hearing of application 1215 by Kenner C 11/11/05 Tax invoice issued by Mr D Howlett to the applicant for legal services in representing him in application 1215. The amount of the tax invoice is $7626.61 20/01/06 Decision issued in application 1215; application dismissed 87 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1235 01/03/06 Ms van den Herik, by memorandum, on behalf of the applicant applies for payment of all of the tax invoice of Mr Howlett dated 11 November 2005 17/03/06 The applicant resigns as an employee of CSA but remains a member 22/03/06 The council of the CSA authorizes proposed rule change to rule 12(l)(vi) to be considered at next meeting. 03/04/06 Email communications between Ms van den Herik and the CSA about the request for payment of $2000 from Ms Walkington (Exhibit 7) 12/04/06 The CSA executive rejects request for additional funding for 1215/04 26/04/06 The CSA council adopts executive decision to reject funding 02/05/06 Ms Walkington prepares a memorandum to council about alteration of rule 12(l)(vi) 26/05/06 The CSA informs the applicant by letter that request for additional funding denied 05/06 The applicant becomes aware of Ms Walkington’s memorandum 07/06/06 The applicant lodges the present application 07/06/06 The applicant seeks funding from the CSA for representation in present application 21/06/06 At a Special Executive Meeting, the CSA passes a motion recommending the CSA council decline Mr Stacey’s request for funding in present application 28/06/06 The CSA council adopts executive’s recommendation to reject funding for present application 28/06/06 The CSA council approves alteration of rule 12(l)(vi) 18/07/06 The applicant receives a letter advising that application for funding for representation in present application is rejected 22/08/06 The CSA lodges application with the Commission to alter rule 12(l)(vi) of its rules 18/10/06 Ms van den Herik ceases employment with the CSA 15/11/06 The Commission allows application by the CSA to alter rule 12(l)(vi) 19/02/07 The applicant receives a letter and cheque from the CSA for $2,000 6. Section 66 20 The subsections of s66 which are relevant are s66(1), (2), (3), (4) and (6). Section 66(5) has been repealed and ss66(7)-(9) are immaterial. Section 66(2) includes paragraphs (e)-(f) which are not relevant to these proceedings as they refer to enquiries into elections for officers in organisations registered under the Act. Nevertheless these subparagraphs are quoted below as they are material to some decisions of the Industrial Appeal Court (IAC) which will be later referred to. 21 The material parts of s66 for these proceedings therefore are:- “66. Power of President to deal with complaints by members, certain other persons or Registrar against organisation (1) The following persons may apply to the President for an order or direction under this section — (a) a person who is or has been a member of an organisation; or (b) a person who has applied for and not been admitted to membership in an organisation; or (c) the Registrar acting on the complaint of or on behalf of a person referred to in paragraph (a) or of his own motion. (2) On an application made pursuant to this section, the President may 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, as he considers to be appropriate and without limiting the generality of the foregoing may — (a) disallow any rule which, in the opinion of the President — (i) is contrary to or inconsistent with any Act or law, or an award, industrial agreement, order or direction made, registered or given under this Act; (ii) is tyrannical or oppressive; (iii) prevents or hinders any member of the organisation from observing the law or the provisions of an award, industrial agreement, order or direction made, registered or given under this Act; (iv) imposes unreasonable conditions upon the membership of a member or upon an applicant for membership; or (v) is inconsistent with the democratic control of the organisation by its members; (b) instead of disallowing a rule under paragraph (a), direct the organisation to alter that rule within a 1236 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 87 W.A.I.G. specified time in such manner as the President may direct; (c) disallow any rule which has not been altered by the organisation after a direction to do so pursuant to paragraph (b); (ca) where the President disallows any rule under paragraph (a) or (c), give such directions as the President considers necessary to remedy, rectify, reverse or alter or to validate or give effect to, any act, matter or thing that has been done in pursuance of the disallowed rule; (d) declare the true interpretation of any rule; (e) inquire into any election for an office in the organisation if it is alleged that there has been an irregularity in connection with that election and make such orders and give such directions as the President considers necessary — (i) to cure the irregularity including rectifying the register of members of the organisation; or (ii) to remedy or alter any direct or indirect consequence thereof; and (f) in connection with an inquiry under paragraph (e) — (i) give such directions as the President considers necessary to the Registrar or to any other person in relation to ballot papers, envelopes, lists, or other documents of any kind relating to the election; (ii) order that any person named in the order shall or shall not, as the case may be, for such period as the President considers reasonable in the circumstances and specifies in the order, act or continue to act in and be deemed to hold an office to which the inquiry relates; (iii) declare any act done in connection with the election to be void or validate any act so done. (3) The decision of the President shall be signed and delivered by him. (4) Any person to whom an order or direction given or made under this section applies shall comply with that order or direction whether or not it is contrary to or inconsistent with any rule of the organisation concerned. … (6) A rule disallowed pursuant to subsection (2)(a) or (c) is void.” 22 Section 66(2) describes the occasion and basis upon which the President may make orders or directions. Orders and directions may be made “on”, that is after, “an application made”. They must be orders or 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...” 23 The present application is about the alleged non-observance by the CSA of its rules in the “particular case” of the applicant with respect to three sets of circumstances. 24 Section 61 of the Act is relevant to understanding the purpose and effect of s66 of the Act. It enacts:- “61. Effect of registration Upon and after registration, the organisation and its members for the time being shall be subject to the jurisdiction of the Court and the Commission and to this Act; and, subject to this Act, all its members shall be bound by the rules of the organisation during the continuance of their membership.” 25 As will be referred to again later, the rules of an organisation must be lodged and registered (ss55 and 58 of the Act) for an organisation to be registered under the Act and may only be altered after an application to and registration by the Commission. (See s62 of the Act). 7. First Alleged Breach - Rule 12(l)(vi) 26 The application firstly alleged that rule 12(l)(vi) had been breached by the substantial or arguably total failure of the CSA to observe this rule with respect to the applicant. The effect of the breach of rule 12(l)(vi) was, so the applicant contended, that he had not been paid for hours of overtime he worked during the course of his employment with the CSA. 87 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1237 27 Rule 12(l)(vi) was in the following terms during the employment of the applicant with the respondent:- “12 – COUNCIL … (l) The Council shall have power: … (vi) To appoint any person whose services may be deemed necessary for the carrying out of the purposes of the Association and at any time to suspend or discharge any such person and to fix the remuneration to be paid for that person's services. Such persons shall be appointed subject to the same conditions and restrictions as an Officer appointed under the Public Service Act. …” 28 The applicant’s argument was that there had been a failure to appoint him, “subject to the same conditions and restrictions as an Officer appointed under the Public Service Act”, and that if he had been so appointed, he would have been paid overtime as this was an entitlement which he would have had pursuant to the terms of the PSA. 29 As will be detailed later, the rules of the CSA were altered by the deletion of the second paragraph of the rule. This alteration was registered by the Commission on 15 November 2006. The process to alter the rule in this way commenced in May 2006 after and because of application 1215. Therefore although the rule which the applicant contended was breached was operative at the time the application was lodged, it was not so by the time of the hearing of the application. 8. Second Alleged Breach – Application 1215 of 2004 30 The applicant secondly alleged a breach of rule 3(c) of the rules of the CSA. The claim arises in the following way. 31 Due to the fact that the CSA did not pay to the applicant the overtime which he asserted an entitlement to, he filed an application in the Commission pursuant to s29(1)(b)(ii) of the Act for denial of a contractual benefit. Application 1215 is relevant to the present proceedings because the applicant contends the CSA breached rule 3(c), by failing to ensure he was properly represented or funded for his representation in application 1215. 32 This rule is part of the objects clause of the rules of the CSA, which is in the following terms:- “3 - OBJECTS The principal objects of the Association shall be, by all lawful means, to protect and promote the interests of the membership by:- (a) encouraging and facilitating the democratic control of the Association by the membership and the participation of the membership in the development of the Association policy and action; (b) conducting negotiations with employers, making applications to industrial tribunals, effecting industrial regulation of the conditions under which members of the Association shall be employed, securing fairness and equity in conditions of employment for all members and ensuring that industrial regulation is efficient and effective; (c) representing the industrial welfare of individual members; and, in furtherance of such principal objects:- (d) To foster and develop the spirit of community of interest amongst the membership, officials and employees of the Association; (e) To manage and control a magazine, newspaper or Journal; (f) To encourage membership in the Association and to promote the standing of the membership within the community by all means of communication; (g) To initiate and implement, or assist in the implementation of services, other than industrial services, for the benefit and/or advancement of the membership; (h) To raise funds by means of contributions, subscriptions, levies or such other means as necessary, to acquire and/or dispose of all means of property or other assets and to efficiently administer and account for the property and other assets to achieve the objects of the Association; (i) To develop the human and information resources of the Association for the betterment of the membership; (j) To co-operate, affiliate or amalgamate with other industrial organisations of employees whose objects are not inconsistent with, or repugnant to, the objects of the Association; (k) To assist any movement having for its objects the public welfare; (l) Deleted. (m) To enter into an agreement with the Community and Public Sector Union pursuant to Section 202 of the Australian Industrial Relations 1238 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 87 W.A.I.G. Act 1988 or any statutory provision amending, replacing or supplementing that provision. (n) To apply for membership of the Community and Public Sector Union for and on behalf of any member who is eligible for membership of the Federation. (o) To take all necessary steps to unite with and become the Western Australian Branch of the Community and Public Sector Union. and to do all manner of things which are right and proper to further the objects of the Association.” 33 Rule 3(c) is one of the principal objects of the CSA. It is also noted that rule 3 concludes with the statement that the CSA is to “do all manner of things which are right and proper to further the objects of the Association.” 34 Application 1215 did not settle at conciliation and was arbitrated upon by the Commission. Kenner C heard application 1215 on 24 October 2005. At the hearing the applicant was represented by Mr Howlett, his present counsel, when practicing as a solicitor, and the respondent by Mr Brendan Cusack, a senior industrial officer employed by the CSA. (These facts are relevant to the alleged breach). On 20 January 2006 the Commission published reasons for dismissing application 1215; Stacey v Civil Service Association of Western Australia Inc (2006) 86 WAIG 359. 35 The CSA made a decision, to be later detailed, that they would provide $2,000 for the representation of the applicant in application 1215. The applicant then retained Mr Howlett. Mr Howlett’s costs in representing the applicant, exceeded $2,000 and totalled $7,626.61. The applicant sought additional funding from the CSA to cover this amount. This was sought after the decision was made in application 1215. The CSA refused to pay the extra amount. The applicant contends therefore the CSA did not comply with the rules. 9. Third Alleged Breach – Section 66 Funding 36 The applicant thirdly contended that in failing to provide him with funding to engage Mr Howlett to represent him in the present s66 application the CSA again breached rule 3(c). An application for funding was made prior to the commencement of the application and was, whilst it was pending, rejected. 10. Remedies Sought 37 The remedies sought in the application as filed were as follows:- “Remedies Sought The Applicant seeks: 1. An order staying any attempt by the Respondent to amend its rules, if that amendment or amendments would prejudice the Applicant’s case in this application, until this application is concluded. 2. A decision in the form of a declaration that the Respondent breached its rules by not complying with rule 12(l)(vi). 3. A decision in the form of a declaration that the President of the Respondent had a duty to enforce the Respondent’s rules and failed in that duty. 4. An order requiring the Respondent to remedy the breach of rule 12(l)(vi) by paying the Applicant a sum of money to put the Applicant in the same position that he would have been in had the Respondent not breached its rules. 5. A decision in the form of a declaration that the Respondent did not and has not represented the industrial welfare of the Applicant as required by rule 3(c) of the Respondent’s rules. 6. A decision in the form of a declaration that the Respondent has treated the Applicant unfairly and unreasonably and did not treat the Applicant the same as it would have treated other members by refusing to provide assistance or resources or adequate resources to the Applicant for the purpose of preparing and arguing his case in application number 1215 of 2004. 7. An order requiring the Respondent to make payment to the Applicant of a sum of money equivalent to the resources that it should have provided to him in representing his industrial welfare and for the purpose of preparing and arguing his case in application number 1215 of 2004. 8. A decision in the form of a declaration that the Respondent has treated the Applicant unfairly and unreasonably and did not treat the Applicant the same as it would have treated other members by refusing to provide assistance or resources or adequate resources to the Applicant for the purpose of making application and arguing his case in this application. 9. An order requiring the Respondent to make payment to the Applicant of a sum of money equivalent to the resources that it should have provided to him in representing his industrial welfare and for the purpose of making application and arguing his case in this application. 87 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1239 10. An order that the Applicant have liberty to seek further or alternative declarations and orders following, discovery and inspection and the hearing of this application, if necessary.” 38 In his closing submissions the applicant’s counsel said, with the exception of order 1, all of the above orders should be made. There was a slight oversight in this submission in that no order was sought in terms of proposed order 10. 11. The Answer of the CSA 39 The CSA, by their solicitors, filed a detailed Notice of Answer and Counter Proposal (the answer) on 20 June 2006. 40 In response to the alleged breach of rule 12(l)(vi), the answer said:- “Breach of Rules … 13. The Respondent denies that there has been any failure to perform or observe the CSA Rules by the Respondent. The Respondent says further that: (a) the portion of Rule 12(l)(vi) relied upon by the Applicant is and has been uncertain, redundant and incapable of application since the repeal of the Public Service Act 1978 on 8 July 1994; (b) Rule 12(m) of the CSA Rules empowers the Council to interpret doubtful rules, and in matters to which the Constitution and Rules are silent, the Council may regulate its own procedure. In all such cases the decision of the Council is to be final; (c) In the context of the present matter the Council resolved to employ the Applicant on 20 September 1999 on the terms of a contract as referred to in the decision of the Commissioner in Application 1215 of 2004; (d) Any further attempt by the Applicant to claim for overtime entitlements is in any event barred by the principles of res judicata and issue estoppel arising from the determination of the Commission in Application 1215 of 2004.” 41 Rule 12(m), as referred to in the answer is:- “(m) The Council shall interpret doubtful rules and in matters in relation to which this Constitution and Rules are silent, may regulate its own procedure. In all such cases the decision of the Council shall be final.” 42 I mention at this stage that by the time of the final day of hearing the CSA had abandoned any reliance on res judicata and/or issue estoppel. There was some resurrection of issue estoppel however in post hearing written submissions which will be referred to later. 43 In response to the alleged breach of rule 3(c) about the applicant’s representation in application 1215, the CSA said in paragraph [8] of the answer, under the heading “Non Provision of Assistance or Resources” the following:- “8. The Respondent denies that it has failed to act fairly and reasonably in the interests of the Applicant and says that it advanced the Applicant’s industrial interests by: (a) providing the Applicant with the assistance of Jane Van Den Herik an industrial advocate employed by the Respondent and a union delegate for staff employed by the Respondent; (b) making available financial assistance in the sum of $2,000.00 after a proper consideration of the Applicant’s request for assistance, based on the Respondents usual considerations for dealing with a request for financial assistance for representation by a member; (c) making ex gratia payments of overtime to the Applicant commencing in April 2004 on a without prejudice basis to which, it was ultimately found by the Commission, the Applicant was not entitled; (d) allowing the Applicant to prepare for and attend proceedings in Application 1215 of 2004 during working hours without loss of pay or benefits.” 44 The CSA also denied they did not properly consider the applicant’s requests for assistance and said they were considered in detail by the executive committee of the CSA on 22 August 2005 and on 12 April 2006. 45 In response to the alleged failure to provide assistance or resources to the applicant in the present proceedings, the answer said in paragraph [23] under the heading “Non Provision of Assistance or Resources” that the applicant did not request any assistance until 9 June 2006 when a letter from him dated 7 June 2006 was received by the general secretary of the CSA. The answer said the CSA had not yet considered and determined the applicant’s request for assistance in the present application. As 1240 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 87 W.A.I.G. stated, by the time of the hearing, the CSA had decided not to provide any assistance or resources to the applicant to support the present application. There was evidence including documentary evidence about this issue which will be later considered. 12. Directions Hearings Before Substantive Hearing 46 Directions hearings took place on 22 June 2006, 4 August 2006 and 1 September 2006. At the directions hearings programming orders were made about procedural matters leading to the substantive hearing of the application. The final order made on 5 September 2006 was that the hearing be listed for three days on dates to be fixed. Largely due to the unavailability of counsel representing the parties, the substantive application could not be first heard until 20-22 February 2007. 13. Evidence and Witnesses 47 The evidence-in-chief of each witness largely, and on some occasions entirely, took the form of the tender of a signed witness statement, together with annexures, which had been filed in compliance with one of the orders made on 5 September 2006. The witnesses attested their statements were true, subject to any corrections they identified. The witnesses were then cross- examined and re-examined. 14. Objections to Evidence (a) Mr Best 48 Prior to the applicant’s counsel’s opening, counsel for the respondent made an objection to part of the witness statement of Mr Best being received into evidence. It was convenient to then deal with the objection. After hearing submissions from the parties, I ruled that paragraphs [1] to [8] of Mr Best’s witness statement could be later admitted as an exhibit but that paragraphs [9] to [27] would be excluded. I gave short reasons for reaching this conclusion and indicated I would elaborate on these reasons when delivering my final reasons for decision. 49 The witness statement of Mr Best, says he held the position of treasurer of the CSA between 1997 and 2002. Mr Best’s duties under rule 16 of the CSA’s rules were referred to. Mr Best described his attendance at meetings of the CSA executive committee and council. He referred to his involvement in financial matters of the CSA. Mr Best went on to describe some difficulty and concerns he had about the way in which decisions were generally made by the CSA council. There was at least some implicit criticism from what Mr Best said about the way in which the council functioned when he was the treasurer. Mr Best also referred to some difficulties he had in performing his duties as treasurer because of the actions of a named official of the CSA. 50 In my opinion these parts of Mr Best’s witness statement were irrelevant to the present proceedings. None of these paragraphs of Mr Best’s statement referred to any of the council meetings which made decisions about the applicant. Indeed, given what Mr Best’s statement said about the years between which he held the position of treasurer, this did not include the period when decisions were being made by the council or the executive of the CSA about the applicant with respect to his representation in application 1215 or the present application. At its highest, these paragraphs of Mr Best’s witness statement contained the very generalised suggestion that because some matters may not have been properly considered by the CSA council and executive during the period when Mr Best was treasurer, this could have occurred when decisions were made about the applicant, sometime later. A suggested tenuous link of this type stretches beyond relevance so that even though hearings in the Commission are not bound by the rules of evidence (see s26(1)(b) of the Act), it is not information which could materially assist me in the determination of the s66 application. For these reasons I decided that paragraphs [9] to [27] of Mr Best’s statement could not be admitted into evidence. 51 For completeness I mention that when Mr Best did give evidence he said that his term as treasurer was not in fact between 1997 and 2002 but between 2000 and 2004. At that point I made enquiry of the applicant’s counsel as to whether in light of this piece of evidence he wished to re-open the issue of the admissibility of paragraphs [9] to [27] of Mr Best’s statement. He advised that he did not wish to do so. (b) Ms Robertson 52 Prior to the applicant’s counsel’s opening, counsel for the respondent also foreshadowed an objection to paragraphs [38] to [40] of the witness statement of Ms Robertson. As stated Ms Robertson was formerly the president of the CSA but her witness statement did not state the years between which she held this position. 53 Paragraphs [38] to [40] of her witness statement related difficulties Ms Robertson felt she had about obtaining information from the CSA and the way in which decisions were made by the CSA council, including pressure being applied to her to make decisions in a particular way. These paragraphs did not refer to any meetings which discussed issues relating to the applicant. 54 As the statement did not refer to the period during which Ms Robertson held office as president, it was decided to defer the objection to these paragraphs of her statement until she gave evidence and could indicate the dates between which she held office. When Ms Robertson gave evidence she advised that she held the office of president for 10 years between 1993 and 2003. Due to this and for reasons very similar to those I have referred to with respect to Mr Best, I decided that these paragraphs of Ms Robertson’s statement would not be received into evidence. They were not relevant to the issues to be determined in the application. 15. The Adjournment of the Substantive Hearing 55 At the conclusion of the three day hearing on 22 February 2007 the evidence was not completed. The application was adjourned part heard. This was regrettable and it was even more regrettable that the adjournment occurred part way through cross-examination of Ms Walkington. 56 In between the two substantive hearing dates, there was a directions hearing on 7 March 2007. The primary purpose of the directions hearing was so that I could hear an application by the applicant for further and better discovery. When the hearing was adjourned on 22 February 2007 I had a concern that because the cross-examination had not concluded counsel for the applicant could get a “second wind” which would prolong the hearing. When considering the application for further and better discovery I expressed the greater concern that the “second wind” had intensified into a (mythical) “cyclone Charlie”. The application was heard and dismissed. I gave short reasons for this which I said would be elaborated on in these reasons. I have done this in section 16 below. 87 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1241 57 The substantive application was re-listed for hearing on 26 and 27 April 2007. The continued cross-examination of Ms Walkington took the first of these two days and final submissions filled the second. 16. The Application for Further and Better Discovery 58 As stated, this was heard and determined on 7 March 2007. The categories of documents which the applicant sought discovery of were set out in a letter from the applicant’s solicitors to the CSA’s solicitors dated 6 March 2007. With stylistic amendments, they were described as:- (1) The applicant’s personal employment file containing all his employment records and related documents. (2) All letters written by the CSA offering employment and containing the words “Other conditions of service are similar to those applying within the State Public Service” or similar words of comparison to the State Public Service from 1 January 1991 onwards and copies of all corresponding documents containing the “Conditions of Service” referred to in those letters. (An example was given of Ms van den Herik’s letter dated 18 January 1991). (3) Copies of notes or documents referred to by Ms Pat Brewer at the induction of the applicant. (4) Copies of the CSA council resolutions specifying CSA conditions of employment between January 1991 and the date of operation of the first enterprise agreement containing CSA staff conditions. (5) Any files and documents not already discovered relating to the applicant’s request to be paid overtime. 59 A minute of proposed orders which was provided at the directions hearing included an order that the CSA give further and better discovery in relation to the matters referred to in the letter dated 6 March 2007, by no later than 21 March 2007. 60 Both counsel made submissions about the application for further and better discovery. 61 For item 1, the CSA’s counsel said his instructions were that all documents fitting the description had already been discovered. The CSA’s counsel undertook however, on behalf of his client, to check again the applicant’s file and provide to the applicant’s solicitors any other documents which were within this item. The undertaking was to do this within 7 days. 62 As to the second item, counsel advised that he had been told by Mr Matthew Foley, the accountant at the CSA that it would take 2 people 7 days to go through the archives, locate the relevant letters and delete any information which it was inappropriate to disclose on the basis of, for example, privacy. It was submitted this was oppressive. It was also submitted that documents relating to how people were employed, separate and indeed prior to the applicant, who commenced his employment in September 1999 were irrelevant. The CSA also made a general submission that the seeking of additional documents by way of discovery at this point in time was unfair given that Ms Walkington was part way through her cross- examination. 63 For item 3, counsel said the CSA thought all documents fitting this description had been provided to the applicant in the course of application 1215. The CSA also undertook to discuss with Ms Brewer, who was still employed by the CSA as the human resources officer, whether there were any other documents which could be provided that fitted the description and give copies of them to the applicant’s solicitors within 3 days. 64 With respect to item 4, the CSA’s counsel was unable to give precise details on what would be involved in retrieving the documents sought. He advised that from his experience, there can be difficulty in locating past CSA council minutes because there was then no systematic or computer based record of all of the council minutes. It was also submitted the documents sought prior to the applicant’s employment in September 1999 were irrelevant. It was submitted the employment conditions of the applicant were in effect contained in his letter of appointment and enterprise bargaining agreements entered into by the CSA with its employees, commencing in 1998. 65 For item 5, the CSA’s counsel advised all such documents had already been discovered. 66 With respect to the difficulty regarding Ms Walkington being under cross-examination, the applicant’s counsel submitted Mr Cusack effectively had the carriage of the matter on behalf of the CSA and he would be able to speak to counsel for the CSA about any additional documents. 67 Given the submissions and undertakings of counsel for the CSA about items 1, 3 and 5, counsel for the applicant did not press the application with respect to them. 68 Mr Howlett also said he was to inspect the file of the Commission about the alteration of the rules of the CSA which led to the insertion of rule 12(l)(vi) in 1992. Counsel for the applicant accepted that inspection of the file might resolve some of the issues which he thought could be assisted by the additional discovery of documents. 69 In relation to items 2 and 4, I was not prepared to make any orders because of the time within the proceedings when the application was made, oppression and relevance. With respect to the former, all of the evidence had been completed save for the cross-examination of the main witness for the CSA. If additional documents were provided and they were indicative of a broader approach by the applicant about some of the issues at the hearing, it would lead to a situation where Ms Walkington could be cross-examined on documents which she did not previously have the opportunity to discuss with counsel for the CSA. This would be productive of some unfairness to both the CSA and Ms Walkington as a witness. 70 Additionally, the application was commenced on 7 June 2006. Directions hearings took place on 22 June 2006, 4 August 2006 and 1 September 2006. As stated earlier, largely due to the unavailability of one or both counsel, the substantive application could not be first heard until 20-22 February 2007. Orders for informal discovery had been made at the directions hearing on 22 June 2006 and no application for further and better discovery had been previously made. My opinion was that the late stage of the request for discovery of these documents, and the length of time within which such a request would have been made, were factors relevant to refusing to make the order. 71 In relation to oppression I have set out above the submissions which were made by counsel for the CSA from the bar table without objection. In relation to item 2 and item 4, the degree of oppression which would be suffered by the CSA in complying with the request for discovery in my opinion outweighed the forensic benefit which might be obtained from the documents being found and discovered. 72 As to relevance items 2 and 4 sought the discovery of documents relating to a period well prior to the commencement of the applicant’s employment with the CSA in September 1999. The applicant’s case with respect to rule 12(l)(vi) was that there 1242 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 87 W.A.I.G. was a breach by the failure to appoint and employ the applicant in September 1999 and thereafter, on the same conditions and restrictions as a public service officer. The determination of whether this did not occur would not in my opinion be materially assisted by what happened from 1991 to 1999 in relation to other employees. 73 To the extent that other employees had letters of appointment which may have been different from that which was received by the applicant, they were not sufficiently material to the issues before the Commission so as to ground good cause for the making of the discovery order sought. 74 For these reasons I declined to make any order for further and better discovery at the directions hearing on 7 March 2007. 17. Post Hearing Communications and Submissions 75 During final submissions, I acceded to a request from counsel for the applicant that he be at liberty to file an aide-mémoire about the evidence. This document, comprising some 30 pages, was duly filed on 11 May 2007. In the document it said the applicant had no objection to the respondent filing a reply to it. Upon enquiry the respondent advised my associate it did not wish to file a reply. 76 Whilst preparing my reasons I thought there were issues which had not adequately or with certainty been addressed during the hearing. Accordingly, on 30 May 2007 my associate at my direction wrote to the parties requesting additional submissions about:- “(a) Whether there is any issue now taken with the findings and conclusions made by Kenner C in application 1215 of 2004 in paragraphs [24]-[26], [29], [36] and [37], or whether the Acting President may proceed on the basis that the findings and conclusions there made are not in contest. (b) If this is not so, which findings and/or conclusions are not accepted on what basis and what finding/conclusion is sought in place of that made by Kenner C. (c) Is there any relevance to the applicant’s case, and if so what, that the Public Service Award 1992 in clause 18 provides for a “commuted allowance” and “time off in lieu of overtime” [(1993) 73 WAIG 302 at 309-311].” 77 It is convenient at this point to set out paragraphs [24]-[26], [29], [36] and [37] of the reasons of Kenner C in application 1215, as follows:- “24 The meaning of “CSA Conditions of Service” is not made clear in the letter of 10 September 1999. It seemed to be common ground however that these conditions of service have been reflected over the years in various instruments including unregistered agreements and various resolutions of the respondent's council. Copies of these documents were annexed to Ms Walkington’s witness statement. At the time of the commencement of the applicant's employment in September 1999, an unregistered agreement known as the CSA Staff Agreement 1998 appeared to be in place. This agreement was endorsed by the council of the respondent on 25 November 1998. The terms of the 1998 Staff Agreement are silent as to overtime payments for employees. 25 At about the time of the employment of the applicant, it appears that negotiations were being concluded for a new staff agreement, also unregistered, which became the CSA Staff Agreement 1999. This agreement was endorsed by the council of the respondent on 3 November 1999, shortly after the applicant's employment. The evidence was and I find that the 1999 agreement was endorsed by a majority of the respondent's employees, and there was no suggestion on the evidence that the applicant took any objection to it. The 1999 agreement is itself silent as to the question of payment of overtime for working outside of ordinary hours. However, it refers to the “codification” of terms and conditions of employment for staff of the respondent over the duration of the agreement. Apparently this process took place and annexed to Ms Walkington’s witness statement was material showing the codification of various terms and conditions of employment, as agreed by the joint unions representing employees of the respondent on 12 April 2000 and ratified by the respondent's council on 24 May 2000. The particular document dealing with overtime and time off in lieu is described as “C 55/00” and was annexure TW 5 to Ms Walkington's witness statement. As it is material, the terms of this document are set out in full as follows: “1. In accordance with current practice, the CPSU/CSA does not generally pay overtime or approve time off in lieu of payment of overtime except in extraordinary or unusual circumstances. 2. From date of commencement of employment, employees appointed to identified positions within the Union are paid an allowance in addition to salary, in accordance with Schedule A Salaries of the CSA Staff Enterprise Bargaining Agreement. 87 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1243 3. For those employees appointed to identified positions in subclause (2) of this clause, any claim for overtime or time off in lieu would have to be in extraordinary or unusual circumstances. 4. In such extraordinary or unusual circumstances, claims for overtime or time off in lieu of payment of overtime, shall have prior written approval of the General Secretary. 5. An employee who has prior approval to take time off in lieu is required to make arrangements with their supervisor to clear such time off in lieu within two months of the overtime being performed. 6. Provided that there is written agreement between the employee and supervisor, time off in lieu of payment for overtime may be accumulated beyond two months from the time the overtime is performed so as to be taken in conjunction with periods of approved leave. 7. In circumstances where the General Secretary has approved payment of overtime and there is no agreement for time off in lieu to be taken in conjunction with periods of approved leave, the employee shall be paid for the overtime worked.” 26 This document is important in a number of respects. Firstly, par 1 refers to the respondent, as a general practice, not paying overtime or approving time off in lieu except in extraordinary or unusual circumstances. I pause to note that this statement of policy, formally adopted by the council of the respondent, is entirely consistent with the testimony of both Ms Walkington and Mr Robinson as to the policy and practice of the respondent not to pay overtime for work outside of normal hours. This is also consistent with the evidence of both Mr Robinson and Ms Walkington as to statements they said they made at the interview with the applicant prior to him commencing employment, and the respondent's practice historically, in relation to compensation for hours of work. … 29 I am not therefore satisfied that the applicant has any contractual entitlement to payment for overtime by reason of the CSA Conditions of Service, as incorporated into his contract of employment. … 36 I am therefore not satisfied that the applicant has discharged the onus upon him to establish, on the balance of probabilities, the existence of an entitlement to the payment of overtime for hours worked outside of normal hours of work. Whilst it is not strictly necessary for me to determine the issue, on balance, as to the conflict in the evidence between the witnesses for the applicant and the respondent in relation to discussions prior to and during the interview process for the applicant's employment, I prefer the version of events as outlined by Mr Robinson and Ms Walkington. That is, it seems to me, given the clear policy position that the respondent has had over the years in relation to overtime, and the restricted availability of car parking bays, it is more likely than not that these matters would have been raised at the time of the initial interview. This is also entirely consistent with logic and commonsense, that the applicant be provided with a benefit, by way of a car parking bay that an officer of his level would not normally receive, as compensation for and recognition of the requirement to regularly work out of ordinary hours for which overtime is generally not payable. 37 Finally, I do not accept the arguments advanced by the applicant that there was, in some way, an estoppel created by reason of the stance adopted by the respondent in this matter. I accept the evidence of Ms Walkington that after the applicant initially raised the issue of the payment for overtime, and in an endeavour to maintain sound workplace relations, she agreed on an interim basis from April 2004 to pay the applicant overtime pending the determination of this matter by the Commission. No estoppel arises either as a consequence of this act or from any stated position of the respondent, prior to this matter being heard and determined by the Commission.” 78 The letter requested the parties advise by 3:00pm on 1 June 2007 when they could provide the additional written submissions. Both parties advised they could do so within about a week. The applicant and respondent both filed additional written submissions on 11 June 2007. Due to one point in the respondent’s submissions the applicant was permitted to file 1244 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 87 W.A.I.G. supplementary additional written submissions on 13 June 2007. The contents of these submissions have been considered and will be specifically mentioned when appropriate to do so. It is only necessary at this stage to say that the applicant did not accept all the factual findings made by Kenner C in these paragraphs and submitted that I needed to determine the factual issues on the evidence adduced in these proceedings. I accept this submission and have proceeded on this basis. In their submissions the CSA submitted issue estoppel applied to the findings about whether an entitlement to overtime was within the terms of the contract of employment, as this issue was decided by Kenner C in application 1215. This may be correct, but for reasons set out later does not need to be determined because I am also of this opinion based on the evidence in these proceedings. 18. Summary of Issues 79 The applicant’s claim about the rule 12(l)(vi) breach may be summarised as:- (a) The CSA breached rule 12(l)(vi) by not appointing him subject to the same conditions as an officer appointed under the PSA 1992. (b) If he had been so appointed the applicant would have been entitled to be paid overtime. (c) The breach of (a) has lead to the failure by the CSA to pay the applicant for the overtime he worked in an amount which he has calculated. (d) The breach of the rule can and should be remedied by an order under s66 that the CSA pay the applicant this amount of money to put him in the same position as he would have been if the CSA had not breached the rule. 80 The remedy sought is akin to a claim for damages for breach of duty. That this is so is confirmed by paragraph [33] of the applicant’s amended outline of submissions dated 24 April 2007 where it is said that the applicant “incurred loss and injury as a result of” the breach of the rules. 81 In summary the response by the CSA to the alleged rule 12(l)(vi) breach is:- (a) The second paragraph of rule 12(l)(vi) has been uncertain, redundant and incapable of application since the repeal of the PSA on 19 July 1994 [sic 1 October 1994]. (b) The CSA has dealt with this uncertainty and redundancy via rule 12(m). (c) In the circumstances the failure to pay overtime to the applicant did not constitute a breach of rule 12(l)(vi). 82 The determination of the application about the alleged breach of rule 12(l)(vi) requires consideration of:- (a) The meaning of rule 12(l)(vi). (b) Whether there has been a breach of the rule. (c) If so what orders may be made within s66 of the Act to deal with the breach. (d) As part of (c) does s66 enable an order to be made of the type sought. (e) Issue (b) includes consideration of the response of the CSA. 83 The applicant’s case about the alleged breaches of the rules constituted by the failure to provide adequate financial assistance to support application 1215 and the present application may be summarised as:- (a) Principal object 3(c) of the rules of the CSA gave rise to duties for the CSA:- (i) To represent the industrial welfare of the applicant. (ii) To treat the applicant fairly and reasonably in the provision of assistance and resources to support his industrial applications in the Commission. (b) There was a breach of the duties set out in (a) because of the failure to provide the applicant with adequate financial resources to support application 1215 and the failure to provide any financial resources to support the present application. (c) The breaches of the duties and therefore the rule may and should be remedied by an order under s66 that the CSA pay sums of money to the applicant to reimburse him for the legal expenses incurred in application 1215 and in the present application. 84 Again, the remedies sought are akin to claims for damages for breach of a duty. 85 The CSA’s response to these two alleged breaches of the rules is in summary:- (a) It did not act unfairly and unreasonably towards the applicant as it:- (i) Provided financial assistance in support of application 1215. (ii) Properly considered the applicant’s request for financial assistance to pay for the additional legal costs in application 1215. (iii) Properly considered the applicant’s request for financial assistance to support the present application. 86 The determination of the application about the alleged second and third breaches of the rules requires consideration of:- (a) Whether the rules of the CSA provide for the duties relied upon by the applicant. (b) If so whether there has been a breach of these duties. This includes consideration of the CSA’s response. (c) Again if so what orders may be made under s66 of the Act to deal with these breaches. (d) As part of (c), whether s66 enables an order to be made of the type which has been sought. 87 I also mention that in closing the CSA submitted that even if any of the breaches relied upon by the applicant were proved, I could or at least should not make the orders sought by the applicant. For example, for the alleged second and third breaches, the CSA submitted the President in a s66 application could go no further than review the processes involved in considering and determining the applications for resources and if there was any failure to follow an adequate process to make an order to remedy this. 87 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1245 88 From the above it is plain that to decide the application it is necessary to understand the meaning of the rules allegedly breached. 19. The Construction of the Rules of an Organisation 89 The way in which a Court or Industrial Commission should approach the question of the construction of the rules of an organisation is well established. 90 Brinsden J with whom Smith J agreed in Hospital Salaried Officers Association of Western Australia (Union of Workers) v The Hon Minister for Health (1981) 61 WAIG 616 at 618 said:- “Generally speaking the correct approach to the interpretation of a union rule is to interpret it in the same manner as any other document. It must be remembered however that union rules are not necessarily drafted by skilled draftsmen. It is therefore necessary I think in construing a union rule not to place too literal adherence to the strict technical meaning of words but to view the matter broadly in an endeavour to give it a meaning consistent with the intention of the draftsman of the rule. This approach has been endorsed in relation to awards: see Geo A. Bond & Co. Ltd. (In Liq.) v McKenzie (1929) A.R. 499 at 503-4 referred to in Federal Industrial Law by Mills and Sorrell 5th Ed. at p522. I also said much the same thing in the unreported decision of Bradley v The Homes of Peace 1005/1978, judgment delivered 21st December, 1978 at p.13-14.” 91 These observations have been cited and applied in s66 applications. An example is Williams v SDAEAWA (2005) 85 WAIG 1963. 92 A similar approach has been adopted by the High Court in the construction of union eligibility rules. In Re Anti-Cancer Council of Victoria; Ex Parte State Public Services Federation (1992) 175 CLR 442 at 448, Mason CJ, Brennan and Gaudron JJ said it “is well settled that union eligibility rules are to be interpreted liberally and according to their ordinary and popular meaning”. Their Honours cited a number of decisions in support of this proposition including The Queen v Isaac; Ex Parte Transport Workers’ Union (1985) 159 CLR 323 decision, where Wilson J at 340 said:- “In construing the eligibility clause in the constitution of an organization, it is necessary to bear in mind the nature of the instrument in which the words appear and the purposes that it is intended to serve. The rule now in question bears ample indication on its face that it has been prepared without the assistance of a skilled draftsman. It has been amended from time to time, probably in response to the exigencies attending the industrial affairs of the union and without regard to the effect of the amendment on the internal consistency of the clause as a whole. It follows that the words of the rule should be given a wide meaning and interpreted according to their ordinary or popular denotation rather than by reference to some narrow or formal construction: Reg. v Cohen; Ex parte Motor Accidents Insurance Board ; Reg. v McKenzie; Ex parte Actors and Announcers Equity. Nevertheless, notwithstanding this generosity of approach, the meaning of the words remains a legal question to be determined by the application of the ordinary rules which govern the construction of written documents: Reg. v Aird; Ex parte Australian Workers' Union; McKenzie.” (Footnotes omitted) 93 French J in Re Election for Office in Transport Workers’ Union of Australia, Western Australian Branch (1992) 40 IR 245 at 253 said that the “preferred approach to the construction of union rules which requires them to be construed not technically or narrowly but broadly and liberally and not “subjected to the same meticulous scrutiny as a deed carefully prepared by lawyers.””. His Honour cited R v Holmes; Ex Parte Public Service Association (NSW) (1977) 140 CLR 63 per Gibbs J at 73 and Re An Election in the Australian Collieries Staff Association (NSW Branch) (1990) 26 FCR 499 per Lockhart J at 502. The reasons of French J were cited with approval by Mansfield J in Thomas v Hanson [2001] FCA 539 at [20]. Authorities cited by the applicant set out a similar method of approach. (Delron Cleaning Pty Ltd T/A Delron Hospitality Management (2004) 84 WAIG 2527 at [40] and FMWU v GW Smith and KJ Rose (1988) 68 WAIG 1010. 94 The approach which I should follow is as set out in the passages from the cases quoted. 20. Organisational Structure of the CSA 95 Before discussing the evidence in greater detail, it is relevant to say something about the organisational structure of the CSA as contained in its rules. Rule 12(a) provides that the “management of the Association shall be vested in a Council which shall be elected from the financial membership of the Association …”. Rule 12(a) goes on to state the council is comprised by the president, two vice presidents, an honorary treasurer, a general secretary, an assistant general secretary and councillors, who are members of an electorate they represent, and elected by the financial members in the electorate. The general secretary and assistant general secretary are also both elected by financial members. 96 Rule 12(b)(i) provides that each electorate will be represented on council by one councillor and one proxy councillor for each 500 financial members or part thereof allocated to the electorate as at 31 December in the year preceding an election. Rule 12(b)(ii) provides that each councillor and proxy councillor shall be elected for a term of two years. Rule 12(c)(i) provides that the CSA shall be divided into electorates consisting of such members of the CSA as is determined by the council from time to time in its discretion having regard to such advice as to the views of members affected as is available. 97 Rule 12(f)(i) provides that the general elections of councillors representing electorates shall be held every two years. Rule 12(j)(i) provides that the council shall meet at such times as may be deemed expedient, but not less than 10 times a year. Rule 12(j)(ii) provides that the general secretary shall on receipt of a requisition signed by not less than 25% of council call a 1246 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 87 W.A.I.G. special meeting of the council to be held not more than 14 days after receipt of such requisition. A quorum is stated in rule 12(j)(iii) to be a majority of those entitled to attend and vote at the meeting. 98 Rule 12(l) contains the powers of the council including rule 12(l)(vi) and rule 12(m) which have already been set out. 99 Rule 13 is about the executive committee of the CSA. Rule 13(a) provides that the executive committee shall consist of the president, the two vice presidents, the honorary treasurer, the general secretary and the assistant general secretary and six members who shall hold office for a term of two years, elected in August in each even numbered year by the council by its members. Rule 13(b) provides details as to when this election is to be held. 100 Rule 13(c) is as follows:- “The Executive Committee shall be responsible for the management and proper conduct of the business and the carrying out of the policy of the Association between meetings of the Council, subject to the resolutions and decisions of the Council and to the Constitution and these Rules and in particular shall:- (1) Perform the duties allotted to it by the Council. (2) Deal with and make recommendations to the Council in regard to all matters of finance. (3) Examine all accounts and present them to the monthly meetings of the Council. (4) Advise the Council as to the financial position of the Association. (5) Supervise the receipt and banking of funds of the Association. (6) Deal with such other matters as may be referred to it by the Council from time to time. (7) Have power to authorise payment of any amount up to a level as determined by Council each year. (8) Meet at least once in each month. Should the President deem it advisable to hold a special meeting of the Executive to consider any matter which in his or her opinion merits the holding of such meeting, he or she may instruct the General Secretary to summon a special meeting, and the General Secretary shall do so forthwith. Upon receipt of a requisition for a special meeting giving particulars of the nature of the business to be discussed and duly signed by at least four members of the Executive, the General Secretary shall forthwith summon a special meeting. All notices convening special meetings shall state the nature of the business to be considered and no business other than that mentioned in the notice summoning the meeting shall be transacted at any such meeting.” 101 By rule 13(8) the executive committee is to meet at least once a month. This rule provides that if the president deems it advisable to hold a special meeting of the executive committee to consider any matter which merits the holding of such a meeting he or she may instruct the general secretary to summon a special meeting and the general secretary shall do so forthwith. A special meeting must also be called by the general secretary under rule 13(8) if a requisition for a special meeting, giving particulars of the nature of the business to be discussed, is duly signed by at least four members of the executive committee. Rule 13(d) provides that seven members shall form a quorum of the executive committee. 102 Rule 14 is about the president. The duties of the president are set out in rule 14(b). Rule 14(b)(2) contains a duty of the office of the president to “enforce the rules, Association policies, and Standing Orders and have control of meetings at which he or she presides, and shall use all necessary power to secure and enforce order and expedition in the conduct of the business and good order of the members thereat”. 103 Rule 14(b)(4) provides that the president has the duty to ensure as far as possible that the rules of the CSA are performed and observed by officers and members of the CSA. 104 Rule 17 provides for workplace delegates whose duties are described in rule 17(f). The duties include advising members of their industrial entitlements. 105 Rule 19 is about the general secretary. Rule 19(a) provides that the general secretary is the executive officer of the CSA and shall be responsible for the administration of the CSA, the management of the CSA’s office and the direction of the employees of the CSA including the assistant general secretary. The duties of the assistant general secretary are described in rule 20 and include assisting the general secretary and in their absence, performing the duties of the general secretary. 106 In summary therefore the CSA’s supreme governing body is the council which must meet at least 10 times per year. The 12 member executive committee, comprised by six members of council, is responsible for the management of the CSA and carrying out the policy of council and must meet at least once per month. The general secretary is the executive officer of the CSA and has an assistant general secretary. The president must enforce the rules and presides at meetings. The CSA council may appoint people whose services are thought necessary to carry out its purposes. 21. The First Alleged Breach - The Construction of Rule 12(l)(vi) 107 This rule gave the CSA council the power to appoint people to provide services for the carrying out of the purposes of the CSA. The rule provided that if such persons were appointed they were to be appointed subject to the “same conditions and 87 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1247 restrictions” as a public service officer. I agree, with respect, with the description given by Kenner C about this rule in application 1215 at paragraph [33] where he said the “provision qualifies the general power of appointment …”. 108 The relevant focus of the rule is on the “appointment”. To comply with the rule the appointment was required to be on the conditions specified. The rule assumes that it was possible to equate the conditions and restrictions of a CSA employee to those of a public service officer. 109 The rule also assumes there was an identifiable set of “conditions and restrictions”, of “an Officer appointed under the Public Service Act”. The expression “conditions and restrictions” is in my opinion broader than simply a level and salary alignment with officers of the public service. The use of the word “restrictions” may not add much to the rule. Although generally each word in a rule should be given meaning, it is difficult to see that it adds much to “conditions”. This is because a “restriction” will still be a “condition”. 110 I have considered the relevance of the time when the rule was inserted to an understanding of its meaning and application. As set out in the chronology the rule was inserted on 29 July 1992. This was prior to the commencement of the PSA 1992 on 1 December 1992. I do not think however that the intent and meaning of the rule was to make the conditions and restrictions applying to public service officers at the time of the commencement of the rule apply to the later appointment of employees of the CSA, even if the conditions and restrictions of a public service officer changed. The rule was intended to make the appointment of an employee by the CSA council subject to the same public service officer conditions and restrictions which existed at the time of their appointment. 111 The applicant contends that there was an identifiable set of conditions and restrictions at the time of his appointment or at least there was so with respect to overtime payments. The CSA contends that there was not and therefore it was impossible in practice to comply with the rule. 112 I will next consider the evidence relevant to this and other issues involved in the alleged breach of rule 12(l)(vi) 22. Breach of Rule 12(l)(vi) – The Evidence (a) The Employment of Public Sector Employees 113 The PSA commenced on 16 May 1979. Section 20 provided that the public service would be constituted by departments and sub departments and some “posts” in organisations, as defined. Departments and sub departments were defined in s5 of the PSA to be branches of the public service established under ss21 and 22 respectively. Organisations, generally, were defined in s5 to be state trading concerns, state instrumentalities, state agencies or public statutory bodies established or continued by or under a written law and specified in column 2 of the schedule to the PSA. 114 An “officer” was defined in s5 of the PSA to mean someone “in relation” to a department, “employed in the department under and subject to this Act”. With respect to an organisation it meant a person who was employed in the organisation and was a member of the senior executive service. Pursuant to s14(3) of the PSA the Public Service Commissioner had the power to appoint, transfer or promote officers and to determine remuneration. 115 The PSA 1992 was made by order of the Commission after a consent application on 2 February 1993 (CSA v Commissioner, Public Service Commission (1993) 73 WAIG 301/302). It superseded and replaced the Public Service Salaries Agreement 1985 and the Public Service General Conditions of Service and Allowances Award 1989. Pursuant to clauses 3, 4 and 5, the PSA 1992 applied throughout Western Australia to all government officers employed under the PSA and operated from the first pay period commencing on or after 1 December 1992. Clauses 10-18 of the PSA 1992 together with the relevant schedules were respectively about salaries, salaries in specified callings, annual increments, payment of salaries, higher duties allowance, deduction of association subscriptions, hours, shift work allowance and overtime allowance. More will be said about the overtime allowance later. 116 Despite the presence of the PSA 1992, there was at least the theoretical possibility that the conditions of employment of public service officers could be changed under a registered industrial agreement pursuant to s41 of the Act. This type of agreement could be made between the CSA, as an organisation, and the employer of public service officers (s41(1)). When registered by the Commission the industrial agreement would “prevail” over any inconsistency with an award unless the agreement expressly provided otherwise (s41(9)). 117 Since 1993 the employment of public sector employees in Western Australia has changed in accordance with the policies of the day of the differently constituted state governments. In 1993 the then Coalition government effected a paradigm shift in the employment of public sector and other employees by the enactment of the Workplace Agreements Act 1993 (WA). As noted in the chronology the Workplace Agreements Act commenced on 1 December 1993. The Workplace Agreements Act permitted employers and employees to enter into a workplace agreement which took precedence over any award whilst the workplace agreement remained in force. (Sections 5, 6). The Workplace Agreements Act by s4 took priority over the Act. Pursuant to s19(2) of the Workplace Agreements Act an individual workplace agreements generally had effect from when it was signed by the parties to the agreement or from some later day as provided for in the agreement. 118 Part 3 of the Workplace Agreements Act set out its application to the public sector. Section 43(1) enacted that a person who was appointed under a written law to a position as an officer or employee; employed by the Crown; or the holder of an office or position in or under a public authority, may be a party to a workplace agreement as an employee. Section 43(2) said that subsection (1) applied whether or not in law a person had a contract of employment. Section 44(1) provided that in respect of the employees to whom s43(1) applied, the employer for the purpose of the Workplace Agreements Act was to be a person prescribed by the regulations in respect of that employee or class of employee. Section 45(1) provided that any matter that was excluded from the operation of the part by the PSA (including regulations under the PSA) could not be varied or affected by agreement between the parties to a workplace agreement. Schedule 3 to the Workplace Agreements Act set out consequential amendments in accordance with s103 of that Act. By clause 6 of schedule 3, the PSA was amended to insert s53A which excluded from the operation of part 3 of the Workplace Agreements Act “any matter concerning the management or structure of the Public Service that is prescribed for the purposes of this section”. 119 One effect of the enactment of the Workplace Agreements Act, with respect to public service officers, was that it permitted such employees and their notional employer to enter into individual contracts which could be at variance from the PSA 1992. 1248 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 87 W.A.I.G. 120 The Workplace Agreements Act also allowed for collective workplace agreements. These agreements had to be registered to be effective after lodgement with the Commissioner of Workplace Agreements. (ss26, 31, 32). The Commissioner kept a register of workplace agreements. (s28). Pursuant to s39 of the Workplace Agreements Act an agreement lodged with or registered by the Commissioner was generally not open for inspection. This did not apply however to a workplace agreement referred to in s43(1) that was lodged with or registered by the Commissioner. These workplace agreements were open for inspection by any person and could be disclosed to any person who in the opinion of the Commissioner made a request for information that could reasonably be complied with by the Commissioner. (s40). Although s43(3) of the Workplace Agreements Act was amended by the Industrial Legislation Amendment Act 1995, this did not change the essential nature of the Workplace Agreements Act with respect to public service officers. 121 The PSMA commenced to operate on 20 August 1994 and 1 October 1994 respectively. (See s2 of the PSMA and the Government Gazette, 19 August 1994, page 4155 and 30 September 1994, page 4948). The PSMA repealed the PSA. The PSMA continued the existence of an office created under s14(3) of the PSA (see clause 4 of Schedule 5 of the PSMA). Section 112(1) of the PSMA provided that a reference in a “written law or book, document or writing to the Public Service Act 1978 or the Public Service Act 1904 is, unless the contrary intention appears or it is otherwise provided under the Acts Amendment (Public Sector Management) Act 1994, to be construed as if it had been amended to be a reference to this Act”. Both parties accepted this section applied to rule 12(l)(vi) of the CSA rules. 122 Under the PSMA a “public service officer” was someone employed in the “public service” (s3). The public service, under s34 of the PSMA was constituted by, amongst other entities, state government departments established under s35 of the PSMA. The PSMA provided for the administration of the “public sector”, which as defined in s3 included the “agencies” which in turn included “departments”. The PSMA contained general principles for the public sector about public administration, management and conduct (Part 2). The PSMA provided for a Commissioner for public sector standards to prescribe standards and codes of ethics. The PSMA also established a process for dealing with a “breach of discipline” by a public service officer (s80). Under s78 a public service officer who was a “government officer” could appeal to the Commission constituted by a Public Service Appeal Board against decisions made in the exercise of specified powers in the PSMA. 123 After the commencement of the PSMA, the PSA 1992 continued to apply to officers appointed under s14(3) of the PSA whose office continued to exist by clause 4(c) of Schedule 5 of the PSMA. 124 This was because the scope clause of the PSA 1992 was amended by order of the Commission made on 19 June 1997. (See (1997) 77 WAIG 1716). The order was said to operate from 1 October 1994. The amended scope clause referred to public service officers appointed under Part 3 of the PSMA and also to officers appointed under s14(3) of the PSA whose office continued to exist by virtue of clause 4(c) of Schedule 5 to the PSMA. 125 The Western Australian Public Sector (Civil Service Association) Enterprise Bargaining Framework Agreement 1995 (the Framework Agreement); CSA v Agriculture Protection Board and Others (1995) 75 WAIG 2500 was also brought to my attention by counsel for the applicant. Pursuant to clause 4(1), the Framework Agreement applied to the CSA and to the employing authorities in the public sector agencies listed in Attachment 2. As stated in clause 3(1) the purpose of the Framework Agreement was to put in place “a process for agencies to negotiate agreements which achieve improvements in productivity and efficiency and the enhanced performance of agencies covered by it and allows the benefits from those improvements to be shared by employees, agencies and the Government on behalf of the Community”. Clause 3(2) provided that the Framework Agreement “places priority on the parties at the agency level taking responsibility for their own labour relations affairs and reaching agreements appropriate to their agency”. The Framework Agreement was registered with the Commission as an industrial agreement under s41 of the Act. 126 The applicant’s counsel also referred me to The Department of Resources Development Enterprise Bargaining Agreement 1995 (the DRD agreement) (Department of Resources Development v CSA (1996) 76 WAIG 951). This was also registered as an industrial agreement under the Act and is an example of an agency specific agreement. As stated in clause 3, the DRD agreement was binding upon the CSA and the Department of Resources Development and it was estimated that 40 employees would be bound by the DRD agreement upon registration. By clause 4, the DRD agreement was to operate from the commencement of the first pay period on or after 22 September 1995. Clause 5 provided that the DRD agreement would be read in conjunction with the PSA 1992 “which applies to the parties bound by this document. In the case of any inconsistencies this Agreement shall have precedence to the extent of the inconsistencies”. 127 Following the election of the Australian Labour Party as the State Government in 2001, steps were taken to repeal the Workplace Agreements Act, including in its application to public sector employees. This was effected by the Labour Relations Reform Act 2002 (WA); Act No. 20 of 2002. The thrust of that Act was, by way of repeals and amendments to the Workplace Agreements Act, to remove the capacity to enter into workplace agreements which had precedence over the awards of the Commission. The Labour Relations Reform Act also contained transitional provisions for the continued operation in some circumstances of workplace agreements which were still current. Section 4H of the Workplace Agreements Act provided that certain conditions of workplace agreements continued as part of a contract of employment between the employer and the employees. With respect to public sector officers, s44(2) was amended so that an employee and notional employer could pursuant to s24(1) of Workplace Agreements Act enter into an agreement in writing cancelling the workplace agreement. 128 Ms Walkington also described the changes in the employment of public service officers, dependent upon changing governmental policy, from 1991 to 2006. 129 A summary of Ms Walkington’s evidence on these issues is:- (a) Enterprise bargaining principles emerged in Western Australia in 1991 when there was a state ALP government. Following discussions between union bodies and the government, government departments that had similar functions were to be grouped together to negotiate enterprise bargaining agreements. (b) Shortly after these discussions there was a change of state government and the Coalition government passed the Workplace Agreements Act. 87 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1249 (c) The only collective agreements reached by the CSA and the State government under the Workplace Agreements Act were for the Water Authority and the Department of Transport and Main Roads. These agreements had different conditions. (d) In 1996 an agreement was reached with the state government so that collective bargaining occurred within individual departments in the public sector and enterprise bargaining agreements were then registered. (This may have been a reference to the Framework Agreement). (e) Additionally most government departments offered workplace agreements to individual employees under the Workplace Agreements Act so that individuals within departments had terms and conditions applicable to them that varied from otherwise applicable collective agreements. (f) By 2001 there were approximately 352 collective and individual agreements dictating the terms and conditions of employment for officers in the public service. A database of these agreements was maintained by the CSA and annexed to Ms Walkington’s witness statement. (g) There were no standard terms and conditions of employment within these agreements. (h) In 2001 an ALP state government was elected. By 2002 the Public Service General Agreement was negotiated and commenced operation on 22 March 2002. The General Agreement removed many but not all of the departmental collective agreements and aligned employment conditions within departments to the PSA 1992. (i) Subsequent to the commencement of the General Agreement the terms and conditions of employment for people employed under the PSMA are determined by:- (i) The General Agreement. (ii) The PSA 1992. (iii) Agency specific agreements in some departments which operate in conjunction with the PSA. An example was an agreement for the agriculture department. Ms Walkington said there were currently about 40 agency specific agreements. 130 In cross-examination, Ms Walkington was asked whether she considered the conditions of employment of public service officers and workplace agreements to see if there were common conditions and what was different. She said that there were no common conditions including overtime. Ms Walkington did not accept that overtime remained a common theme throughout the relevant period of time. (T325). 131 Ms Walkington also said that as at July 1992 when rule 12(l)(vi) was inserted there were different conditions of employment for some public service employees. As an example she gave “the Fisheries”. (T317). The applicant’s counsel provided Ms Walkington with a copy of a decision of Commissioner Fielding dated 21 August 1990 in application PSA 5 of 1986; (1990) 70 WAIG 3612. This involved an application for a new award prescribing allowances for Fisheries and Wildlife Officers, Technical Officers and Technical Assistants employed in either the Department of Conservation and Land Management or the Department of Fisheries. The award was intended to replace the Fisheries and Wildlife Commuted Overtime and Seagoing Allowances Agreement 1983. The new award made provision for commuted overtime. (b) The Appointment and Employment of the Applicant 132 The applicant commenced his employment with the CSA on 20 September 1999. The applicant had been a member of the CSA since 20 June 1994. To obtain his employment with the CSA the applicant responded to an advertisement in The West Australian newspaper. The advertisement said that some after hours work was required. The applicant was interviewed for the position on 23 August 1999. Present at the interview were Mr David (Dave) Robinson, the then general secretary of the CSA, Ms Robertson, the then president of the CSA and Ms Walkington, who was then the assistant general secretary of the CSA. 133 During the interview the applicant was told the position required the taking of minutes at meetings and that many of the meetings would take place out of usual working hours. The applicant said there was no mention of overtime payments during the interview. 134 During the interview the applicant was not shown any documents containing conditions of employment nor was he aware at the time of the content of the rules of the CSA. 135 The applicant said that following the interview but before receiving an offer of employment, Mr Robinson telephoned him to advise that he would like to offer the applicant the job. Salary and availability for commencement were discussed. The applicant said he was not at any stage told he would be given a car parking space instead of being paid for overtime or instead of being given time off in lieu of overtime. 136 A letter of offer of employment dated 10 September 1999 was received by the applicant on or about 14 September 1999. The letter was signed by Mr Robinson as the general secretary of the CSA. The letter informed the applicant that he had been selected for appointment to the position of executive officer effective from 20 September 1999. The letter said:- “… appointment will be at level 3:4 initially, which is a fortnightly salary of $1,405.93 ($36,671 per annum) and is subject to a three (3) month probably (sic) period. Following satisfactory completion of the probationary period, you will be eligible for permanency and membership of the staff superannuation scheme and your salary will increase to level 4:1. This is a fortnightly salary of $1,458.08 ($38,032 per annum). You will be eligible for a yearly salary increment, on your anniversary date of appointment, subject to satisfactory performance to a maximum of $40,195 per annum. CSA Conditions of Service will apply and there is also the option to work a nine day fortnight. A car parking bay will be provided for your use. Should you wish to terminate your employment with the CPSU/CSA, four weeks’ notice will be required.” 1250 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 87 W.A.I.G. 137 There was no document which the applicant received which set out the “CSA conditions of service”. Also the letter did not, in its terms, or by reference to or in conjunction with some other document, clearly explain the reference to levels. There was no mention of overtime in the letter. 138 As stated earlier the applicant commenced employment on 20 September 1999. Either during the course of an induction conducted by Ms Brewer, or later, Ms Brewer said something to the effect that the CSA did not usually pay overtime but that people take time off in lieu. The applicant said he understood Ms Brewer to mean that in general terms the CSA did not pay overtime but that time off in lieu of overtime would be approved. 139 The applicant said that during the course of his duties as executive officer he worked many hours “outside of my usual working hours”. The applicant said his overtime hours were recorded in his claim for overtime payments in application 1215. Most of this work involved preparing for and attending at meetings. In a witness statement filed on 19 October 2005 and which was part of exhibit 12 in the present proceedings the applicant said his usual hours were 8:00am to 5:00pm with 40 minutes for lunch, allowing him to work 75 hours per fortnight and take the tenth day off. 140 The applicant said that during the course of his duties as executive officer he saw that applications for overtime payments were approved for other CSA employees. Specifically he mentioned Ms Sue Burlinson, a training officer and Mr Tony Spencer a building supervisor. 141 On or about 15 April 2004 the applicant made what he described as a formal claim to the CSA for payment for the hours he had worked outside of his “prescribed hours”. The applicant said it was about this time he became aware of the CSA rules regarding conditions of employment. He was also having discussions about these matters with Ms van den Herik. As stated she was employed by the CSA as an industrial officer/advocate and was also a CSA delegate for the employees of the CSA. 142 The applicant said an agreement was reached so that he would be paid overtime. (Ms Walkington’s evidence was that this was without prejudice). An email from Ms Walkington dated 19 April 2004 evidenced this. After this the applicant was paid overtime and he was still permitted to use the car parking bay. 143 There were discussions involving Ms van den Herik and Ms Walkington about the applicant’s claim for overtime but the claim was not resolved. The applicant said that on or about 22 April 2004 there was further communication and email correspondence between himself and Ms Walkington. The applicant said Ms Walkington sent an e-mail to him dated 22 April 2004 in which she said the applicant had been told that the provision of the car parking bay was in lieu of overtime payments. The e-mail also referred to things allegedly said at the employment interview by Mr Robinson. The e-mail also recorded the applicant saying he did not recall these things being said. 144 After further correspondence which did not settle the claim, application 1215 was filed on 16 September 2004. One of the letters was from Ms van den Herik as CSA staff workplace delegate to Ms Walkington dated 1 July 2004. In this letter it was asserted the CSA “custom and practice” was that the PSA 1992 rates were applicable and this “is currently enshrined” in rule 12(l)(vi). 145 The total amount claimed in application 1215 was $9,850.29. The calculations made by the applicant were not disputed by the CSA in application 1215 or this application. The applicant gave details about his representation in application 1215, which will be summarised later when setting out the evidence about the second alleged breach of the rules. 146 In the present application, the applicant contended his employment with the CSA should have been on the same conditions as an officer appointed under the PSA, in accordance with the CSA rules, and that those conditions would have given him the benefit of overtime payments on the terms contained in the PSA 1992. 147 The applicant also contended that by not making overtime payments a condition of his employment, the CSA had breached its rules. The applicant said the result of the CSA breaching its rules was that he had not received significant payments for the work he did outside of his ordinary working hours which he believed would have been payable to a CSA member employed in the public service. The applicant said he believed he had been treated less favourably than other persons employed by the CSA who were given overtime payments or were allowed to take time off in lieu of overtime payments. 148 The applicant then said that in early May 2006 he became aware of a memorandum and notice to members written by Ms Walkington as general secretary of the CSA. It was upon seeing the terms of this memorandum that the applicant decided to commence the s66 proceedings. The applicant said his understanding of the purpose of the memorandum and an attached draft notice to members was that it was information to the CSA council in support of a proposal to change the CSA rules by the deletion of part of rule 12(l)(vi). The applicant said the memorandum and notice to members appeared to be a direct response to the outcome in application 1215. 149 Ms Robertson referred to the job interview with the applicant on 23 August 1999. She said that each candidate at the interview was told of the requirement to take minutes of meetings and that many of the meetings would take place out of the usual working hours. Ms Robertson said she did not recall Mr Robinson outlining the general conditions of service. Ms Robertson said she was certain there was no mention of overtime during the interviews. It was however mentioned to each candidate that a car parking bay would be made available to them. Ms Robertson did not recall any documents relating to terms or conditions of employment being given to any applicant for the position. 150 Most of the evidence of Ms van den Herik was about the second alleged breach of the CSA rules. With respect to the alleged breach of rule 12(l)(vi) Ms van den Herik said she had known the applicant since he was first employed at the CSA. She said the executive officers before the applicant were female. Ms van den Herik said her understanding of why the car parking bay was provided to executive officers was as a security and safety measure. The car parking bay was provided to the then female executive officer when in 1991 or 1992 there were reports that a woman had been raped near Royal Perth Hospital. Ms van den Herik said her understanding was that the car parking space continued to be provided to executive officers after that, whether male or female. 151 Ms Walkington disagreed with the evidence of Ms van den Herik that the car parking space was made available for safety reasons. This was because the parking bay had been located in the basement beneath the CPSU/CSA building and until approximately four years ago the basement was not enclosed, was in an isolated location and could be accessed by any member of the public. Ms Walkington also said the CSA make available to its employees taxi vouchers in the event they are required to work past normal working hours, for personal safety reasons. 87 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1251 152 After Ms van den Herik gave evidence and in the course of the cross-examination of Ms Walkington, exhibit 13 was tendered which was a copy of the letter of appointment to the CSA of Ms van den Herik dated 18 January 1991. This said she had been appointed an industrial officer at a level 4.2. This level and the salary mentioned in the letter were shown to be equivalent to the then applicable public sector award rate. The letter also said that other conditions were similar to the state public service and a “Position Data Form” and a sheet briefly outlining conditions of service “were attached”. An email from Ms Brewer to Ms van den Herik dated 27 February 2007 said the latter documents could not be found in her personal file held by the CSA. I mention that although I received the letter and email as exhibits I do not find them of assistance in determining the issues in the application – they relate to a time before the relevant rule was inserted and are about the appointment of someone other than the applicant. 153 Ms Walkington referred to the employment of the applicant and the issue of his entitlement to overtime. Ms Walkington was present at the employment interview with the applicant. She said he was told the position required work outside ordinary hours to record minutes for meetings and overtime was not paid, but in lieu of paid overtime the successful applicant to the position would be allocated a car parking bay. Ms Walkington also said that although the applicant was employed as a level 4 employee, people employed by the CSA at lower than level 6 were rarely afforded a benefit like this. 154 She was also referred to paragraph [7] of her statement in application 1215, which became exhibit 10 in these proceedings, where she said that at his interview the applicant was told by Mr Robinson the successful applicant would not be paid overtime for work but would be allocated a free car parking bay on the premises in lieu of overtime being paid. Ms Walkington agreed with the proposition that a public service officer could not substitute a car parking bay for an entitlement to overtime unless a specific arrangement to do that occurred through an agency specific agreement. (T343/344). She agreed there was no reference in the applicant’s letter of appointment to traded off overtime for the free use of the car parking bay. (T345). It was put to Ms Walkington that the offer of employment to the applicant, on her version of events, was not fair in that he did not get a choice of having been paid overtime or use of the car parking bay. Ms Walkington said that she did not know if it would have been fair or not because this depended upon more than a comparison between the monetary value of the car parking bay and paid overtime. Ms Walkington said “in some cases it might be monetarily worth less, but it might actually be for your lifestyle and convenience worth more to you to have that”. She confirmed however that a choice was not in the offer of employment. (T347). 155 As to the overtime the applicant worked, Ms Walkington confirmed the position that she had held in application 1215 which was that she accepted on the basis of the advice of Ms Brewer, that the applicant’s calculation of the value of the overtime worked was correct. It was correct in the sense of the hours which the applicant said he worked. (T167). Ms Walkington also thought the calculations, which were checked by Ms Brewer, came from the PSA. (T167). 156 Ms Walkington also detailed in her witness statement the first approach by the applicant to her in 2004 about an entitlement to overtime, leading to the commencement of proceedings in application 1215. (c) Overtime and Public Service Officers (i) The PSA 1992 157 Clause 18 of the PSA 1992 contains an entitlement to the payment of an overtime allowance. From clause 18(2) the entitlement to overtime was referable to an officer’s “prescribed hours of duty”. This expression was defined in clause 18(1) to mean “the officer’s normal working hours as prescribed in clause 16 …”. In turn, clause 16(1) said that “prescribed hours of duty to be observed by officers shall be seven hours thirty minutes per day to be worked between 7.00am and 6.00pm Monday to Friday as determined by the chief executive officer with a lunch interval of forty-five minutes to be taken between 12.00noon and 2.00pm. Subject to the luncheon interval prescribed hours are to be worked as one continuous period”. Clause 6 defined the “Chief Executive Officer” to mean the person immediately responsible for the general management of the department to the Minister of the Crown for the time being administrating the department. Clause 16(2) provided for other working arrangements. This allowed for variation of the prescribed hours of duty within a department or branch or section thereof so as to make provisions for the attendance of officers on Saturday, Sunday, public holidays or on a public service holiday; the performance of shift work and [sic] “the nature of the duties of an officer or class of officers in fulfilling the responsibilities of their office”. Clause 16(2)(b) provided for the possibility of alternative working arrangements involving flexitime, a nine day fortnight, permanent part-time employment or such other arrangements as approved by the Public Service Commissioner. Clause 16(3) provided for flexitime arrangements and clause 16(4) for a nine day fortnight. Clause 17 provided for a shift work allowance. 158 Clause 18(2) provided for work which was “deemed as overtime”. This was work performed “by direction of the Chief Executive Officer” which was “before or after the prescribed hours of duty on a week day” or “on a Saturday, Sunday or public service holiday, other than during prescribed hours of duty”. Clause 18(2)(a) provided that the overtime would be paid at the hourly rate prescribed by paragraph (b) of the subclause. This subclause provided formulae to calculate the payment for overtime on an hourly basis on week days, Saturdays, Sundays and public service holidays. For example, with respect to weekdays there was one formula for the first 3 hours of overtime and another for any time worked after that. For the first 3 hours the formula was:- “ Fortnightly Salary x 3 75 2” 159 The formula for work after that on a week day was:- “ Fortnightly Salary x 2 75 1” 1252 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 87 W.A.I.G. 160 Clause 18(2)(c) provided for time off in lieu of overtime being granted by the Chief Executive Officer subject to prior agreement in writing. This subclause also provided for a basis to determine the length of time off in lieu of overtime. It also required the employee to generally clear accumulated time off in lieu within two months of the overtime being performed. Clause 18(2)(d) provided that any commuted allowance and/or time off in lieu of overtime, other than that provided for in paragraph (c) of the subclause was to be negotiated only between the CSA and the Chief Executive Officer. Clause 18(2)(e) provided that no claim for payment or time off in lieu would be allowed in respect of any day in which the additional time worked was less than 30 minutes. Other subclauses of clause 18(2) applied to returning to duty, working overtime at a place other than usual headquarters, limitations upon payments for overtime or granting time off in lieu of overtime, entitlement to absence in certain circumstances after a continuance period of duty and overtime calculations where the work extended past midnight. Generally clause 18(2)(j) provided that overtime or the granting of time off in lieu of overtime could not be approved where a maximum salary or maximum salary and allowance in the nature of salary exceeded that as determined for level 5 as prescribed in clauses 10 and 11; and for officers whose work was not subject to close supervision. (ii) Evidence from Witnesses 161 Ms van den Herik attested to her belief that CSA members employed in the public sector, as defined in the PSMA, are entitled to be paid for overtime when they are required to work outside of their normal working hours, and that they have always had that entitlement. Ms van den Herik said that as far as she was aware the CSA had not traded off, on behalf of its members employed in the public service or outside of the public service, entitlements to be paid for overtime. 162 I have earlier set out that Ms Robertson was the president of the CSA from 1993 until 2003. Ms Robertson also gave evidence about her employment as a public service officer. She is presently employed by the Government Employees Superannuation Board (GESB) as a senior policy officer. She said that she commenced employment with the Western Australian Government with the Public Service Board in 1984. In 1984 she was employed under the PSA. Ms Robertson said that as far as she was aware the PSA 1992 applied to her employment both prior to and following the repeal of the PSA. Ms Robertson said that the PSA was repealed in or about 1994 and was replaced by the PSMA. Ms Robertson asserted that the PSMA applied to her. 163 Ms Robertson attested that public service officers employed by the GESB were entitled to overtime payments if the conditions of the PSA 1992 were met. 164 Mr Best said he commenced his employment with the Western Australian Government with the Public Service Board in May 1987. Mr Best said that as far as he was aware the PSA 1992 applied to his employment both now and before the PSA was repealed. Mr Best also said he believed the PSMA now applied to him. Mr Best was presently employed as a public service officer, as a senior reporting officer at the Department of Education and Training (DET). Mr Best said that he was aware that he and other public service officers employed in DET were entitled to overtime payments if the conditions of the PSA 1992 were met. 165 Ms Walkington said that at the time rule 12(l)(vi) was inserted, public service officers had an entitlement to be paid overtime under the PSA 1992. (T149). Ms Walkington disagreed with the proposition put to her that enterprise bargaining had not started by that time. Ms Walkington asserted that enterprise bargaining commenced in 1991 and the process commenced with negotiations with the government as to how enterprise bargaining was going to proceed. (T149). It was put to Ms Walkington that although there was the PSA 1992, public service general agreements and in some agencies, agency specific agreements, in all of those cases there is still an entitlement to overtime for public service officers. Ms Walkington answered that it “does vary though from department to department so in some cases there is an entitlement prescribed by the general agreement. For some state government departments there is further an agency specific agreements [sic] that alters that entitlement. And if you’re employed by the Department of Main Roads, you are not covered by the general agreement and other provisions that relate to the enterprise bargaining agreement specifically applied to Main Roads exist”. (T149/150). Ms Walkington also confirmed that “Main Roads” employees are public service officers under the PSMA. Ms Walkington said that they get overtime in some instances but have an annualised process whereby they work 40 hours per week and not 37.5. Ms Walkington said their overtime provisions were different because their enterprise bargaining agreement was different. (T150). 166 Ms Walkington said she also knew that in a couple of other government departments they have changed hours and that had an effect on overtime entitlements. Ms Walkington then said that different terms and conditions of public service officers started to emerge in the early 1990’s and continued until 2001 where at the end of that year there were, as she said in her statement, about 352 agreements. It was within this process in about 1998 that the CSA council commenced an enterprise bargaining process with the CSA staff. Ms Walkington agreed with the proposition that her evidence was the council was aware of the existence of rule 12(l)(vi) but felt it was unable to satisfy it. (T150). 167 Later, Ms Walkington said with respect to public service officers that overtime “was subject to a variety of different arrangements in the public service and one of those arrangements can be a benefit in lieu of the payment, if that’s what’s struck and arranged, and that was what was done. Many employees have different arrangements”. (T340). Ms Walkington said that some agreements take away overtime completely and give it as a salary. This was not in terms of a commuted allowance but a salary increase. An example of this was The Department of Land and Administration where there were 12 agreements which did that. The effect of these agreements was that you work Saturday and Sunday and you do not get overtime. You might not work Monday and Tuesday but you do not get overtime. 168 After the 2002 general agreement came into being Ms Walkington said there was more commonality across public service officers’ terms and conditions but there were still differences. Ms Walkington disagreed with the proposition that at that point the CSA could have “gone back to comply with the rule”. Ms Walkington said the CSA could not do that because if they did it would have reduced employees’ terms and conditions. She gave as an example the introduction of an attraction retention benefit which was paid to a number of public servants. (T349). Ms Walkington also said it was common for public sector employees to have long service leave after 7 years whereas employees of the CSA were entitled after 5 years. CSA employees were also entitled to take time off work when they were rostered between Christmas and New Year and to be paid as though they were at work. Ms Walkington said the CSA “would have had to go and adopt what happens in TAFEs where people have to actually use their time in lieu or annual leave or something for closedowns”. (T349). 169 Ms Walkington also said the 2004 general agreement did not make any overriding provisions for overtime. (T351). Therefore the entitlement to overtime was still generally covered by the PSA 1992. (T351). 87 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1253 170 Mr Ellis said whether an officer in the public service was entitled to overtime payments when the applicant was first appointed in September 1999 depended “on what agreement you were under, what agency specific agreement you were under, what workplace agreement you were under. Depends. There were so many, there were hundreds of those that I couldn’t say”. (T75/76). Mr Ellis said that within 18 months of the industrial relations laws amendments in Western Australia in 1995/1996 there were numerous different conditions and enterprise bargaining agreements and workplace agreements throughout the entire public sector. (T76). (I note the date may have been in error given the Workplace Agreements Act was passed in 1993). Mr Ellis said it was not unusual for clauses in workplace agreements to include a lack of entitlement to overtime. (T76). Mr Ellis also made the point that if conditions and restrictions of public service officers applied to employees of the CSA then CSA employees would have lost entitlements gained through their EBA process. (T77). 171 Mr Ellis also gave some evidence about overtime being generally an entitlement of public service officers save for the possibility of workplace agreements still applying which contained an exclusionary clause, which he had not seen, or some agency specific agreements, but said he could not be definitive as it was not his area of expertise. (T87/88). 172 Mr Cusack when being cross-examined said he was “aware of employees who are employed subject to the Public Sector Management Act as public servants who are not, as a matter of course, entitled to overtime payments in the general run of events”. Mr Cusack referred to the agency specific agreement of the Department of Planning and Infrastructure which provided for the alternative benefit of a commuted overtime allowance. Mr Cusack also referred to the technical officers in the Department of Fisheries who also had a commuted overtime allowance; in the sense of it being rolled up into their salary and paid as part of their fortnightly pay. (T123). Mr Cusack said those agreements would “overwrite” the overtime provisions in the PSA 1992. (T123). Mr Cusack also said he was “not sure how many people in the public sector receive overtime. I know that the vast majority are entitled to receive overtime if they work extra hours. I do state that the people who are employed under those agency specific agreements are a small percentage of the public service workforce”. (T123). At T124 Mr Cusack said the agency specific agreements he referred to had not been in existence when the applicant was first employed in September 1999. There were individual EBAs though that related to agencies in the sense that there was negotiated a new agreement for each agency. He was not aware of the conditions of those agreements because it was prior to his employment with the CSA. (d) The History of Rule 12(l)(vi) 173 As set out earlier the rule was inserted in July 1992. Following the decision in application 1215 however Ms Walkington took steps to have the second sentence of the rule deleted. The first step in this process seems to have been the circulation of the memorandum the applicant became aware of in May 2006. (e) Ms Walkington’s Memorandum 174 This memorandum dated 2 May 2006 was from Ms Walkington to the CSA council. (I will refer to it as the “Walkington memorandum”). The purpose of the Walkington memorandum was to provide notice of a proposal to make an alteration to the rules of the CSA. The proposed rule alteration was about rule 12(l)(vi) and the memorandum said this would be dealt with at a meeting of council set down for 24 May 2006. 175 Under the heading “Background”, the memorandum set out the terms of rule 12(l)(vi). The memorandum said that in “accordance with this rule” the terms and conditions for employees of the CSA were determined by the council and are found in various resolutions and policy statements. The memorandum said that since 1998 the council endorsed a process of enterprise bargaining resulting in an agreement between the council and the delegates/representatives of the CSA members who were also CSA “staff”. The memorandum said that the agreements had been codified in documents entitled “CSA Staff Wages and Conditions Agreements” (agreements). The memorandum said that the terms and conditions of the agreements were not the same as the terms and restrictions that apply to officers appointed under the PSA and its successor the PSMA. 176 Although not mentioning application 1215 by name or application number, the memorandum then clearly referred to that application and the reasons for decision of Kenner C. The memorandum summarised and quoted from the reasons. The memorandum said that a copy of the reasons was issued to councillors previously and said if a copy was required it could be obtained from the then executive officer. 177 The memorandum said the council “has not engaged employees on the same conditions and restrictions as Officers appointed under the Public Sector Management Act. Compliance with this rule would reduce a number of terms and conditions, such as long service leave, closedown arrangements and access to higher duties for the staff of the CSA”. 178 The memorandum said the matter had been canvassed at a meeting of staff. The memorandum said that whilst a formal position had not been presented on behalf of staff, a view that the rule provided a “safety net for the minima for staff conditions was advanced”. The memorandum said this view was derived from the advice of the advocate representing the applicant in application 1215. The memorandum said however that “a ‘plain meaning’ interpretation of the Rule does not accord with this view”. The memorandum said that “the rule provides for the same conditions and restrictions – the rule does not use words such as ‘at least’ nor as a ‘safety net’” (emphasis in original). The memorandum also pointed out that the use of the word “restrictions” means that limitations apply also. 179 The memorandum said the rule was incorporated into the constitution of the CSA in 1992 along with amendments to effect the amalgamation into the State Public Services Federation. The notice which was then sent out to members with the then proposed rule 12(l)(vi) said it was to ensure “that CSA staff are appointed subject to conditions and restrictions which mirror those for public servants, however, as employees of the union, they are not public servants”. The memorandum then said the council should consider the current relevance of the rule. 180 The memorandum said the introduction of the PSMA and the Public Sector Standards in 1994 resulted in processes, conditions and restrictions that were neither available nor capable of being applied to the staff of the CSA. It pointed out that matters which prior to 1994 had been contained in industrial instruments were now contained in legislation. These were not processes the CSA was able to adopt. 181 The memorandum went on to say that through the 1990’s the terms and conditions that applied to officers appointed under the PSMA varied significantly as a result of agency based bargaining for agreements and the use of individual employment contracts outside this process. 1254 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 87 W.A.I.G. 182 The memorandum said there was a range of conditions currently enjoyed by CSA staff significantly different from those applying to the public service. It was said that the “differences are a result of the different operating environments and contexts for employees of the union”. It said the differences in terms and conditions of employees eligible to join the union and the union staff had increasingly diverged. 183 Under the heading of “Rule Amendment”, the memorandum then said that Ms Walkington proposed council amend the rule by deleting the second paragraph of rule 12(l)(vi). It was suggested the amendment would ensure that the “lack of clarity” observed by the Commission in its recent decision would be remedied. 184 The memorandum then described the process for making a rule change and concluded with a recommendation to that effect. Attached to the memorandum was a draft notice to members which set out the proposed alteration. By way of justification for the alteration the draft notice said as there “are many industrial instruments applying to persons employed in the public sector, including the Award, many industrial agreements and other forms of industrial instrument, in accordance with the current Rule, it is difficult to determine what the terms and conditions of appointment for individuals at the CSA should be. Secondly, the CSA Conditions of Service sets out the express terms of employment, which may contradict conditions of employment in accordance with the Public Sector Management Act 1994”. (f) The Alteration of the Rule 185 A copy of a Certificate of Registration of Alteration of Rules dated 15 November 2006, signed by a Deputy Registrar of the Commission, was received into evidence as exhibit H. This certified that the second paragraph of rule 12(l)(vi) had been deleted. Attached was the decision record of the Deputy Registrar. This referred to s62 of the Act in its title and described application “71/2006”, as “In the matter of an application by The Civil Service Association of Western Australia (Incorporated) for alteration of registered rules”. The decision was that:- “Having read the application, there being no person desiring to be heard in opposition thereto, after consulting with the President, and upon being satisfied that the requirements made thereunder have been complied with, I have this day registered an alteration to rule 12 of the registered rules of the applicant union in the terms of the application as filed on 22 August 2006.” 186 As I am aware from my involvement in application 71/2006 under s62(3) of the Act, and as recorded in and from the fact of the decision, the recommendation of Ms Walkington to alter the rule was accepted by council and the membership of the CSA. The decision to alter the rule was duly carried out by the CSA council officers by lodging the relevant documents with the Commission. (g) The Employment of CSA Employees Generally, Overtime and Rule 12(l)(vi) 187 In her witness statement Ms Walkington set out the background to the amendment to the CSA rules to include rule 12(l)(vi). This was generally consistent with the Walkington memorandum. Ms Walkington said that based on her knowledge and involvement with the CSA at the time, the intention of rule 12(l)(vi) was to protect CSA staff in the event of a national takeover. Ms Walkington said there was little or no effect on existing CSA employees as a result of the initial inclusion of rule 12(l)(vi). This was because employment conditions had already been established and were similar to the public service. 188 Within the changing industrial landscape for State employees in the relevant period, Ms Walkington set out the steps the CSA took to “define the terms and conditions applicable to CSA staff”. Paragraphs [21]-[23] of Ms Walkington’s witness statement were as follows:- “21. Council was aware of the existence of Rule 12(l)(vi) but felt that it was unable to satisfy it because there were such a large number of different instruments determining the terms and conditions applicable throughout the Public Service. It would not have been possible for the CSA to implement terms and conditions that were consistent with each of these awards/agreements. This made it impossible for the CSA to comply with Rule 12(l)(vi) because it was not able to clearly define any standard terms and conditions of employment for persons employed under the Public Sector Management Act. 22. By reason of the matters identified at paragraph 21, the Council believed that it was empowered by Rule 12(m) to engage in a process with a view to clearly defining the terms and conditions of employment of CSA staff. 23. In view of the above, the CSA commenced Enterprise Bargaining negotiations with its staff in or about 1998. Enterprise Bargaining Agreements (“EBA”) were reached between CSA and its staff in 1998 and 1999. Council endorsed each EBA.” 189 Both the EBAs in 1998 and 1999 were silent on the question of overtime. In her witness statement in application 1215, which the applicant tendered as an exhibit in the present application, Ms Walkington described the process which lead to the making of these agreements and annexed copies of them. Both the 1998 and 1999 EBAs were unregistered agreements. The 1998 EBA was endorsed by the CSA council on 25 November 1998. A copy of the minutes of that council meeting were annexed to Ms Walkington’s witness statement in application 1215. The minutes said that the 1998 EBA was endorsed by a majority of employees. At that time, the applicant was not an employee of the CSA. 190 The 1998 EBA was said to apply to all employees and full-time paid officials of the CSA including the general secretary and assistant general secretary. The parties to the agreement were the council of the CSA, the CSA and the Australian Services Union. The agreement contained clauses about “work practice changes”, “organising culture”, “administrative efficiencies”, “pay increases and conditions of service” and “dispute settlement procedures”. Clause 9(1) set out that the parties recognised that given the current financial position of the CSA that the CSA was unable to fund a wage increase. Accordingly, the clause said the existing salary rates contained in schedule A would apply during the life of the agreement. Clause 9(2) provided that 87 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1255 where “safety net adjustments or living wage adjustments apply to the Public Service Award and result in a higher award rate of pay than the rates contained in schedule A then the Award rate of pay will apply”. Clause 10 referred to the formalising of conditions of employment in a single document prior to 31 December 1998. Ms Walkington in her statement in application 1215 said this did not occur during the life of the agreement but occurred during the life of the 1999 EBA. 191 Ms Walkington said that as at the date of her witness statement in application 1215, dated 19 October 2005, the current conditions of service for CSA employees were prescribed by the 1999 EBA, which was also an unregistered agreement. Ms Walkington said the 1999 EBA was endorsed at a council meeting on 3 November 1999. The minutes said that at a recent staff meeting the CSA staff voted to accept the terms of the agreement by a majority of 41 to 3. At that time the applicant was a member of the CSA staff although there is no evidence of whether he attended at the meeting referred to. 192 Clause 3 of the 1999 EBA set out that it applied to all employees and full-time officials of the CSA including the general secretary and assistant general secretary. The parties to the agreement were the CSA council, the CSA and the Australian Services Union. Clause 9 of the 1999 EBA refers to salaries. It refers to two salary adjustments to the salaries contained in schedule A of the 1999 EBA during the life of the agreement. The clause also provided that where safety net adjustments or living wage adjustments apply to the PSA 1992 and result in a higher award rate of pay than the rates contained in schedule A, then the award rate of pay would apply. Clause 10 set out that the conditions of service and schedule B should be read in conjunction with the existing conditions of service contained in a range of documents, resolutions and decisions of council. It said that in the case of any inconsistencies the agreement would have precedence to the extent of those inconsistencies. Clause 10(2) provided that the parties agreed to continue negotiations to codify those conditions of employment contained in policies and decisions of council. Clause 10(3) said that where the terms of codification of conditions were agreed between the parties and approved by council the agreed terms shall be included in schedule B of the agreement. 193 Annexure 3 to Ms Walkington’s witness statement in application 1215 was two tables related to the codification of the conditions of employment of CSA employees. Table 2 set out that a codified condition relating to overtime and time off in lieu was agreed by the CSA and the Australian Services Union as the joint unions representing CSA employees on 12 April 2000 and was endorsed by the CSA council on 24 May 2000. Ms Walkington’s statement also annexed a copy of the minutes of the CSA council on 24 May 2000 which endorsed the codified overtime and time off in lieu provision. This document headed “Overtime and Time Off in Lieu” dated 4 May 2000 was also annexed to Ms Walkington’s statement in application 1215. Its terms were:- “1. In accordance with current practice, the CPSU/CSA does not generally pay overtime or approve time off in lieu of payment of overtime except in extraordinary or unusual circumstances. 2. From date of commencement of employment, employees appointed to identified positions within the Union are paid an allowance in addition to salary, in accordance with Schedule A Salaries of the CSA Staff Enterprise Bargaining Agreement. 3. For those employees appointed to identified positions in subclause (2) of this clause, any claim for overtime or time off in lieu would have to be in extraordinary or unusual circumstances. 4. In such extraordinary or unusual circumstances, claims for overtime or time off in lieu of payment of overtime, shall have prior written approval of the General Secretary. 5. An employee who has prior approval to take time off in lieu is required to make arrangements with their supervisor to clear such time off in lieu within two months of the overtime being performed. 6. Provided that there is written agreement between the employee and supervisor, time off in lieu of payment for overtime may be accumulated beyond two months from the time the overtime is performed so as to be taken in conjunction with periods of approved leave. 7. In circumstances where the General Secretary has approved payment of overtime and there is no agreement for time off in lieu to be taken in conjunction with periods of approved leave, the employee shall be paid for the overtime worked.” 194 The applicant said in a witness statement in application 1215 that he did not receive the allowance referred to in paragraph [2]. 195 Neither the 1998 nor 1999 EBAs made any reference to rule 12(l)(vi) of the rules of the CSA or incorporated into the conditions of employment of CSA employees the same “conditions and restrictions” of public service officers. 196 The applicant did not give evidence about any knowledge of the 1998 EBA when he commenced his employment with the CSA. Additionally he did not give any evidence about his involvement in the making of the 1999 EBA or knowledge of its terms and conditions. The same applied with respect to the May 2000 codification of overtime and time off in lieu of overtime. 197 In Ms Walkington’s evidence in these proceedings she said that despite the commencement of the General Agreement in 2002, rule 12(l)(vi) remained impractical in application because although the Workplace Agreement Act was repealed and workplace agreements were abolished, individuals who had been on workplace agreements retained the most beneficial conditions offered by that agreement or any collective agreements applicable to them. The consequence was that individuals working within the same department had differing terms and conditions of employment. Additionally agency specific agreements could vary the terms and conditions provided for by the General Agreement. 198 In paragraph [28] of her witness statement Ms Walkington said:- 1256 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 87 W.A.I.G. “28. Council did not anticipate that the employees of CSA would want the conditions of their employment aligned with the Public Service Award. If the CSA were to align with a Public Service Award it would have had to do so in respect of all the terms and conditions offered within that Award. While there may have been some benefits offered to our staff in doing so, the overall effect would have been largely detrimental. Council did not feel that it could unilaterally alter the term and conditions of employment of its staff. Council also felt that it was in the interests of its staff to maintain its EBA and continued with that practice. Subsequent EBA’s have been reached in 2003 and 2006, both of which have been endorsed by Council.” 199 Ms Walkington also referred to negotiations between the CSA council and staff union in 2006, where Ms van den Herik raised the issue of the application of rule 12(l)(vi). Ms van den Herik was leading the negotiations on behalf of the staff. Ms Walkington said the council put to the delegates that the application of rule 12(l)(vi) would put at risk a number of the terms and conditions of employment available to staff. The suggestion that rule 12(l)(vi) would be deleted was put to the staff and Ms Walkington said the delegates did not oppose or consent to the suggestion. 200 In cross-examination, Ms Walkington said that when she prepared the Walkington memorandum she checked the factual details referred to. (T197). Ms Walkington was referred to that part of the Walkington memorandum which referred to the notice to members about rule 12(l)(vi) when it was proposed to be inserted, which said CSA staff conditions were to mirror those of a public servant. Ms Walkington said there should have been a mirroring but there was not. (T358). Similarly at T350 Ms Walkington was asked about compliance with rule 12(l)(vi) by the CSA. It was put to Ms Walkington that the CSA had not “complied with that rule, I think, between 1993 and November 1998 had it?”. Ms Walkington said that “it didn’t apply those limitations and it didn’t mirror the conditions”. (I note that this was prior to the employment of the applicant.) 201 Ms Walkington confirmed that as far as she was aware the CSA council had never made a formal decision about the interpretation of rule 12(l)(vi). (T136, 137 & 155). During the same cross-examination Ms Walkington said that there was no documented record of a decision about rule 12(m) applying to any difficulties in the application of rule 12(l)(vi). With respect to the reference in rule 12(m) about the regulation of procedure, Ms Walkington explained that her understanding was it was about how meetings were conducted and processes of authorisation and decision making. (T152). 202 In the context of the contents of the Walkington memorandum, Ms Walkington described rule 12(l)(vi) as being “impractical in the first place”. (T175). Ms Walkington also said that when rule 12(l)(vi) was first inserted into the CSA rules, when she was working for the CSA as an industrial officer, she thought that in discussions with her senior industrial officer and perhaps some other colleagues she said that “I thought that it was not a rule that you could apply and it wasn’t a rule that was being applied”. (T316). 203 Ms Walkington confirmed that she was not paid overtime from the date of commencement of her employment with the CSA to the date that rule 12(l)(vi) was inserted. (T148). She also agreed that there was no change to the terms and conditions of her employment as a consequence of the insertion of rule 12(l)(vi). (T148). The reason for this, she explained, was that her terms and conditions were already similar to the public service. Ms Walkington did not accept however that her terms and conditions of employment were identical to the public service. (T148). 204 Ms Walkington said that in her experience the CSA has only paid overtime to employees in extraordinary and unusual circumstances. (T148). Ms Walkington agreed that at the time when rule 12(l)(vi) was inserted in 1992, public servants or public service officers had an entitlement to overtime. Ms Walkington could not say, from her consideration of the matter, when the CSA commenced its practice of not generally paying for overtime. (T201). 205 Ms Walkington was shown a copy of the letter of appointment of Ms van den Herik, which became exhibit 13. As stated earlier, the letter from the then general secretary to Ms van den Herik dated 18 January 1991 and said her appointment was as an industrial officer at level 4.2. The letter said the appointment was subject to a three month probationary period after which she would be available for permanency and a membership of the staff superannuation scheme. The letter said that other conditions of service are similar to those applying within the public service. The letter said there was also the option of the working of a nine day fortnight. The letter also said a copy of the position data form and a sheet briefly outlining conditions of service was attached. Ms Walkington said that at this time the salary structure and salary points for CSA employees were identical to those which applied to public servants. (T306). 206 Ms Walkington said the council did not consider whether it was possible to appoint the applicant subject to the same conditions and restrictions as a public service officer because council did not consider individual appointments in that context. (T232). 207 Ms Walkington was also cross-examined about the reason she had given for the CSA’s entering into of the EBA with their employees in 1998. In her statement Ms Walkington said in effect that because of the difficulty with complying with rule 12(l)(vi) and the belief of council that it was acting in accordance with rule 12(m) to do so, it engaged in a process to define the terms and conditions of employment of CSA staff. To do this the CSA commenced enterprise bargaining negotiations with its staff in or about 1998. Ms Walkington then said that EBAs were reached between the CSA and its employees in 1998 and 1999 and that each EBA was endorsed by council. 208 At T347 Ms Walkington was shown a copy of the minutes of the CSA council meeting on 25 November 1998 which was annexed to her statement in application 1215 which is exhibit 10 in the present proceedings. In item 8.1, a copy of a draft EBA was referred to. The minutes recorded the parties recognised that because of the financial situation of the CSA it was not able to fund a wage increase. The minutes recorded that therefore the existing wage rates would continue to apply. The minutes then said that as a result the parties looked at conditions of employment and listed items which were agreed upon. There was no reference to overtime but there was reference to long service leave after 5 years’ pro rata and extra days being taken off at Christmas/New Year which were referred to in Ms Walkington’s evidence mentioned earlier. The council minutes recorded that the staff EBA was adopted. 87 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1257 209 The applicant’s counsel also took Ms Walkington to appendices from the WAIG which recorded the membership numbers of the CSA from 1985 to 1999 which as Ms Walkington agreed showed a “fairly dramatic drop in membership levels at around that time”. (T348). Ms Walkington agreed that this tallied with the financial situation of the CSA as referred to in the minutes. Ms Walkington also agreed that there was no record in the minutes about the impracticalities of structuring terms and conditions of CSA employees on the same basis as public service employees. It was later put to Ms Walkington that what was contained in the minutes was the real reason for the entering into of the enterprise bargaining agreements. Ms Walkington said that there were a “number of factors”. Ms Walkington denied that her witness statement was misleading because it mentioned one of the relevant “factors”. Ms Walkington maintained there was a difference between why terms and conditions were codified as opposed to why the lack of a pay increase was agreed. (T359). 210 Mr Ellis when cross-examined was asked about whether there was an interpretation by the CSA council of the meaning of rule 12(l)(vi). Mr Ellis said the CSA council had not directly interpreted the rule but it had indirectly. As to whether there was a formal decision of the CSA council interpreting what rule 12(l)(vi) meant Mr Ellis said it was a point of conjecture because the council endorsed a number of enterprise bargaining agreements, which indicate they felt that was an appropriate way to demonstrate they were improving the conditions for their employees. This commenced with the 1998 EBA. (T74/75). 211 Later Mr Ellis said that every time the council passed an EBA in his view it indicated the council were exercising their powers under rule 12(m). Mr Ellis was taken to the terms of rule 12(m) and when asked whether the council made a decision that rule 12(l)(vi) was doubtful Mr Ellis said they may not have so stated but by passing EBAs they were of the view that those were the conditions and “we were exercising our appropriate responsibilities”. Mr Ellis said that although he could not speak for the rest of the council this was how he viewed it. Mr Ellis agreed therefore that there was no formal decision of council declaring or deciding rule 12(l)(vi) was doubtful. (T100). Mr Ellis also said he was not aware of any legal opinion the council received about the meaning and interpretation of rules 12(l)(vi) and 12(m) prior to the filing of the present application. (T100/101). 212 At T94 Mr Ellis reiterated that there were so many instruments around since September 1999 that rule 12(l)(vi) could not be complied with because there was no “base standard to refer to”. 213 Mr Cusack when cross-examined was referred to paragraph [17] of the outline of submissions of the CSA in application 1215 where it said that the intent of the rule 12(l)(vi) was to “provide for broad conditions of employment similar to and on a whole not less than its members employed in the public sector”. Mr Cusack said he was not aware of any decision or interpretation by council to that effect. (T117). As to the basis upon which he included paragraph [17] in the outline of submissions he said that he discussed the matter with CSA branch officials. Mr Cusack said he did this given he had only been an employee of the CSA since 2000. He also knew the recent history of the enterprise bargaining agreements, agency specific agreements, the fact that there were improvements in conditions over a number of years and also his knowledge of the CSA unregistered EBA which provided conditions of employment superior to those in the public service general agreement or other industrial instruments applying to people employed under the PSMA. He also had discussions with Ms Walkington about the history of the rule. (T117). 214 In her evidence, Ms Robertson mentioned the payment of overtime to Ms Burlinson and said the executive officer engaged prior to the applicant had taken time off in lieu of overtime payments for the hours that she had worked. 215 Ms Walkington responded to the evidence of Ms Robertson about the payment of overtime to Ms Burlinson. Ms Walkington said that payments of overtime were made to Ms Burlinson only in unusual or exceptional circumstances. 216 Ms Walkington then confirmed that a commuted overtime allowance had been paid to some employees of the CSA but not to the applicant. (T318). Further, the use of a commuted overtime allowance did not occur prior to the codification of overtime provisions for CSA employees in May 2000. (T318). 217 Ms Walkington agreed with the proposition that the PSA 1992 does not contain a commuted overtime allowance. (T319). (The proposition which was put was not strictly accurate in light of clause 18(2)(d) of the PSA 1992). In relation to paying overtime in the exceptional circumstances when it was paid to CSA employees, such as Ms Burlinson, Ms Walkington said this was not necessarily done with reference to the PSA 1992 but was negotiated at the time. (T319). Ms Walkington said she did not think she could point to any occasion where the CSA paid overtime in accordance with the PSA 1992. (T319/320). 218 The applicant also tendered an email from Ms Brewer to the applicant dated 6 April 2004. This was just prior to the time the applicant made his “formal” claim for overtime payments. The email relevantly said, “Overtime clause herewith. You have the choice of seeking payment for overtime or time off in lieu Clause 2(a) and (b)”. The terms of clause 18 of the PSA 1992 were then included in the email. There was also an earlier email from the applicant to Ms Brewer of the same date which said “need to see you as soon as”. I mention now that contrary to the closing submissions of the applicant’s counsel I do not think these documents are telling in any way – they do not throw any light on the meaning of rule 12(l)(vi), or whether it could or was complied with. 23. Breach of Rule 12(l)(vi) – General Factual Findings 219 The general factual findings that I make relevant to this alleged breach of the rules are as follows:- (a) The applicant commenced his employment with the CSA as the executive officer on 20 September 1999. (b) The applicant’s contract of employment did not include a condition that he be paid for overtime. I find this because of the lack of mention of overtime in the letter of appointment and what Ms Brewer told the applicant at or after his induction about the non payment of overtime, which the applicant must be taken to have agreed to by his conduct in commencing or continuing with his employment on that basis. The CSA submitted, in its additional written submissions, for the first time that there was issue estoppel about this point arising from the decision in application 1215. I do not need to decide this as I am satisfied on the evidence that no such condition of employment existed. (c) In my opinion it is not determinative to this alleged rule breach whether or not the applicant was told at his interview he was to have the car parking bay in lieu of overtime. There was little emphasis on this point in the hearing. The issue does not resolve the question of the meaning of and compliance with rule 12(l)(vi) and the consequences of any non compliance. 1258 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 87 W.A.I.G. (d) The applicant made a claim for payment for overtime to the CSA on or about 15 April 2004. (e) There were discussions and correspondence about this claim involving the applicant, Ms Walkington and Ms van den Herik. The claim was not resolved and consequently application 1215 was commenced on 16 September 2004. (f) It is unnecessary in the determination of the present application to decide whether the agreement by Ms Walkington to pay the applicant overtime from 19 April 2004 was or was not without prejudice. This has no bearing upon whether the rule in question was breached. (g) The applicant regularly worked outside ordinary hours to record minutes for meetings. He was not paid overtime for this. (h) The amount which the applicant sought to be paid for overtime, based on the formulae set out in the PSA 1992, was calculated by him to be $9,850.29. (i) The Walkington memorandum was prepared in response to the decision in application 1215. In the Walkington memorandum Ms Walkington genuinely attempted to set out her opinion of the facts and issues for the benefit of the CSA council. If the contents of that memorandum are in conflict with any aspects of the evidence of Ms Walkington the contents of the memorandum are to be preferred given its purpose and the fact that Ms Walkington said she checked the facts contained in the memorandum before preparing it. (j) At least Ms Walkington and Mr Ellis, as officers of the CSA, were aware that there was difficulty in complying with the letter of rule 12(l)(vi). They therefore felt that the council was justified in not doing so. This did not occur however by way of the process set out in rule 12(m). There was no resolution by council that rule 12(m) applied to rule 12(l)(vi) which therefore justified the council in acting contrary to the terms of rule 12(l)(vi). The suggestion that rule 12(m) was invoked was an ex post facto rationalisation to explain the terms and conditions of employment of CSA employees not being in accordance with rule 12(l)(vi). I accept the applicant’s submission that the interpretation of the rule was not doubtful, but its application was. (k) The commencement of enterprise bargaining agreements between the CSA and its employees did not therefore directly arise out of any decision by council that rule 12(m) applied to rule 12(l)(vi) and that therefore it was appropriate to engage in enterprise bargaining agreements with CSA staff. (l) Unregistered enterprise bargaining agreements were reached between the CSA council and the CSA and Australian Services Union on behalf of the CSA staff in 1998 and 1999. The CSA council endorsed each EBA but they did not mention overtime. (m) During the period of employment of the applicant by the CSA, the CSA did not generally pay overtime to employees. It only did so in extraordinary or unusual circumstances. This practice had applied from a time earlier than the employment of the applicant, based on the evidence of Ms Walkington and Ms van den Herik. (n) There was codification of an overtime provision for CSA employees in May 2000 by a document which was incorporated into the 1999 EBA. In this document it said that in accordance with current practice the CSA did not generally pay overtime or approve time off in lieu of payment of overtime except in extraordinary or unusual circumstances. EBAs in 2003 and 2006 have also been endorsed by the council, but there was no evidence that they changed the codification of overtime/time off in lieu. 220 I should also comment upon the implicit and at times explicit criticism by the applicant of the credibility of the evidence given by Ms Walkington and Mr Ellis. In my opinion both of these witnesses gave evidence in a cautious if not cagey fashion. They were careful to limit their answers to the specific questions asked and almost always wanted to look at documents which were referred to in questions, before answering. This of course does not of itself indicate any lack of desire to give genuine testimony, but in my opinion was symptomatic of their careful method in giving evidence. It may be that their style of giving evidence was the product of many and varied industrial tussles and court battles and so I should not be overly critical of it. Ms Walkington in particular was very measured in the framing of her answers to questions so as to generally give them in a way which was consistent with the case being presented on behalf of the CSA. There were times when I thought that this involved some moulding of what happened or her opinions to enable the presentation of a position which now best suited the purposes of the CSA. I do not think however that the evidence of either Ms Walkington or Mr Ellis was generally misleading or deliberately unhelpful to the resolution of the issues before me. Indeed, in relation to the history of employment of public sector employees and the employment of CSA employees I found Ms Walkington’s evidence to be particularly useful. 221 There was no general criticism of the credibility of the other witnesses who gave evidence for either party and in my opinion they did their best to answer questions honestly so as to assist in the determination of the application. 24. Was the Applicant Appointed In Accordance with Rule 12(l)(vi) 222 To consider whether this occurred involves looking at what happened in September 1999, nearly eight years ago. As I will later set out, it seems quite contrary to the purpose of s66 to see if there was a breach of rules so long ago. 223 In my opinion, the applicant has established that he was not so appointed. I have earlier quoted from the applicant’s letter of appointment. This makes no reference to the appointment being subject to the same conditions and restrictions as a public service officer. There is a reference to the “CSA Conditions of Service”, but the evidence is that despite the best efforts of the applicant and his counsel, there is no record of any document existing which sets these conditions out. This evidence includes not only that of the applicant himself but also the evidence of Ms Walkington and Ms van den Herik about their own appointment as employees of the CSA. It may be that the phrase was intended to mean the 1998 EBA, but this is not at all apparent. Alternatively it may have been a collective reference to the range of documents, resolutions and decisions of council as mentioned in the 1999 EBA. Although the reference to “levels” within the applicant’s letter of appointment is suggestive of a pay alignment with a public service officer this is not the same thing as an appointment subject to the same “conditions and restrictions” as such an officer. The expression “conditions and restrictions” is broader than simply involving a level and salary alignment. 87 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1259 25. Operability of Rule 12(l)(vi) in September 1999 224 The more pertinent question though is whether the rule was capable of practical operation by the time of the applicant’s appointment. 225 In September 1999 the conditions and restrictions of an officer appointed under the PSMA were those set out in: (a) The PSMA. (b) The PSA 1992. (c) Any variation from the PSA 1992 legally effected by:- (i) an individual workplace agreement (ii) a collective workplace agreement (iii) a registered industrial agreement. 226 The conditions of a public service officer included the duties to comply with standards established by the public service commissioner and the benefit and burden of the disciplinary and appeal processes of the PSMA. 227 These could not apply to employees of the CSA. 228 Additionally there are aspects of the PSA 1992 which are not readily transferable to employees of the CSA. For example, clause 18(2)(d) contained the prospect of a commuted overtime allowance or time off in lieu to be negotiated between the CSA and the “Chief Executive Officer”. This could not sensibly operate with respect to the employees of the CSA. 229 In addition to these problems the rule assumes there is an identifiable set of conditions and restrictions of a public service officer. By 1999 there was nothing which met this description. 230 As set out earlier the position of the CSA was that at least by the time of the appointment of the applicant in September 1999 it was impossible in practice to comply with the second paragraph of rule 12(l)(vi). This was because there was nothing which could be identified that met the description contained in the rules. It was this aspect of the application which involved by far the greater amount of the hearing time, via the cross-examination of Ms Walkington. 231 I have earlier set out the application of the Workplace Agreements Act to public sector officers so that such officers could enter into an agreement with their notional employer which varied from and took priority over the PSA 1992. There were also agency specific collective agreements which were registered with the Commission under s41 of the Act and had the same effect. There was evidence from Ms Walkington about the proliferation of collective agency specific and individual agreements under which the employment conditions of public service officers were set. The evidence was there was no commonality of conditions, including about overtime. 232 The DRD agreement for example provided that a subset of employees employed under the PSMA had “conditions and restrictions” of service which were different from the remaining set of employees and the PSA 1992. There was therefore no one set of generic “conditions and restrictions” of an officer appointed under the PSMA so as to make rule 12(l)(vi) capable of ready application. If there was, or was no longer, a generic set of “conditions and restrictions” held by officers appointed under the PSMA, which conditions and restrictions applied to a public sector officer, to make rule 12(l)(vi) workable? 233 The applicant pointed out that in for example, the DRD agreement there was an allowance for overtime and so there was no variation from a standard public service officer condition about an entitlement to the payment of overtime. In my opinion however, this submission does not solve the problem of practical compliance with the rule. 234 As stated in my opinion the rule meant that employees of the CSA “shall” be appointed subject to the “same conditions and restrictions as a public service officer”. For the rule to be workable it had to be possible to identify what the conditions and restrictions of a public service officer were, not just one of them. 235 In closing the applicant contended that:- (a) As the rule has been amended to delete the second paragraph the interpretation of it is “largely academic”. I am not sure how this submission might assist the applicant who has by this application attempted to make the interpretation other than academic. (b) The case is only about one condition, being overtime. It is therefore unnecessary to consider what other conditions the CSA should or should not have applied. I have already referred to this. As stated I do not accept this based on the construction of the rule. (c) The CSA asserted that rule 12(m) was used informally to interpret rule 12(l)(vi) or regulate its own procedure by the creation of alternative employment conditions, commencing with the EBA on 25 November 1998, as the rule was incapable of being complied with. The applicant submitted in response:- (i) If it was impossible to comply with the rule in 1998 it was also impossible to comply with it when it was inserted because in 1990 fisheries and wildlife officers had commuted overtime allowances. If that is so however it does not assist the applicant. It merely supports the view that rule 12(l)(vi) may always have been incapable of being complied with. (ii) The applicant asserted that if (i) is so, it makes fallacious the explanation of the CSA that the rule was not complied with because of the proliferation of industrial arrangements covering the employment of public service officers between about 1996 and 2001. However, even if the explanation is proved to be fallacious, this does not mean the rule could have been complied with. Also the proliferation of industrial arrangements may simply have made more apparent the difficulty presented by compliance with the rule. (iii) Any differences between salaries and conditions for officers in the public service largely if not entirely disappeared on 22 March 2002 by the commencement of the Public Service General Agreement 2002. Again, if this is so it has nothing to do with the question of the applicant’s appointment in September 1999. This argument of the applicant seems to encompass the prospect that the CSA would be in breach of the rule even if it was incapable of application at the commencement of an appointment but was so later. I do not accept this. The obligation sought to be created by rule 12(l)(vi) did not drift along to cling to a contract of 1260 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 87 W.A.I.G. employment if and when the rule was capable of being complied with and then bind the CSA to change or alter the conditions of employment of its employees or face the consequence that the rule was breached. (iv) The explanation for non-compliance with the rule has changed between application 1215 and the present. In the former in paragraph [17] of the CSA’s outline of submissions it was contended that the intent of the rule was to provide broad conditions of employment similar to and on the whole not less than those employed in the public sector. Paragraphs [19]-[22] of the outline of submissions in application 1215 were (with the reference to the “Award” being to the PSA 1992):- “19. The rules of the CSA is not an industrial instrument. The rules apply to the union and its members, not employees. 20. If the Commission holds that the rules require the Respondent to provide employment conditions identical to those persons employed pursuant to the PSM Act, then the fact remains the CSA has not done that. 21. In that case there may have been a breach of the Rules of the CSA, and we say that there hasn’t, but it is not within the jurisdiction of the Commission (as it is currently constituted) to determine this. 22. If an application had been made to the Commission pursuant to s.66 of the Industrial Relations Act 1979 (IR Act), then His Honour, the President would have jurisdiction to deal with that matter. In any event, that would not change the situation that the conditions of employment of Mr Stacey do not include those of the Award.” (v) The CSA did not contend in application 1215 that there needed to be “identical” terms for the rule to be complied with. The CSA also contended in application 1215 that if there was an entitlement to overtime it was traded for the car parking bay. In reliance on the Walkington memorandum the CSA now asserted the requirement was to “mirror” public service officer conditions and this could not be achieved. Also, it was asserted in this application, in closing at least but not previously, that the entering into of the EBAs, commencing in 1998 encompassed the spirit of rule 12(l)(vi) as public service officers at that time had the entitlement to engage in enterprise bargaining. In my opinion however these differing explanations do not mean that the rule could have been complied with from September 1999 to March 2006 (when the applicant resigned from the CSA) or was breached. In an application of this type it is for the Commission to interpret the meaning of the rules. The CSA’s prior position on the meaning of the rule is of not much, if any, assistance to this process. I have already made a finding that the suggested reliance on rule 12(m) to justify the CSA’s actions was an ex post facto rationalisation. This does not however determine whether the rule was or was not complied with. (d) The fact that Ms Walkington agreed, even on a without prejudice basis, to pay the applicant overtime meant it was possible to do so. Again this might be so, as an agreement could and apparently was reached on what overtime could be paid; but this is not the issue. The application rests on an asserted breach of a particular rule, not whether a calculation and payment for overtime could occur in a practical sense. 236 There are other difficulties in applying the rule. One is what would happen if there was a change in the conditions and restrictions of a public service officer. To comply with the rule, would this change then apply to existing employees, whether or not they consented to a variation of their contract? 237 Also, if the applicant’s argument is accepted, what would the position be where the conditions of employment of CSA employees were more beneficial than those of the PSA 1992. Examples of long service leave and stand down during the Christmas/New Year period were given in the evidence. Does this mean that these conditions should, because of rule 12(l)(vi) been removed from the CSA employee’s conditions of employment? The applicant submitted it did not because public service officers could be employed on more beneficial conditions than the PSA 1992. Whilst this may be so, the issue again illustrates there are difficulties and complexities in the application of the rule in the way contended for. All of the above leads to the conclusion that as said by the respondent’s counsel in closing, the rule was probably misconceived from the start. This echoed Ms Walkington’s evidence. 26. Consequences of Breach of Rule 12(l)(vi) 238 The applicant’s case also assumes that a consequence of the breach of rule 12(l)(vi) contended for is that he has suffered a loss by the non payment of overtime and that he may be compensated for this by an order under s66 of the Act. 239 Whether there was a loss caused by the non payment of overtime may depend on whether the provision of the parking bay was agreed to be in lieu of any entitlement to overtime. There is no need to further consider that issue however to determine this application. 240 What is more problematic is the effect of any breach of rule 12(l)(vi). If rule 12(l)(vi) was capable of being but not complied with, this might effect the validity of the appointment of an employee. This is because the rule contains a condition on the power to appoint employees. It is not apparent however that any breach, even if it caused loss to the applicant, was remediable by an order under s66. The decision in application 1215 was that the contents of rule 12(l)(vi) were not imported into the contract of employment of the applicant and the applicant eschewed the suggestion that he was attempting to re-run that case. 87 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1261 241 The question then is whether there is jurisdiction under s66 to make the order sought. It was not suggested that there was any tortious or other cause of action known to the law which gave a person in the position of the applicant an entitlement to a compensatory order to remedy a breach of an organisations’ rules, which could be the subject of an order under s66. 242 In my opinion, as set out in the next section of these reasons, the jurisdiction under s66 does not extend to making a compensatory order of the type sought by the applicant. 27. Compensatory Orders Under Section 66 to Remedy a Breach of Rule 12(l)(vi) 243 The primary remedy which the applicant sought for the alleged breach of rule 12(l)(vi) was a payment to him for the overtime which he calculated he would have earned if it was paid to him in accordance with the PSA 1992. 244 In my opinion however, even if the applicant had established that:- (a) To comply with its rules the CSA was obliged to appoint him upon conditions which included an entitlement to be paid overtime; and (b) The CSA had failed to pay him for overtime worked throughout his employment from 1999 to 2006, then the applicant would still not be entitled to an order under s66(2) that the CSA now pay him the amount that it should have done as a consequence of being appointed in accordance with the rules. 245 This is because I do not think the powers of the President under s66 of the Act extend to the making of orders of the type sought. That is, s66 does not provide for the President to make an order almost akin to an award of damages or a compensatory order for a breach of a rule of the type relied on in this application. Accordingly, the applicant cannot in any event succeed in obtaining the final orders he seeks for this alleged breach. 246 It is regrettable that there has been a five day hearing leading to such an outcome. I point out however that:- (a) At all times the applicant has been represented by solicitors of some experience. (b) There was no interlocutory application made by the CSA for the dismissal or striking out of all or part of the substantive application. (c) At the first directions hearing on 22 June 2006 I said to the applicant’s counsel:- “[W]hen I read through the application I did have some concerns as to whether the type of orders that you sought would fall within the President’s jurisdiction and the type of orders which are envisaged by section 66 of the Act, but I do no more than mention that at this stage as a matter that you’ll no doubt need to consider, or have considered and will need to consider as the matter progresses.” (T13). 247 The opinion expressed in the previous but one paragraph is based upon my understanding of the purpose and limits of the jurisdiction and powers of the President under s66(2) of the Act. 248 To understand why I have come to this conclusion it is necessary to refer to the relevant sections of the Act and authorities in some detail. 28. Section 66 - The Nature of the Jurisdiction and the Powers of the President (a) Background 249 In my respectful opinion, the drafting of s66 of the Act does not clearly lead to an understanding of the nature and extent of the President’s jurisdiction or powers. There is also nothing in the second reading speech when s66 was enacted which provides any insight into the intentions of the legislature. A little of the history of the section when enacted as part of the then named Industrial Arbitration Act 1979 (WA) is contained in Elliott and Another v The West Australian Cleaners, Caretakers, Lift Attendants, Window Cleaners, Attendants and Watchmen’s Industrial Union of Workers, Perth and Others (1980) 60 WAIG 1487 at pages 1487 and 1493. 250 Although I have not thoroughly researched the matter it seems there was a link between s66 and a similar albeit not identical federal counterpart in s141(1G) of the Conciliation and Arbitration Act 1904 (Cth) (“the C and A Act”). The history of that section, when transformed into s209 of the Industrial Relations Act 1988 (Cth) was described by (the then) Mr Tracey in the now superseded Federal Industrial Law Service, Butterworths, paragraphs [s209.5] ff. (b) The Terms of the Section 251 Section 66(1) is clear enough in that it sets out those parties who may make an application under the section and that the purpose of the application is “for an order or direction under this section”. There is a link between s66(1) and (2) in that s66(2) sets out the orders which the President may make on an application pursuant to the section. 252 The general power provided by s66(2) is to make orders or give directions “relating to the rules of the organisation, their observance or non-observance or the manner of their observance”. Section 66(2)(a)-(f) provide examples of orders or directions which may be made by the President. That they are only examples and do not cover the field is apparent from the preceding expression “without limiting the generality of the foregoing …”. Section 66(2) is therefore drafted in very wide terms. (c) “Relating to” 253 The authorities confirm that this a very broad expression. Pullin J in Jones v Civil Service Association Inc (2003) 84 WAIG 4 at [16] referred to the opening words of s66(2) providing a “general conferral of power”. At paragraph [19] his Honour said:- “19 The opening words to s 66(2), which contain the general power in this case, make it clear that orders can be made "relating to the rules of the organisation, their observance or non-observance or the manner of their observance ... as [the President] considers to be appropriate ...". The words "relating to" are words of the widest import and should not, in the absence of compelling reasons for the contrary, be 1262 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 87 W.A.I.G. read down: Perlman v Perlman (1984) 155 CLR 474 at 489. The orders made by the President in this case relate to the non-observance of the rules of the respondent.” 254 The citation of Perlman v Perlman (1984) 155 CLR 474 by Pullin J was to the reasons of Gibbs CJ about the expression “in relation to”. As is implicit from the reasons of Pullin J just quoted, there is no material distinction between this phrase and “relating to”. (d) “Without Limiting the Generality of the Foregoing” 255 As stated above the use of this expression prior to s66(2)(a)-(f) means that they are only examples of the orders or directions which may be made by the President. 256 The IAC in Harken v Dornan and Others (1992) 72 WAIG 1727 decided however that s66(2)(e) and (f) contained all of the President’s jurisdiction and powers to make orders or directions about election irregularities. Rowland J (with whom Franklyn and Ipp JJ agreed) said that although there are cases where the grant of particular powers will not fetter the ambit of a general power this is not always the case and in the end it was a matter of construing the particular power in the context of the legislative scheme. His Honour referred to and quoted from the reasons in Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 and (1979) 24 ALR 513, Cooma-Monaro Shire Council v Mannering (1986-1987) 7 NSWLR 258 at 262 and Anthony Hordern and Sons v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7. 257 In Leon Fink Holdings Mason J at page 678 (ALR 518) said that where a legislative provision contains “one power in general terms followed by specific powers”, the latter “may be no more than particular expressions or exemplifications of what may be done in the exercise of the general power”. His Honour said the “critical question is whether there is any implied restriction upon the general power to be derived from the presence of” the specific power. Mason J at page 679 (ALR 519) decided that in the statute in question the expression evinced an intention that the general power was not to be restricted by reference to the more specific power which followed. His Honour said at page 679 (ALR 519) that he did not “wish to be taken as suggesting that a clause of this kind will always be effective to prevent the making of a restrictive implication derived from the presence of a specific power which is expressed to be subject to limitations, qualifications, restrictions or conditions. In every case it will depend on the precise character of the relevant provisions and on the context in which they are found”. 258 Aickin J to similar effect at page 679 (ALR 519) said “without limiting the generality of the foregoing”, at “first sight it would appear to indicate a parliamentary intention that the general words which precede the expression should be construed as if the more particular words which follow were not there. That, however, is too wide a proposition for in every case it must depend on the whole of the context. In some cases the particular words which follow may be such as necessarily to indicate an intention to restrict the operation of the preceding general words. In each case it will be a matter requiring examination of the actual words used, both general and particular, as well as the context as a whole”. 259 In Cooma-Monara Shire Council, McHugh JA at page 262 quoted from the reasons of Mason J in Leon Fink Holdings and said the “object of inserting particular powers or purposes after a general power is to ensure that the general power covers the particulars … This class of case is to be contrasted with the case of general words following a series of specific instances where the ejusdem generis rule often arises”. 260 The like effect, Gowans J in Byrne v Garrisson [1965] VR 523 at 526 said that the expression indicated that what followed were “particular illustrations” but were “not to be taken as the only instances of” the operation of the section and are “therefore, not to be taken as limiting its ambit”. His Honour cited Ex parte Provera; Re Wilkinson (1952) 69 WN (NSW) 242 at 245 in support of this proposition. Re Provera examined the expression in the context of a regulation making power in a statute. 261 In Jones v CSA, Pullin J at paragraphs [17] and [18] quoted from the reasons of Mason J in Leon Fink Holdings and said his Honour’s observation about the general power being given a construction in accordance with the width of the language applied to s66(2). (e) Limits to the Powers 262 Despite what I have referred to in (b)-(d) above it seems to me that the powers of the President do not extend to the making of all of the orders which literally fit within the expressions used. For example, applied literally s66(2) could include a power for the President to make an order that an official who breached a rule of an organisation pay to the organisation a very large amount of money, as “compensation”. This order would fit the description of being an order “relating to the rules of the organisation” and their “non-observance”, but in my opinion the President would not have jurisdiction to make such an order. The limits to the s66 jurisdiction and powers have not been precisely delineated by the IAC. For example Nicholson J with whom Rowland and Anderson JJ agreed, in Carter and Others v Drake and Others (1993) 73 WAIG 3308 although allowing the appeal said that he would “leave to another occasion consideration of the extent of authority provided to the President by s66” (page 3311). Regrettably, a comprehensive consideration of the “extent of authority” has not from my research been undertaken by the IAC. In saying this I am not being critical of the IAC as it can only decide the appeals and issues which come before it. (f) Statutory Context 263 In my opinion the nature and limits of the powers contained in s66 must be understood from considering the text and context of the section within the Act as a whole. The lynchpin of the section is the “rules of the organisation”. Section 7 of the Act states that an “organisation means an organisation that is registered under Division 4 of Part II”. Division 4 of Part II of the Act is headed “Industrial organisations and associations” and comprises ss52-73 (Division 4). An important aspect in considering the operation of Division 4 is the objects of the Act. The principal objects are set out in s6. Relevantly they include:- “6. Objects The principal objects of this Act are — … 87 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1263 (ab) to promote the principles of freedom of association and the right to organise; … (ad) to promote collective bargaining and to establish the primacy of collective agreements over individual agreements; … (ag) to encourage employers, employees and organisations to reach agreements appropriate to the needs of enterprises within industry and the employees in those enterprises; … (e) to encourage the formation of representative organisations of employers and employees and their registration under this Act and to discourage, so far as practicable, overlapping of eligibility for membership of such organisations; (f) to encourage the democratic control of organisations so registered and the full participation by members of such an organisation in the affairs of the organisation; and …” 264 The object contained in s6(1)(e) is in particular fulfilled by Division 4. Also the Act as a whole provides a pivotal role for organisations in the representation of their members in industrial matters, (including collective bargaining to establish conditions of employment) and within the conciliatory, arbitral and judicial functions of the Commission. 265 By Division 4 the legislature has given the Commission a regulatory role in the formation, operation and conduct of organisations. The effect is that an independent body has significant control over organisations by the exercise of the powers provided by the legislature. 266 The following table sets out the scope of Division 4 apart from s66:- Sections Subject Matter 53-59 Registration of organisations 60, 61 and 63 Effects of registration and the duties and functions of a registered organisation 62, 64 and 64A Alteration of the rules and membership of an organisation 69 and 70 Conduct of elections for offices 71 and 71A Interaction between state organisations and federal counterparts 72, 72A and 72B Coverage of organisations 73 Cancellation and suspension of registration 267 This is this context within which s66 operates. As stated the lynchpin of the section is the “rules of the organisation”. 268 In my opinion it is clear from the context of the location of s66 within Division 4 that this expression means the rules of the organisation as contained in a document which is registered with the Commission. 269 Under s55(1) of the Act an organisation seeking registration under ss53 or 54 must lodge in the office of the Registrar amongst other things “3 copies of the rules of the organisation”. The expression “rules of the organisation” or similar is used in other sections of the Act providing for the registration of an organisation such as s55(2)(b), (4)(a), (b)(ii), (d) and (e); s56(1) and (2); s56A(2) and (5); s57(3) and s58(3). Pursuant to s58(1)(b) where the Registrar is authorised by the Full Bench to register an organisation, he does so by registering its rules amongst other things. The Act also provides for the alteration of registered rules in s62 and s71. The alteration as stated in s62(2) is to the “rules of an organisation”. 270 To summarize therefore in my opinion the reference to the “rules of the organisation” in s66 is a reference to the rules as documented, lodged with the Commission and registered by the Registrar. It does not include any implied rules. I will refer to this again later in my reasons. (g) The Extent of the Jurisdiction 271 I have already referred to the key role for the Commission in the establishment and ongoing operation of a registered organisation, by reference to its rules. This is reinforced by s61 of the Act, quoted earlier. Section 66 contains one part of this role of the Commission. 272 Section 66(2)(a), (b), (c) and (ca) are about the disallowance or alteration of rules which do not meet the standards set out in s66(2)(a). Section 66(2)(d) allows those parties set out in s66(1) to obtain the interpretation and therefore understand the meaning of a rule. This would generally be for the purpose of ensuring or checking if an organisation was acting in accordance with its rules. It is a similar power to s46 of the Act, with respect to awards. Section 66(2)(e) and (f) are about inquiries into election irregularities. As held by the IAC in Harken v Dornan and Others (1992) 72 WAIG 1727 this is a discrete aspect of the section and contains all of the President’s jurisdiction and powers on the topic of election irregularity. Similarly, although not necessary to express any concluded view in this application, s66(2)(a) would seem to set out all of the bases upon which the President could disallow a rule. 273 A significant touchstone of the general power under s66(2) is the concept of the “observance” of an organisation’s rules. This demonstrates in my opinion that a key part of the s66 jurisdiction is, to put it colloquially, to keep an organisation “on track” – running in accordance with its rules. This also suggests some contemporary connection between a s66 application, any conduct said to give rise to it, and any orders or directions to be made. The parties named in s66(1) can via s66(2) seek the 1264 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 87 W.A.I.G. assistance of the President to disallow/alter prohibited rules, to declare the interpretation of rules, inquire into election irregularities and make other orders to assist or require an organisation to observe its rules. The text and context suggests that any corrective orders are limited to those which have some present connection with the activities of the organisation and the observance of its rules. 274 In my opinion the purpose of s66 is not to correct long ago breaches which now have no relevance to how an organisation is running. Also, the ordering of compensation or damages for old breaches of the rules is beyond the scope and purpose of a s66(2) order. In my opinion the applicant is attempting to squeeze out of the words of the section remedies which are beyond what the legislature intended as being the jurisdiction, purpose and operation of the section. 275 There were no authorities cited to me or of which I am aware where an order has been made for the payment of compensation for an old breach of a rule. As submitted by the applicant, I recognise that the decision of Sharkey P in Wauhop v Civil Service Association of Western Australia (2003) 83 WAIG 951 is close to this but I presently put that decision to one side. I will discuss it later, in the context of the second and third alleged breaches. It is sufficient at this stage to say that with respect I think that on this issue it was wrongly decided and does not properly support a claim for the payment of compensation. (h) Orders Under Section 66(2) of the Act 276 As to the sort of orders that might generally be made under s66(2), O’Dea P in Park v Secretary, Western Australian Carpenters, Joiners, Bricklayers and Stoneworkers Industrial Union of Workers (1983) 63 WAIG 2230 at 2231 said the s66 “power” was “discretionary” and should only be used “where it is necessary to ensure that some wrong is avoided or necessary to ensure that someone who has a clear obligation to do something under the rules or by a previous Order of the Commission, does it”. Although the reference to a “discretionary” power is too broad given the IAC decision of Robertson v CSA (2003) 83 WAIG 3938; [2003] WASCA 284, mentioned later, in my opinion the balance of this passage remains apposite. 277 It was quoted and followed numerous times by Sharkey P, including in Singh v FMWU (1993) 73 WAIG 2674 and Farrell v SSTUWA (1989) 70 WAIG 55 at 60.. In Farrell at page 59 and throughout his decisions (eg Williams v SDAEAWA (2005) 85 WAIG 1963 at [48]) Sharkey P said the onus was on an applicant to establish an alleged breach of the rules or the overturning of the exercise of power. 278 In my opinion, feeding into the purpose of the s66(2) jurisdiction and powers, is the observation made by Sharkey P in Luby v Secretary, The Australian Nursing Federation, Industrial Union of Workers, Perth (2002) 82 WAIG 3226 at [44]:- “44 There must be confidence amongst members of an organisation that its government and administration will be carried out in accordance with the rules in order that the policy of the Act will be carried out effectively …” 279 The cases which have been decided by the IAC provide insight into the nature of the jurisdiction and the type of orders which can be made under s66(2) of the Act. The following relevant principles can be distilled from the authorities:- (a) An order for the purposes of the section must involve a command to someone to do something. (CMEWUA v UFTIU (1991) 71 WAIG 563) (b) Section 66(2)(d) empowers the President to interpret a rule for the purpose of deciding whether to make an order or direction (UFTIU at page 569). Further or alternatively in the case of controversy an interested party may seek a declaration about the true interpretation of a rule. (Robertson at paragraph [54]) (c) The President may exercise jurisdiction under s66 where there has been an improper exercise of powers, contrary to the rules. (Carter v Drake (1991) 72 WAIG 2501 at 2504) (d) Sections 66(2)(e) and (f) contain the only powers which the President may exercise under s66 in c