WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION FULL BENCH CITATION : 2008 WAIRC 01598 CORAM : THE HONOURABLE M T RITTER, ACTING PRESIDENT SENIOR COMMISSIONER J H SMITH COMMISSIONER J L HARRISON HEARD : THURSDAY, 30 OCTOBER 2008 DELIVERED : THURSDAY, 13 NOVEMBER 2008 FILE NO. : FBM 4 OF 2008 BETWEEN : THE CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED Applicant AND N/A Respondent CatchWords: Industrial Law (WA) - Application pursuant to s62(2) of the Industrial Relations Act 1979 (WA) for the Full Bench to authorise registration of alteration to registered rule - Qualification for membership rule - Application made following refusal of earlier application due to ambiguity and uncertainty - Statutory framework of s62(2) applications - Statutory criteria satisfied - Defect in earlier application rectified - Application granted. Legislation: Industrial Relations Act 1979 (WA) – s55, s55(2), s55(3), s55(4), s55(4)(a), s55(4)(b), s55(4)(c), s55(4)(d), s55(4)(e), s55(5), s55(6), s56, s58(3), s62(2), s62(4) Public Sector Management Act 1994 (WA) Public Service Act 1978 (WA) Result: Application granted. 2226 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. Representation: Counsel: Applicant : Mr W Claydon Solicitors: Applicant : Not applicable Case(s) referred to in reasons: Stacey v Civil Service Association of Western Australia Incorporated (2007) 87 WAIG 1229 The Civil Service Association of Western Australia Incorporated (2008) 88 WAIG 194 Case(s) also cited: Nil Reasons for Decision RITTER AP: The Application 1 This is an application pursuant to s62(2) of the Industrial Relations Act 1979 (WA) (the Act) which was filed on 11 August 2008. The applicant, as a registered organisation under the Act, seeks the authorisation of the Full Bench for the Registrar to register an alteration to its qualification for membership rule. The History to the Application and the Alteration Sought 2 The application seeks to rectify the problem which led to an earlier application being refused by the Full Bench in The Civil Service Association of Western Australia Incorporated (2008) 88 WAIG 194 (Re CSA). In turn, that application arose out of my reasons in the s66 application, Stacey v Civil Service Association of Western Australia Incorporated (2007) 87 WAIG 1229. In that decision I noted that the membership rules of the applicant still made reference to the Public Service Act 1978 (WA), despite its repeal and replacement by the Public Sector Management Act 1994 (WA) (the PSMA). I made an order to the effect that within a specified period of time the council and executive of the applicant take steps to alter this ((2007) 87 WAIG 1282). The problem in Re CSA was that the applicant sought to amend the rule in a way which created ambiguity and uncertainty. (See Re CSA at [27]-[28]). 3 If the alteration sought in the present application is authorised and registered, rule 6(a)(1) will relevantly become: “6 - MEMBERSHIP (a) Membership shall be confined to any person who is: (1) employed as a public service officer under and within the meaning of the Public Sector Management Act 1994 (WA); or …” 4 In the first application, instead of the phrase “public service officer” being in the proposed rule, the word “officer” appeared. This was problematic because the PSMA does not apply to someone simply described as an “officer”. Present Application Corrects Error 5 The present application corrects that problem and in my opinion should be allowed if the relevant statutory criteria have been satisfied. Statutory Criteria 6 As I have said the application is made under s62(2) of the Act. Pursuant to s62(4) of the Act, s55, s56 and s58(3) of the Act “apply, with such modifications as are necessary, to and in relation to an application by an organisation for alteration of a rule of a kind referred to in subsection (2)”. The Applicant’s Rules About Alteration 7 As will be set out below, s55(4)(a), in conjunction with s62(4) of the Act, provides that the Full Bench shall refuse a rule alteration application unless it has been authorised by the organisation in accordance with its rules. Rule 9 is the relevant rule and is as follows: “9 - ALTERATION OF CONSTITUTION (a) No amendment, addition to, variation, rescission, or substitution of this Constitution and Rules shall be made unless: (i) it has been passed by a majority of two thirds of the members eligible to vote and voting at a special general meeting convened for the purpose of considering such changes, provided that the quorum for such a meeting shall be one percent (1%) of financial members at the date of calling the meeting, or (ii) it has been approved by a simple majority of members voting in a referendum conducted in accordance with Rule 21, or 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2227 (iii) it has been passed by a majority of two thirds of the members of the Council in attendance and voting at a meeting of the Council, provided that notice of the proposed amendment, addition to, variation, rescission, or substitution has been posted to each Council member, at least twenty one (21) days prior to the meeting: and unless a notice of the proposed alteration and the reasons therefore, is posted or delivered to each and every financial member of the Association. (b) Should a special general meeting convened in accordance with sub- rule 9(a)(i) lapse for want of a quorum, the proposed changes shall be considered by the next meeting of Council, in accordance with sub- rule 9(a)(iii). (c) (i) In the notice to members referred to in subrule (a) members are to be informed that they or any of them may object to the proposed alteration by forwarding a written objection to the Registrar to reach him no later than 21 days after the date of receipt of the notice. (ii) In the notice to members referred to in subrule (a) and with respect to any proposed alteration of the rule relating to the qualification of persons for membership of the union, members are to be informed that they or any of them may object to making of the application for the proposed alteration and/or object to the proposed alteration by forwarding a written objection to the Registrar to reach him no later than 21 days after the date of receipt of the notice. (d) No alteration to any of the rules of the Association shall be or become effective until the Registrar has given to the Association a certificate that the alteration has been registered. (e) Any amendment, addition, variation, recession or substitution to the Constitution and Rules shall be published in the Civil Service Journal upon receipt by the Association from the Registrar of the certificate referred to in subrule (d) of this rule.” 8 I will later assess whether the requirements of rule 9 have been satisfied. Satisfaction of Sections 55(2) and 55(3) of the Act 9 Section 55(2) of the Act provides that the Registrar is to publish in the Western Australian Industrial Gazette (the WAIG), a notice of the application, the relevant rules and the entitlement to object to the application. This requirement was satisfied by the publication of a notice in the WAIG on 24 September 2008. There was no objection filed with the Commission. 10 Section 55(3) of the Act provides that an application will not be listed for hearing before the Full Bench until after the expiration of 30 days from the date of publication. This occurred in that the application was not heard until 30 October 2008. Satisfaction of Section 55(4) of the Act 11 Section 55(4) of the Act provides that the Full Bench shall refuse an application by an organisation unless it is satisfied that: “(a) the application has been authorised in accordance with the rules of the organisation; (b) reasonable steps have been taken to adequately inform the members — (i) of the intention of the organisation to apply for registration; (ii) of the proposed rules of the organisation; and (iii) that the members or any of them may object to the making of the application or to those rules or any of them by forwarding a written objection to the Registrar, and having regard to the structure of the organisation and any other relevant circumstance, the members have been afforded a reasonable opportunity to make such an objection; (c) in relation to the members of the organisation — (i) less than 5% have objected to the making of the application or to those rules or any of them, as the case may be; or (ii) a majority of the members who voted in a ballot conducted in a manner approved by the Registrar has authorised or approved the making of the application and the proposed rules; 2228 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. (d) in relation to the alteration of the rules of the organisation, those rules provide for reasonable notice of any proposed alteration and reasons therefor to be given to the members of the organisation and for reasonable opportunity for the members to object to any such proposal; and (e) rules of the organisation relating to elections for office — (i) provide that the election shall be by secret ballot; and (ii) conform with the requirements of section 56(1), and are such as will ensure, as far as practicable, that no irregularity can occur in connection with the election.” 12 Rule 9(a), quoted above, provides for three alternative methods by which an “amendment” to the rules may be made. The present application is based upon compliance with rule 9(a)(iii). The facts supporting this contention are set out in two statements of Ms Toni Beverly Walkington, the general secretary of the applicant dated 11 August 2008 and 28 October 2008 respectively. The second statement merely corrected two dates in the first statement. It is unnecessary to otherwise refer to that statement and so I will simply refer to the first statement as the statement of Ms Walkington. 13 The uncontradicted evidence of Ms Walkington, in her statement, establishes in accordance with rule 9(a)(iii): (a) Notice of the proposed “amendment” was posted to each council member at least 21 days prior to a meeting on 23 April 2008. The notice was posted to council members on 31 March 2008. (b) As recorded in the minutes of the council meeting, attached to Ms Walkington’s statement, the meeting on 23 April 2008 was quorate. Rule 12(j)(iii) provides that a quorum for a council meeting is a “majority of those entitled to attend and vote at the meeting”. Item 1 of the minutes of the meeting on 23 April 2008 lists those who were present as being the president and chair, branch secretary, branch assistant secretary, two vice presidents, treasurer, 11 other councillors and the executive officer. The executive officer present is not a member of council. Accordingly 17 council members attended the meeting. The total number of members of council is not numerically fixed by the rules of the applicant. This is because rule 12(a)(vi) provides that the council includes councillors “who are members of the electorate they represent, elected by the financial members in such electorate …”. Rule 12(c) and (d) describe the basis upon which electorates are determined. The statement of Ms Walkington does not expressly say how many members of council there were at the time of the relevant meeting. It says however that the notice of the proposed amendment was sent to all members of council and the meeting was to be held on 23 April 2008. An attached list shows the names of 30 members of council to which the notice was sent. If there were 30 members of council then more than half attended the meeting. There is therefore no reason to doubt Ms Walkington’s assertion in her statement that the meeting was quorate. (c) The “amendment” was passed by a majority of two-thirds of the members of the council in attendance and voting at the meeting on 23 April 2008. The minutes of the meeting record the unanimous passing of the following resolution: “Amend Rule 6(a)(1) – re: Membership by deleting the words underlined below and replacing those words by reference to “a public service officer under and within the meaning of the Public Sector Management Act”. The deletion is underlined as follows: “Membership shall be confined to any person who is: (1) employed as an officer under and within the meaning of the Public Service Act 1978-1980; or” Rule 6(a)(1) will then read: “Membership shall be confined to any person who is: (1) employed as a public service officer under and within the meaning of the Public Sector Management Act 1994 (WA); or”” (d) Notice of the proposed “amendment” and the reasons for this were then posted or delivered to each financial member of the applicant in the June 2008 edition of “the CSA Journal”. A copy of the relevant page from the journal was attached to Ms Walkington’s statement. Ms Walkington said the journal was posted to each member’s last known address, being the current address contained in the applicant’s register of members. Ms Walkington said copies of the journal were lodged with Australia Post for distribution to members on or about 10 June 2008. Ms Walkington said members would have received their copy on 11, 12 or 13 June 2008 or thereabouts depending upon whether they resided in metropolitan or country areas. (e) The notice to members contained in the June 2008 CSA Journal set out the proposed “amendments” to the rules and how rule 6(a)(1) would read if the “amendments” were made. The notice then set out the following: “Rationale: The proposed amendment to Rule 6(a)(1) is required as the rule provides eligibility of the CSA membership 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2229 to persons employed under the Public Service Act 1978-1980. This Act was repealed in 1994 by the Public Sector Management Act (WA), which is still in force. Therefore, there is a requirement to replace the old reference with a reference to the Public Sector Management Act (WA). Objections In accordance with the Rules of the Association any objections to the proposed alteration should be forwarded to the Registrar,