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The Registrar -v- Mr Phil Woodcock The Australian Rail_ Tram and

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The Registrar -v- Mr Phil Woodcock The Australian Rail_ Tram and Powered By Docstoc
					                                                                       2010 WAIRC 00020




           WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

                                      PRESIDENT

CITATION             :   2010 WAIRC 00020

CORAM                :   THE HONOURABLE J H SMITH, ACTING PRESIDENT

HEARD                :   TUESDAY, 18 AUGUST 2009, WEDNESDAY, 30 SEPTEMBER
                         2009, THURSDAY, 1 OCTOBER 2009, FRIDAY, 16 OCTOBER
                         2009, TUESDAY, 27 OCTOBER 2009, WEDNESDAY, 4
                         NOVEMBER 2009, WEDNESDAY, 23 DECEMBER 2009,
                         TUESDAY, 19 JANUARY 2010

DELIVERED            :   THURSDAY, 21 JANUARY 2010

FILE NO.             :   PRES 7 OF 2009

BETWEEN              :   THE REGISTRAR
                         Applicant
                         AND

                         MR PHIL WOODCOCK
                         THE AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY
                         UNION OF EMPLOYEES, WEST AUSTRALIAN BRANCH
                         Respondent


CatchWords           :   Industrial Law (WA) - Application under s 66 of the Industrial
                         Relations Act 1979 (WA) - Respondent failed to have elections in
                         accordance with the Union rules - Appointment of independent
                         Chairperson

Legislation          :   Industrial Relations Act 1979 (WA), s 66

Result               :   Order made

Representation:

Counsel:
Applicant            :   Mr R Andretich (of Counsel), by leave
Respondent           :   Mr J Nolan (of Counsel), by leave
Proposed Interveners :   Mr P Momber (of Counsel), by leave
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Solicitors:
Applicant            :   State Solicitor's Office
Respondent           :   Not applicable
Proposed Interveners :   Peter Momber Barristers & Solicitors
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                                         Reasons for Decision

1   This application is before the Commission pursuant to s 66 of the Industrial Relations Act 1979
    (WA) (the Act). The application was made by the Registrar because the Union has not held
    elections for office bearers or officials since 1999. By consent an order was made by Ritter AP
    on 1 October 2009 to appoint an Interim Branch Executive composed of nine members to
    exercise all of the powers, functions and duties of Branch Council and Branch Executive under
    the rules of the Union: [2009] WAIRC 01108; [2009] WAIRC 00964. This order was made as
    an interim step to enable the Union to regularise and move towards becoming a properly
    functioning organisation under the Act. The order provided the parties with liberty to apply.
    Pursuant to that provision this matter came before me on 23 December 2009. At the hearing on
    23 December 2009, a number of allegations were raised about the conduct of the Branch
    Secretary of the Union and whether the Interim Branch Executive was functioning. On
    24 December 2009, an order was made directing the Registrar to carry out an investigation and
    make a written report as to whether the Interim Branch Executive was functioning and to
    provide a copy of the written report to the parties no later than close of business on 5 January
    2010: [2009] WAIRC 01358.
2   On 1 January 2010, the Registrar made a report in which he concluded that the Interim Branch
    Executive was not functioning. The contents of the Registrar's report and the conclusions he
    draws from the interviews conducted with each member of the Interim Branch Executive is not
    in dispute. Under the heading 'Can the Interim Function' the Registrar states:
       I sought from each member any ideas as to what changes could be made to enable the interim
       committee to begin to function. The general view was that the interim committee is needed and
       could function if it was 'sorted out'.
       The majority view was that a functioning interim committee was the best approach rather than
       going straight to an election, because there was concern that the union structure, and the rules, did
       not really reflect the present working arrangements. It was felt that these issues needed to be
       addressed before electing people to the 'old' positions.
       A number of committee members sought the removal of Mr Woodcock from the committee or that
       he be instructed to carry out the resolutions of the Committee. Other members suggested the
       structure of the Committee be changed to provide a more balanced representation of the
       membership. It was pointed out that of the 9 members of the interim committee, more than half
       were railcar drivers, 2 were Transit Guards and another was a Customer Service Officer.
       I understand that the coverage of the various EBAs (or award for railcar drivers) within PTA
       employment (which is eligible rather actual membership) is as follows;
                   180           23%        Transit Guards
                   100           12%        Transwa (rail, road, porters etc)
                   263           33%        Railcar Drivers
                                            Railway Employees (customer service, car-parking,
                   253           32%
                                            infrastructure or maintenance staff)
       The members who suggested a change in the Committee suggested that the committee membership
       should reflect those proportions of membership. If there were 9 members then it would mean;
                   2      Transit Guards
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                   1       TransWA (rail, road, porters etc)
                   3       Railcar Drivers
                   3       Railway Employees (customer service, car-parking, infrastructure or
                           maintenance staff)
       All of this is of course predicated on the view that membership is confined to PTA employment.
       It seems to be the determined view of some members that there should be an immediate state union
       election to establish a separate union, with its own funding and office bearers, before work is
       started on appropriate rule changes leading to affiliation with the state branch of the federal union.
       Others think this is in reverse order.
       Others see this separation as not only detrimental for the membership but as resulting in an unviable
       organisation. It was put to me that some years ago the overall membership dropped to around 800
       and it meant that the union began to feed off its assets, being unable to survive on members' dues
       alone. I get the impression that the majority view is that the union should not split away from the
       federal body, even in a transient stage.
       Some members put to me that a membership of anything less than 700 or 800 could not sustain the
       additional benefits, commercially provided, such as journey cover, mortality benefit, the RTBU
       Health Plan or the provision of diaries for roster arrangements.
       Those expressing concern at the proposal to establish a separate union as a first step, also expressed
       anxiety that those wishing to do that, do not seen to have a cogent long term plan in place. They
       say that it may be appropriate to press on with establishing a separate union, if they could first see
       what is then intended. It was put to me by several members that 'tearing down' the present
       arrangements without a plan of what is to replace it, would be disastrous for the membership.
       Some members see another bout of mediation as a useful next step but ask that there be an agreed
       long term agenda and independent leadership, to assist the committee to regain its momentum. It
       was said to me that at present there was a degree of 'loudest voice' dominating the agenda and there
       was no common goal to which the committee was committed.
       I understand there was a document prepared by Mr Nolan entitled 'Heads of Agreement' which was
       to assist the interim committee in taking cogent and progressive steps towards a common goal.
       That document had 17 paragraphs and seems to set out a coordinated plan to guide the interim
       committee. I'm not sure to what extent this proposal was thoughtfully considered but Mr
       Woodcock advises me that it was rejected by the committee. I think it is unfortunate that there
       wasn't further discussion, debate and perhaps amendment, about the document before it was
       discarded.
3   The Registrar also made the following observations under the heading 'What of the Future':

       1.   Resort to an election immediately may cause more problems than it would solve for the
            reasons set out in this report. Specifically I am referring to an uncertainty about the electorate
            and the suitability of present union structures set out in the rules;
       2.   The interim committee needs to continue and be supported, whether with the existing or a
            different constitution;
       3.   The interim committee needs to have a common purpose and an agreed prioritised set of steps
            to reach that common purpose. I understand that the common purpose is to achieve a s71
            certificate but if that is not agreed, then that is the first thing that needs to be tackled. It may
            not be easy to establish a common purpose and it may be appropriate to engage a suitably
            skilled facilitator for the interim committee to 'workshop' though these issues which may take
            more than one meeting. Apart from a common aim, there should also be an agreed set of steps
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            that the interim committee will take towards that common aim. It is perhaps unfortunate that
            the proposal from Mr Nolan was rejected rather than debated or amended.
       4.   The new proposed position of assistant secretary PTA (or other name) should be proceeded
            with immediately by convening a meeting of the interim committee for the single purpose of
            selecting a suitable candidate. Perhaps this could even be done by email. In the event of
            disagreement about a candidate, the Commission may be able to provide mediation;
       5.   With that position in place, there should be a genuine effort to separate out the industrial issues
            from those related to re-establishing the state union;
       6.   The rules of the state union and of the state branch of the federal union need to be altered, not
            only for the purposes of a s71 certificate, but to reflect today's working environment in PTA;
       7.   The eligibility for membership needs to be revisited and or clarified to decide whether or not
            the employees in rail freight operations are part of the state union. Perhaps this may be
            unnecessary if the agreed plan is closer compatibility between the state union and the state
            branch of the federal union. Perhaps the existing presumption about membership can continue
            until then;
       8.   There needs to be acceptance about the ownership of the assets and of the need to preserve and
            protect those assets in the interests of the present (rail freight and PTA) and future
            membership.
       9.   There needs to be agreement about adequate funding for the state union in working towards its
            re-establishment. I would imagine there may be a need for legal advice along the way. (Mr
            Nolan's proposal made provision for this);
       10. The membership needs to have access to what is happening and the information provided
           should be from a common, agreed, and neutral source. In that context I would suggest that
           perhaps the meetings of the interim committee need to be chaired by a neutral and
           'disinterested' chair whose function is to ensure professionally run, properly conducted and
           properly recorded meetings;
       11. There needs to be an agenda circulated to the membership some days before committee
           meetings and the minutes made available to the membership, as soon as possible after the
           meeting, even if they be unconfirmed minutes until the next meeting. I am aware that it is
           often difficult to get participation from the membership and I don't propose that the
           participation of the whole membership be sought, merely that they be given the opportunity,
           from a neutral source, to understand what is happening to their union. If the 'silent majority'
           are given the opportunity and don't take it, then the representatives' views should prevail. But
           in the interests of 'democratic control of organisations ... and the full participation by members'
           they should be given the opportunity.
4   When the matter came before me on 19 January 2010, the parties and proposed interveners
    represented by Mr Nolan (one of whom is the Federal Union) and represented by Mr Momber
    (who are some members of the Interim Branch Executive and a number of persons eligible to
    be members of the Union) made it clear that the matters set out by the Registrar in points 1 to
    11 propose a sensible course of action that should be adopted.
5   Mr Nolan informed the Commission that where the Interim Branch Executive had failed was
    that they had ignored or failed to implement the steps that Ritter AP had stated were necessary
    which were to take all necessary steps to:
       (1) Regularise the Union's membership; that is, determine which persons should have been
           admitted to the Union, and to arrange for admission in accordance with the rules.
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       (2) Obtain advice regarding the adoption of suitably amended rules and adopt such rules in
           consultation with the Registrar.
       (3) Obtain advice regarding the possible adoption of rules as will be necessary to bring into
           conformity the eligibility rule of the respondent and Federal Union.
       (4) Obtain advice regarding the adoption of a s71 certificate and/or advice as to the election of an
           executive committee.
                                                                                  [2009] WAIRC 01108

6   Mr Nolan also informed the Commission that the membership of the Interim Branch Executive
    should be expanded by three members to include one member from TransWA and two
    additional members from the railway employees' occupational group. He also stated that the
    Commission should recommend that the Interim Branch Executive should:
       (a) resume meetings;
       (b) be chaired or facilitated by a nominated person acceptable to all;
       (c) take steps to properly consider the measures set out in a document titled 'Heads of
           Agreement [confidential draft discussion November 4, 2009]';
       (d) consider applicants for the position of Assistant Secretary and appoint a person to fill
           that position;
       (e) receive expressions of interest and make additional appointments of three new
           members of the Interim Branch Executive, one of whom should be a person employed
           in TransWA and two from rail operations; and
       (f) consider and adopt new rules.
7   Mr Momber informed the Commission that the majority of the members of the Interim Branch
    Executive agree the matters set out in the document titled 'Heads of Agreement' have great
    merit but what stood in the way of the Interim Branch Executive moving forward towards
    taking the steps mooted in that document and to proceed to an election, is that the members of
    the Interim Branch Executive do not have a mandate to do anything. In particular, the
    members he represents are of the view that they do not have a mandate from anyone to enter
    into an agreement to bind the Interim Branch Executive to a course of action no matter how
    practical and sensible it is. He also said that these members agreed to become members of the
    Interim Branch Executive to proceed to an election so that the persons they represent could be
    recognised as eligible to be members, and after an election those elected would have a mandate
    to bring change.
8   Mr Momber also importantly stated on behalf of those he represents that what the Registrar
    proposes is best for everyone. He also stated that what Mr Nolan proposes would be right and
    proper for everyone providing they go down the Federal route. Mr Momber then went on to
    say that the fundamental problem was that those who are eligible to be members have lost
    confidence in all concerned because they take the view they are not represented.
9   Mr Momber then put forward a proposal which he says should enable the Interim Branch
    Executive to proceed to consider the issues proposed in the Heads of Agreement document and
    to adopt the course of action proposed by the Registrar and to proceed to an election at a
    suitable time. Mr Momber also stated that the Interim Branch Executive would need to be
    provided with resources to reach conclusions and to receive independent advice. Mr Momber
    then said that whilst Mr Nolan has acted properly at all times as he represents the Federal
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     Union, the members of the Interim Branch Executive should be able to take independent
     advice.
10   At the heart of the submissions made on behalf of the persons who are represented by
     Mr Momber appears to be a perception that the members of the Interim Branch Executive have
     no mandate as they have not been elected. Mr Momber informed the Commission that the
     members of the Interim Branch Executive should be replaced with those referred to in
     Schedule 6 of the Registrar's Outline of Submissions as each of those persons were elected as
     office bearers of the Federal Branch in the last Federal election. He pointed out that these
     persons were elected as office bearers of the State Branch of the Federal Union by members of
     the Federal Union (who are also eligible to be members of the Union) who had formed the
     view when casting their vote that they were electing officers of the Union.
11   Mr Momber said that he was instructed that Mr Ian King represented TransWA as the
     Metropolitan Sub-Branch Secretary. However when regard is had to r 180(4) of the Rules of
     the Australian Rail Tram and Bus Industry Union, it is difficult to see how that could be the
     case as the Metropolitan Sub-Branch is composed of "those workers who have an appointed
     position at Claisebrook, Currambine and Neerabup, Westrail Centre or other locations when
     relocated and at Rockingham on the proposed Mandurah line". If all TransWA positions are
     appointed to positions at the Westrail Centre or the other locations referred to in r 180(4) then
     perhaps Mr King is correct in his assertion.
12   It is notable that the Rules of the Federal Union provide the role of a Federal Sub-Branch is
     determined by Branch Council which is the highest deliberative body in the Branch (r 57 and
     r 42). The Branch Council in Western Australia is composed of the:
        Branch President;
        Branch Vice-President;
        Branch Secretary;
        Branch Organiser; and
        the Secretary of each Sub-Branch (r 178).
13   There are 11 Federal Sub-Branches in WA (Kalgoorlie, Esperance, Merredin, Wagin, Bunbury,
     Kwinana, Forrestfield, Geraldton, Northam, Perth and Metropolitan (r 180). Each Federal Sub-
     Branch has a committee composed of a Sub-Branch President, a Sub-Branch Vice-President, a
     Sub-Branch Secretary and up to seven committee members. The committee may meet up to
     six times a year (r 57).
14   It is also notable that the elected officials referred to Schedule 6 of the Registrar's Outline of
     Submissions compose the Branch Secretary and the Sub-Branch Presidents of the Metropolitan
     and Perth Sub-Branches, the Sub-Branch Vice-Presidents of the Metropolitan and Perth Sub-
     Branches, the Sub-Branch Secretaries of the Metropolitan and Perth Sub-Branches, together
     with the committee members of the Metropolitan Committee and Perth Committee. The total
     number of persons listed is 18, seven of whom are members of the Interim Branch Executive.
     The remaining two members of the Interim Branch Executive, Mr Michael Chance and
     Mr John Miller, also hold positions in the Federal Branch. They hold the positions of Branch
     President and Branch Vice-President respectively. Importantly it is apparent that each of the
     members of the Interim Branch Executive were elected by persons who are eligible to be
     members of the Union, albeit when each was elected they were elected to offices in the Federal
     Branch.
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15   It is clear that Schedule 6 of the Registrar's Outline of Submissions contains a list of some of
     the office bearers of the Federal Branch and only part of Branch Council of the Western
     Australian Branch which is the governing body of the Federal Branch. If this proposal put on
     behalf of the persons represented by Mr Momber was to be adopted could this body of persons
     be said to be representative or appropriate? Firstly it would mean that the Interim Branch
     Executive would compose 18 members which could be said to be an unweilding number.
     Whilst there may be a dispute as to who is eligible to join the Union insofar as those not
     employed by the Public Transport Authority, it is plain that persons who are employed by the
     Public Transport Authority in the division of TransWA are eligible to join. However in my
     view it is not material that TransWA employees as an occupational group are not equally or
     sufficiently represented as when the rules of the Union and the Federal Union are examined, it
     is apparent that both are organised geographically rather than by occupational groups.
16   Whilst Mr Momber argues that the current members of the Interim Branch Executive do not
     have a mandate to carry out the steps necessary to resolve the issues in dispute and progress the
     affairs of the Union to an orderly election of officials, I do not accept that contention or what
     might be said to be the opinion of those he represents. The mandate to represent those who are
     eligible to be members of the Union comes from the order made by Ritter AP on 1 October
     2009 which was made pursuant to the powers conferred on the President under s 66 of the Act.
     The establishment of the Interim Branch Executive in the Order made by Ritter AP was for the
     purpose of requiring the Union to act in accordance with its rules and it gave specific power to
     the Interim Branch Executive to exercise all of the powers, functions and duties of the Branch
     Council and the Branch Executive under the rules. Without an Interim Branch Executive the
     Union would have no power to act within its rules. An order for the purpose of requiring an
     organisation to act in accordance with its rules is within power: WALEDFCU v Schmid (1996)
     76 WAIG 639; Stacey v Civil Service Association of Western Australia (Incorporated) (2007)
     87 WAIG 1229 [279](f). In any event all present members of the Interim Branch Executive are
     elected office holders of the Federal Branch.
17   The mandate to act having been given to the members of the Interim Branch Executive, by
     order of this Commission, those members are required to act in the best interests of the
     organisation. It appears apparent from the Registrar's report that the members of the Interim
     Branch Executive have collectively failed to do so. It seems that they may have been
     distracted by other issues but in my opinion these should be set aside until the tasks addressed
     by Ritter AP above have been achieved through the measures recommended by the Registrar.
     To do so should require a proper consideration by the Interim Branch Executive of the matters
     set out in the Heads of Agreement document. The Registrar's report does not indicate that any
     member of the Interim Branch Executive wishes to be released from the obligation to act as a
     member of the Interim Branch Executive. As set out above it is irrelevant that the membership
     of the Interim Branch Executive may not be representative of the occupational groups who are
     eligible to be members. Nor do the rules of the Union provide for the creation of an Executive
     in the way suggested in Schedule 6 of the Registrar's Outline of Submissions.
18   At this point in time I am not satisfied that additional appointments should be made to the
     Interim Branch Executive or that the Interim Branch Executive should be constituted as
     proposed in Schedule 6. I do however agree that a neutral Chairperson who does not have a
     right to vote, should be appointed temporarily to ensure that meetings of the Interim Branch
     Executive are properly conducted and the members of the Interim Branch Executive focus on
     the tasks that are necessary to regularise the Union. Having reviewed the recent report of the
     Registrar carefully, it is apparent the problem with the functioning of the Interim Branch
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     Executive lies with the fact reported by the Registrar at page 2 of his report that there are
     differing views as what, specifically, the committee's program should be.
19   It is clearly apparent from the Registrar's report that the Union needs to put its "house in order"
     before it can proceed to an election. The way to do that is for the members of the Interim
     Branch Executive to work together by:
        (a)    taking steps to address each of the four points Ritter AP stated were necessary to be
               carried out to regularise the affairs of the Union;
        (b)    addressing each of the 11 points in the Registrar's report;
        (c)    taking steps to consider making an appointment to the position of Assistant Secretary
               to deal with industrial issues; and
        (d)    properly considering each of the points set out in the Heads of Agreement document.
20   As to who should provide legal advice and the cost of the provision of the advice is not a
     matter that it is appropriate to be considered by the Commission and is a matter that should be
     considered by not only the Interim Branch Executive but the Federal Union.
21   For these reasons I will make the following order:
        1.     A temporary independent person be appointed as Chairperson of the Interim Branch
               Executive (the Chairperson) within 14 days of the date of this order;
        2.     Prior to a person being appointed as Chairperson, consent must be given to the
               appointment by all members of the Interim Branch Executive;
        3.     The Chairperson shall not be entitled to a vote but shall take steps to ensure that
               meetings of the Interim Branch Executive are properly conducted;
        4.     The Interim Branch Executive is to hold a meeting no later than 28 days following
               the date of this order;
        5.     There be liberty to apply to vary this order on five (5) days' notice.
22   If in the near future the Interim Branch Executive is able to function properly without the
     assistance of a neutral Chairperson then the order can be varied to remove the requirement for a
     Chairperson.

				
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