2010 WAIRC 00020
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
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
MR PHIL WOODCOCK
THE AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY
UNION OF EMPLOYEES, WEST AUSTRALIAN BRANCH
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
Legislation : Industrial Relations Act 1979 (WA), s 66
Result : Order made
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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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:  WAIRC 01108;  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:  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,
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
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
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
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
2010 WAIRC 00020
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
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
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
 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
(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
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 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
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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 (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