Re Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales [2015] NSWIRComm 13

Industrial Relations Commission (NSW)|2015-03-03|Before: Kite AJ

Solicitors: Maurice Blackburn Lawyers (Applicant) File Number(s): R 315 of 2013

DECISION

The Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("PSA", "the Association" or "applicant") has made an application for consent of the Industrial Registrar to the alteration of the rules of the PSA pursuant to s 245 of the Industrial Relations Act 1996 ("IR Act"). The application was made on behalf of the applicant by Anne Karen Gardiner, General Secretary of the PSA, by way of statutory declaration dated 28 August 2013.

Evidence

The PSA read the affidavit of Kirsten Cameron filed 26 November 2013. The PSA also relied on its submissions filed 26 November 2013.
The objector read the following: 1. Affidavit of Gregory John Delprado filed 28 October 2013; 2. Affidavit of Gregory John Delprado filed 23 May 2014; and 3. Affidavit of Gregory John Delprado filed 12 January 2015.
Although presented in the form of affidavits the documents were essentially submissions made on behalf of 12 named objectors, including Mr Delprado, The applicant noted that affidavits contained "what is primarily a submission" but pressed no objection to the receipt of the information. Mr Delprado also tendered an extract from the applicant's website.
The evidence on behalf of the PSA was read without objection. Ms Cameron was not required for cross examination. I observe that there was ultimately no factual contest.

Background Facts

The PSA is a State industrial organisation with its rules registered under the relevant provisions of the IR Act.
According to Ms Cameron's evidence; 1. The most recent elections for the Executive Officer positions and Delegates to Central Council of the applicant were held in October/November 2012 and the results declared on 5 November 2012. 2. On 5 November 2012, Ms Anne Gardiner was declared elected as General Secretary of the PSA. Messrs Steve Turner and Shane O'Brien were declared elected as Assistant General Secretaries of the PSA; 3. On 4 June 2013, Mr O'Brien gave notice in writing of his resignation as Assistant General Secretary in accordance with Rule 104(a)(i) of the PSA's rules. This was referred to in Ms Cameron's evidence as the "vacant" Assistant General Secretary position. It is convenient to maintain that description to distinguish it from the position occupied by Mr Turner as a result of the election. 4. On 7 June 2013, Mr O'Brien, pursuant to the Rules, appointed Mr Delprado, by notice in writing, to act in the vacant Assistant General Secretary position pending a full election. 5. On 7 June 2013, a petition signed by 10 Delegates of the Central Council was submitted to the General Secretary notifying a proposal to alter the PSA's rules to abolish the vacant Assistant General Secretary position. Copies of the proposed alteration were provided to Central Councillors by e-mail dated 11 June 2013. 6. On 17 June 2013, a meeting of the Central Council occurred at which the question of the vacant Assistant General Secretary position was considered. 7. Ms Cameron deposed that she raised the following matters with Central Council on 17 June 2013: 1. The need for two Assistant Secretaries noting that the position formerly held by Mr O'Brien had over time become less involved in the management of the PSA, and; 2. The cost to the PSA of an election for the Assistant General Secretary position vacated by Mr O'Brien. This costs was estimated to be in the vicinity of $333,000.00, and; 3. The salary of the Assistant General Secretary position vacated by Mr O'Brien, which was $225,000.00 per annum. 4. The ongoing costs to the PSA of Mr Delprado filling the Assistant General Secretary position vacated by Mr O'Brien on a temporary basis, noting that Mr Delprado was entitled to be paid at the rate of an Assistant General Secretary, $225,000.00 per annum. 1. The Central Council considered and passed three motions, being to the effect that: 1. The salary of the vacant Assistant General Secretary position be reduced to zero; 2. The Central Council indicates that it is favourably disposed to the motion on notice for the amendment to the Rules to provide for only one office of Assistant General Secretary; and 3. The General Secretary to seek the concurrence of the Industrial Registrar to delay the conduct of any election for the position until the outcome of deliberations of the proposed rule change is known. 1. On 12 August 2013, a further meeting of the Central Council took place attended by 43 Central Councillors, members of the Executive or their nominees. The following motion was put to the Central Council at the meeting: That: 1. In Rule 49 the words "Two Assistant General Secretaries" be replaced with the words "the Assistant General Secretary"; 2. the words "Assistant General Secretaries" be replaced with the words "Assistant General Secretary" in rules 40(g), 50(l), 55, 102(b) and 104; 3. the words "an Assistant General Secretary" be replaced with the words "the Assistant General Secretary" in Rules 104(b), 112 and 128(a). 1. The motion was passed by the Central Council with at least 38 members of the Central Council in attendance voting in favour of the motion to alter the PSA's rules.

Relevant Rules

Rules 34, 35(a) and 39 are in the following terms: CENTRAL COUNCIL 34. The management of the Association shall be vested in the Executive and Central Council. 35. (a) The Central Council shall consist of the Executive Officers and forty-five Delegates to the Central Council who shall be elected according to Schedule C of the Rules. … 39. The Central Council shall exercise all the powers specially conferred upon it by these Rules, and may exercise all such powers and do all such acts and things as may be done by the Association, and as are not hereby required to be exercised or done by the Association in General Meeting assembled and in addition shall, subject to the decisions of General Meetings, be the governing body of the Association.
Rule 44 provides: THE EXECUTIVE 49 The Executive Officers shall be: the President three Vice Presidents the General Secretary two Assistant General Secretaries
Rule 102(a) -(d) sets out the following: ELECTIONS - CENTRAL COUNCIL 102 (a) The General Secretary shall be elected four-yearly by secret postal ballot of the whole of the financial membership of the Association. The persons eligible to accept nomination shall be: (i) All financial members of the Association; (ii) The Branch Secretary, Assistant Secretaries and the elected members of the Branch Executive of the New South Wales Branch of the State Public Services Federation; (iii) employees of the Association; (iv) employees of the State Public Services Federation. (b) The Assistant General Secretaries shall be elected four-yearly by secret postal ballot of the whole of the financial membership of the Association. The persons eligible to accept nomination shall be: (i) All financial members of the Association; (ii) The Branch Secretary, Assistant Secretaries and the elected members of the Branch Executive of the New South Wales Branch of the State Public Services Federation; (iii) employees of the Association; (iv) employees of the State Public Services Federation. (c) The President and Vice-Presidents shall be elected four-yearly by secret postal ballot of the whole of the financial membership of the Association. The persons eligible to accept nomination shall be: (i) All financial members of the Association; (ii) The Branch Secretary, Assistant Secretaries and the elected members of the Branch Executive of the New South Wales Branch of the State Public Services Federation; (d) The delegates to Central Council shall be elected four-yearly by secret postal ballot of the whole of the financial membership of the Association. The persons eligible to accept nomination shall be: (i) All financial members of the Association; (ii) The Branch Secretary, Assistant Secretaries and the elected members of the Branch Executive of the New South Wales Branch of the State Public Services Federation;
Rule 104(a)(i) is in the following terms: VACANCIES AND ABSENCES 104 (a) The General Secretary and Assistant General Secretaries shall hold office until the election of their successors and shall be eligible for re-election but the office shall be vacated by their: (i) resigning office by notice in writing; …
Rule 107 provides for the situation where there are casual vacancies among Executive Officers in the PSA. It is in the following form: 107 In the event of any casual or extraordinary vacancy occurring among Executive Officers: (i) If the unexpired portion of the term would exceed three years a secret postal ballot of the whole of the financial membership of the Association shall be held to fill the casual or extraordinary vacancy, any such ballot to be held as soon as possible using so far as may be practical the same mode of election as is prescribed by these Rules for election to that office, and the person then elected shall hold office for the unexpired portion of the term attached to that office. (ii) If the unexpired portion of the term is three years or less Central Council may fill the vacancy by election of a person who would be eligible for election to the office, the person then elected shall hold office for the unexpired portion of the term attached to that office. (iii) Where a casual vacancy is to be filled by election and no appointment has been made pursuant to Rule 112, the Central Council may appoint a person eligible for election to the office to act in the vacant position pending the election of a person to fill the vacant office, and the member appointed under this paragraph shall cease to act when the office is filled under (i) or (ii) of this Rule.
Rules 111 and 112 in the following terms: 111. When a member of the Executive or Central Council, has been given leave of absence for a period of not less than one month or has vacated their office, an acting member of the Executive or Central Council shall assume office, or may be appointed for the duration of such leave or until vacancy is fill, who shall, for the period of their appointment, have all the rights, duties and privileges of the office in which they act. 112. The acting member of the Executive or Central Council shall be in the case of: … (d) an Assistant General Secretary, be an [sic] person eligible for election to the office, appointed in writing by the Assistant General Secretary or, if they have ceased to be a member of the Association by the Central Council; …
Rule 152 provides for amendments and alterations to the PSA's Rules. In particular, Rule 152(a), (b), (g), (h), (i) and (j) reads: 152. (a) These Rules may be amended or rescinded and new Rules made in the manner provided in this Rule. An alteration of the Rules may be a complete or partial alteration of the Rules. An alteration of the Rules may include the amendment of one or more Rules, the rescission of one or more Rules and the making of one or more Rules. (b) An alteration to the Rules may be made by the Central Council. The Executive or any ten members of the Central Council may submit a proposed alteration by giving sixty days' notice to the General Secretary. … (g) The Central Council may amend Rule 5 (Constitution) in order to: (i) extend coverage to a new group of members; (ii) establish coverage of any existing group of members transferred to the service of an employer which does not come within or may be considered not to come within Rule 5 (Constitution) and to any persons subsequently appointed to occupy the positions of or perform the work done by such members; (iii) establish coverage of the prospective employees of any body newly created or proposed to be created by Statute or otherwise for the purpose of performing functions for or on behalf of or in the interests of or at the direction of the Government of the State, or of any company or corporation in which shares are held by or on behalf of the Government of the State or of any body whose governing body includes nominees appointed by or for or on behalf of or in the interest of the Government of the State; (iv) extend membership in the Association to any of the classes of persons entitled to be admitted as Associates by virtue of paragraphs (b), (c) and (f) of Rule 6 where such persons are seeking employment which, if obtained, would entitle those persons to apply for admission as members by virtue of Rule 5 (Constitution). (h) Upon notice of any alteration of Rules being given the General Secretary shall forward copies of the proposed alteration to each Central Councillor. (i) In the case of Rules 27, 32, 35, 39, 44, 46, 49, 53, 54, 55, 76 and this paragraph an alteration, except by way of renumbering, shall not be adopted unless: (i) thirty-one votes are recorded in favour of the alteration, or (ii) a majority of Central Councillors present when the vote is taken is recorded in favour of the alteration and a majority of Central Councillors present when the vote is taken is also recorded in favour of the alteration within the year following the next four-yearly election of Central Councillors. (j) Except as provided in paragraph (i) of this Rule an alteration shall be adopted if a majority of Central Councillors present when the vote is taken is recorded in favour of the alteration.

The objectors' position

Mr Delprado submitted for the objectors that under the PSA's rules and what was "The Corporate Governance of State Industrial Organisations" (superseded by Pt 4 of Ch 5 of the IR Act and to some extent the Industrial Relations (General) Regulation 2001 cl 31) it was incumbent on the PSA to fill a casual vacancy by way of an election. It was submitted that the PSA's rules impose a responsibility upon the PSA to carry out elections in a fair and transparent way, without any interference or fear of reprisals and within a reasonable time limit.
The objectors made a submission questioning whether it was legal, transparent and in the spirit of the PSA's rules to abolish a position of an elected official. In support the objectors referred to ss, 240, 241, 242, of the IR Act, ss 442 and 445 of the Industrial Relations Act 1991 and reg 35 of the Industrial Relations Regulation 1992 (each of which is preserved as a regulation made under s 249 of the IR Act pursuant to cl 31 of the Industrial Relations (General) Regulation 2001).
Mr Delprado further submitted that the motion should have properly gone to all PSA members to vote on and elect another person to the position of Assistant General Secretary, and not be deleted by Central Council.

The PSA's Position

Mr Gibian for the PSA submitted: 1. The grounds upon which consent may be refused to an alteration to the Rules of an organisation are set out is s 245(2) of the IR Act. The Industrial Registrar must not consent to an alteration unless satisfied that the alteration complies with, and is not contrary to, the IR Act and relevant awards and orders of the Commission, is not otherwise contrary to law and has been made in accordance with the rules of the organisation. 2. The preferable view is that the Commission does not possess a residual discretion to decline consent to an alteration to the rules of a State organisation in circumstances in which the requirements of s 245(2) are satisfied: see Re The Australian Chamber of Manufactures, New South Wales Branch (1993) 50 IR 87 at 101 (with respect to earlier statutory provisions); Australian Hotels Association (NSW) [2013] NSWIRComm 54 at [20].
Specifically as to the grounds of objection advanced the applicant submitted: 1. The submissions of the objectors misunderstand the question to be decided in the application. The question is not whether the position must be filled by election, but whether it is open to the Association to alter its Rules so as to alter the number of Executive Officer positions. 2. The IR Act permits an organisation to alter its rules, including with respect to the number or type of offices within the organisation. 3. The question was discussed in detail by Boland J, President, in Re Application by USU for alteration of Rules [2008] NSWIRComm 248. His Honour followed a number of earlier federal decisions and found that an alteration to the rules of an organisation to abolish an elected office does not contravene the IR Act: see, particularly, Saint v Australian Postal and Telecommunications Union (1976) 30 FLR 385 at 393 per Dunphy and Evatt JJ and Benson v Construction, Forestry, Mining & Energy Union (1995) 60 IR 394 at 401-402 per Wilcox J. 4. The IR Act does not require that an organisation have or retain any particular office or have any particular number or configuration of office-holders. 5. The offices within an organisation are created by the rules of the organisation. The IR Act specifically requires that the rules of an organisation provide for "the manner in which the rules may be altered or rescinded" (s 237(1)(w)). Section 245 contemplates the alteration of the rules of an organisation subject to the Industrial Registrar being satisfied that the alteration is not contrary to the IR Act, otherwise contrary to the law and has been made under the rules of the organisation. 6. The Central Council of the Association is the democratically elected body charged with the management of the Association, including the capacity to alter its Rules. The Central Council has determined that it is in the interests of the Association to alter its Rules, relevantly, so as to abolish one Assistant General Secretary position. It so decided having regard to the cost of the maintenance of the position to the Association, and an election for a casual vacancy and the capacity of the Association to provide appropriate services to its members with one Assistant General Secretary. 7. The alteration was proposed and adopted by the Association following a casual vacancy in one of the Assistant General Secretary positions. Accordingly, the abolition of the position will not result in an incumbent being removed from office. Mr Delprado has been appointed to act as an Assistant General Secretary only pending an election being held to fill the position. The alteration that has been adopted by the Association does not have the effect of removing Mr Delprado from any office. 8. In any event, there is nothing in the IR Act that prevents an organisation from altering its rules so as to abolish an officer position even if the alteration has the effect of the incumbents no longer holding office. The removal of an office-holder from an ongoing office in an organisation is to be distinguished from the abolition of an office: Re Application by USU for alteration of Rules [2008] NSWIRComm 248 at [29]; Benson v Construction, Forestry, Mining & Energy Union (1995) 60 IR 394 at 401-402. 9. There is no basis upon which it could be suggested that the alteration to the rules does not comply with, or is contrary to, the requirements of the IR Act for the purposes of s 245(2)(a) or otherwise contrary to law for the purposes of s 245(2)(b) of the IR Act. 10. No specific complaint appears to be made as to compliance with the requirements of the rules other than the suggestion that it is contrary to the spirit of the Rules to delete an elected office. 11. There is no foundation for the assertion. The Rules confer upon the democratically-elected Central Council the capacity to alter the rules (Rule 152(b)). The Rules specifically contemplate that alterations may be made to Rule 49 which sets out the Executive Officer positions of the PSA (Rule 152(i)). The rules permit and expressly contemplate that the Central Council may alter the Executive Officer positions of the Association. 12. The alteration was made in accordance with the requirements of the rules.

Consideration

It is convenient first to set out some relevant parts of the legislation. Section 245(2) of the IR Act prescribes the requirements for the alteration of rules of a State organisation: 245 Alteration of rules of State organisation (2) The Industrial Registrar may consent to an alteration of the rules in whole or part, but must not consent to an alteration unless satisfied that the alteration: (a) complies with, and is not contrary to, this Act and relevant awards or orders of the Commission made under this Act, and (b) is not otherwise contrary to law, and (c) has been made under the rules of the organisation.
Section 235 of the IR Act deals with the general requirements for rules. It provides: 235 General requirements for rules of State organisations (1) The rules of a State organisation: (a) must not be contrary to, or fail to make provision as required by, this Act or an award or order of the Commission, or otherwise be contrary to law, and (b) must not be such as to prevent or hinder members of the organisation from observing any law or the provisions of any award or order of the Commission, and (c) must not impose on members of the organisation, or on applicants for membership of the organisation, any conditions, obligations or restrictions that, having regard to the objects of this Act and the purposes of registration under this Chapter, are oppressive, unreasonable or unjust. (2) The rules must comply with any requirements of the regulations.
Section 237 prescribes procedural and administrative matters. Relevantly it provides: 237 Rules to provide for procedural and administrative matters … (2) The rules of a State organisation may provide for the removal from office of a person elected to an office in the organisation only if the person has been found guilty, under the rules of the organisation, of: (a) misappropriation of the funds of the organisation, or (b) a substantial breach of the rules of the organisation, or (c) gross misbehaviour or gross neglect of duty, or has ceased, under the rules of the organisation, to be eligible to hold office. …

Requirements under the IR Act and PSA's Rules

I note at the outset that there was no suggestion of a want of compliance with any order or award made under the IR Act.
In submitting there was no contravention of the IR Act itself, the PSA relied on a number of authorities, in particular the decision of Boland J, President in Re Application by USU for alteration of Rules [2008] NSWIRComm 248. His Honour discussed at [18]-[29] various authorities in the federal jurisdiction which considered whether the abolition of an elected office contravened the federal legislation. In particular, his Honour referred to the cases of Saint v Australian Postal and Telecommunications Union (1976) 30 FLR 385 at 393 and Benson v Construction, Forestry, Mining & Energy Union (1995) 60 IR 394 at 401-402.
Boland J discussed the decision of Saint at [18]-[22]: [18] In Saint v Australian Postal and Telecommunications Union and Others [1907] HCA 12; (1976) 13 ALR 649 a new rule 31(j) certified in June 1975 had the effect of abolishing four organiser positions that would otherwise not have expired until 1977. The claimant was granted a Rule by the Australian Industrial Court calling upon the organisation to show cause why a declaration pursuant to s 140 of the Conciliation and Arbitration Act 1904 (Cth) should not be made that the new r 31(j) contravened s 133(1)(f) of the Act and consequently that there was a contravention of s 140. [19] Section 133(1)(f) was not materially different from s 237(2). Section 140(1)(a) was not materially different from s 235(1)(a). [20] Dunphy and Evatt JJ stated at 656: In our view s 133(1)(f) does not apply where there has been a valid abolition of an office during the currency of the term of that office. Clearly the subsection is concerned with a dismissal or removal from an office that is to continue after such dismissal or removal. There is a great difference between abolishing an office altogether and dismissing a person from an office when that office is to continue. In our opinion an office might be abolished at any time provided such abolition is effected in accordance with the rules and is bona fide.... [21] St John J dissented. His Honour said at 659: In my view, the amendment of ss 2, 4 and 133 manifest a legislative intention to place, as far as possible, the control of Union affairs in the hands of officers elected directly by the members of the organization. It would, in my view, defeat the purpose of these amendments if a rule-making committee or body, empowered under the rules to alter rules (subject to the Industrial Registrar's approval, of course) was in a position where, by the abolition of an office, removal of elected officers could be effected before the expiration of their terms of office, and for that reason I am of the view that in so far as the new rules have the effect of abolishing that office and its attendant voting rights it is invalid as being contrary to s 133(1)(f). To put it another way, the amendments are designed to ensure that those in management of the organization have to be elected directly by the members and once elected they may be removed only because of the serious misconduct specified, and not for any other reason. I would add that this interpretation does not mean that the structure of organizations so far as officers and their duties and privileges are concerned are immutable. Clearly, amendments can, in my view, be made whereby offices are abolished or new offices are created, but such abolition must wait until the expiry of the term of the incumbents of the offices to be abolished. [22] St John J considered it was significant that in the same amending Act that inserted s 133(1)(f), the objects of the Conciliation and Arbitration Act were added to by including at the end of s 2 the following words: "and (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". His Honour also noted that: The definition of "office" in s 4 was added to substantially to make it clear that by whatever words an office was described, if the holder of a position was empowered to make, alter, or rescind rules, or to enforce, or perform functions in relation to the enforcement of rules, or to exercise any of the functions of management, that position was included within the definition.
His Honour then discussed Wilcox CJ's view in Benson at [26] and [28]: [26] In Benson v Construction, Forestry, Mining & Energy Union (1995) 60 IR 394, Wilcox CJ considered whether amendments were invalid because they purported to effect the removal from office of a person elected to an office in the organisation other than in the manner permitted by s 195(1)(c) of the Industrial Relations Act 1988 (Cth). Section 195(1)(c) was not materially different to s 237(2). … [28] Further, at 401 Wilcox CJ expressed his own view about the decision in Saint as follows: With respect to those who have expressed the contrary view, I accept what Dunphy and Evatt JJ said on this point in Saint. Section 195(1) of the Act is concerned with the content of rules. Paragraph (c) permits rules for removal of an elected officer from office, but only under certain circumstances. The envisaged subject matter is different from abolition of an office. Removal from office and abolition of the office have the common consequence that the particular officer no longer holds the office to which he or she was elected. But in the one case the organisation remains structurally unchanged; the office remains and someone else may be elected or appointed to it. In the other case, the organisation is changed; the office ceases to exist. I think s 195(1)(c) was intended to prevent the dismissal, without an objectively valid reason, of an elected officer during the officer's term of office, and the substitution of someone else, perhaps a person more to the liking of a dominant faction. I do not think it was intended to restrict the ability of organisations to amend their rules, in accordance with proper procedures and subject to the protections contained in s 196.
Boland J at [29] agreed with Wilcox CJ's position in Benson and the majority decision in Saint: [29] My position is that I agree with Wilcox CJ and his Honour's reasoning and, it follows, with the majority in Saint. In Saint, St John J was obviously influenced by the Act's object 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 the fact that this object was inserted by the same amending Act that inserted s 133(1)(f). The object in s 3(d) of the Industrial Relations Act also encourages the democratic control of industrial organisations but, additionally, it encourages the responsible management of those bodies.
I agree with the views expressed by his Honour Boland J, and adopted by the PSA in its submissions. I accept that the removal of an office-holder from a position which is ongoing is to be distinguished from the abolition of an office within the organisation: Re Application by USU and Benson. I would add, in light of the unchallenged evidence of Ms Cameron as to the motivation of the applicant in abolishing the office, there is no basis to conclude that the action was not bona fide. That conclusion is fortified by the fact that the "elected' officer had resigned from office prior to the initiation of the proposal to amend the rules.
It follows from these authorities that the applicant was not obliged under the IR Act or regulations to fill the vacant office if it decided bona fide to abolish it. The abolition of the office is not contrary to the IR Act.
I find too that the PSA has acted in accordance with its rules in making the amendments for which it now seeks consent. The authority of the Central Council to amend the subject rules by special resolution is clear and the requisite majority was established on the evidence. Accordingly I find there is no issue as to the legality of the proposed alteration.
The objector further submitted that a unilateral alteration to the PSA's rules by its Central Council is: not in the best interests of the Association and its members that the Central Council is making an assumption on behalf of its members that this is what they want The only way that a rule change to delete a long standing position in the Association that members voted on only several months prior would be deemed democratic or within the full scope of the rules is to conduct a plebiscite. Mr Delprado refers also to the "spirit" of the rules.
In support of these submissions the objector extrapolates from the legislation relating to elections an obligation, at least in spirit, to fill a vacant office by election. So much might be accepted if the office was to continue. In this case however, as in USU and Benson, the governing body has decided to abolish the office as a step in its management of the organisation - a step authorised by the rules. Minds may differ about the appropriateness or desirability of the decision but that does not render the decision contrary to the IR Act (even in spirit). Ultimately the Central Council will be accountable to the members for its stewardship of the PSA at the next elections. That is consistent with the democratic control of organisations required under the IR Act.
The PSA submitted, and I agree, that any particular view that members have as to what is the best way the PSA is to be organised does not give rise to any contest with the legislation or with the rules.
Mr Gibian referred to Roughan v Australasian Meat Industry Employees' Union [1992] FCA 327; (1992)36 FCR 536 which dealt with s 196(c) of the Industrial Relations Act 1988 (Cth), being the equivalent provision to s 235(1)(c) of the IR Act. The case concerned the abolition of the office of Assistant Federal Secretary, a position filled by direct vote of the members. Mr Roughan held office at the time of the decision to amend the rules to abolish the office. Mr Roughan contended that amendments to the rules were unjust or oppressive on three bases.
First, it was said that it was unjust to abolish an elected office during the currency of the term of an elected official without making adequate provision for the employment of that person. Second, it was said that it was oppressive to act in a wrongful way and to abolish the office of an incumbent amounted to a breach of contract. Wilcox CJ rejected these arguments first, on the basis that they focussed not on the rules but the effect of a change in the rules. There was no argument that the rules must have such an office in order to avoid being oppressive, unreasonable or unjust.
Second, the arguments focussed on the effects on an individual rather than on the specified classes.
Third, it was contended that it was oppressive to members to deprive them of the only federal office directly filled by vote of the members. Wilcox CJ observed at 541: […] Cogent arguments may be put in favour of the proposition that democratic control and member participation are maximised by having key office-holders of an organisation directly elected by the members. But this is a matter upon which reasonable people may differ. In most political democracies many major office holders are indirectly elected. Whether or not this is the preferable course is not the point. The matter is arguable. It goes too far to say that rules which fail to provide directly elected office bearers are oppressive, unreasonable or unjust."
I am inclined to follow the position as stated in Roughan. As in that case, no argument was here advanced that the rules would be or are oppressive, unreasonable or unjust or otherwise contrary to the IR Act simply because they did not provide for more than one Assistant General Secretary. It is clear that there is no specific requirement as to a particular structure of executive officer positions within an industrial organisation. The structure is a matter for the organisation to decide for itself; see Municipal Officers' Association v Lancaster [1981] FCA 151; (1981) 54 FLR 129 at 164-6 per Deane J. It cannot be said that an alteration to the PSA's rules to reduce the number of Assistant General Secretaries within the PSA from two to one is 'oppressive, unreasonable or unjust' in the circumstances.
Nor does such an authority to amend "impose on members of the organisation, or on applicants for membership of the organisation, any conditions, obligations or restrictions" which may be described as oppressive, unreasonable or unjust contrary to s 235 (1)(c) of the IR Act. While the decision has an undoubted impact on Mr Delprado's aspirations (and perhaps those of his supporters) that is not enough to render the rules oppressive, unreasonable or unjust.
Finally, I observe in this regard that the position abolished in this case was not occupied by an elected incumbent. Mr Delprado was not elected to fill the position. He was nominated in accordance with the rules to fill the role on a casual basis pending an election. Without wishing to comment on the rights of Mr Delprado otherwise (as to which I will return below) the circumstances of this case are in that respect less compelling than those existing in Roughan.
Mr Delprado referred to Rule 5 of the PSA's rules, which sets out the Constitution of the PSA. In particular, Rule 5(1)(k) provides: CONSTITUTION 5. (1) The Association shall be constituted of- … (k) The General Secretary and Assistant General Secretaries of the Association …
Mr Delprado also referred to Rule 152(g), which limits the power of the Central Council to amend the constitution rule of the organisation to, in effect, establish coverage of existing groups and prospective employees of newly created groups or extend membership of the Association. It was submitted that it did not provide a power to the Central Council to abolish membership, and inferred that any change to the membership of the PSA should be put to an election by its members.
The first point to note is that the Applicant is not seeking to alter Rule 5 (1)(k) although at one stage it had proposed to do so. I understood Mr Delprado's submission to be that Rule 5(1)(k) required two Assistant General Secretaries and therefore the Central Council had no power to amend Rule 49 to remove one of them. I am not persuaded by the objector's submission in this regard.
It is clear that Rule 49, and for that matter Rule 55 relating to the duties of an Assistant General Secretary, are able to be amended because Rule 152(i) expressly provides for an amendment of those rules by the Central Council by way of special resolution. In my view rule Rule 5(1)(k) does no more than provide for the General Secretary and the Assistant General Secretary(s), however many there may be, to be members of the organisation.
Accordingly, the grounds for objection submitted by Mr Delprado in relation to the issue of abolition of the Assistant General Secretary position cannot be construed as matters that would be contrary to the IR Act, 'not otherwise contrary to law', or a rule that was not made under the PSA's rules.

Other issues

As noted at paragraph 6 above the objector raised two other issues. The first concerned the validity of the decision to reduce the salary of the vacant Assistant General Secretary's position to zero while maintaining that of the other Assistant General Secretary. I have found above the particular circumstances of Mr Delprado are not relevant to the determination of the issues in this case. I make no observation on the strength of any claim he may have in other proceedings should he decide to take them. Mr Gibian submitted, and I accept, that the focus in these proceedings must be the rules and whether they comply with the IR Act. Whether administrative decisions, not involving an alteration to the rules, taken by the Central Council are lawful or fair or in accordance with the rules may be determined elsewhere. Mr Gibian pointed in this regard to s 248 of the IR Act.
The final issue raised by the objector concerns the duty to fill as casual vacancy by election. Although expressed in slightly different terms to the primary basis of objection, it is answered by the principles discussed above. Such a duty would exist if the office continued to exist. The PSA has decided it should not.

Residual Discretion

Mr Gibian drew to my attention the issue of whether the Commission has a residual discretion to refuse consent to a proposed alteration to rules of an industrial organisation in circumstances where the requirements of s 245(2) of the IR Act are satisfied: see Re Australian Chamber of Manufactures New South Wales Branch (1993) 50 IR 87 at 101 per Cahill J; Australian Hotels Association (NSW) [2013] NSWIRComm 54 at [20]. Mr Delprado made no submission on the point.
I am inclined to the view that there is no such discretion, but do not find it necessary to decide the point. Were it to exist, it would need to be exercised in conformity with the objects of the legislation: O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ. See also Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 at 504-5 per Dixon J; R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45 at 49-50; Murphyores Incorporated Pty Ltd v Commonwealth [1976] HCA 20; (1976) 136 CLR 1 at 12-13, 24; Re Coldham; Ex parte Brideson [1989] HCA 2; (1989) 166 CLR 338 at 347.
Applying those principles, nothing suggests itself to me as would warrant the exercise of that discretion.

Conclusion

In my view, the application brought by the PSA for alteration of its rules satisfies the conditions set out in s 245(2) of the IR Act.
In all the circumstances, upon reference of the matter by the Industrial Registrar for determination, I grant the application of the PSA. I consent to the alteration of the PSA's Rules as proposed in its application.

Orders

I make the following orders: 1. Consent is given to the Rules of the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales being varied as follows: 1. In Rule 49 the words "Two Assistant General Secretaries" be replaced with the words "the Assistant General Secretary"; 2. the words "Assistant General Secretaries" be replaced with the words "Assistant General Secretary" in Rules 40(g), 50(l), 55, 102(b) and 104; 3. the words "an Assistant General Secretary" be replaced with the words "the Assistant General Secretary" in Rules 104(b), 112 and 128(a). 1. The variations shall take effect from 1 April 2015.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 April 2015

Industrial Relations Act 1988(Cth)

Conciliation and Arbitration Act 1904(Cth)

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Judgment (14 paragraphs)

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Cases Cited (21)