Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia-Communications Division

[2014] FWCD 7390

[2014] FWCD 7390

DECISION

Fair Work (Registered Organisations) Act 2009

s.236—Direction to organisation to deliver copy of records

Communications, Electrical, Electronic, Energy, Information, Postal,

Plumbing and Allied Services Union of Australia

(R2013/343)

MR ENRIGHT MELBOURNE, 14 NOVEMBER 2014

Application for direction to produce Register of Members kept by branch of organisation.

[1] On 26 July 2013, Mr Dan Dwyer lodged in the Fair Work Commission an application

for a direction under section 236 of the Fair Work (Registered Organisations) Act 2009 (the
Act.

[2] Mr Dwyer is the Divisional Secretary, Communications Division, of the

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied
Services Union of Australia (the union).

[3] I recently noted[1]that the union comprises three Divisions, namely, the Electrical, Energy and Services Division, the Plumbing Division and the Communications Division. Members and officers of the union are attached to one or another of those Divisions. In addition, each Division contains various Divisional Branches established on a geographic and/or industry basis. The divisional structure follows the amalgamation of a number of organisations whose members hailed from disparate trades, industries, occupations and callings. Considerable autonomy is given to each Division to determine matters which do not directly affect another Division. To this end, there are discrete rules for the internal governance of each Division, in addition to the national rules of the union.

[1]Alteration of other rules of the Communications Division, of the Communications, Electrical, Electronic, Energy,

[4]        Mr Dywer’s application stated, in part:

I am a member of the NSW P&T Branch and the Divisional Secretary of the Communications Division of CEPU. My duties under the Division's rules as Divisional Secretary include production of a national Divisional Journal... To fulfil my obligations, I require a membership list from each Branch. I have a right under the rules to seek the membership lists from Branches.[2]

[2]Correspondence from Mr. D. Dywer to the General Manager of the Fair Work Commission dated 25 July 2014; page 1.

[5]        It continued:

Put simply, the matter is this: I have made requests under Rule 50(a)... Mr
Metcher has refused the requests.

In these circumstances, I now make a request pursuant to Section 236 of the Fair Work (Registered Organisations) Act 2009. I request that the General Manager give a direction to Mr Metcher, in his capacity as Branch Secretary of

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the NSW P&T Branch, to deliver to the General Manager an electronic copy of the copy of the register of the names and postal addresses of the members of the NSW P&T Branch required to be kept under s230 of the Act.[3]

Mr Dywer concluded:

My grounds for the request under s236 are at least two fold. First in my capacity as Divisional Secretary I have an entitlement to the register under Rule 50(a) and as the material above indicates access has been refused. Second in my capacity as a member of the Branch I am concerned that the rules be complied with and that fellow members of the Branch have access to the Divisional Journal.[4]

[3]Ibid; page 3.

[4]Ibid; page 3.

[6] Section 236 of the Act relevantly provides:

236 General Manager may direct organisation to deliver copy of records

Register kept under section 230

(1) Where:

(a) a member of an organisation requests the General Manager to give a

direction under this subsection; and

(b) the General Manager is satisfied:

(i)          that the member has been refused access to the register required

to be kept under section 230, or part of it, at the office or premises
where the register or part is kept; or

(ii)         that there are other grounds for giving a direction under this

subsection;

the General Manager may direct the organisation to deliver to the General Manager a copy of the relevant records certified by declaration by the secretary or other prescribed officer of the organisation to be, as at a day specified in the certificate that is not more than 28 days before the first-mentioned day, a correct statement of the information contained in the register, for the member to inspect at a specified registry, and the organisation must comply with the direction.

Note: This subsection is a civil penalty provision (see section 305).

Copy kept under section 231

(2) Where:

(a) a member of an organisation requests the General Manager to give a

direction under this subsection; and

(b) the General Manager is satisfied that:

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(i) the member has been refused access to the copy of the register

required to be kept under section 231; and

(ii) the member has reasonable grounds for seeking access to the copy;

the General Manager may direct the organisation to deliver to the General Manager a copy of the copy, and the organisation must comply with the direction.

Note: This subsection is a civil penalty provision (see section 305).

(3) A direction of the General Manager given under this section must be in writing and must specify the period within which the relevant copy must be delivered to the General Manager. The period must not be less than 14 days after the direction is given.

(4) A copy of a record delivered under subsection (1) or (2) may be in the form
of a hard copy or, if the General Manager agrees, in electronic form.

(5) Where the General Manager receives a copy of a document from an organisation under this section, the General Manager may, if the General Manager considers it appropriate in the circumstances, provide a copy of that document to a member of the organisation.

[7] On 9 September 2013 I wrote to Mr Dwyer. I noted that the matter had been delegated to me for determination via s.343A(3)(e) of the Act, before setting out the relevant parts of section 236. I informed Mr Dwyer that he had not provided enough information to persuade me to issue a direction. I invited Mr Dywer to provide further information regarding his membership of the union, to identify whether he relied on s.236(1)(b)(i) or s.236(1)(b)(ii) of the Act and to make further submissions about whether I should exercise my discretion under s.236(1) if I found I had jurisdiction to issue a direction.

[8] My Dwyer replied on 30 September 2013. He stated that he requested a direction under s.236(1)(a), relying on the grounds contained in both s.236(1)(b)(i) & (ii). He also sought a direction under s.236(2)(a), relying on both grounds contained in s.236(2)(b)[5]. Mr Dwyer set out reasons which supported his request[6]and provided a Commonwealth Statutory

[5]Correspondence from Mr. D. Dywer to the Delegate Enright dated 30 2014; page 1, paragraphs 4 and 5.

[6]Ibid, page 2, paragraph 11.

Declaration as evidence of matters I would need to consider before a direction could issue.

[9] On the basis of the material provided on 30 September 2013, I formed the prima facie view that the jurisdiction to issue directions under s.236 of the Act was enlivened. As a result I wrote to Mr Jim Metcher, Branch Secretary of the New South Wales Postal and Telecommunications Branch of the Communications Division on 4 October 2013. I offered Mr Metcher an opportunity to respond to Mr Dwyer’s request and attached a copy of the material lodged by Mr Dwyer.

[10] Mr Metcher took up that opportunity. He lodged a submission in the Fair Work Commission on 18 October 2013. That submission opposed the issue of a direction. He argued that I lacked jurisdiction to proceed and, in the alternative, should I conclude that jurisdiction existed I should not exercise my discretion to issue a direction.

[11]      Mr Dwyer lodged a final submission in reply on 1 November 2013.

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[12] The context of the application is important to understand why, regrettably, the matter did not progress for some time. The Commission has continued to clearly articulate its significant and increasing concern about what I have described in previous correspondence as an ‘ongoing and deeply problematic internal dispute’ having a ‘demonstrably negative impact... on the CWU’s compliance performance[7]. In the context of the widely reported internal dispute the interaction between the CWU and the Commission has continued on a range of other unrelated matters.

[7]See for instance my 31 March 2014 correspondence to Mr Dyer in FR2012/491.

[13] Some of those other unrelated matters upon which the Commission has continued to engage with CWU relate to further issues sought to be prosecuted by one party to the dispute against the other. In addition, the progress of this application has been delayed by a range of other factors including the necessary prioritisation of essential resources toward addressing the statutory requirement for all registered organisations having to make mandatory one-off changes to their rules.

[14] On 29 October 2014 Mr Metcher lodged some further material which clarified certain submissions he had previously made.

[15] As noted above, Mr Metcher contended that there was no jurisdiction to issue any of the directions sought by Mr Dywer.

[16]      Mr Metcher submitted:

Section 236 of the FWRO confers on the GM a power to give a direction to an 'organisation' in identified circumstances. In s 6 of the FW RO Act the word 'organisation' is defined exhaustively as 'an organisation registered under this Act'. It is not defined as meaning a natural person, an officer of an organisation or even a branch of an organisation. To identify an organisation it is simply necessary to look at the register of organisations and see if the name appears there. It is to those bodies, and only to those bodies, that the GM is empowered under the s 236 to give a direction.

Neither I nor the Branch is an organisation or even the organisation. Other provisions of the FW RO Act confers responsibilities on parts of an organisation (for example Part 3 of Chapter 8 of the FW RO Act, which relates to "reporting units", and Division 3A in Part 2 of Chapter 5 (concerning branches and organisations), but Part 2 of Chapter 8 talks only of 'the organisation'. Therefore under s 236 the GM has no power to give a direction to me in any capacity and would exceed the GM's statutory jurisdiction if shepurported to give such a direction.[8] (emphaisis added)

[8]Written submissions of J. Metcher dated 18 October 2014; pages 1 - 2.

[17] I agree that the reference to organisation in s.236 is a reference to an organisation

registered under the Act. However, it does not follow that a direction could never be issued to
a branch of an organisation and addressed to the Secretary of that branch.

[18]      A branch of an organisation registered under the Act:

has no separate legal existence as a juristic person ... it has no separate identity - no existence apart from the registered organization, of which it is an integral and inseverable part. Its members are merely a section of the total membership of the federation - locally organized for the sake of convenience, but in no respect independent of the federation, and in all respects subject to the control

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of the federation. The branches are permitted within limits to make rules of their own, but the rules which they make derive authority from the rules of the federation...[9](emphasis added)

[9]Williams v Hursey [1959] HCA 51; (1959) 103 CLR 30 (16 September 1959); per Fullager J at paragraphs 21, 23 with

[19]      Further,

... A subordinate Lodge is therefore not to be considered as if it were an association by itself; it is in truth a branch of the Institution, a section of its membership, which provides, for those who belong to it or may be admitted to its meetings, machinery for the enjoyment of the rights and benefits, and for the performance of the obligations and functions, which are the incidents of their membership of the Institution...[10]. (emphasis added)

[10]Ibid per Fullagar J at paragraph 23, quoting Hall v Job (1952) CLR 639 at 650.

[20] In addition, the rules of a registered organisation are “the compact which governs the relationship of members with each other and the way their organisation is to be run and

managed”[11](emphasis added)

[11]Wright v McLeod; [1983] FCA 319 (28 November 1983); per Sheppard J at page 64

[21] Finally, the Act confers on registered organisations “the full character of a

corporation”[12]. A corporation can only act through its agents.

[12]Ibid at paragraph 19. See also s.27(a) of the Act.

[22] When these propositions are taken together, a number of conclusions follow. First, a person who holds an office in a branch of a registered organisation in fact holds an office in the organisation, because the branch exists only as an integral and inseverable part of the organisation as a whole. Secondly, subject to the Act it is the rules of an organisation which set out the way an organisation is to be run and managed as well as the machinery by which functions, duties and powers are discharged. This will generally include the allocation of the organisation’s functions, powers and duties. Thirdly, it is open to an organisation to have branch rules. Those rules may create machinery for the performance of the obligations and functions of the organisation, so far as they relate to the proportion of the organisation’s membership that is attached to the branch. Such rules derive authority from the rules of the organisation. Finally, the obligations and duties of an organisation can only be performed by natural persons.

[23] Turning to the relevant statutory provisions, s.230(1)(a) requires an organisation to keep a register of its members. Subsection 233(1)(a) requires the organisation’s secretary (or other prescribed officer) to lodge, annually, a declaration certifying that the register of members has been kept during the immediately preceding calendar year. Regulation 150 of the Fair Work (Registered Organisations) Regulations 2009 defines “prescribed officer” for the purposes of s.233 as “an officer of an organisation, other than the secretary, who is required by the organisation or by the rules of the organisation to keep the records mentioned in subsection 230(1) of the Act”. Subsection 234(2) of the Act provides that the register of members may be kept, so far as it relates to a branch of the organisation, in a separate part or section at the office of the branch. A direction under s.236(1) is issued to the person responsible for keeping the register. Again, under Regulation 150 that may be the organisation’s secretary, but it may instead be another officer who - under the rules - is responsible for keeping the register.

[24]      Rule 44(a)(i) of the rules of the union’s Communications Division (Divisional Rule)

provides:

The Division shall consist of the following Branches... the New South Wales
(including residents in the ACT) Postal and Telecommunications Branch.

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[25] Divisional Rule 76 is titled “Branch Management - New South Wales and Victorian Postal and Telecommunications Branches”. Divisional Rule 76(b) states, in part, “Each Branch shall have for its management a Branch Committee of Management consisting of a ...Secretary”.

[26] Divisional Rule 50 provides, in part: “Each Branch Secretary shall keep a register of the names and addresses of all members of the Branch, including membership of the particular Industry Section to which they belong...”. Similarly Divisional Rule 53(b)(iii)(E) states that maintenance of a register of members is a duty of a Branch Secretary.

[27] Hence, the Act contemplates a branch keeping part of an organisation’s register of members and contemplates a direction of under s.236 of the Act being given to an officer of a branch if the union’s rules make relevant provision. In the case of the Communications Division, the rules do make relevant provision.

[28] A direction under s.236(1) of the Act is able to be given to Secretary of the union’s

Communications Division, New South Wales Postal and Telecommunications Branch, Mr
Metcher.

[29] The situation under s.236(2) is less clear. It is possible that a direction to produce those historical documents can only be addressed to the national office of an organisation. It is not necessary to determine the issue because I am not satisfied that the jurisdictional prerequisites contained in s.236(2)(b)(i) & (ii) have been made out. The material lodged does not compel me to find that a request for relevant historical material information has been made and refused. In addition, Mr Dwyer requests that I issue a direction so he can publish a Divisional journal. In those circumstances it seems to me that relevant membership information would relate solely to persons who were currently members of Mr Metcher’s branch, rather than those persons who were members at some previous point in time[13].

[13]See s.231 of the Act and Reg 148 of the Regulations.

[30]      Mr Metcher also submitted:

First, Mr Dwyer has never sought access to the part of the register of the organisation held by the Branch... Mr Dwyer has only ever demanded that he be given an electronic copy of the register, purportedly for the purpose of the Divisional Journal... That being so an occasion for the exercise of the GM's power has not arisen under sub paragraph (i) of paragraph (b) of sub section (1) of the Section. The exercise of the power is dependent upon a request of a particular kind (which has not been made) and its refusal (which has not occurred because there has been no request).

Second, Mr Dwyer has never sought access to the register in his capacity as a member of the organisation- he has simply demanded an electronic copy of the register as Divisional Secretary of the Communications Division for purposes purportedly related to his position. It is only in his request to the GM in his letter dated 26 July 2013 that he has called in aid his status as a member of the organisation. This is another reason why sub paragraph (i) of paragraph (b) of sub section (1) has not been engaged and therefore the precondition for any direction is not met.[14]

[14]Submissions of J. Metcher; Op cit; page 2.

[31] It is not necessary to deal with Mr Metcher’s first objection. Even if that submission

was accepted it would leave open the possibility of a direction being given under
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s.236(1)(b)(ii). If Mr Dwyer needs information contained in the register of members to

perform a duty placed on him by the organisation’s rules[15]and Mr Metcher, as the person

[15]See for instance Divisional Rule 40(xii).

responsible for keeping the register of members, refuses to supply a copy of the register when required to do so,[16]then in my view there are “other grounds for giving a direction” per

[16]Divisional Rule 50(a).

s.236(1)(b)(ii). This conclusion is amplified where a failure to perform a duty under the rules

may result in disciplinary action against Mr Dwyer[17].

[17]See for instance Divisional Rile 42(a)(i).

[32] Mr Metcher’s second objection relies on a false distinction. Mr Dwyer’s Statutory Declaration states that he is a financial member of the organisation[18]. Mr Metcher has not sought to put this fact in issue. I accept that Mr Dwyer is a member of the organisation. As such, the precondition contained in s.236(1)(a) of the Act has been met. In any event, Mr Dwyer has declared that he “also” makes the application in his capacity as a member of the NSW P&T Branch.19

[18]Commonwealth Statutory Declaration of Dan Dwyer dated 30 September 2013; paragraph 2.

[33] In summary, on the basis of the material before me I find there is jurisdiction to issue a direction under s.236(1)(b)(ii) of the Act and further find that there is jurisdiction to address such a direction to Mr Metcher as the Branch Secretary of the New South Wales Postal and Telecommunications Branch of the union’s Communications Division.

[34] The decision to issue a direction under s.236(1) is discretionary. Having concluded

that the jurisdictional prerequisites to a direction under s.236(1)(b)(ii) have been met, I now
turn to the question of whether a direction should be addressed to Mr Metcher.

[35] Messrs Dwyer and Metcher advanced a number of submissions about whether I should exercise my discretion in Mr Dwyer’s favour. A number of those points were inflammatory and appear to be made against a background of the deeply problematic dispute within the Communications Division of the union I have referred to earlier in this decision, including acrimony between Mr Dwyer and Mr Metcher. In that context, while I have carefully considered all of the material put I do not intend to set out every aspect of it.

[36] There is however one matter which it is necessary to refer to in some detail. In my view it is determinative of Mr Dwyer’s present application.

[37]      Mr Metcher submits:

I submit there are no other reasons which justify the GM exercising his discretion under sub paragraph (ii) of paragraph (b) of sub section [236] (1) to give the direction requested by Mr Dwyer. My reasons for this view are as follows.

Mr Dwyer asserts that he needs the register for the purpose of the Divisional Journal... Mr Dwyer did not need the register for this purpose - the Branch at that time was prepared to arrange distribution of information to its members. Mr Dwyer was informed of this position on 6 June 2013 although he was requested to first comply with Divisional Executive Decision Number 16 of 2008.

Mr Dwyer has refused to respect Decision Number 16 of 2008 of the Divisional Executive, and in that regard I refer to my letter to him dated 22 February 2012, a copy of which is Annexure "L" to his letter to the General Manager of 26 July 2013.20

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[38]      The relevant portion of Mr Metcher’s 22 February 2012 correspondence to Mr Dwyer

is as follows:

The Divisional Journal you seek to distribute to our Branch's members is one published contrary to Divisional Executive Decision No.16 of 2008. That resolution required that the Branches participate in the Journal and that avenues for editorial input from the Branches be established.

Subsequent to that Decision, those avenues were established and the Branches have participated in and provided editorial input to all Journals subsequently produced and distributed except for Issue 2 of 2011 which is the journal in question.

This journal was produced, published and distributed without any participation in or any editorial Input by this Branch (as well as a number of other Branches). It has therefore been distributed to date in contravention of Divisional Executive Decision No. 16 of 2008.

As Divisional Secretary you are bound to be responsible for the implementation of Divisional Executive decisions and carry out duties as required by Divisional Executive.

You have failed to do so in distributing the journal in question. This is in breach of the Division's rules.

[39] At my request, Mr Metcher supplied a copy of Divisional Executive Decision Number 16 of 2008. The relevant parts of the Decision state:

It is recommended that:

1. The Divisional Executive supports the creation of a national journal. To ensure that all members get access to a quality, well produced journal it is recommended that all Branches participate in the journal...

7. That avenues for editorial input from State Branches be established."

[40] Non compliance with Divisional Executive Decision Number 16 of 2008 has been alleged by Mr Metcher in correspondence to Mr Dwyer throughout the dispute which underpins the current s.236 request. It is raised in material which accompanied Mr Dwyer’s initial request as well as material lodged in response to my September 2013 invitation. It is relied upon in Mr Metcher’s submission in the present matter.

[41] However, Mr Dwyer’s submissions do not directly deal with the issue of non compliance with Divisional Executive Decision Number 16 of 2008. The closest Mr Dwyer comes to addressing the issue is in paragraphs 25, 31, 32 and 35 of his 30 September 2013 Statutory Declaration, where he states:

25. The 2012 journal was produced pursuant to contract with ACP... Mr Metcher was asked to provide material by Mr O'Nea from my office. Mr O'Nea prepared most of the content.

....

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31. I am preparing to produce a further official journal for distribution to all

members -the 2013 Journal.

32. As in the past, each Branch will be asked to supply material for the journal.

...

35. I say that at all times I complied with the policy and rules of the
organization.

[42] In my view these general statements do not properly address the specific concerns

raised by Mr Metcher. This is to be contrasted with a statement made by Mr Metcher when
asked whether Mr Dwyer’s non compliance continued. Mr Metcher stated:

I enclose a copy of the Divisional Executive (DE) decision 16 of 2008 to which my letter of 18 October refers.

I also advise that this resolution remains in effect and that since my letter to Mr Enright of 18 October 2013, Mr Dwyer has done nothing to comply with the

DE decision in relation to State Branches of the Division including the NSW

Postal and Telecommunications Branch.21

[43] On the basis of the material before me, I cannot be satisfied that Mr Dwyer has complied with the relevant aspects of Divisional Executive Decision Number 16 of 2008.

[44] Divisional Rule 40 sets out the duties of the Divisional Secretary. Divisional Rules 40(i) & (xii) are relevant. They state:

The duties of the Divisional Secretary shall be:

(i) to be responsible for the implementation of Divisional Conference and Executive decisions and the day to day Divisional issues;

...

(xii) to jointly edit with the Divisional President the official journal of the Division concerning matters of interest and information to members;

[45] Further, I note that it is an offence under Divisional Rule 42 to fail to observe the rules of the Division or knowingly fail to comply with a resolution of the Divisional Executive.

[46] There is no inherent tension between Mr Dwyer’s duty to jointly edit the journal of the Division and his duty to implement Divisional Executive Decision Number 16 of 2008. Instead, giving effect to the terms of the Divisional Executive Decision is part and parcel of Mr Dwyer’s duty to jointly edit the journal of the Division.

[47] Because I am unable to be satisfied that Mr Dwyer complied with Divisional Executive Decision Number 16 of 2008 I am not persuaded that I should issue a direction, under s.236(1)(b)(ii) of the Act, that the Branch Secretary of the union’s New South Wales Postal and Telecommunications Branch deliver a copy of the register of the names and [2014] FWCD 7390

addresses of all members of the Branch, together with an appropriate declaration. In my view,

the application is premature in the current circumstances. I refuse Mr Dwyer’s request.

[48] I would be prepared to consider another application for a direction under

s.236(1)(b)(ii) when Mr Dwyer can demonstrate that Divisional Executive Direction Number 16 of 2008 has been complied with, if Mr Metcher does not then furnish the branch membership information necessary to facilitate distribution of the Divisional Journal to members of the union’s New South Wales Postal and Telecommunications Branch.

DELEGATE OF THE GENERAL MANAGER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR556765>

19 Commonwealth Statutory Declaration of Dan Dwyer Op cit; paragraph 4.

20 Submission of J. Metcher Op cit; page 2 - 3. I note that the reference to “Annexure "L" to his letter to the General Manager

of 26 July 2013” should instead be either “Annexure "A" to his letter to the General Manager of 26 July 2013” or

“Annexure "L" to his letter to the General Manager of 30 September 2013”.

21 Correspondence from J. Metcher to the Fair Work Commission dated 29 October 2014; page 2.

Information, Postal, Plumbing and Allied Services Union of Australia; [2014] FWCD 6659; 24 October 2014; paragraph

[31].

whom Dixon CJ and Kitto J agreed.