THE STATE SCHOOL TEACHERS' UNION OF WA (INCORPORATED) -v- PRINCIPALS' FEDERATION OF WESTERN AUSTRALIA [2016] WASCA 3

Jurisdiction:	WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT	Citation No:	[2016] WASCA 3
Case No:	IAC:2/2015	Heard:	1 SEPTEMBER 2015
Coram:	BUSS J MURPHY J LE MIERE J	Delivered:	8/01/16
No of pages:	35	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	A
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Parties:	THE STATE SCHOOL TEACHERS' UNION OF WA (INCORPORATED) PRINCIPALS' FEDERATION OF WESTERN AUSTRALIA
Catchwords:	Appeal Industrial law (WA) Application by the respondent pursuant to s 53(1) of the Industrial Relations Act 1979 (WA) for registration as an organisation under div 4 of pt II of the Act Appellant an existing organisation registered under div 4 of pt II Overlapping eligibility for membership between the respondent and the appellant Proper construction and application of s 55(5) read with s 6 of the Act The Full Bench, by a majority, made an order, pursuant to s 53(1), authorising the Registrar to register the respondent as an organisation under div 4 of pt II Whether the majority's decision was erroneous in law in that they made an error in the construction or interpretation of the Act in the course of making the decision Whether any injustice was suffered by the appellant or any person who is a member of or represented by the appellant as a result of any error made by the majority
Legislation:	Acts Amendment and Repeal (Industrial Relations) Act (No 2) 1984 (WA) Industrial Relations Act 1979 (WA), s 6, s 26, s 53(1), s 55(5), s 62, s 90(1)(b), s 90(3a) Industrial Relations Legislation Amendment and Repeal Act 1995 (WA) Labour Relations Reform Act 2002 (WA)
Case References:	Burswood Resort (Management) Ltd v Australian Liquor Hospitality & Miscellaneous Workers' Union (Unreported, WASCA, Library No 940280, 2 June 1994) Construction, Mining and Energy Workers Union of Australia v Operative Plasterers and Plaster Workers Federation of Australia (1990) 32 IR 287 Federated Miscellaneous Workers' Union of Australia v Federated Clerks Union of Australia (1985) 65 WAIG 2033 Re Sharkey; Ex parte Burswood Resort (Management) Ltd (1994) 55 IR 276 The Federated Liquor and Allied Industries Employees' Union of Australia v The Federated Miscellaneous Workers' Union of Australia (Unreported, WASC, Library No 930269, 30 April 1993)

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT CITATION : THE STATE SCHOOL TEACHERS' UNION OF WA (INCORPORATED) -v- PRINCIPALS' FEDERATION OF WESTERN AUSTRALIA [2016] WASCA 3 CORAM : BUSS J

MURPHY J

LE MIERE J

HEARD : 1 SEPTEMBER 2015 DELIVERED : 8 JANUARY 2016 FILE NO/S : IAC 2 of 2015 BETWEEN : THE STATE SCHOOL TEACHERS' UNION OF WA (INCORPORATED)

Appellant

AND

PRINCIPALS' FEDERATION OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Coram : J H SMITH (ACTING PRESIDENT)

P E SCOTT (ACTING SENIOR COMMISSIONER)

S J KENNER (COMMISSIONER)

Citation : [2014] WAIRC 1360

File No : FBM 8 of 2011

Catchwords:

Appeal - Industrial law (WA) - Application by the respondent pursuant to s 53(1) of the Industrial Relations Act 1979 (WA) for registration as an organisation under div 4 of pt II of the Act - Appellant an existing organisation registered under div 4 of pt II - Overlapping eligibility for membership between the respondent and the appellant - Proper construction and application of s 55(5) read with s 6 of the Act - The Full Bench, by a majority, made an order, pursuant to s 53(1), authorising the Registrar to register the respondent as an organisation under div 4 of pt II - Whether the majority's decision was erroneous in law in that they made an error in the construction or interpretation of the Act in the course of making the decision - Whether any injustice was suffered by the appellant or any person who is a member of or represented by the appellant as a result of any error made by the majority

Legislation:

Acts Amendment and Repeal (Industrial Relations) Act (No 2) 1984 (WA)

Industrial Relations Act 1979 (WA), s 6, s 26, s 53(1), s 55(5), s 62, s 90(1)(b), s 90(3a)
Industrial Relations Legislation Amendment and Repeal Act 1995 (WA)
Labour Relations Reform Act 2002 (WA)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant : Mr M T Ritter SC & Mr S A Millman

Respondent : Mr S P Kemp

Solicitors:

Appellant : Slater + Gordon Lawyers

Respondent : Jackson McDonald

Case(s) referred to in judgment(s):

Burswood Resort (Management) Ltd v Australian Liquor Hospitality & Miscellaneous Workers' Union (Unreported, WASCA, Library No 940280, 2 June 1994)
Construction, Mining and Energy Workers Union of Australia v Operative Plasterers and Plaster Workers Federation of Australia (1990) 32 IR 287
Federated Miscellaneous Workers' Union of Australia v Federated Clerks Union of Australia (1985) 65 WAIG 2033
Re Sharkey; Ex parte Burswood Resort (Management) Ltd (1994) 55 IR 276
The Federated Liquor and Allied Industries Employees' Union of Australia v The Federated Miscellaneous Workers' Union of Australia (Unreported, WASC, Library No 930269, 30 April 1993)

Table of Contents
Buss J's reasons 5
The relevant background facts and circumstances 5
The relevant provisions of the Act 6
Case law on the proper construction of the relevant provisions of the Act 7
The reasons of Scott ASC 15
The reasons of Kenner C 20
The ground of appeal 22
The merits of the ground of appeal 24
Conclusion 35
Murphy J's reasons 35
Le Miere J's reasons 35

1 BUSS J: The appellant is and at all material times was registered as an organisation under div 4 of pt II of the Industrial Relations Act 1979 (WA) (the Act). The appellant's members include school principals, deputy principals and teachers.

2 On 2 December 2011, the respondent filed an application pursuant to s 53(1) of the Act for registration as an organisation under div 4 of pt II of the Act. The respondent's members comprise school principals and deputy principals. Teachers, as distinct from principals and deputy principals, are not eligible for membership.

3 On 17 January 2012, the appellant and a number of other persons filed objections to the respondent's application.

4 At the hearing of the respondent's application, the Full Bench of The Western Australian Industrial Relations Commission (the Commission) made an order, pursuant to s 27(1)(k) of the Act, permitting the appellant to intervene in relation to the application.

5 On 17 December 2014, the Full Bench decided, by a majority (Scott ASC & Kenner C; Smith AP dissenting), that an order should be made, pursuant to s 53(1), authorising the Registrar to register the respondent as an organisation under div 4 of pt II.

6 The appellant has appealed to this court against the Full Bench's decision.

7 I would dismiss the appeal. My reasons are as follows.

The relevant background facts and circumstances

8 The relevant background facts and circumstances are summarised in the reasons of Kenner C as follows:

As early as about 1995, principals in government schools have sought to negotiate their own terms and conditions of employment with their employer, as they were not able at the time, to obtain an industrial agreement separate from that applying to teachers generally. Whilst the employer was willing, and indeed seems to have a preference for separate agreement coverage for principals, [the appellant] has had a policy position of opposing any separate agreement coverage within its ranks. As a result of this position, the previous iteration of [the respondent], took advantage of the industrial legislation of the day, to negotiate a collective agreement directly with the employer. This continued through to about 2002, after which time the then

Workplace Agreements Act 1993

ceased to have effect. [The respondent] submitted that this was the only option then open to it, to obtain a separate voice.

As this particular industrial legislation was strongly opposed by unions generally in the State system at the time, the action of the principals to charge their own course was not a popular one. Indeed, it led to a reaction at the time from [the appellant's] leadership that can only be fairly described as hostile.

Despite two previous unsuccessful applications to register as an organisation under the Act, which failed for technical reasons, [the respondent] now seeks legislative recognition under the Act, to formally participate in the industrial relations system in this State [638] - [640].

The relevant provisions of the Act

9 The long title to the Act states that it is an Act 'to consolidate and amend the law relating to the prevention and resolution of conflict in respect of industrial matters, the mutual rights and duties of employers and employees, the rights and duties of organisations of employers and employees, and for related purposes'.

10 Section 6 specifies the 'principal objects' of the Act. Those objects include:

(aa) to provide for rights and obligations in relation to good faith bargaining; and

(ab) to promote the principles of freedom of association and the right to organise; and

…

(ad) to promote collective bargaining and to establish the primacy of collective agreements over individual agreements; and

…

(af) to facilitate the efficient organisation and performance of work according to the needs of an industry and enterprises within it, balanced with fairness to the employees in the industry and enterprises; and

(ag) to encourage employers, employees and organisations to reach agreements appropriate to the needs of enterprises within industry and the employees in those enterprises; and

…

(e) to encourage the formation of representative organisations of employers and employees and their registration under this Act and to discourage, so far as practicable, overlapping of eligibility for membership of such organisations; 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.

11 By s 26(1)(c), in the exercise of its jurisdiction under the Act the Commission 'shall have regard for the interests of the persons immediately concerned whether directly affected or not and, where appropriate, for the interests of the community as a whole'.

12 Division 4 of pt II is headed 'Industrial organisations and associations', and comprises s 52 to s 73.

13 Section 53(1) provides:

Subject to this Act, any unregistered organisation consisting of not less than 200 employees associated for the purpose of protecting or furthering the interests of employees may be registered by authority of the Full Bench.

14 Section 55(5) provides:

Notwithstanding that an organisation complies with section 53(1) … the Full Bench shall refuse an application by the organisation under this section if a registered organisation whose rules relating to membership enable it to enrol as a member some or all of the persons eligible, pursuant to the rules of the first mentioned organisation, to be members of the first mentioned organisation unless the Full Bench is satisfied that there is good reason, consistent with the objects prescribed in section 6, to permit registration.

Case law on the proper construction of the relevant provisions of the Act

15 The Acts Amendment and Repeal (Industrial Relations) Act (No 2) 1984 (WA), relevantly:

(a) repealed s 6 of the Act and substituted a new s 6;

(b) repealed s 55(1) of the Act and substituted a new s 55(1); and

16 The new s 6 introduced by the 1984 amending statute comprised pars (b), (c), (d), (e), (f) and (g) of s 6, as currently enacted, and par (a), substantially as currently enacted. The Labour Relations Reform Act 2002 (WA) inserted pars (aa), (ab), (ac), (ad), (ae), (af), (ag) and (ca) of s 6 as currently enacted.

17 The Industrial Relations Legislation Amendment and Repeal Act 1995 (WA) amended s 55(4) of the Act, and the Labour Relations Reform Act 2002 amended s 55(2) and s 55(3) of the Act, but none of the amendments is material for the purposes of this appeal or the previous decisions of this court or the Full Court of the Supreme Court which have construed s 6 or s 55.

18 In Federated Miscellaneous Workers' Union of Australia v Federated Clerks Union of Australia (1985) 65 WAIG 2033 (FMWU case), the appellant, a registered organisation of employees under the Act, having resolved to alter rules relating to qualifications of persons for membership, made application to the Full Bench of the Commission to authorise the registration of the amendment under s 62(2) of the Act. The Full Bench refused to authorise registration of the amendment. The appellant appealed to this court. It alleged, relevantly, that the Full Bench had erred in law in that it had failed properly to consider the basis upon which the claim was made in ascertaining whether the requirements of s 55 of the Act had been met. Section 62(4) provides, relevantly, that s 55 applies, with such modifications as are necessary, to and in relation to an application by an organisation for alteration of a rule of a kind referred to in s 62(2).

19 Olney J (Kennedy J agreeing) noted that, by the Acts Amendment and Repeal (Industrial Relations) Act (No 2) 1984, s 55(4) of the Act was amended to remove the discretionary power to refuse registration in the event of the Full Bench being of the opinion that it was not necessary or desirable or would not be likely to advance the purposes or objects of the Act and, instead, a new s 55(5) was added (2036). His Honour then said:

By any measure, the changes made by the 1984 amendment indicate a clear legislative intention that for the future at least overlapping of union membership is to be avoided unless the Full Bench is satisfied that there is good reason to the contrary. Some particular features of section 55(5) warrant consideration in this context. First, it is expressed in mandatory terms. Registration is to be refused unless good cause is shown. Second, the factual criterion giving rise to the operation of the subsection is the existence of a registered organisation whose rules relating to membership enable it to enrol as a member some or all of the persons eligible to join the applicant. It is no longer a case of considering whether 'the members or the bulk of the members' may conveniently belong to a registered union. It is sufficient if 'some' potential members of the applicant body are eligible for membership of a registered organisation. No doubt, in any particular case the Full Bench will take account of the extent of the potential overlapping in determining whether or not it is satisfied that there is good reason to permit the new registration but that is a matter for the Full Bench to consider and is not something which the statute seeks to control by laying down criteria. A third feature of section 55(5) is that there is now a very specific object directly related to the question of union registration and particularly overlapping of membership between unions and that is expressed in positive terms indicating an intention that so far as practicable overlapping should be discouraged (2036).

20 In the FMWU case this court held that, in considering the application, the Full Bench did not misunderstand either the facts of the case or the appropriate rule to be applied. The appellant had not established any error of law. The court did not have jurisdiction to entertain the appeal and, consequently, the appeal was dismissed as being incompetent.

21 In Construction, Mining and Energy Workers Union of Australia v Operative Plasterers and Plaster Workers Federation of Australia (1990) 32 IR 287 (CMEWU case), this court heard two appeals arising out of a decision of the Full Bench of the Commission. There were two applications before the Full Bench, pursuant to s 62(2) of the Act, to amend union membership rules. The applications were heard together, each being objected to by the other applicant. The appellant and the respondent both sought to amend their membership rules to provide, in general, for constitutional coverage of wall and ceiling fixers. The Full Bench dismissed the appellant's application and allowed the respondent's application. The Full Bench stated, in its reasons for judgment, that the respondent's constitution should be amended by adding wall and/or ceiling fixers and suggested a definition of what a wall and ceiling fixer meant. Ground 3 in one of the appellant's appeals alleged that the Full Bench had erred by failing 'to give effect to the provisions of s 55(5) and/or s 6 of the Act in the exercise of its discretion'.

22 Brinsden P (Kennedy & Franklyn JJ agreeing) set out the appellant's argument in relation to ground 3:

The objects of the Act are to discourage, so far as practicable, overlapping of eligibility for membership of unions: s 6(e), s 55(5). The effect of the Full Bench's decision is to create overlapping membership eligibility for persons engaged upon the work of wall and ceiling fixing. Carpenters engaged upon that work are eligible for membership of the appellant and pursuant to the order of the Full Bench for membership of the respondent. Notwithstanding to do so would create overlapping membership eligibility, the Full Bench conferred constitutional coverage on wall and ceiling fixers upon [the respondent] because: there was a lineal link between fibrous plastering and wall and ceiling fixing; plasterers have had continual involvement with the training of wall ceiling fixers; and there was evidence of persons trained as wall and ceiling fixers that they wished to be represented by the plasterers. Those reasons are not good reasons, consistent with the objects prescribed in s 6 of the Act to permit the rule change sought by the plasterers for these reasons. Firstly they are not reasons consistent with the objects of the Act and in particular the promotion of goodwill in the industry. Secondly, the Act through ss 6(e) and 55(5) explicitly expresses a strong intent to prevent overlapping of membership where practicable. Thirdly it was practicable to prevent overlapping membership which would have been avoided by granting [the appellant's] application and dismissing [the respondent's] application. Fourthly the reasons stated by the Full Bench for granting [the respondent's] application notwithstanding it would result in overlapping membership, and notwithstanding that both parties before the Full Bench submitted that to permit overlapping membership would lead to industrial disharmony, were of so little weight that the Full Bench must have mis-attributed the weight to be attached to the legislative direction to avoid overlapping. Fifthly in the circumstances the discretion of the Full Bench must have miscarried and therefore the decision lies outside the boundaries of a sound discretionary judgment (294).

23 Brinsden P rejected the appellant's argument:

As can be seen from the provisions of s 55(5) the embargo on the Full Bench allowing an application whereby a union's rules will enable it to enrol as members some or all of the persons eligible to be members of another union is not absolute since the Full Bench is entitled to so allow overlapping coverage if it is satisfied that there is good reason, consistent with the objects prescribed in s 6, to permit such overlapping. The weight to be given to particular objects in deciding such a case would ordinarily be a matter of fact and hence not appealable to this Court. Provided that it can be shown that the considerations which motivated the Full Bench in making its decision were matters which it could as a matter of law take into account then it seems to me the weight it gives to these various matters is entirely up to the Full Bench. It is said that the reasons that the Full Bench relied upon are not reasons consistent with the objects of the Act and in particular the promotion of goodwill in the industry. In my opinion each of the reasons mentioned by the Full Bench are capable of being viewed as promoting the principal objects of the Act. I would have thought that it is clearly within one or more of the objects as expressed in s 6 for the Full Bench to encourage the training of persons engaged in industry and to recognise by appropriate means a union which has encouraged the training of specialists through technical colleges and other educational means. It would I think also be appropriate to promote goodwill in industry and to endeavour so far as possible to satisfy the aspirations of workers in a particular section of industry by agreeing to them being represented by the union of their choice. Furthermore for the Full Bench to refuse to recognise the progression of industrial practice from one form to another would fail to promote goodwill and discourage improvement of industrial practice. Those considerations and others had to be weighed by the Full Bench along with the recognition by it that there was a direction in the Act not to grant [the respondent's] application if it would create overlapping unless there was good reason consistent with the objects in s 6 to do so. I find it impossible to say that as a matter of law in deciding the issues before it in the way it did the Full Bench's discretion has miscarried (294 - 295).

24 In Re Sharkey; Ex parte Burswood Resort (Management) Ltd (1994) 55 IR 276 (Burswood Resort No 1), the salient facts were these. On 15 November 1993, the Full Bench of the Commission decided that the Registrar be authorised to register an alteration to the rules of the Federated Miscellaneous Workers' Union of Australia, WA Branch (the FMWU) under s 62(2) of the Act. The decision enabled the FMWU to enrol as members persons already eligible for membership of another trade union, namely the Federated Liquor and Allied Industries Employees' Union of Australia, Western Australian Branch, Union of Workers (the LTU). The decision directly affected Burswood Resort (Management) (Ltd) (Burswood), an employer of persons who, before the decision, were eligible for membership of the LTU and who, thereafter, became eligible to join the FMWU.

25 On 17 December 1993, Owen J, on the application of Burswood, granted an order nisi for a writ of certiorari requiring the Full Bench to show cause before the Full Court of the Supreme Court why the writ should not be issued against it for the purpose of quashing its decision.

26 Burswood then made application to the Supreme Court for a stay (pending the determination of the order nisi for a writ of certiorari granted by Owen J) of, relevantly, the operation and effect of the Full Bench's decision. Ipp J heard and dismissed the application.

27 Ipp J held:

(a) Section 6(e) of the Act (by which the objects of the Act include 'to encourage the formation of representative organisations of employers and employees and their registration under this Act and to discourage, so far as practicable, overlapping of eligibility for membership of such organisations') contemplates that, in some circumstances, it might not be 'practicable' to discourage overlapping of eligibility for membership (280).

(b) Section 6(e) also provides that it is an object to encourage the formation of representative organisations of employers and employees and their registration (280).

(c) The particular circumstances may be such that it would not be 'practicable' to discourage overlapping of eligibility for membership and that the registration of a competing union should be allowed (280).

(d) There is nothing which limits the circumstances to which the Full Bench may have regard under s 55(5) of the Act in determining whether 'good reason' exists, save that the 'good reason' must be consistent with the objects specified in s 6 (280).

(e) The words 'consistent with' do not mean 'advance', and the Full Bench may have regard to matters which do not advance the objects set out in s 6, as long as those matters are consistent with those objects (280).

28 His Honour continued:

Nevertheless, once permission to register an organisation will result in overlapping of eligibility for membership, before the Full Bench can determine that there is 'good reason' within the meaning of s 55(5) to permit registration, it has to determine that it is not practicable, within the meaning of s 6(e), to discourage overlapping. Upon the Full Bench deciding that it is not practicable, in the circumstances, to discourage overlapping, it can determine that there is good reason, consistent with the objects prescribed in s 6, to permit registration. On the other hand, if it is practicable to discourage overlapping, then, in my view, there could not be good reason, consistent with s 6(e), to permit registration (280).

29 Ipp J was of the opinion that the Full Bench therefore had to consider whether it was practicable, in the particular circumstances, to discourage overlapping between the FMWU and the LTU (280). The Full Bench had to decide that question before going on to decide whether 'good reason' existed to allow the registration of the alteration to the FMWU's rules (280).

30 In Burswood Resort (Management) Ltd v Australian Liquor Hospitality & Miscellaneous Workers' Union (Unreported, WASCA, Library No 940280, 2 June 1994) (Burswood Resort No 2), the Full Court of the Supreme Court (Pidgeon, Rowland & Anderson JJ) heard the return of, relevantly, the order nisi for a writ of certiorari granted by Owen J on 17 December 1993, which was the subject of the application for a stay that Ipp J heard and dismissed in Burswood Resort No 1. The Full Court discharged the order nisi.

31 Anderson J (Pidgeon J substantially agreeing) said there was 'a real question whether s 55(5) [of the Act] prescribes jurisdictional limits or merely imposes procedural requirements on the exercise of power to refuse an application' (10). His Honour cited the observations of Kennedy J on the point in The Federated Liquor and Allied Industries Employees' Union of Australia v The Federated Miscellaneous Workers' Union of Australia (Unreported, WASC, Library No 930269, 30 April 1993) 6 - 7. Anderson J said there was no need to decide the point in Burswood Resort No 2 (10).

32 His Honour recorded the submission of Burswood and the LTU that the Full Bench could never be satisfied in accordance with s 55(5) of the Act that there was good reason, consistent with the second of the two objects set out in s 6(e), to allow any substantial overlapping of eligibility for membership because that would be 'inimical with that object' (11). His Honour also recorded the submission of Burswood and the LTU that, in any event, the Full Bench misconceived its function and entered upon the wrong inquiry as to 'good reason' by having regard for the matters contained in s 26 of the Act, when that provision had no or a very limited application to a proceeding under s 62.

33 Anderson J rejected the submissions made on behalf of Burswood and the LTU.

34 As to the first submission, his Honour said there was 'more than a hint of a suggestion' in the submission that s 55(5) is to be construed as limiting the objects to which the Commission must have regard (in the exercise of the power to authorise an alteration to the rules concerning eligibility for membership) to the second of the two objects described in s 6(e) (12 - 13). His Honour said there was no warrant for placing such a restricted construction upon the Act. He explained:

Section 55(5) expressly brings in all of the objects prescribed in s 6. There is no warrant to read down the phrase 'good reason, consistent with the objects prescribed in section 6 … ' so as to mean 'good reason, consistent with the second of the two objects prescribed in section 6 (e).' As one might expect, the second object prescribed in s 6(e) is only one of the matters to be taken into account by the Commission in reaching a state of satisfaction that there is a good reason to permit the registration. The authority of the Commission is not to be confined by placing a construction upon s 55(5) and s 6 which has the effect that, as a matter of law, there can never be 'good reason' to register an alteration that has the effect of affording substantial dual coverage.

The proposition that the requirement to discourage overlapping so far as practicable must necessarily prevent the Commission from reaching the required state of satisfaction whenever there will be a substantial overlap of eligibility is open to the further objection that it elevates s 6(e) beyond its true function. The subsection is plainly not intended to have the effect of a prohibition against a grant of dual coverage. The expression ' … and to discourage, so far as practicable, overlapping ...' in its very terms indicates that this particular object may yield to other legitimate objects from time to time and as the occasion demands. The word 'discourage' is not synonymous with 'prevent' and the phrase 'discourage, so far as practicable' allows much room for evaluation and judgment. That the evaluation and judgment may even, in appropriate cases, properly lead to the grant of complete dual coverage is anyway shown by the terms of s 55(5) itself. Reference to the provisions of the subsection make it clear that the Full Bench is entitled to be satisfied that there is 'good reason' to allow a rule change even when it will enable the applicant organisation to enrol all of the persons eligible to be enrolled in another registered organisation. The section plainly contemplates an exercise of jurisdiction to grant an application notwithstanding that to do so will bring about complete dual coverage (13 - 14).

35 As to the second submission, his Honour said that 'by no process of construction can s 26 be excluded from application in the way suggested' (12). Section 26 operates upon the exercise of the whole of the Commission's jurisdiction and 'where the commands of s 26 are relevant to a particular function, they must be obeyed' (12). His Honour was of the opinion that the Commission was correct to hold that its powers under s 55(5) and s 62 are to be exercised having regard for the provisions of s 26, where appropriate (12).

36 Rowland J (Pidgeon J substantially agreeing) said:

The only way in which the jurisdiction of the Full Bench to determine this matter can be challenged relevant to this case is if the words in s 55(5), 'the objects provided in section 6', can be read down to mean 'the object provided in section 6(e)'. If that argument could be sustained, then it seems to me that, in accepting that it took into account other objects, the Full Bench would have exceeded its jurisdiction because, in exercising power, it would have gone beyond the charter given to it by Parliament. However, for the reasons given by Anderson J, I agree that there can be no warrant for reading down such clear unambiguous words in the way suggested.

In my view, the order nisi should be discharged because it is incompetent. In the event that that conclusion be wrong, then I should indicate that I agree with the reasons of Anderson J that the Full Bench has not erred in the manner of its dealing with the application (3).

The reasons of Scott ASC

37 Scott ASC described the approach which the Full Bench was required to adopt in considering the respondent's application:

The statute requires that where there is overlapping membership, the Full Bench must consider whether there is good reason to permit registration, not only by reference to the object of discouraging, so far as practicable, overlapping membership (s 6(e)). The Full Bench is to consider that issue on the basis of whether there may be good reason, consistent with the other objects of the Act. The legislative directive contained in s 55(5) is not that any application for registration is to be refused where there is overlapping of eligibility for membership. If the legislature had intended this to be the case, it could have clearly and simply said so. However, it is clear that competition for membership is generally undesirable, and therefore, there must be good reason, most likely in a rare case, for registration to be approved [568].

38 Scott ASC concluded that 'it is not practicable to discourage overlapping membership in that the registration of [the respondent] would create an organisation with coverage of an area forming a part of the current exclusive coverage of [the appellant]' [576]. She elaborated:

There is no suggestion that [the appellant] would vacate the field in so far as [the respondent] is concerned. Further, [the appellant] has a substantial number of members within this class of employee. In fact, both organisations would be entitled to enrol principals as members. There would be competition for membership of principals between the two organisations. [The appellant] would retain exclusive coverage of the great bulk of its existing potential membership, in the teacher class [576].

39 Scott ASC said that, '[h]aving considered all of the evidence', she concluded, on balance, that 'there is good reason consistent with the objects of the Act' to grant the respondent's application [579]. She added:

It is not without some reservations that I have reached this conclusion, however, the following issues constitute that good reason in spite of those reservations:

1. The role of principal;

2. Conflict between the interests of teachers and principals;

3. A conflict of interests in [the appellant] representing principals;

4. Negotiations for a separate agreement [579].

40 As to 'the role of principal', Scott ASC stated it was clear that 'the role of principal has expanded and changed, and become more complex' and that principals 'now have many areas of different responsibilities and interests when compared with teachers' [589].

41 As to 'conflict between the interests of teachers and principals' and 'a conflict of interests in [the appellant] representing principals', Scott ASC said:

(a) there is both conflict between the interests of principals and teachers generally and a conflict of interest on the part of the appellant in representing the interests of teachers as well as principals [590];

(b) it is clear that 'it is not always possible for [the appellant] to resolve disputes between teachers and principals' [595];

(c) she had given consideration to whether principals require the support and assistance of the Department and the Director General 'rather than seeking to be represented by their union in dealing with another employee', but '[t]his is not a matter generally of two unions in conflict, rather it is an employer-employee dispute where the principal is representing the Director General' [596];

(d) it is not always practicable for principals to rely on the Department 'for advice, support and representation' rather than 'having a separate union to represent them' [597];

(e) principals have common interests which are 'at odds' with the interests of the 'great bulk' of the appellant's members, and those interests include as employees dealing with their employer regarding their own conditions of employment and as managers of other staff and resources [598];

(f) there is 'good reason for principals to want support and guidance from a union which will have their interests exclusively at heart, and which does not have to compromise those interests in favour of the interests of another group' [599];

(g) there are 'circumstances where it is inimical to the interests of principals that they will be represented by [the appellant]' [599];

(h) the evidence demonstrates that 'only in those areas where there is no conflict between the interests of the principal and the interests of the teachers can [the appellant] properly represent the principals' [599];

(i) there are 'real areas where the interests are either in direct conflict or different, in which circumstances the principals ought to be able to have representation from a union which has as its exclusive focus, looking after their interests' [599];

(j) there is 'a significant body of principals who choose not to be members of [the appellant] because of the historical disagreements and due to what they see as them being outnumbered by teachers, both in total numbers of members within [the appellant] … and at each school branch' [600];

(k) the principals have 'a genuinely held view that [the appellant] has not represented their interests when those interests conflict with the interests of teachers' [600];

(l) those views are not only 'genuinely held views on the part of [the respondent's] witnesses, but … they may be seen objectively to be the basis for genuine conflict between them and [the appellant]' [601];

(m) the different roles of principals and teachers, 'particularly with the changes in the role of principal, bring a greater potential for conflict and actual conflict than has been the case prior to devolution' [602]; and

(n) there is no reason why, where there are areas of mutual interest, principals and teachers, through their respective organisations, will not join together to take appropriate action [602].

42 As to 'negotiations for a separate agreement', Scott ASC noted:

(a) The respondent wanted to be able to negotiate on behalf of its members for an agreement to cover their conditions, particularly where their conditions are or, in their view, should be, different from the conditions for teachers. The respondent's position was that principals and deputy principals should not 'simply be treated as teachers with some minor differences' [607].

(b) The appellant did not agree with the respondent's proposal that there should be a separate agreement for principals and deputy principals. It was concerned 'at the potential for the positions of both teachers and principals to be weakened in the negotiating process by them being divided' [609].

43 Scott ASC concluded:

(a) The circumstances of the respondent's application were 'unique' and related to 'a lengthy history, both of coverage by [the appellant] and a period of the class of employees who seek registration having previously had an opportunity to and did represent that group, which through changed policy and legislation, it has subsequently been denied' [625].

(b) There were good reasons, 'consistent with the objects of the Act', to grant registration despite 'the overlapping membership and competition which will follow' [625].

(c) It was appropriate, in accordance with the object set out in s 6(a), (ab), (ad), (ag), (e) and (f) of the Act, that 'school principals and deputy principals have a union dedicated to their unique interests and concerns' [626].

44 Scott ASC added, however, that she had decided that an order should be made, pursuant to s 53(1) of the Act, authorising the Registrar to register the respondent as an organisation, 'after having balanced a number of issues' [626]. It had not been 'a clear cut, unequivocal decision' and she had 'some reservations about three issues in particular' [626].

45 The three issues were as follows.

46 First, there would be 'two unions competing for members, which the Act specifically seeks to discourage' and that would be 'an unusual situation' with 'real potential for conflict' [627]. However, there had been potential for conflict since the 1990s when the founders of the respondent had left the appellant 'due to their genuinely held views that [the appellant] did not meet their needs' [627]. There was some conflict during the period when workplace agreements were in place [627]. Further, there was 'potential and actual conflict in the day-to-day work of teachers and principals, and in [the appellant's] own role' [628].

47 Secondly, there was 'real potential for conflict' arising from 'how enterprise bargaining involving two organisations on behalf of principals will operate' [629]. The Department and the respondent prefer a separate agreement for principals, but the appellant does not [629].

48 Thirdly, the Commissioner thought that 'what principals need' was both 'greater support and assistance from the Department in their role as managers' and 'a union to which they can turn' [630]. She added:

Some issues are of a management nature such as examples given of developing contingency plans to mitigate disruption when teachers take industrial action. That should not be a matter for principals to have to seek their own union's support, albeit that they would liaise with fellow principals. The Department ought to be pursuing measures for better management of schools in negotiation with the relevant organisations. This is not a matter for inter-union negotiation. It is quite right for principals as managers to raise those matters with the Department.

However, it is appropriate for principals to seek support from a union of their own to deal with their own working conditions. Having said that, I recognise that some of the issues relating to working conditions of principals arise due to that work involving managing changes to the conditions of teachers, for example, additional complexity and workload to manage class sizes and DOTT time changes for teachers [630] - [631].

49 Scott ASC then reiterated that 'even in the face of those reservations and on balance … registration would ameliorate the inherent conflict of interests of [the appellant] in representing employees and their managers'; it would 'provide for a representative organisation which could focus exclusively on a group with unique concerns and interests'; and its members 'would be able to participate in an organisation where their interests are not competing with nor subsumed by a significantly larger group, thus fostering democratic control and freedom of association' [632]. The Commissioner continued:

Most significantly, it would promote goodwill in industry by enabling a distinct group to negotiate with their employer in a way they were previously entitled to do during the era of workplace agreements and under the Federal registration arrangements, and they did so. On balance, I am not satisfied that it would damage goodwill in industry by creating conflict between principals and teachers. That conflict already exists due to the conflicting interests and obligations their roles bring with them. However, there is also evidence to strongly suggest that where there is a community of interests, they could work together. There is also evidence of principals and teachers working cooperatively in undertaking their work to ensure the best outcomes for their schools and students. In fact, the evidence of witnesses for both [the respondent and the appellant] demonstrates that a significant part of the role of principal involves negotiation with teachers and the community.

Registration would enable the particular interests of principals to be addressed without them being subject to another, more numerous, group's interests. Currently [the appellant's] attitude towards principals having separate conditions specified in a schedule to the agreement, which applies to all of its members in the public school sector, means that principals are essentially treated as being teachers with some additional consideration required, as opposed to being a group with genuinely different and in some cases conflicting interests to those of the bulk of teachers (s 6(a), (ab), (af) and (ag) of the Act).

It would promote collective bargaining in that principals would be able to negotiate directly with their employer on those matters which are of significance to them and their particular role (s 6(ad)). Importantly, registration would encourage the formation of a representative organisation of employees, and in accordance with s 53(1), those employees being associated for the purpose of protecting and furthering their interests.

It would encourage the formation of representative organisations under s 6(e). It would also encourage the democratic control of the organisation by encouraging participation by a group currently excluded from full participation in a representative organisation due to historical conflict and genuine conflicting interests (s 6(f)) [633] - [636].

The reasons of Kenner C

50 After discussing some of the decided cases on the proper construction and application of s 55(5) of the Act, in the context of the objects set out in s 6 of the Act, Kenner C observed:

It is not the case that the Full Bench must determine, as a necessary first step, whether it is impractical to discourage overlapping in eligibility for membership, before considering any other matters relevant to the exercise of the broad discretion given to the Full Bench by s 55(5) of the Act. Although s 6(e) is important, s 55(5) plainly directs the exercise of the discretion of the Full Bench to a global assessment, taking into account all of the objects in s 6 of the Act, not just some of them. Whilst the overlapping of eligibility of membership is to be discouraged, the legislative scheme should not be applied in such a way to elevate 'discouragement', into an effective prohibition [720].

51 Kenner C rejected a submission by the appellant that 'it is only in the case of "exceptional circumstances", such as the prospect of minimal overlap in eligibility for membership, [that] the Full Bench [will] exercise [its] discretion to register' [724]. The Commissioner said that the statutory scheme 'requires the Full Bench to form the view that there is "good reason" to register an organisation, in the case of overlapping of membership coverage', and that '[a] gloss should not be placed on the language used in the Act' [724].

52 Kenner C accepted that there was overlapping of eligibility for membership between the appellant and the respondent [727]. He added:

On the evidence, of around 1948 principals and deputy principals in public schools, some 787 are members of [the appellant] and about 392 are members of [the respondent]. [The appellant] sought to highlight this fact, as support for [the appellant] by principals. However, what is also illustrated is that as opposed to [the appellant], which has had over 100 years of existence and many decades as a formal participant in the industrial relations system in this State, with all of the benefits that incumbency brings, [the respondent] has over half the number of members of principals, as has [the appellant], without yet even achieving registration under the Act. In my view, this points to strong support by principals for [the respondent] as an organisation. Furthermore, whilst something was sought to be made of the numerical position in the proceedings, in my view, matters such as this are not ultimately, just about 'the numbers'. The only number that is material in my view, is that set by the Parliament in s 53(1) of the Act, as being at least 200, as the minimum number of members of an unregistered organisation that may apply for registration. Even then s 53(2) of the Act enables the Full Bench to approve the registration of an organisation with less than 200 members, if it considers there are good reasons, consistent with the objects of the Act, to do so [728].

53 Kenner C decided that, on the information before the Full Bench, the grant of the respondent's application would be consistent with the objects of the Act [729]. He explained:

[The respondent], its predecessors, and the principals' bodies that [the respondent] will ultimately represent, have had a long history of representing the interests, including the industrial interests, of their members in this State. It is not a matter of mere convenience or choice, which would not be enough, given the terms of s 55(5) of the Act. As principals and deputy principals are only a small subset of the present eligibility for membership of [the appellant], an organisation specifically dedicated to the industrial interests of principals and deputy principals should not be shut out of the State industrial system. Their participation under the Act, in relation to industrial relations, will enable an organisation dedicated to their interests, to provide representation and to formally negotiate on behalf of principals and deputy principals.

As a registered organisation, the Government, through the Department, will be able to negotiate directly, and independently, with [the respondent] on behalf of principals, as it has wished to do so in the past, for an industrial agreement. It will enable [the respondent] and its members to have a direct say over their terms and conditions of employment, undistracted by the majority wishes of members of [the appellant], or any actual or perceived conflicts of interest. It would be entirely consistent with the objects of the Act, in particular, ss 6(aa), (ad), (ae), (af), and (ag), for [the respondent] and the Department to have the opportunity to reach an industrial agreement reflecting the particular interests, and terms and conditions, relevant to principals and deputy principals.

Furthermore, there is good reason to grant the application because to do so, on all of the materials before the Full Bench, would be in accordance with s 26(1)(c) of the Act, in that it would be in the interests of the persons immediately concerned, those being members of and those eligible to be members of, [the respondent] [729] - [731].

54 Next, Kenner C addressed the likely interaction between the appellant and the respondent if the respondent was registered as an organisation under the Act:

The fact is that principals are now seen as the representative of the employer in their dealings with teaching staff and others in schools. They are required to implement departmental policies and ensure that teachers do too. It is in my opinion, inevitable that conflicts of interests and outcomes will arise. However, simply because a separate organisation may represent the industrial interests of principals, does not mean in my view, that there will be, ipso facto, disharmony or the destruction of goodwill in schools as organisations. There is no reason to suggest that principals and teachers will not continue to get on with the task of educating students and managing schools in the best interests of their students, as they have done to date.

What will change however is that [the respondent] will, for the first time, have a formal voice in the industrial relations system in this State [733] - [734].

55 Finally, Kenner C noted, in the context of the criteria for registration of organisations under the Act being different from those applying when the Australian Principals' Federation (APF) was registered by the Australian Industrial Relations Commission in January 2006:

Furthermore, the fact that the APF is registered federally, and has a Branch in Western Australia, although not a major factor, is of some weight. Such a consideration is consistent with s 6(g) of the Act, in relation to cooperation with federal organisations and institutions [735].

The ground of appeal

56 Section 90(1)(b) of the Act provides, relevantly, that an appeal lies to this court from any decision of the Full Bench on the ground that 'the decision is erroneous in law in that there has been an error in the construction or interpretation of any Act … in the course of making the decision appealed against'.

57 The appellant relies solely on that provision in support of its contention that this court has jurisdiction to entertain the appeal on its ground of appeal.

58 The ground of appeal alleges that the majority of the Full Bench erred in 'the construction or interpretation of the expression "good reason", consistent with the objects prescribed in s 6 … ', contained in s 55(5) of the Act.

59 The appellant has provided particulars of the ground, which read:

(a) Scott ASC erred in that the existence of the three issues identified at [627] - [630] of her reasons precluded the conclusion, in law, that there was such a 'good reason'.

(b) Scott ASC erred at [626], [635] and [636] in her reasons in deciding that registration of the respondent was consistent with the objects set out in section 6(ad), (ag), (e) and (f) of the [Act], in that such registration was not capable of fulfilling these objects, properly construed.

(c) Kenner C erred at [729] - [730] of his reasons in failing to consider all of the objects of the [Act] in determining whether there was the requisite 'good reason', and in particular in failing to consider the object in section 6(e) of the [Act].

(d) Kenner C erred at [730] of his reasons in deciding that registration of the respondent was consistent with the objects set out in section 6(aa), (ad), (af) and (ag) of the [Act], in that such registration was not capable of fulfilling these objects, properly construed.

(e) Kenner C erred at [731] of his reasons in considering that the terms of s 26(1)(c) of the [Act] favoured the registration of the respondent, in that:

(i) [Abandoned at the hearing];

(ii) In any event, the 'persons immediately concerned' in accordance with s 26(1)(c) of the [Act], were not only the members or those eligible to be members of the respondent, but included the members of the appellant who would necessarily be affected by the decision to be made by the Full Bench.

60 Counsel for the appellant submitted that:

(a) if there is any incompatibility or inconsistency between any of the objects prescribed in s 6, on the one hand, and the registration of the applicant organisation, on the other, then s 55(5) cannot be satisfied (appeal ts 8, 14); and

(b) if the Full Bench fails to take into account the second object in s 6(e), in analysing whether there is 'good reason' within s 55(5), that failure will, of itself, involve an error in the construction of s 55(5) because s 55(5) requires the Full Bench to take into account all relevant objects (appeal ts 6 - 9).

The merits of the ground of appeal

61 A number of propositions in relation to s 55(5), read with s 6, of the Act may be discerned from the language of those provisions, in the relevant statutory context, and the decisions of this court in the FMWU case and the CMEWU case and the decision of the Full Court in Burswood Resort No 2.

62 First, by s 55(5), the Full Bench must refuse an application by an organisation if an existing registered organisation whose rules relating to membership enable it to enrol as a member some or all of the persons eligible, pursuant to the rules of the applicant organisation, to be members of the applicant organisation, 'unless the Full Bench is satisfied that there is good reason, consistent with the objects prescribed in s 6, to permit registration'.

63 Secondly, the prohibition in s 55(5) is not absolute because the Full Bench is entitled to grant an application by an organisation under s 55(5), even though the grant will result in total or partial dual coverage, if it is satisfied that 'there is good reason, consistent with the objects prescribed in s 6, to permit registration'.

64 Thirdly, s 55(5) expressly refers to all of the objects prescribed in s 6. The phrase 'good reason, consistent with the objects prescribed in s 6' does not mean 'good reason, consistent with the second of the two objects prescribed in s 6(e)'.

65 Fourthly, the second object in s 6(e) is 'to discourage, so far as practicable, overlapping of eligibility for membership of [representative organisations of employers and employees]'. That object is only one of the matters to be taken into account by the Full Bench in deciding whether it is satisfied, within s 55(5), that there is 'good reason, consistent with the objects prescribed in s 6, to permit registration'. The words 'consistent with' do not mean 'advance', and the Full Bench may have regard to matters which do not advance the objects prescribed in s 6, provided those matters are consistent with those objects. The Full Bench's power under s 55(5) to permit registration is not to be confined by a construction of s 55(5), read with s 6, which has the effect that, as a matter of law, there can never be 'good reason' to register an organisation if the effect of the registration is to afford total or partial dual coverage.

66 Fifthly, s 6(e) is not intended to prohibit total or partial dual coverage. The phrase 'and to discourage, so far as practicable, overlapping' indicates that the second object in s 6(e) may yield to other legitimate objects from time to time and as the occasion demands. The word 'discourage' does not mean, and is not synonymous with, 'prevent'. The phrase 'and to discourage, as far as practicable, overlapping' allows considerable scope for evaluation and judgment. It is open to the Full Bench, in an appropriate case, to grant an application by an organisation under s 55(5) even if the grant will result in total dual coverage. Section 55(5) contemplates an exercise of power under that provision to grant an application by an organisation even though the grant will result in total dual coverage.

67 Sixthly, the weight to be given to particular objects prescribed in s 6, in deciding an application filed pursuant to s 53(1), ordinarily involves questions of fact. If the considerations which the Full Bench takes into account in making its decision are factors which it is entitled, as a matter of law, to take into account, then it is for the Full Bench to decide upon the weight to be given to those matters.

68 I turn to the particulars of the ground of appeal.

69 As to particular (a) of the ground of appeal, the appellant alleges that Scott ASC erred in that the existence of the three issues she identified at [627] - [630] precluded, in law, the conclusion that there was 'good reason, consistent with the objects prescribed in s 6', to permit registration.

70 Particular (a) must be read and understood in the context of the ground of appeal and s 90(1)(b) of the Act. On that basis, the appellant's allegation in particular (a) is, in substance, that:

(a) Scott ASC made an error in construing or interpreting the phrase 'good reason, consistent with the objects prescribed in s 6', in s 55(5); and

(b) the Commissioner's findings in relation to the three issues she identified at [627] - [630] precluded, in law, the conclusion that there was 'good reason, consistent with the objects prescribed in s 6', properly construed and interpreted, to permit the registration of the respondent as an organisation under div 4 of pt II of the Act.

71 Counsel for the appellant referred to the following passage in Scott ASC's reasons:

'Practicable' means 'capable of being put into practice, done, or effected, especially with the available means or with reason or prudence; feasible' (see Macquarie Dictionary). I conclude that it is not practicable to discourage overlapping membership in that the registration of [the respondent] would create an organisation with coverage of an area forming a part of the current exclusive coverage of [the appellant]. There is no suggestion that [the appellant] would vacate the field in so far as [the respondent] is concerned. Further, [the appellant] has a substantial number of members within this class of employee. In fact, both organisations would be entitled to enrol principals as members. There would be competition for membership of principals between the two organisations. [The appellant] would retain exclusive coverage of the great bulk of its existing potential membership, in the teacher class [576].

72 It was argued that this passage demonstrates that Scott ASC misconstrued s 55(5) because:

(a) the Commissioner said the registration of the respondent would result in an overlapping of eligibility for membership of the appellant and the respondent;

(b) she said it was therefore not practicable to discourage overlapping membership between those organisations; and

(c) as a result, she excluded, and did not take into account, the second object in s 6(e) in deciding whether there was 'good reason, consistent with the objects in s 6', within s 55(5), to permit registration of the respondent (appeal ts 16 - 18, 20 - 22).

73 It is true that, at [576] of her reasons, Scott ASC said 'it is not practicable to discourage overlapping membership in that the registration of [the respondent] would create an organisation with coverage of an area forming part of the current exclusive coverage of [the appellant]'. That sentence suggests, at least in isolation, that she reasoned, erroneously, that because there was overlapping membership between the appellant and the respondent it was impracticable to discourage overlapping membership, within the second object in s 6(e). Reasoning to that effect would be erroneous in that the second object in s 6(e), namely that it is a principal object of the Act to discourage, so far as practicable, overlapping of eligibility for membership of such organisations, is a relevant consideration which Scott ASC was bound to take into account in deciding, pursuant to s 55(5), whether there was good reason, consistent with the objects prescribed in s 6, to permit registration of the respondent.

74 However, I am not persuaded that Scott ASC excluded, and did not take into account, the second object in s 6(e) in deciding whether there was good reason, consistent with the objects prescribed in s 6, to permit registration of the respondent.

75 Indeed, I am satisfied, when [576] is read in the context of Scott ASC's reasons as a whole, that she did take into account all relevant objects (including the second object in s 6(e)) in deciding whether there was good reason, consistent with the objects prescribed in s 6, to permit registration of the respondent.

76 I refer, in particular, to the following:

(a) The Commissioner said, at [568], that 'where there is overlapping membership, the Full Bench must consider whether there is good reason to permit registration,

not

only

by reference to the object of discouraging, so far as practicable, overlapping membership' (emphasis added).

(b) The Commissioner said, at [579], that, '[h]aving considered all of the evidence', she concluded, on balance, that 'there is good reason consistent with the objects of the Act' to grant the respondent's application (emphasis added).

(c) The Commissioner said, at [625], that there were good reasons, 'consistent with the objects of the Act', to grant registration, despite 'the overlapping membership and competition which will follow' (emphasis added).

(d) The Commissioner said, at [626], that she had decided, 'after having balanced a number of issues', that the respondent should be registered as an organisation, but it had not been 'a clear cut, unequivocal decision' and she had 'some reservations about three issues in particular'. One of the issues, which the Commissioner discussed at [627], was in essence the second object in s 6(e), namely that there would be 'two unions competing for members, which the Act specifically seeks to discourage' and that would be 'an unusual situation' with 'real potential for conflict' (emphasis added).

(e) The Commissioner set out and discussed each of the three issues about which she had some reservations. She then reiterated in effect that, 'even in the face of those reservations and on balance', registration of the respondent should be permitted [632]. See also the Commissioner's reasons at [633] - [636].

77 There is no reasonable basis for interpreting Scott ASC's statements, at [579] and [625], to the effect that there was good reason 'consistent with the objects of the Act' to grant the respondent's application, to mean 'the objects of the Act apart from the second object in s 6(e)'.

78 I am satisfied that Scott ASC did not make an error in construing or interpreting the phrase 'good reason, consistent with the objects prescribed in s 6', in s 55(5), as alleged by the appellant. The Commissioner referred to, and did not misapply, the reasoning of Olney J (Kennedy J agreeing) in the FMWU case. The weight to be given to particular objects prescribed in s 6 involved questions of fact and it was for the Commissioner to decide upon the weight to be given to matters relevant to one or more of those objects. She took into account, in making her decision, the factors which she was bound, as a matter of law, to take into account. She did not take into account, in making her decision, any factors which she was not entitled, as a matter of law, to take into account. There was no reason, in law, why the Commissioner could not conclude that there was 'good reason, consistent with the objects prescribed in s 6', to permit the registration of the respondent, despite the reservations she had expressed.

79 Particular (a) has not been made out.

80 As to particular (b) of the ground of appeal, the appellant alleges that Scott ASC erred in deciding, at [626], [635] and [636], that registration of the respondent was consistent with the objects in s 6(ad), (ag), (e) and (f) of the Act in that 'such registration was not capable of fulfilling [those] objects, properly construed'.

81 Particular (b), like particular (a), must be read and understood in the context of the ground of appeal and s 90(1)(b) of the Act. Accordingly, the appellant's allegation in particular (b) is, in substance, that:

(a) Scott ASC made an error in construing or interpreting the phrase 'good reason, consistent with the objects prescribed in s 6', in s 55(5); and

(b) the Commissioner's findings at [626], [635] and [636] were not open to her on a proper construction or interpretation of s 55(5) and the objects in s 6(ad), (ag), (e) and (f).

82 The principal objects set out in s 6(ad), (ag), (e) and (f) read:

(ad) to promote collective bargaining and to establish the primacy of collective agreements over individual agreements; and

…

(ag) to encourage employers, employees and organisations to reach agreements appropriate to the needs of enterprises within industry and the employees in those enterprises; 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.

83 Scott ASC said it was appropriate, in accordance with the objects in s 6(a), (ab), (ad), (ag), (e) and (f), that 'school principals and deputy principals have a union dedicated to their unique interests and concerns' [626]. The Commissioner also said:

(a) registration of the respondent would enable the particular interests of principals to be addressed without them being subject to another, more numerous, group's interests [634];

(b) currently, the appellant's attitude towards principals having separate conditions specified in a schedule to the agreement which applies to all of the appellant's members in the public school sector, means that principals are treated, in essence, as being teachers with some additional consideration required, as distinct from being a group with genuinely different and, in some cases, conflicting interests to those of the bulk of teachers [634];

(c) the registration of the respondent would promote collective bargaining in that principals would be able to negotiate directly with their employer on those matters which are of significance to them and their particular role [635];

(d) registration of the respondent would encourage the formation of a representative organisation of employees and those employees being associated for the purpose of protecting and furthering their interests [635];

(e) registration of the respondent would encourage the formation of representative organisations [636]; and

(f) registration of the respondent would also encourage the democratic control of the organisation by encouraging participation by a group currently excluded from full participation in a representative organisation as a result of historical conflict and genuine conflicting interests [636].

84 As I have mentioned, Scott ASC did not make an error in construing or interpreting the phrase 'good reason, consistent with the objects prescribed in s 6', in s 55(5). I am also satisfied that the Commissioner did not make an error in construing or interpreting the objects in s 6(ad), (ag), (e) and (f), as alleged by the appellant.

85 In my opinion, the points made by Scott ASC, which I have set out at [83] above, are reasonably capable of being viewed as consistent with (indeed, promoting) one or more of the principal objects of the Act as prescribed in s 6. In particular:

(a) the points set out at pars (a) and (b) are reasonably capable of being viewed as within the first limb of s 6(e);

(b) the point set out at par (c) is reasonably capable of being viewed as within s 6(ad) and s 6(ag);

(c) the points set out at pars (d) and (e) are reasonably capable of being viewed as within the first limb of s 6(e); and

(d) the point set out at par (f) is reasonably capable of being viewed as within s 6(f).

86 Each of the points in question, together with other considerations, had to be weighed by Scott ASC, including the consideration, within the second limb of s 6(e), that it is a principal object of the Act to discourage, so far as practicable, overlapping of eligibility for membership of representative organisations of, relevantly, employees, unless there is, within s 55(5), 'good reason, consistent with the objects prescribed in s 6', to permit registration.

87 Scott ASC's exercise of the power conferred by s 55(5) did not miscarry, and her decision to permit registration of the respondent was not erroneous, in law, as a result of an error in the construction or interpretation of any provision of s 55(5) or s 6.

88 Particular (b) has not been made out.

89 As to particular (c) of the ground of appeal, the appellant alleges that Kenner C erred in failing to consider, at [729] - [730], all of the objects of the Act in determining whether there was the requisite 'good reason', within s 55(5), and, in particular, in failing to consider 'the object in s 6(e)'. It is apparent from the appellant's submissions that the reference to 'the object in s 6(e)' is intended to be a reference to the second limb of s 6(e).

90 Particular (c), like particulars (a) and (b), must be read and understood in the context of the ground of appeal and s 90(1)(b) of the Act. So, the appellant's allegation in particular (c) is, in substance, that Kenner C made an error in construing or interpreting the phrase 'good reason, consistent with the objects prescribed in s 6', in s 55(5), and that the Commissioner, as a result of his having misconstrued or misinterpreted s 55(5) or s 6, failed to consider all of the objects of the Act (in particular, the second limb of s 6(e)) in determining whether there was the requisite 'good reason', within s 55(5).

91 Kenner C said:

(a) although s 6(e) is important, s 55(5) directs 'the exercise of the discretion of the Full Bench to a global assessment, taking into account all of the objects of s 6 of the Act, not just some of them' [720];

(b) although the overlapping of eligibility for membership is to be discouraged, 'the legislative scheme should not be applied in such a way to elevate "discouragement", into an effective prohibition' [720];

(c) the appellant's submission that 'it is only in the case of "exceptional circumstances", such as the prospect of minimal overlap in eligibility for membership, [that] the Full Bench [will] exercise [its] discretion to register', should be rejected [724];

(d) the legislative scheme requires the Full Bench to form the view that there is 'good reason' to register an organisation, 'in the case of overlapping of membership coverage', and a 'gloss' should not be placed on the statutory language [724];

(e) the registration of the respondent would be 'consistent with the objects of the Act' [729];

(f) as principals and deputy principals are only 'a small subset of the present eligibility for membership of [the appellant]', an organisation 'specifically dedicated to the industrial interests of principals and deputy principals' should not be shut out of the State industrial system [729];

(g) the participation of principals and deputy principals in industrial relations under the Act will enable 'an organisation dedicated to their interests, to provide representation and to formally negotiate on [their] behalf' [729];

(h) if the respondent is registered then the Government, through the Department, will be able to negotiate directly, and independently, with the respondent on behalf of principals [730];

(i) this will enable the respondent and its members 'to have a direct say over their terms and conditions of employment, undistracted by the majority wishes of members of [the appellant] or any actual or perceived conflicts of interest' [730]; and

(j) it would be 'entirely consistent with the objects of the Act, in particular s 6(aa), (ad), (ae), (af) and (ag)', for the respondent and the Department to have 'the opportunity to reach an industrial agreement reflecting the particular interests, and terms and conditions, relevant to principals and deputy principals' [730].

92 I am not persuaded, on a fair reading of Kenner C's reasons as a whole, that the Commissioner made an error in construing or interpreting the phrase 'good reason, consistent with the objects prescribed in s 6', in s 55(5), or that the Commissioner, as a result of his having misconstrued or misinterpreted s 55(5) or s 6, failed to consider all of the objects of the Act (in particular, the second limb of s 6(e)) in determining whether there was the requisite 'good reason', within s 55(5).

93 Kenner C cited the FMWU case. The Commissioner reproduced relevant passages from, and did not misapply, the reasons of Olney J (Kennedy J agreeing) in that case [716], [721]. Kenner C referred expressly to the importance of s 6(e) [720]; to taking into account all of the objects of s 6 and not just some of them [720]; to the registration of the respondent being consistent with the objects of the Act [729]; and to it being 'entirely consistent with the objects of the Act' for the respondent and the Department to have 'the opportunity to reach an industrial agreement' [730].

94 Particular (c) has not been made out.

95 As to particular (d) of the ground of appeal, the appellant alleges that Kenner C erred in deciding, at [730], that the registration of the respondent would be consistent with the objects in s 6(aa), (ad), (af) and (ag) in that 'such registration was not capable of fulfilling [those] objects, properly construed'.

96 Particular (d), like particulars (a), (b) and (c), must be read and understood in the context of the ground of appeal and s 90(1)(b) of the Act. So, the appellant's allegation in particular (d) is, in substance, that Kenner C made an error in construing or interpreting the objects in s 6(aa), (ad), (af) and (ag) in that the registration of the respondent was incapable of fulfilling any of those objects, properly construed.

97 The principal objects set out in s 6(aa), (ad), (af) and (ag) read:

(aa) to provide for rights and obligations in relation to good faith bargaining; and

…

(ad) to promote collective bargaining and to establish the primacy of collective agreements over individual agreements; and

…

(ag) to encourage employers, employees and organisations to reach agreements appropriate to the needs of enterprises within industry and the employees in those enterprises.

98 I am not persuaded, on a fair reading of Kenner C's reasons as a whole, that the Commissioner made the alleged error in construing or interpreting the objects in s 6(aa), (ad), (af) and (ag).

99 The statutory scheme does not require that the registration of the respondent be capable of 'fulfilling' those objects and, therefore, the assertion in particular (d) that the registration of the respondent was 'incapable of fulfilling any of these objects' is misconceived. Section 55(5) merely requires that the Full Bench be satisfied that there is good reason, 'consistent with' the objects in s 6, to permit registration.

100 In my opinion, on the basis of Kenner C's findings and observations (in particular, the findings and observations I have set out at [91] above), it was open to the Commissioner to conclude that the registration of the respondent would be consistent with the objects in s 6(aa), (ad), (af) and (ag). The Commissioner did not misconstrue or misinterpret any of those objects in arriving at his conclusion.

101 Particular (d) has not been made out.

102 As to particular (e) of the ground of appeal, the appellant alleges that Kenner C erred 'in considering that the terms of s 26(1)(c) of the [Act] favoured the registration of the respondent', in that the 'persons immediately concerned' in accordance with s 26(1)(c) were not only the members or those eligible to be members of the respondent, but included the members of the appellant who would necessarily be affected by the Full Bench's decision.

103 Particular (e), like particulars (a), (b), (c) and (d), must be read and understood in the context of the ground of appeal and s 90(1)(b) of the Act. On that basis, particular (e) alleges, in substance, that Kenner C made an error in construing or interpreting s 26(1)(c).

104 Section 26(1)(c) provides that, in the exercise of its jurisdiction under the Act, the Commission:

shall have regard for the interests of the persons immediately concerned whether directly affected or not and, where appropriate, for the interests of the community as a whole.

105 Kenner C said [731]:

Re an application by The Federated Miscellaneous Workers' Union of Australia, WA Branch

(1993) 73 WAIG 3342.

106 Counsel for the appellant submitted that Kenner C misconstrued s 26(1)(c) because he limited 'the people … immediately concerned in the matter to … the members of [the respondent]' and, consequently, failed to take into account the interests of those principals and deputy principals who would remain members of the appellant and the interests of teachers (as distinct from principals and deputy principals) who are members of the appellant (appeal ts 30 - 31).

107 In my opinion, Kenner C made an error in identifying 'the persons immediately concerned whether directly affected or not', within s 26(1)(c), in the course of exercising the Full Bench's jurisdiction under the Act in relation to the respondent's application. Those persons included, not merely 'members of and those eligible to be members of [the respondent]', but also members of and those eligible to be members of the appellant. The error in identification appears to have arisen in consequence of a misconstruction or misinterpretation of the breadth or ambit of the phrase 'the persons immediately concerned whether directly affected or not' in s 26(1)(c).

108 Particular (e) has been made out.

109 However, I am satisfied that 'no injustice has been suffered by the appellant or a person who is a member of or represented by the appellant', within s 90(3a) of the Act. The decision of the majority, the subject of the appeal, should be confirmed. There is no 'good reason not to do so', within s 90(3a).

110 In particular, I am satisfied that Kenner C's error was not an essential (or even a material) aspect of his reasoning or decision-making process. It is of significance that the passage at [731] of his reasons was prefaced by the word '[f]urthermore'. This demonstrates that the Commissioner's consideration of this point was in addition to the findings he had already made (notably, those set out at [729] - [730]). Accordingly, the error did not affect the outcome at which he had already arrived.

Conclusion

111 I would dismiss the appeal.

112 MURPHY J: I agree with Buss J.

113 LE MIERE J: I agree with Buss J.

The State School Teachers' Union of WA (Incorporated) v Principals' Federation of Western Australia

[2016] WASCA 3

8 JANUARY 2016

THE STATE SCHOOL TEACHERS' UNION OF WA (INCORPORATED) -v- PRINCIPALS' FEDERATION OF WESTERN AUSTRALIA [2016] WASCA 3