2014 WAIRC 01360
Application for Registration of the Principals' Federation of Western Australia
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
FULL BENCH
CITATION : 2014 WAIRC 01360
CORAM / : The Honourable J H Smith, Acting PresidentActing Senior Commissioner P E Scott
Commissioner S J kenner
HEARD / : / MONDAY, 23 JUne 2014, tuesday, 24 june 2014, wednesday, 25 june 2014, thursday, 26 june 2014, friday, 27 june 2014, tuesday, 1 july 2014
DELIVERED : WEDNESDAY, 17 DECEMBER 2014
FILE NO. : FBM 8 OF 2011
BETWEEN / : / Principals' Federation of Western AustraliaApplicant
AND
THE STATE SCHOOL TEACHERS' UNION OF W.A. (INCORPORATED)
Intervener and Objector
CECIL O'NEILL
EDMUND FREDRICK BLACK
JENNIFER BROZ
KAYE ROSALIND HOSKING
LESLIE BRUCE BANYARD
TREVOR STEPHEN VAUGHAN
Objectors
Catchwords : Industrial Law (WA) - s53(1) of the Industrial Relations Act 1979 (WA) - Application for registration of employees - Overlapping eligibility for membership of applicant and an existing representative organisation raised - Construction of s55(5) considered - Good reason consistent with the objects of the Industrial Relations Act 1979 to permit registration of the applicant
Legislation : Industrial Relations Act 1979 (WA) s6, s6(a), s6(aa), s6(ab), s6(ac), s6(ad), s6(ae), s6(af), s6(ag), s6(b), s6(c), s6(ca), s6(d), s6(e), s6(f), s6(g), s23(1), s26(1)(a), s27(1)(k), s41, s41(1), s41(4), s41A, s42(2), s42(4), s44(7), s46(1); s49(1)(b), s53, s53(1), s53(2), s54, s55, s55(1), s55(2), s55(3), s55(4), s55(5), s56, s56(1), s62(2), ptII div4, ptVIA
School Education Act 1999 (WA) s4, s62, s63, s64, s237, s237(a)(i)
Acts Amendment and Repeal (Industrial Relations) Act (No2) 1984 (WA) s35(b)
Industrial Conciliation and Arbitration Act 1912 (WA) s21
Trade Practices Act 1974 (Cth) ptIV
Workplace Relations Act 1996 (Cth) s18 of sch1B
Fair Work (Registered Organisations) Act 2009 (Cth)
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) s26A
Financial Management Act 2006 (WA)
Liquor Licensing Act 1988 (WA)
Workplace Agreements Act 1993 (WA)
Workplace Relations Amendment (Work Choices) Act 2005 (Cth)
School Education Regulations 2000 (WA) reg127, reg127A
Result : Application granted
Representation:
Counsel:
Applicant : MrS P Kemp and with him MsS N Walker
Intervener & Objector : MrT J Dixon and with him MsE D Palmer (as agent)
Solicitors:
Applicant : Jackson McDonald
Intervener & Objector : Slater & Gordon Lawyers
Case(s) referred to in reasons:
An application by The Society of Stevedoring Supervisors of Western Australia (Union of Workers) (1970) 50 WAIG 72
Association of Draughting, Supervisory and Technical Employees (1981) 61WAIG 1729
Association of Professional Engineers, Australia (Western Australian Branch) v Civil Service Association of Western Australia (Inc) (1984) 65WAIG 4
Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 675
Australian Education Union v Australian Principals Federation (2006) 158IR 360
Australian Education Union v Lawler [2008] FCAFC 135; (2008) 169FCR 327
Australian Education Union v Victorian Principals Federation (2001) 113IR 365
Australian Federation of Construction Contractors (Western Australia) Industrial Association of Employers (1990) 70WAIG1299
Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch v Federated Clerks Union of Australia, Industrial Union of Workers, WA Branch (1985) 65WAIG 2033
Food Preservers Union of Western Australia, Union of Workers v The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers, Western Australian Branch [2001] WASCA 136; (2001) 81WAIG 1141
R v Murphy (1985) 4NSWLR 42
RAC Patrolmen's Association (1975) 55WAIG 1638
Re an application by the Civil Service Association of Western Australia (Inc) [2004] WAIRC 10626; (2004) 84WAIG 422
Re an application by The Federated Miscellaneous Workers' Union of Australia, WA Branch (1993) 73 WAIG 3342
Re Australian Principals Federation (unreported, AIRC, PR968104, 27January 2006) RossVP
Re Federated Ironworkers Association of Australia Industrial Union of Workers Western Australian Branch (1985) 65WAIG1094
Re Sharkey; Ex parte Burswood Resort (Management) Ltd (1994) 55 IR 276
Re Teachers Association of Australia (1988) 25IR 406
Re The Civil Service Association of Western Australia (Incorporated) (2004) 84WAIG 422
Re Victorian Principals Federation (1999) 95 IR 262
Re WA Psychiatric Nurses' Association (Union of Workers) (1994) 74WAIG 1500
Subramaniam v Public Prosecutor [1956] 1WLR 965
The Association of Professional Engineers, Australia (Western Australian Branch) Organisation of Employees (1988) 69WAIG 1057
The Association of Professional Engineers, Australia (Western Australian Branch) Organisation of Employees [No1] [2007] WAIRC 01007; (2007) 87 WAIG 2556
The Civil Service Association of Western Australia Inc [2009] WAIRC 01202; (2009) 89 WAIG 2381
The Western Australian Amalgamated Society of Carpenters' and Joiners' Industrial Union of Workers v Master Builders' Association of Western Australia (Union of Employers) Perth (1961) 41 WAIG 437
Western Australian Police Union of Workers v The Civil Service Association of Western Australia Inc [2011] WAIRC 00786; (2011) 91WAIG 1851
Case(s) also cited:
Blacksmiths Society of Australasia v WA Coach, Car and Rolling Stock Builders Union (1930) 10WAIG 294
Construction, Mining and Energy Workers Union of Australia – Western Australian Branch v The Operative Plasterers and Plaster Workers Federation of Australia (Industrial Union of Workers) Western Australian Branch (1990) 70WAIG 281
Forest Products, Furnishing and Allied Industries Industrial Union of Workers, WA v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1992) 42IR 121
National Tertiary Education Industry Union v Community and Public Sector Union (1999) 93IR 365
Re Fremantle Tramway Employees (1939) 19WAIG 517
Re Western Australian Principals' Federation (No1) (2008) 88WAIG 1812
Re Western Australian Principals' Federation (No2) (2011) 91WAIG 885
Reilly v Devcon Australia Pty Ltd [2008] WASCA 84, (2008) 36WAR 492
The Amalgamated Engineering Union v The Australasian Society of Engineers (1939) 18WAIG 419
The United Furniture Trades Industrial Union of Workers, WA v The Construction, Mining and Energy Workers' Union of Australia, Western Australian Branch (1990) 70WAIG 2108
Reasons for Decision
SMITH AP:
Background
1 This is an application for registration of an organisation/association by the Principals' Federation of Western Australia (PFWA) which is made under s53(1) of the Industrial Relations Act 1979 (WA) (the Act). The application was filed on 2December 2011. Whilst the application does not contain any grounds, annexed to it is a witness statement made by Noel James Strickland, the president of the PFWA. In his witness statement MrStrickland states:
(a) the PFWA was formed on 27July 2011;
(b) that at the PFWA's inaugural meeting on 27July 2011 an agreement was reached by those present to form the PFWA;
(c) at a meeting of its council on 31August 2011 a resolution was passed to apply for registration as an organisation under the provisions of the Act; and
(d) at the time of the making of the statutory declaration on 1December 2011, the PFWA had 341 members.
2 On 17January 2012, The State School Teachers' Union of W.A. (Incorporated) (SSTU) and the following persons filed objections to the application by the PFWA to register as an organisation:
(a) Kaye Rosalind Hosking;
(b) Edmund Fredrick Black;
(c) Leslie Bruce Banyard;
(d) Jennifer Broz;
(e) Trevor Stephen Vaughan; and
(f) Cecil O'Neill.
3 At the hearing of this matter on 25June 2014, the SSTU made an application pursuant to s27(1)(k) of the Act to become an intervener. The application was not opposed. Pursuant to s27(1)(k), the Commission is empowered to permit the intervention, on such terms as it thinks fit, of any person who, in the opinion of the Commission has a sufficient interest in the matter. In Food Preservers Union of Western Australia, Union of Workers v The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers, Western Australian Branch [2001] WASCA 136; (2001) 81WAIG 1141 the Industrial Appeal Court found that:
(a) an objector has no right of appeal to the Industrial Appeal Court from a decision of the Full Bench as they are not a party nor an intervener; and
(b) where an objector has a very real interest in the proceedings before the Commission, it would be appropriate for the Full Bench on application by the objector to be joined as a party or be permitted to intervene.
4 At the hearing of this application the members of the Full Bench informed the PFWA and the SSTU that we were of the opinion that the SSTU clearly has a sufficient interest in the proceedings. Accordingly, an order will be made permitting the SSTU to intervene.
5 In these reasons, unless otherwise indicated, all references to a principal or principals include a deputy principal or deputy principals.
6 In the SSTU's notice of objection it raised a number of preliminary issues. The Full Bench has been informed, however, that following discovery of documents between the parties and discussions between them, that the jurisdictional issues raised by the SSTU in its grounds of objection have now been resolved. In respect of the merit of the application, the SSTU raises the following matters:
(a) The SSTU is 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 PFWA, to be members of the PFWA and there is no good reason, consistent with the objects prescribed in s6 of the Act, to permit registration of the PFWA.
(b) The Act's objects are 'to discourage, so far as practicable, overlapping of eligibility for membership of such organisations', accordingly it is practicable to discourage overlapping of eligibility for membership of the SSTU and the PFWA by refusing the PFWA's application.
7 The manner in which the SSTU says it is or is likely to be affected if the PFWA obtains approval for its registration as an organisation under the Act is as follows:
(a) It is likely that the PFWA would seek to persuade persons who are presently members of the SSTU to become members of the PFWA and to cease to be members of the SSTU.
(b) Unnecessary disputes about representation under the Act of the industrial interests of employees will inevitably arise and resources will be diverted towards those disputes instead of to furthering the interests of the employees in question.
8 In the notice of objection of MsHosking, she says her grounds of objection are:
(a) As school leaders are already represented by the SSTU, by creating a separate principals' union, school administrators will be split from each other and hence their career path will be severed and goodwill and career guidance will suffer.
(b) As the principals' network is largely composed of males, the granting of such an application will only further inhibit women from gaining promotion.
(c) The occurrence of a separate principals' agreement will result in a reduction of collective bargaining as this group will only represent some administrators and will thus further separate teachers and teaching administrators from such a collective, bargaining process.
(d) The current system of fair wages will in relation to Independent Public Schools (IP schools) allow principals to engender and employ member's wages on an individual, ad hoc basis. This is occurring with these members currently and will only continue to grow if such a group is unionised.
(e) The unionisation of a principals' agreement will cause serious demarcation disputes with the SSTU.
9 In the particulars given for the grounds on which MsHosking says she is likely to be affected by the application, she makes the following points:
(a) The effective and equitable bargaining will be eroded due to the creation of two separate unions representing the same set of people.
(b) There will be segregation between administrators, teaching administrators and classroom teachers.
(c) The creation of a two-tiered system will further encourage a climate of prejudice against most members of the profession.
(d) The segregation of principals from the remaining administrators and teachers will further reduce female representation at administrator levels. This is because the formation of a principals' union, which is dominated by men, will further encourage a system that does not value females in these positions and will further encourage 'jobs for the boys'.
10 MsHosking did not appear in these proceedings as a witness. However, all of the remaining objectors gave evidence on behalf of the SSTU.
11 MrBlack makes some of the same objections as MsHosking and he raises one additional ground of objection. His grounds of objection are:
(a) School leaders (administrators) are effectively represented already by the SSTU.
(b) The PFWA divides off some school leaders from the represented group of school administrators and appears not to equally represent education support administrators.
(c) The application has the potential of creating a biased organisation with a history of political bias and financial links/support with a particular political party.
12 The grounds upon which MrBlack says he is likely to be affected by the application are as follows:
(a) School administrators would be provided with less effective representation due to little experience.
(b) The PFWA will cause professional rifts and damage to working relationships between administrators and teachers in dividing each group off into separate unions.
(c) Representation by the PFWA will be biased due to previous links and support via a political party which will lessen representation for the needs of all administrators.
(d) There will be less effective negotiating power due to smaller numbers and only engaging one small group of educators on each school site.
13 MrBanyard in his notice of objection says that the objects of the PFWA do not appear to support the objects in s6(a), s6(ac), s6(ad), s6(af), s6(ag), s6(b) and s6(e) of the Act. He also contends:
(a) The successful registration of the PFWA will promote a lack of trust and a loss in collegiality by the creation of a separate small group.
(b) Not all school leaders are eligible to join the PFWA.
(c) As a head of department he is excluded from being eligible to join the PFWA. However, level3 group heads of learning areas, program co-ordinators and level3 deputies of primary schools and district high schools apparently come within the eligibility rules of the PFWA.
(d) The SSTU represents all teachers and will continue to do so. The registration of the PFWA will create demarcation disputes. Continual disputes amongst the organisations will create distrust and antagonism within the school community.