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Queensland Industrial Relations Commission |
Last Updated: 28 June 2022
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION:
|
Re: Transport Workers' Union of Australia, Union of Employees,
Queensland Branch [2022] QIRC 247
|
PARTIES:
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Transport Workers' Union of Australia, Union of Employees, Queensland
Branch
(Applicant)
|
CASE NO:
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RIO/2022/108
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PROCEEDING:
|
Application for decision and declaration that an invalidity has happened
and for orders about the effect of invalidity
|
DELIVERED ON:
HEARING DATE: |
24 June 2022
22 June 2022
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HEARD AT:
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Brisbane
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MEMBER:
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McLennan IC
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ORDERS:
|
The declarations and orders made appear at the end of these reasons for
decision
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CATCHWORDS:
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INDUSTRIAL LAW – QUEENSLAND – INDUSTRIAL ORGANISATIONS -
application by organisation for decision and declaration about
invalidity in
respect of the management or administration of the organisation's affairs and /
or the election or appointment of an
officer or officers of the TWUQ -
application for orders about invalidity or its effects - appointment of branch
secretary and branch
president - decision that invalidities have occurred -
declarations made - orders made to remedy invalidities
|
LEGISLATION & OTHER INSTRUMENTS:
|
Rules of the Transport Workers' Union of Australia, Union of Employees,
Queensland Branch r 56, r 67
|
CASES:
|
Re: Agforce Queensland Industrial Union of Employers [2019] QIRC
030
Re: Australian Institute of Marine and Power Engineers' Union of
Employees, Queensland District [2018] QIRC 144
Re: The Association of Professional Engineers, Scientists and Managers,
Australia, Queensland Branch, Union of Employees [2016] QIRC 100
Re: Queensland Master Builders Association, Industrial Organisation of
Employers [2017] QIRC 093
The Association of Professional Engineers, Scientists and Managers,
Australia, Queensland Branch, Union of Employees [2006] QIRC 131
|
APPEARANCES:
|
Mr R. Tate of Maurice Blackburn Lawyers and with him Mr R. Olsen and Mr J.
Millroy of the Transport Workers' Union of Australia, Union
of Employees,
Queensland Branch on behalf of the Applicant.
|
Reasons for Decision
The Applicant is applying to the Commission to decide if invalid acts occurred pursuant to section 835(1) subsections (a) and (b) of the Industrial Relations Act 2016 (Qld) ("the Act"). This application concerns an invalidity or invalidities that relate to:
a) the management or administration of the Transport Workers' Union of Australia, Union of Employees ("TWUQ") affairs; and / orb) the election or appointment of an officer or officers of the TWUQ.
The Applicant applies to the Commission to make orders pursuant to section 837(2)
subsections (a) and (b) of the Act, should an invalidity or invalidities have occurred,
to:
a) remedy the invalidity or to cause it to be remedied; and / orb) validate and act, matter or thing made invalid by or because of the invalidity.
There would be no substantial injustice, pursuant to sections 827 and 837(4) of the Act, should the Commission make the order.
The Applicant requests that, should the Commission be minded to make an order, if an invalidity or invalidities have occurred, the order pursuant to section 837 of the Act have the following effect:
a) to make the decisions of the office bearers of the TWUQ as constituted prior to the date of the order, that may have been affected by the invalidities, so that any act, matter or thing that was rendered invalid, be remedied and validated;b) to constitute the offices of the Secretary and President of the TWUQ as held by Richard Olsen and Anthony Matthews respectively, on and from the date of such an order, until the term of office of those office bearers either expires or ends; and
c) all acts, matters or things that may be invalid, to the date of this order, be declared valid acts, matters or things done on behalf of the TWUQ.
The Applicant's Secretary, Richard Olsen, has prepared an affidavit that accompanies this
application.
Outcome sought by Applicant
1. An invalidity happened in the management and administration of the Transport Workers' Union of Australia, Union of Employees (Queensland Branch) ("the TWUQ"), as, Richard Olsen and Anthony Matthews were not, at the time of their appointment to fill casual vacancies to the positions of Branch Secretary and Branch President, eligible to hold those positions, as, a rule change to ensure their eligibility, had not as yet taken effect.
2. An invalidity or invalidities happened in the management and administration of the TWUQ because the TWUQ Branch Committee of Management appointed, due to casual vacancies, Richard Olsen and Anthony Mathews to the positions of Branch Secretary and Branch President and made decisions, both in those positions and as part of the Branch Committee of Management, when they were ineligible to hold those positions, and, while the Branch Committee of Management was not properly constituted, as, a rule change had not as yet taken effect.[1]
1. The decisions of the office bearers of the Transport Workers' Union of Australia, Union of Employees (Queensland Branch) ("the TWUQ") as constituted prior to the date of this order, that may have been affected by the invalidities, the subject of the declarations referred to at paragraph 1 and paragraph 2 above, are remedied and validated so that all acts, matters or things made invalid by or because of those invalidities are remedied and validated.
2. On and from the date of this Order, the following persons shall be the holders of the following officers of the TWUQ:
a. Richard Olsen, Branch Secretary; and
b. Anthony Matthews, Branch President.
3. On and from the date of this Order, the persons holding the offices referred to in Order 2 shall be treated as the Branch Secretary and Branch President of the TWUQ for all purposes until the term of office of the office bearers either expires or ends.
4. All acts, matters, or things that may be invalid, from the date of the appointment of the Branch Secretary and Branch President, up to the date of this Order, because of the invalidities the subject of the declarations referred to in paragraph 1 and 2, are valid acts, matters or things done on behalf of the TWUQ.[2]
Questions to be decided
and, if so
Decision
The IR Act
(1) The commission may, on application, decide whether an invalidity has happened in-(a) the management or administration of an organisation's affairs; or(b) the election or appointment of an officer of an organisation; or
(c) the making, amending or repealing of a rule of an organisation.
(2) In deciding the application, the commission may declare whether or not an invalidity has happened.
The application may be made only by-
(a) the organisation; or(b) a member of the organisation; or
(c) another person the commission considers has a sufficient interest in the subject matter of the application.
(1) This section applies if, on the hearing of the application, the commission declares an invalidity has happened.(2) The commission may make an order it considers appropriate-
(a) to remedy the invalidity or to cause it to be remedied; or(b) to change or prevent, or cause to change or prevent, the effects of the invalidity; or
(c) to validate an act, matter or thing made invalid by or because of the invalidity.
(3) The commission may also make another order consequential on an order under subsection (2).
(4) The commission must not make an order under this section if the order would cause substantial injustice to-
(a) the organisation that the invalidity concerns; or(b) a member or creditor of the organisation; or
(c) a person dealing with or who has dealt with the organisation.
In this part –
act includes decision.
collective body, of an organisation, means –
(a) its management committee; or
(b) a conference, council, committee, panel or other body of or within the organisation.
invalidity includes defect.
organisation includes a branch of an organisation.[3]
Exhibits
Affidavit of Mr Richard Olsen, affirmed 26 May 2022
Rules of the Transport Workers' Union
of Australia, Union of Employees, Queensland Branch
Rules of the Transport Workers' Union of Australia
Transitional Rule – Eligibility for
Positions[4]
Casual Vacancies[5]
Relevant Authorities
Mr Olsen's evidence
(i) the Queensland Branch had effectively ceased to function;
(ii) TWUA members based in Queensland needed continuity of high-level service and campaigning support from their union;
(iii) the TWUA National Council would re-establish a Federal Queensland Branch as soon as one could operate in an appropriate, effective and stable manner;
(iv) until a Federal Queensland Branch is re-established, the National Council would have a stewardship role through its oversight governance of the Federal NSW/QLD Interim Branch (in accordance with its powers to do so under r 25(1) of the TWUA Rules); and
(v) in this undertaking, the TWUA National Council will have regard to
Stewardship Principles developed by Deloitte.
President
Secretary
(i) validate the decisions by the QBCOM to appoint Mr Olsen and Mr Matthews to the positions of TWUQ Branch Secretary and Branch President respectively because they were not eligible to hold those offices until the rule change took effect on 7 April 2022; and
(ii) since Mr Olsen has acted as Branch Secretary since 21 September 2021, there are a number of decisions and acts, constituting the management and administration of the TWUQ approved by him, that are technically invalid and need to be made valid.
Have invalidities happened in the management or administration of the TWUQ's affairs, such that I should make declarations to that effect?
Should orders be made to remedy the invalidities or cause the invalidities
to be remedied and should orders be made to validate an
act, matter or thing
made invalid by or because of the invalidities?
In general terms, the object of applications, such as the present, is to remedy the invalidities that have occurred, to change the effect of the invalidities and to validate any act, matter or thing rendered invalid by the invalidities that has occurred.[10]
The principal consideration, in respect of whether or not I should make
orders pursuant to s 837 of the Act about the effects of an invalidity, is
whether such an order would cause substantial injustice to the ARTBUQ, to a
member or creditor
of the ARTBUQ, or a person dealing with or who has dealt with
the ARTBUQ.
Pursuant to s 835(2) of the Industrial Relations Act 2016 ('the
Act'):
1. I declare that an invalidity happened in the management and administration of the Transport Workers' Union of Australia, Union of Employees (Queensland Branch) ("the TWUQ"), as, Richard Olsen and Anthony Matthews were not, at the time of their appointment to fill casual vacancies to the positions of Branch Secretary and Branch President, eligible to hold those positions, as, a rule change to ensure their eligibility, had not as yet taken effect.
2. I declare that an invalidity or invalidities happened in the
management and administration of the TWUQ because the TWUQ Branch
Committee of
Management appointed, due to casual vacancies, Richard Olsen and Anthony Mathews
to the positions of Branch Secretary
and Branch President and made decisions,
both in those positions and as part of the Branch Committee of Management, when
they were
ineligible to hold those positions, and, while the Branch Committee of
Management was not properly constituted, as, a rule change
had not as yet taken
effect.
Pursuant to s 837(2) of the Act, I make
the following orders:
1. The decisions of the office bearers of the Transport Workers' Union of Australia, Union of Employees (Queensland Branch) ("the TWUQ") as constituted prior to the date of this order, that may have been affected by the invalidities, the subject of the declarations referred to at paragraph [29] above, are remedied and validated so that all acts, matters or things made invalid by or because of those invalidities are remedied and validated.
2. On and from the date of this Order, the following persons shall be the holders of the following offices of the TWUQ:
a. Richard Olsen, Branch Secretary; and
b. Anthony Matthews, Branch President.
3. On and from the date of this Order, the persons holding the offices referred to in Order 2 shall be treated as the Branch Secretary and Branch President of the TWUQ for all purposes until the term of office of the office bearers either expires or ends.
4. All acts, matters, or things that may be invalid, from the date of the appointment of the Branch Secretary and Branch President, up to the date of this Order, because of the invalidities the subject of the declarations referred to in paragraph [29] above, are valid acts, matters or things done on behalf of the TWUQ.
[1] Draft Minute of Order filed by
the Applicant on 20 June 2022.
[2]
Ibid.
[3] Industrial Relations
Act 2016 (Qld) s 826.
[4]
Rules of the Transport Workers' Union of Australia, Union of Employees,
Queensland Branch r 67.
[5]
Ibid r 56.
[6] as at 23 July
2021.
[7] as at 23 July
2021.
[8] as at 23 July
2021.
[9]
Re: Australian Rail, Tram and Bus Industry Union
of Employees, Queensland Branch [2020] QIRC 218 , [19] –
[20].
[10] Re: The Association
of Professional Engineers, Scientists and Managers, Australia, Queensland
Branch, Union of Employees [2016] QIRC 100, [4].
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