Re: Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch [2020] QIRC 218 (10 December 2020)

Last Updated: 11 December 2020

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Re: Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch [2020] QIRC 218
PARTIES:	Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch (Applicant)
CASE NO:	RIO/2020/241
PROCEEDING:	Application for decision and declaration that an invalidity has happened and for orders about the effect of invalidity
DELIVERED ON: HEARING DATE:	10 December 2020 4 December 2020
HEARD AT:	Brisbane
MEMBER:	Merrell DP
ORDERS:	The declarations and orders made appear at the end of these reasons for decision
CATCHWORDS:	INDUSTRIAL ORGANISATIONS - application by organisation for decision and declaration about invalidity in respect of the management or administration of the organisation's affairs - application for orders about invalidity or its effects - branch council and branch executive elections not conducted in accordance with rules of organisation - branch council and branch executive meetings not conducted in accordance with rules of organisation - decisions not made in accordance with rules of organisation - persons acted without authority in the management of organisation and not in accordance with rules of organisation - decision that invalidities have occurred - declarations made - orders made to remedy invalidities
LEGISLATION:	Industrial Relations Act 1999, s 580 and s 613 Industrial Relations Act 2016, s 539, s 597, s 802, s 803, s 835, s 836 and s 837
CASES:	Re: The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees [2016] QIRC 100 The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees [2006] QIRC 131; (2006) QGIG 802
APPEARANCES:	Mr R. Tate of Maurice Blackburn Lawyers and with him Mr P. Allen of the Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch on behalf of the Applicant

Reasons for Decision

Background

• [1] The Australian Rail, Tram and Bus Industry Union is an organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth) ('the ARTBU'). Pursuant to r 6 of its registered rules, the ARTBU has a number of branches in Australia. This includes what is referred to as the 'Queensland Branch'. The Queensland Branch comprises of all members whose usual place of work is located within the State of Queensland other than persons employed by the State Rail Authority of New South Wales or its successor.^[1] Presently, the Branch Secretary of the Queensland Branch of the ARTBU is Mr Owen Doogan.

• [2] The Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch ('the ARTBUQ') is an organisation within the meaning of ch 12 of the Industrial Relations Act 2016 ('the Act'). The ARTBUQ has rules which comply with ch 12, pt 3 and pt 4 of the Act ('the ARTBUQ's Rules').

• [3] Sub-rule 58(1) of the ARTBUQ's Rules provides that certain of its named offices, each referred to as the 'stated office', correspond with certain named offices of the Queensland Branch of the ARTBU, each referred to as the 'federal office'. In sub-r 58(1), the Queensland Branch of the ARTBU is referred to as the 'Counterpart Federal Body'.

• [4] Sub-rule 58(2)(i) of the ARTBUQ's Rules provides that the Branch Secretary of the ARTBUQ must make application for exemption from holding an election as soon as practicable following the declaration of elections, held under the Fair Work (Registered Organisations) Act (Cth), of the Counterpart Federal Body, referred to in that sub-rule as the 'federal election'. Sub-rule 58(2)(iii) of the ARTBUQ's Rules provides that the Branch Secretary of the ARTBUQ shall seek, in making such an exemption application, that a stated office be filled by a person elected in the federal election to the federal office that corresponds with the stated office.

• [5] In 2014 and 2018, when required following relevant federal elections being held, the ARTBUQ did not apply for exemptions from holding elections.

• [6] The ARTBUQ has made application, pursuant to ch 12, pt 13, div 3 of the Act, for a declaration that invalidities have happened in the management or administration of its affairs. It further applies for orders to remedy the invalidities said to have arisen from its failure to apply for exemptions from holding elections.

• [7] The questions for my determination are:

• have invalidities happened in the management or administration of the ARTBUQ's affairs such that I should make declarations to that effect? and, if so

• 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?

• [8] For the reasons that follow, I have determined that I should declare that invalidities have happened in the management or administration of the ARTBUQ's affairs and that I should make orders to remedy the invalidities and to validate acts, matters or things made invalid by or because of the invalidities.

The Act

• [9] Chapter 12 of the Act deals with industrial organisations and associated entities. Chapter 12, pts 3 to 11 deal with, amongst other matters, the general contents of rules of organisations including election rules and the conduct of elections.

• [10] Chapter 12, pt 12, div 1 deals with the ability of an organisation to apply for exemptions from certain requirements where there is a counterpart federal body, namely, an organisation or branch of an organisation under the Fair Work (Registered Organisations) Act 2009 (Cth) within the meaning of s 597 of the Act. Relevantly, ch 12, pt 12, div 1, sub-div 1 provides that an organisation may apply to the Industrial Registrar for an exemption from holding an election for a stated office or offices of the organisation. Sections 802 and 803 of the Act provide:

802. Exemption if federal election held

(1) An organisation, or 2 or more organisations jointly, may apply to the registrar for an exemption from holding an election for a stated office or offices of the organisation or organisations (stated office).

(2) The registrar may grant the exemption only if satisfied as follows-

(a) the applicant has a counterpart federal body;

(b) the counterpart federal body has held an election (the federal election) for an office (the federal office) under the Commonwealth Registered Organisations Act;

(c) the applicant’s rules provide the stated office is a corresponding office to the federal office;

(d) the stated office will be filled by a person (the elected person) elected in the federal election to the federal office;

(e) if the eligibility rules of the applicant and the counterpart federal body differ-the interests of the applicant’s members who were ineligible to vote in the federal election have not been disadvantaged.

(3) If the exemption is granted-

(a) the elected person is taken to have been elected to the stated office; and

(b) the applicant’s rules for the election of the elected person to the stated office are taken to be complied with; and

(c) section 629 does not apply to the rules for the election.

(4) In this section-

corresponding office, to a federal office, means an office, however described, similar to the federal office.

803. Obligation to notify change in federal election result

(1) This section applies if-

(a) an organisation has been granted an exemption under section 802; and

(b) an order under the Commonwealth Registered Organisations Act has changed the federal election result about which the exemption was given.

(2) The organisation must give the registrar notice of the change as soon as practicable after it becomes aware of the change.

Maximum penalty-100 penalty units.

(3) The organisation is taken to become aware of the change if an officer of the organisation becomes aware of it.

• [11] Chapter 12, pt 13 of the Act deals with circumstances where certain acts of organisations, or of an organisation's officers, are deemed to be valid.

• [12] Chapter 12, pt 13, div 3 of the Act deals with circumstances where certain persons may apply for the Commission to decide and declare that an invalidity has happened and for the Commission to make orders about the effects of such an invalidity. That division provides:

835. Commission may decide

(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.

836. Who may apply

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.

837. Orders about effects of invalidity

(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.

The ARTBUQ's Rules

• [13] Rule 58 of the ARTBUQ's Rules provides:

58. COUNTERPART FEDERAL BODY ELECTION EXEMPTION

(1) The offices of the Branch (the “stated office”) that correspond with the offices of the Counterpart Federal Body (the “federal office”), due to the stated office being similar to the federal office, are as follows:

Counterpart Federal Body (federal office)	The Branch (stated office)
Branch President	Branch President
Senior Branch Vice President	Senior Branch Vice President
Junior Branch Vice President elected by all financial members of Branch Bus and Tram Division	Junior Branch Vice President elected by all financial members of Branch Bus and Tram Division
Junior Branch Vice President	Junior Branch Vice President
Branch Secretary	Branch Secretary
Assistant Branch Secretary elected by all financial members of Branch Bus and Tram Division	Assistant Branch Secretary elected by all financial members of Branch Bus and Tram Division
Branch Divisional President	Branch Divisional President
Branch Divisional Vice-President	Branch Divisional Vice-President
Branch Divisional Secretary	Branch Divisional Secretary
Branch Divisional Delegate to the Branch Council	Branch Divisional Delegate to the Branch Council
Regional Delegate to the Branch Council	Regional Delegate to the Branch Council
Sub-Divisional, District or Regional Representative on Branch Divisional Committee	Sub-Divisional, District or Regional Representative on Branch Divisional Committee
District Executive President	District Executive President
District Executive Vice-President	District Executive Vice-President
Female delegate to Branch Council	Female delegate to Branch Council

(2) The Branch Secretary shall:

(i) make application for exemption from holding an election as soon as practicable following the declaration of elections, held under the Fair Work (Registered Organisations) Act (Cth) (the “federal election”) for the Counterpart Federal Body;

(ii) notify the membership of the Union, of the making of the application for exemption, by means of a publication circulated to the members free of charge;

(iii) seek, in the making of an application for exemption, that a state office be filled by a person elected in the federal election to the federal office that corresponds, as provided by this rule, with the stated office.

(3) In the event of the exemption not being granted or being only partially granted the Branch Secretary shall forthwith proceed to file the prescribed material in relation to the holding of an election, or a relevant election, as the case may be, pursuant to the Rules.

Mr Doogan's evidence

• [14] Mr Doogan's evidence was that the ARTBUQ has not had an exemption granted by the Industrial Registrar since the last exemption granted on 26 September 2012 in Matter No. RIO/2012/165. At that time, pursuant to s 580 of the Industrial Relations Act 1999, the ARTBUQ was exempted from holding elections for certain of its stated offices because of elections of corresponding offices in the Queensland Branch of the ARTBU.

• [15] Mr Doogan's further evidence was that:

• elections of the ARTBU have occurred since 2012 in accordance with the ARTBU's rules;

• despite federal elections for ARTBU officers occurring in 2014 and in 2018, amendments were required to be made to the ARTBUQ's rules due to changes to the ARTBU's rules prior to an exemption application being made, however, the ARTBUQ did not make applications for exemptions at those times as its rules needed to be amended;

• the ARTBUQ has treated the duly elected federal officers of the ARTBU as its officers;

• the ARTBUQ was advised that its rules needed to be amended to reflect specific offices in the ARTBU so that the ARTBUQ may make an application pursuant to r 58 of the ARTBUQ's Rules;

• as from 10 March 2020, the ARTBUQ's Rules were amended to reflect the relevant offices in the ARTBU so that the ARTBUQ could make application for an exemption from holding elections for its offices;

• a high workload and administrative oversight, coupled with the requirement of the ARTBUQ to amend its rules, meant that the ARTBUQ did not make an application for an exemption under the Industrial Relations Act 1999 after the 2014 ARTBU election and did not make an application for an exemption under the Act after the 2018 ARTBU election, however, in failing to make the applications for exemptions, the ARTBUQ did not intend to avoid its obligations in the Queensland jurisdiction;

• the office holders duly elected to the ARTBU in 2018 acted as if they were, in fact, duly elected ARTBUQ office holders, but they could not have been due to the ARTBUQ being required to amend its rules to seek an exemption from holding elections; and

• as the duly elected office holders in the ARTBU acted as if they were the duly elected ARTBUQ office holders, any order in relation to the invalidities would not cause substantial injustice to the ARTBUQ, to a member or creditor of the ARTBUQ or to a person dealing with or who has dealt with the ARTBUQ.

Have invalidities happened in the management or administration of the ARTBUQ's affairs such that I should make declarations to that effect?

• [16] The failure on the part of an organisation to conduct elections is an invalidity in the management or administration of the organisation's affairs within the meaning of s 835(1)(a) of the Act.^[2] Having considered the affidavit of Mr Doogan, I have decided that invalidities have happened in the management or administration of the ARTBUQ's affairs in 2014 and 2018.

• [17] These invalidities happened because the ARTBUQ:

• did not, in 2014, pursuant to s 580(1) of the Industrial Relations Act 1999, make an application to the Industrial Registrar for an exemption from holding elections for its stated offices; and

• did not, in 2018, pursuant to s 802(1) of the Act, make an application to the Industrial Registrar for an exemption from holding elections for its stated offices.

• [18] There is no reason why I should not 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?

• [19] 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.^[3]

• [20] 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.

• [21] Mr Doogan affirms that any orders I may make, in that regard, would not cause substantial injustice to the ARTBUQ, to a member or creditor of the ARTBUQ or to any person dealing with or who has dealt with the ARTBUQ.

• [22] Furthermore, Mr Doogan's unchallenged evidence was that the office holders duly elected to the ARTBU in 2018 did act as if they were the duly elected ARTBUQ office holders.

• [23] No other person appeared before the Commission, on the day of the hearing, to oppose the ARTBUQ's application or to claim that substantial injustice would be caused to them if I was to make orders, about the effects of the invalidities, as sought by the ARTBUQ.

• [24] There is no reason why I should not make orders, that I consider appropriate, to remedy the invalidities or to cause the invalidities to be remedied.

• [25] I propose to make orders that substantially comply with the orders sought by the ARTBUQ. During the hearing, I enquired as to whether the names of the office holders of the Queensland Branch of the ARTBU, as contained in Annexure A to the application, had changed. Subsequent to the hearing, the ARTBUQ supplied to my Associate an amended Annexure A where some of the office holders had changed and other offices have become vacant. Given that no person wanted to be heard in opposition of the ARTBUQ's application, I will allow the ARTBUQ, pursuant to s 539(e) of the Act, to amend Annexure A to its application. In my view, given that I may make an order I consider appropriate to remedy an invalidity, I propose to make an order that reflects the current federal office holders of the Queensland Branch of the ARTBU.

Declarations and Orders

• [26] I make the following declarations:

1. Pursuant to s 835(2) of the Industrial Relations Act 2016 ('the Act'):

(a) I declare that an invalidity happened in the management and administration of the Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch ('the ARTBUQ') because the ARTBUQ did not, in 2014, pursuant to s 580(1) of the Industrial Relations Act 1999, make an application to the Industrial Registrar for an exemption from holding elections for its stated offices; and

(b) I declare that an invalidity happened in the management and administration of the ARTBUQ because the ARTBUQ did not, in 2018, pursuant to s 802(1) of the Act, make an application to the Industrial Registrar for an exemption from holding elections for its stated offices.

• [27] I make the following orders:

2. Pursuant to s 837(2) of the Act, I make the following orders:

(a) The decisions of office bearers of the Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch ('the ARTBUQ') as constituted prior to 10 December 2020, that may have been affected by the invalidities, the subject of the declarations referred to in paragraph 1 above, are remedied and validated so that all acts, matters or things made invalid by or because of those invalidities are remedied and validated.

(b) On and from 10 December 2020, the following persons shall be the holders of the following offices of the ARTBUQ:

Executive

(i) Branch President - Bruce Mackie

(ii) Senior Branch Vice-President - Les Moffitt

(iii) Junior Branch Vice-President - Peter Allen

(iv) Junior Branch Vice-President - Craig Allen

(v) Branch Secretary - Owen Doogan

(vi) Assistant Branch Secretary - Tom Brown

(vii) Junior Branch Vice President, Tram and Bus Division - Wendy Hodgson

Delegates and other office bearers

(viii) Branch Divisional President, Tram and Bus Division - Darryl Lewis

(ix) Branch Divisional Vice-President, Tram and Bus Division - Mark Lahey

(x) Branch Divisional Junior Branch Vice President, Tram and Bus Division - Peter Thompson

(xi) A Delegate of the Tram and Bus Division - Vacant

(xii) The Branch Locomotive Sub-Division Coal Secretary - Keith Heinemann

(xiii) The Branch Locomotive Sub-Divisional Passenger Secretary - Kelvin Steer

(xiv) The Branch Locomotive Sub-Division Freight Secretary - John Dundas

(xv) A Delegate of the Rail Operations Division, Northern District - Vacant

(xvi) A Delegate of the Rail Operations Division, Central District - Shane Weatherall

(xvii) A Delegate of the Rail Operations Division, Southern District - Mellissa Mackie

(xviii) A Delegate of the Infrastructure Division, Northern District - Greg Gillett

(xix) A Delegate of the Infrastructure Division, Central District - Andrew Wells

(xx) A Delegate of the Infrastructure Division, Southern District - Trent Howard

(xxi) A Delegate of the Branch Fleet Manufacture, Overhaul, Maintenance & Service Division, Northern District - Greg Tatnell

(xxii) A Delegate of the Branch Fleet Manufacture, Overhaul, Maintenance & Service Division, Central District - Jarrod Falls

(xxiii) A Delegate of the Fleet Manufacture, Overhaul, Maintenance & Service Division, Southern District - Barry Monaghan

(xxiv) Branch Divisional Secretary, Administrative, Supervisory, Technical and Professional Division - David Smith

(xxv) The Branch Divisional President, Administrative, Supervisory, Technical and Professional Division - Noel Morris

(xxvi) A Delegate from the North-West Region - Carl Nielsen

(xxvii) A Delegate from the Central-West Region - Martin Collins

(xxviii) A Delegate from the South-West Region - Colin Greer

(xxix) A female delegate Southern District (All Divisions) - Julie Irving

(xxx) A female delegate Central and Northern Districts (All Divisions) - Jodie Wickens

(xxxi) A delegate of the Operations Division from the Private Sector - Neil Trapp

(xxxii) The Branch Organiser for the Tram and Bus Division whilst so ever that position is an elected position - Bennett Roach.

(c) On and from 10 December 2020, the persons holding the offices referred to in Order 2(b) above shall be treated as the Branch Council of the ARTBUQ for all purposes until the term of office of the office bearers either expires or ends.

(d) All acts, matters or things that may be invalid, up to 10 December 2020, because of the invalidities the subject of the declarations referred to in paragraph 1 above, are valid acts, matters or things done on behalf of the ARTBUQ.

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^[1] Rules of the Australian Rail Tram and Bus Industry Union r 6(5).
^[2] The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees [2006] QIRC 131; (2006) QGIG 802, [14] (Vice President Linnane). This case concerned the application of the s 613(1)(a) of the Industrial Relations Act 1999 which is in identical terms to s 835(1)(a) of the Act.
^[3] Re: The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees [2016] QIRC 100, [4] (Industrial Commissioner Fisher).