Application by UniTAB Agents Association, Union of Employers Queensland [2023] QIRC 56

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Application by UniTAB Agents Association, Union of Employers Queensland [2023] QIRC 056 PARTIES: UniTAB Agents Association, Union of Employers Queensland (Applicant) CASE NO: RIO/2022/254 PROCEEDING: Application for deregistration DELIVERED ON: 21 February 2023 HEARING DATE: 21 February 2023 MEMBERS: HEARD AT: Hartigan DP Knight IC Pidgeon IC Brisbane ORDER: 1. That UniTAB Agents Association, Union of Employers Queensland is deregistered; and 2. That after payment of all liabilities, including liabilities associated with the deregistration of the Association, the Association’s funds are to be distributed as follows: Jodie Sutherland – 17/276; Robert Hart – 6/276; Michael Gay – 2/276; Mat Maloney – 2/276; Phil and Lynn Spencer – 32/276; Michael Ramsay – 2/276; Brendan & Vanessa McClennan – 20/276; Karen Lesley Callender – 4/276; John & Ann-Marie Windmill – 27/276; Maxine Parker – 4/276; Donna Marshall – 31/276; -- 1 of 7 -- 2 Craig & Donna Murray – 18/276; Loretta Eaton – 9/276; Joanne Lepik – 23/276; Darren Taylor – 11/276; Debra Hetherington – 32/276; Kylie Govey – 13/276; Brad Lowien – 13/276; Deb Paton – 9/276; and Karen Bennett – 1/276. CATCHWORDS: INDUSTRIAL LAW – QUEENSLAND – INDUSTRIAL ORGANISATIONS – DEREGISTRATION OF AN ORGANISATION – where the applicant union sought deregistration and incidental orders regarding distribution of funds – whether all necessary requirements had been met for deregistration. LEGISLATION: Industrial Relations Act 2016 (Qld), ss 878, 884, 892 APPEARANCES: Ms D.A. Hetherington, for the Applicant. Reasons for Decision Introduction [1] The UniTAB Agents Association, Union of Employers Queensland (‘the Association’) has filed an application pursuant to s 879 of the Industrial Relations Act 2016 (Qld) (‘the Act’) for an order deregistering that union. The Association also seeks incidental orders with respect to the distribution of the Association’s funds following the deregistration. [2] The Association has been registered as an employer organisation with the Queensland Industrial Relations Commission (‘the Commission’) since 15 June 1988. [3] On 23 November 2022, the Association filed the application and seeks a deregistration order in reliance on s 878(f) of the Act which, relevantly, provides: 878 General deregistration grounds The full bench may order the deregistration of an organisation (a deregistration order) on any of the following grounds – … (f) a majority of the organisation’s members have agreed to its deregistration. … -- 2 of 7 -- 3 [4] Section 879(1) of the Act provides that, inter alia, an organisation1 may apply for a deregistration order. Members have agreed to the deregistration [5] In support of the Application, two affidavits2 of Ms Debra Hetherington, the then President and Executive Officer of the Association, were filed in the Industrial Registry. In summary, Ms Hetherington relevantly deposed to the following: (a) on 19 October 2022, a Notice of Motion was sent to all members together with an agenda for the Annual General Meeting (‘AGM’) of the Association scheduled to occur on 7 November 2022; (b) the Notice of Motion sent to members on 19 October 2022 was in the following terms: NOTICE OF MOTION 1. To deregister the association with QIRC, and disburse the remaining funds to the members on a pro rata formula based on the number of years as a member, matter to be placed before all members who are encouraged to register their vote by the attached Proxy form. (c) as at 7 November 2022, the Association had 20 members; (d) on 7 November 2022, the AGM took place via telephone and was attended by 10 members who each voted in favour of the motion; (e) prior to the AGM, the Association received two votes by email, each in favour of the motion; and (f) Ms Hetherington was appointed proxy for two members, who each voted in favour of the motion. [6] Ms Hetherington’s affidavit also attached a copy of the UniTABS Agents Association Union of Employers Queensland Rules (“the Association’s Rules”).3 [7] The Association’s Rules do not provide a process for the dissolution of the Association. [8] As noted above, the Association seeks to be deregistered on the basis that a majority of its members have agreed to the deregistration. 1 Industrial Relation Act 2016 (Qld) s 879(1)(a). 2 Filed on 23 November 2022 and 9 February 2023, respectively. 3 Affidavit of D.A. Hetherington filed on 9 February 2023, DAH-1. -- 3 of 7 -- 4 [9] Ms Hetherington deposes to the current membership of the Association as totalling 20 members and attaches to her affidavit a list of those 20 members.4 [10] The Association’s Rules outlines the process of conducting meetings of the Council. Rule 15(e) provides, interalia, that a member not present at the meeting may appoint in writing, using the prescribed form, another member of the Association as proxy to attend the meeting and to exercise the member’s vote or votes. [11] Rule 15(j) provides that decisions shall be by simple majority of the votes cast by those present unless otherwise provided for in the Association’s Rules. [12] Rule 15(k) provides that the Council may meet in person or by means of a telephone hook-up, or meet partially in person and partially by telephone hook-up with some members not being physically present and/or may make any decision at anytime by a poll of members of the management committee by facsimile, post or other convenient means. [13] The Association contends that a majority of members voted in favour of the motion at the AGM on the following basis: (a) ten (10) members were present by telephone at the meeting, which is permitted by rule 15(k) of the Association’s Rules, and all 10 members voted in favour of the motion; (b) the Association received two votes by email both in favour of the motion, and, in reliance on rule 15(k) of the rules, the Association submitted that email is a “convenient means” for the purpose of the Association’s Rules; and (c) Ms Heatherington was appointed proxy for two members, both of whom voted in favour of the motion. [14] The Association properly conceded that, by operation of rule 15(e), Ms Hetherington was permitted to only hold one proxy vote and, accordingly, as Ms Hetherington had held two proxy votes at the AGM, one of the proxy votes should be discarded. If this vote were to be discarded, a total of 13 out of 20 members voted in favour of the motion. [15] On the basis of the above material, we are satisfied that an AGM was held pursuant to the Association’s Rules and in accordance with those rules, 13 out of 20 members of the Association voted in favour of the motion. Accordingly, a majority of the Association’s members voted in favour of the deregistration and we consider, in these circumstances, that it is appropriate to issue a deregistration order. 4 Affidavit of D.A. Hetherington filed on 9 February 2023, DAH-3. -- 4 of 7 -- 5 Incidental orders with respect to the distribution of funds [16] The Association also seeks incidental orders with respect to the disbursement of funds held by the Association following the deregistration. The terms of the order sought5 are as follows: … “After payment of all liabilities, including liabilities associated with the winding up of the Association, the Association’s funds are disbursed in the following portions: Jodie Sutherland – 17/276; Robert Hart – 6/276; Michael Gay – 2/276; Mat Maloney – 2/276; Phil and Lynn Spencer – 32/276; Michael Ramsay – 2/276; Brendan & Vanessa McClennan – 20/276; Karen Lesley Callender – 4/276; John & Ann-Marie Windmill – 27/276; Maxine Parker – 4/276; Donna Marshall – 31/276; Craig & Donna Murray – 18/276; Loretta Eaton – 9/276; Joanne Lepik – 23/276; Darren Taylor – 11/276; Debra Hetherington – 32/276; Kylie Govey – 13/276; Brad Lowien – 13/276; Deb Paton – 9/276; and Karen Bennett – 1/276.” [17] Section 884(a) of the Act provides that if the Full Bench makes a deregistration order, it may also make an order or direction it considers appropriate to give effect to the deregistration. [18] Section 892(1) of the Act deals with the effect on property following deregistration as follows: 892 Effect on property (1) If the deregistered organisation was incorporated only because of its registration, property owned by it immediately before the deregistration must be— (a) held and used under its rules, to the extent the rules can still be carried out or complied with; and (b) applied for the purposes of the deregistered organisation under its rules. … [19] The Association identifies that funds in the amount of $87,820.58 are currently held by the Association. The Association has informed the full bench that it holds no other assets 5 Applicant’s written submissions filed 17 February 2023, [18]. -- 5 of 7 -- 6 and that it has no liabilities although future liabilities will be incurred in the dissolution process, including, for example, fees for the conduct of a final audit and legal fees associated with the dissolution. [20] The practical effect of the incidental order sought is that the current members of the Association will receive the remaining funds of the Association calculated on the number of years they have respectively been a member of the Association. [21] The Association submits6 that incidental orders should be made for the following reasons: … a. The Rules do not expressly or impliedly state where the Association’s assets are to be distributed upon its winding up. b. The funds of the Association have historically been used for, and if not for the de- registration, would continue to be used for the direct benefit of its members. c. The Motion that was voted on included a directive that the remaining funds be disbursed to the members on a pro-rata basis based on the number of years as a member. Again, a majority of the Association’s members voted unanimously in support of the Motion. d. Such an order is consistent with rule 5(b), (e), (f) and (g) of the Rules; namely that the services previously offered by the Association will, upon its deregistration, will now be required to be obtained by its members in a private capacity (e.g. they will be required to obtain their own independent legal advice, as opposed to seeking advice from the Association). A distribution of the Association’s funds will assist in alleviating those expenses. [22] Rules 5(b), (e), (f) and (g) of the Association’s Rules referred to in the above extract from the Applicant’s submissions deal with the objects of the rules and relevantly provides as follows: … 5. OBJECTS The objects for which the Association is established are to act as an Association of Employers and in particular: - … (b) To represent Unitab Limited Agents in industrial relations matters, including the settlement of industrial disputes. … (e) To bring to the attention of the Board all matters relevant to the efficient operation of the Boards Branches and Agencies. (f) To assist and help distressed and deserving Unitab Limited Agents and their dependents and next of kin and their staff and employees. (g) To co-operate with the Board and members of its staff on all matters pertaining to the Wagering Act 1998 and any Act amending or replacing it, and the efficient operation of the Board’s Branches and Agencies. … [23] Having regard to the relevant provisions of the Act and the Association’s Rules we are of the view that it is appropriate to issue orders incidental to the deregistration dealing with the distribution of the Association’s funds. 6 Applicant’s written submissions filed 7 February 2023, [19]. -- 6 of 7 -- 7 [24] We are satisfied that the orders sought will allow for the funds to be distributed to each of the current members of the Association and that such a distribution of funds accords with the Association’s Rules, in so far as such a distribution will benefit the Association’s members, and that distribution will give effect to the motion passed at the AGM on 7 November 2022. Orders [25] It is ordered: 1. That UniTAB Agents Association, Union of Employers is deregistered; and 2. That after payment of all liabilities, including liabilities associated with the deregistration of the Association, the Association’s funds are to be distributed as follows: Jodie Sutherland – 17/276; Robert Hart – 6/276; Michael Gay – 2/276; Mat Maloney – 2/276; Phil and Lynn Spencer – 32/276; Michael Ramsay – 2/276; Brendan & Vanessa McClennan – 20/276; Karen Lesley Callender – 4/276; John & Ann-Marie Windmill – 27/276; Maxine Parker – 4/276; Donna Marshall – 31/276; Craig & Donna Murray – 18/276; Loretta Eaton – 9/276; Joanne Lepik – 23/276; Darren Taylor – 11/276; Debra Hetherington – 32/276; Kylie Govey – 13/276; Brad Lowien – 13/276; Deb Paton – 9/276; and Karen Bennett – 1/276. -- 7 of 7 --