Agforce Queensland Industrial Union of Employers [2019] QIRC 30

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Agforce Queensland Industrial Union of Employers [2019] QIRC 030 PARTIES: Agforce Queensland Industrial Union of Employers (Applicant) CASE NO: RIO/2018/261 PROCEEDING: Orders about invalidities and their effects DELIVERED ON: HEARING DATE: 6 February 2019 21 January 2019 HEARD AT: Brisbane MEMBER: Industrial Commissioner Black ORDER: 1. Declarations that invalidities have occurred; 2. Orders validating election processes and election outcomes. CATCHWORDS: INDUSTRIAL ORGANISATIONS – ORDERS ABOUT INVALIDITIES – application by industrial organisation of employers – failure to conduct elections - declaration that invalidities have occurred – orders to remedy invalidities. CASES: Industrial Relations Act 2016, s 669, s 817, s 818, s 835, s 837. Industrial Relations Regulation 2011, s 34 APPEARANCES: Mr W Turner, agent for Agforce Queensland Industrial Union of Employers. Decision Background [1] This is an application made by Agforce Queensland Industrial Union of Employers (Agforce) pursuant to the provisions of s 836 of the Industrial Relations Act 2016 (the Act). [2] The object of the application is to remedy invalidities that have occurred, to change the effects of the invalidities, and to validate any act, matter or thing rendered invalid by the said invalidities. -- 1 of 4 -- 2 [3] The effect of the application is to seek the following relief:  a declaration pursuant to s 835 of the Act that invalidities have occurred in relation to a failure to appoint a returning officer for the years 2016 and 2018;  a declaration pursuant to s 835 of the Act that invalidities have occurred in relation to a failure to notify the Industrial Registrar of the appointment of a returning officer for the years 2016 and 2018;  a declaration pursuant to s 835 of the Act that invalidities have occurred in relation to a failure to file with the Industrial Registrar lists of officers and copies of financial statements;  a declaration pursuant to s 835 of the Act that invalidities have occurred in relation to a failure to conduct elections of office bearers of the Council of Agforce in 2016 and 2018;  an order pursuant to s 837 of the Act that the Council of Agforce shall from 15 November 2016 to the date of the next elections be constituted by the persons elected to office in 2014 pursuant to the Certificate of Election issued by the Electoral Commission of Queensland on 7 October 2014;  an order pursuant to s 837 of the Act that all acts, matters and things done on behalf of, or purported to be done on behalf of, persons acting, or purporting to act as, the Council of Agforce since 15 November 2016 are, to the date of the election of a new Council, declared valid acts, matters or things done on behalf of Agforce. [4] The application is supported by an affidavit of Grant Maudsley, the General President of Agforce, sworn on 21 November 2018. [5] In its application, Agforce states that in circumstances where the terms of office of office bearers elected in August 2014 expired on 15 November 2016, and where no further elections have been held since November 2016, it was necessary to ensure that the activities of the Union and the decisions taken by the office bearers of the Union since 15 November 2016 were not invalidated. [6] Other consequential invalidities have arisen from a non-compliance with the electoral processes mandated by the Union's rules and the Act, including a failure to appoint a returning officer in 2016 and 2018; a failure to notify the Industrial Registrar of the appointment of a returning officer for the years 2016 and 2018; and a failure to file with the Industrial Registrar a list of officers and copies of financial statements. [7] There is no evidence before me to suggest that the granting of this application would cause any prejudice to Agforce's membership nor is there any evidence before me to suggest that the making of the orders sought by the applicant would cause a substantial injustice to any of the entities mentioned in s 837(4) of the Act. -- 2 of 4 -- 3 [8] In the circumstances, I conclude that invalidities in the election process have emerged on and from 15 November 2016. In this regard s 835 of the Act 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. [9] Consistent with s 835 of the Act, I declare that invalidities have happened of the nature described in the preceding paragraphs of this decision. [10] The current application seeks to remedy these invalidities. In this regard, s 837 of the Act deals with orders about the effect of invalidities: 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. [11] Having read the application, including the affidavit of Mr Maudsley, and having heard the submissions of Mr Turner on behalf of Agforce, I make the following orders: 1. That the Council of Agforce Queensland Industrial Union of Employers shall from 15 November 2016 to the date of the next elections be validly constituted by the officers elected in 2014 pursuant to the Certificate of Election issued by the Electoral Commission of Queensland on 7 October 2014, for all purposes in accordance with the rules of Agforce Queensland Industrial Union of Employers. 2. That all acts, matters and things done on behalf of, or purported to be done on behalf of, persons acting, or purporting to act as, the Council of Agforce Queensland Industrial Union of Employers from 15 November 2016 to the date -- 3 of 4 -- 4 of the election of a new Council, are declared valid acts, matters or things done on behalf of Agforce Queensland Industrial Union of Employers. [12] The operative date of this declaration and these orders is 21 January 2019. -- 4 of 4 --