Australian Institute of Marine and Power Engineers' Union of Employees, Queensland District [2018] QIRC 144

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Australian Institute of Marine and Power Engineers' Union of Employees, Queensland District [2018] QIRC 144 PARTIES: Australian Institute of Marine and Power Engineers' Union of Employees, Queensland District (Applicant) CASE NO: RIO/2018/228 PROCEEDING: Orders about invalidities or its effects DELIVERED ON: 28 November 2018 HEARING DATE: 28 November 2018 MEMBER: HEARD AT: Thompson IC Brisbane ORDERS: 1. Since 19 March 2016 an invalidity or invalidities by the AIMPEQ have occurred in the: (i) management and administration; and (ii) election of officers. 2. Pursuant to s 837 of the Act it is ordered that: (i) the decisions of the office bearers of AIMPEQ, as constituted prior to the date of this Order, that may have been affected by invalidities, so that any act, matter or thing was rendered invalid, be remedied and validated; -- 1 of 7 -- 2 (ii) that the office bearers of the AIMPEQ shall, on and from the date of this order be constituted by: - Peter John Toohey, Secretary - Bradley John Ready, President - Frank George Seymour, Treasurer; (iii) and that the persons above shall be treated as the Committee of Management of the AIMPEQ for all purposes until the term of office of those office bearers either expires or ends; and (iv) all acts, matters and things done purportedly on behalf of the AIMPEQ since 19 March 2016 to the date of this Order, be declared valid acts, matters or things done on behalf of the AIMPEQ. 3. The effective date of the declaration and Orders is 28 November 2018. CATCHWORDS: INDUSTRIAL LAW – INDUSTRIAL ORGANISATIONS - ORDERS ABOUT INVALIDITIES - Legislation - Obligations under the Act had not been met - Invalidities occurred - Invalidities remedied and validated - Office bearers LEGISLATION: Industrial Relations Act 2016 (Qld) s 835, s 836, s 837 APPEARANCE: Mr B. Matthey of the Australian Institute of Marine and Power Engineers' Union of Employees, Queensland District, Applicant. -- 2 of 7 -- 3 Reasons for Decision Background [2] An application was lodged by Peter John Toohey (Toohey) the Secretary of the Australian Institute of Marine and Power Engineers' Union of Employees, Queensland District (AIMPEQ) on 13 November 2018 for the purposes of remedying invalidities that had occurred and to validate any act or conduct rendered invalid. [3] The objects of the application was identified as: THAT the Commission: 1. decide under s 835 that since 19 March 2016 an invalidity or invalidities of the Australian Institute of Marine and Power Engineers' Union of Employees, Queensland District (AIMPEQ) have occurred in the: (i) management and administration; and (ii) election or appointment of officers AND 2. the Commission make an Order that under s 837: (i) the decisions of the office bearers of AIMPEQ, as constituted prior to the date of this Order, that may have been affected by invalidities, so that any act, matter or thing was rendered invalid, be remedied and validated. (ii) that the office bearers of the AIMPEQ shall, on and from the date of this order be constituted by: - Peter John Toohey, Secretary - Bradley John Ready, President - Frank Seymour, Treasurer. (iii) and that the persons above shall be treated as the Committee of Management of the AIMPEQ for all purposes until the term of office of those office bearers either expires or ends. (iv) All acts, matters and things done purportedly on behalf of the AIMPEQ since 19 March 2016 to the date of this Order, be declared valid acts, matters or things done on behalf of the AIMPEQ. Applicant [4] The Secretary of AIMPEQ (Toohey) provided an affidavit (dated 12 November 2018) in which he stated: -- 3 of 7 -- 4  he was the elected Branch Secretary of the counterpart Federal Union registered under the Fair Work Act 2009 and operates a Queensland Branch from the same registered office;  members of the AIMPEQ are also members of the Federal Union;  both the State and Federal entities as far as practicable had operated to harmonise management and administration of the Union's affairs;  AIMPEQ finances are administered through the Federal Union accounting records and bank accounts; and  AIMPEQ had previously made two similar applications to the Queensland Industrial Relations Commission (QIRC) which resulted in the QIRC issuing Certificates Protecting Against Invalidity on: - 18 December 1992; and - 16 May 2008. [5] Effectively AIMPEQ had been granted exemption from holding election for all officers due to elections being held by the Federal Union from 16 May 2008 to 11 December 2014. However the exemptions granted for positions expired in the following terms:  AIMPEQ - Secretary - 29 August 2016;  AIMPEQ - President - 14 March 2016; and  AIMPEQ - Treasurer - 16 September 2015. AIMPEQ had not conducted elections since the expiry of the last exemptions. [6] The Federal Union had held valid elections for the corresponding offices of Secretary, President and Treasurer as the terms of those officers having expired. The Australian Electoral Commission had declared the following persons elected:  AIMPEQ President - Bradley John Ready - elected on 5 April 2016 and 16 April 2018 - Term of office being two years;  AIMPEQ Secretary - Peter John Toohey - elected 5 April 2016 - Term of office being four years; and  AIMPEQ Treasurer - Frank George Seymour - elected on 16 September 2015 and 6 September 2017 - Term of office being two years. -- 4 of 7 -- 5 It was the intention of the three previously mentioned office holders to continue in their positions for the full period of their elected term. [7] AIMPEQ had continued to make applications, agreements, service awards and participate in the QIRC in addition to continued compliance with registration requirements by the filing of declarations regarding membership and finances. [8] AIMPEQ has no debt, creditors or Orders in existence or pending and the validation of the acts (if granted) would not prejudice AIMPEQ members or other parties. In fact validation would benefit members and other parties to the extent it validates decisions, acts or things done on behalf of the AIMPEQ and members. [9] The failure to make the applications for exemptions from elections based on the election results of the Federal Union was an administrative oversight due to changes of staff and workplace allocation with no intention to avoid obligations under the Queensland jurisdiction. Legislation [10] Legislation pertinent to this application in accordance with the Industrial Relations Act 2016 (the Act) is: 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 -- 5 of 7 -- 6 (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. Conclusion [11] In respect of the application before the Commission I am satisfied that the applicant in these proceedings pursuant to s 836(a) of the Act is an organisation with the entitlement to make such an application. [12] In the determination of whether AIMPEQ had through an inadequate process caused an invalidity to occur by the failure to make applications for exemptions from elections for the office of AIMPEQ President, Secretary and Treasurer, it is open to find, based on the affidavit of Toohey (attached to the application) and subject to the requisite standard of proof that their obligations under the Act had not been met and therefore in accordance with s 835(2) of the Act I conclude that invalidities occurred as outlined by the applicant. Orders [13] Having considered the material before the Commission, I make the following Orders: 1. Since 19 March 2016 an invalidity or invalidities by the AIMPEQ have occurred in the: (i) management and administration; and (ii) election of officers. 2. Pursuant to s 837 of the Act it is ordered that: (i) the decisions of the office bearers of AIMPEQ, as constituted prior to the date of this Order, that may have been affected by invalidities, so that any act, matter or thing was rendered invalid, be remedied and validated; (ii) that the office bearers of the AIMPEQ shall, on and from the date of this order be constituted by: -- 6 of 7 -- 7 - Peter John Toohey, Secretary - Bradley John Ready, President - Frank George Seymour, Treasurer; (iii) and that the persons above shall be treated as the Committee of Management of the AIMPEQ for all purposes until the term of office of those office bearers either expires or ends; and (iv) all acts, matters and things done purportedly on behalf of the AIMPEQ since 19 March 2016 to the date of this Order, be declared valid acts, matters or things done on behalf of the AIMPEQ. 3. The effective date of the declaration and Orders is 28 November 2018. -- 7 of 7 --