Application for an Amalgamation Ballot for the Proposed Amalgamation of The Electrical Trades Union of Employees Queensland and the Australian Federated Union of Locomotive Employees, Queensland Union of Employees [2017] QIRC 3

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Re: Application for an Amalgamation Ballot for the Proposed Amalgamation of The Electrical Trades Union of Employees Queensland and the Australian Federated Union of Locomotive Employees, Queensland Union of Employees [2017] QIRC 3 PARTIES: The Electrical Trades Union of Employees Queensland and Australian Federated Union of Locomotive Employees, Queensland Union of Employees (Applicants) CASE NO: RIO/2016/117 PROCEEDING: Application for an Amalgamation Ballot for a Proposed Amalgamation DELIVERED ON: 6 February 2017 HEARING DATE: 2 February 2017 HEARD AT: Brisbane MEMBER: Vice President Linnane ORDERS: Application to Submit a Proposed Amalgamation to Ballot is approved. CATCHWORDS: Application to Submit a Proposed Amalgamation to Ballot - Application approved CASES: Industrial Relations Act 1999, s428, s631, s 634 Industrial Relations Regulations 2011, s 57, s 58, s 61, s 62, s 69, s 72, s 77, s 81, s 108 APPEARANCES: Mr J. Payne of Hall Payne Lawyers and with him Mr D. Blackmore for both The Electrical Trades Union of Employees Queensland and the Australian Federated Union of Locomotive Employees, Queensland Union of Employees -- 1 of 13 -- 2 Decision [1] On 22 November 2016 The Electrical Trades Union of Employees Queensland (ETU) and the Australian Federated Union of Locomotive Employees, Queensland Union of Employees (AFULE) filed an application seeking to submit a proposed amalgamation to ballot. On the same date the ETU and the AFULE also filed an application for a Community of Interest Declaration (RIO/2016/119) and the ETU filed an application for exemption from ballot (RIO/2016/118). Both RIO/2016/118 and RIO/2016/119 are the subject of decisions released at the same time as this decision. [2] This Application is supported by:  an Affidavit of Peter Simpson, State Secretary of the ETU, attesting to those matters required for an Application to Amalgamation Ballot which is Schedule 1 to the Application;  an Affidavit of Mr Simpson sworn on 25 October 2016 stating that s 62(5) of the Regulation will be complied with;  an Affidavit of Greg Smith, State Secretary of the AFULE, sworn on 22 November 2016 stating that s 62(5) of the Regulation will be complied with; and  a further Affidavit of Mr Simpson sworn 12 December 2016 stating that s 62(5) of the Regulation has been complied with. [3] The public notice required by s 77 of the Industrial Relations Regulation 2011 (Regulation) was published by the Industrial Registrar in the Courier Mail and on the Queensland Industrial Relations Commission's (Commission) website on 25 November 2016. That Notice provided for a period of objection of forty-two (42) days. That Notice period ended on 6 January 2017. I have been advised by staff of the Industrial Registry that no objection had been filed in the Industrial Registry. [4] The Application is further supported by the ETU State Executive resolution dated 8 August 2016, the AFULE Committee of Management resolution dated 28 July 2016, the Scheme of Amalgamation, the Outline, the "Yes" Case and the proposed rules for the amalgamated organisation. Mr Simpson attests, either from his direct knowledge or on information and belief, to the following matters:  the resolution of the State Executive of the ETU;  the resolution of the AFULE Committee of Management;  the Notice that was placed in the ETU's journal for members of the ETU; and  the Notice that was placed in the AFULE's journal for members of the AFULE. -- 2 of 13 -- 3 [5] Scheme of Amalgamation: Section 57 of the Regulation provides as follows: "Management committee approval (1) A scheme for a proposed amalgamation and any changes to the scheme must be approved by each existing organisation the scheme is about. (2) A scheme for a proposed withdrawal and any changes to the scheme must be approved by the constituent part seeking to withdraw. (3) An approval under subsection (1) may be given only by the organisation's management committee. (4) The management committee's approval must be by resolution. (5) Despite an existing organisation's rules, the following are taken to have been made under its rules if approved by its management committee's (a) a scheme; (b) a scheme amendment; (c) any proposed amendment of its rules in a scheme." [6] Pursuant to s 57(1) of the Regulation, a scheme for a proposed amalgamation and any changes to the scheme must be approved by each existing organisation involved in the scheme. Approval under s 57(1) of the Regulation may be given only by the management committee of each of the organisations involved and each of the management committees' approval must be by resolution. Despite the existing organisation's rules, the scheme, a scheme amendment and any proposed amendment of the rules in a scheme is taken to have been made under its rules, if approved by its management committee's resolution. [7] Pursuant to rule 32 of the ETU rules, the management committee of the ETU is the State Executive. Pursuant to rule 12 of the AFULE's rules, the management committee of the AFULE is the Committee of Management. Approval for amalgamation was made by resolution of the State Executive of the ETU on 8 August 2016 and by the Committee of Management of the AFULE on 28 July 2016. Thus the management committee of both the ETU and the AFULE approved, by resolution, the Scheme. Thus the management committees of the ETU and the AFULE have given, by resolution, approval for amalgamation in accordance with s 57 of the Regulation. [8] Contents of Scheme: Section 58 of the Regulation provides as follows: -- 3 of 13 -- 4 "Amalgamation or withdrawal scheme (1) The scheme for a proposed amalgamation must state the following- (a) the general nature of the amalgamation, showing - (i) the existing organisations; and (ii) if an existing organisation is the proposed amalgamated organization - that fact; and (iii) if an association proposed to be registered as an organisation is the proposed amalgamated organization - that fact and its name; and (iv) the organisations that are proposed to be deregistered; (b) that all members of the proposed deregistering organisations are to become, on amalgamation, without payment of an entrance fee, members of the amalgamated organisation; (c) if it is proposed to change an existing organisation's name- particulars of the proposed change; (d) if it is proposed to amend an existing organisation's eligibility and other rules-particulars of the proposed amendments; (e) if an association is proposed to be registered as an organisation-its eligibility and other rules; (f) if it is proposed to change an existing organisation's list of callings - particulars of the proposed change; (g) the arrangements that will exist on amalgamation in relation to the property of the proposed deregistering organisations; (h) the arrangements that will exist on amalgamation in relation to the liabilities of the proposed deregistering organisations. (2) The scheme for a proposed withdrawal must state the following - (a) the general nature of the withdrawal, showing - (i) the amalgamated organisation; and (ii) the name and rules of the proposed newly registered organisation; -- 4 of 13 -- 5 (b) that all constituent members are to become on withdrawal, without payment of an entrance fee, members of the newly registered organisation. (3) Subsections (1) and (2) do not limit the matters stated in a scheme." [9] A copy of the Scheme is contained in the Application as ETUQ5. In accordance with s 58(1) of the Regulation, the Scheme demonstrates the general nature of the amalgamation, it outlines the existing organisations, the fact that the ETU is the proposed amalgamated organisation and that the AFULE is proposed to be deregistered should the ballot for amalgamation be approved. [10] In accordance with s 58(1)(b) of the Regulation, paragraphs 9 and 10 of the Scheme provides that all members of the proposed deregistering organisation are to become, on amalgamation, without payment of an entrance fee, members of the amalgamated organisation. In accordance with s 58(1)(a) of the Regulation:  the name of the proposed amalgamated organisation, provided by the Scheme, is "The Electrical Trades Union of Employees Queensland;"  it is not proposed to change the existing (host) organisation's name; and  the ETU is to be the host organisation and it will retain its name, consequently there are no particulars of a proposed change pursuant to s 58(1)(c) of the Regulation. [11] In accordance with s 58(1)(d), the eligibility rule of the proposed amalgamated organisation is as follows: "Section A (a) The Union shall consist of an unlimited number of employees engaged or usually engaged as Electrical Fitters, Armature Winders, Electrical Mechanics, Battery Fitters, Railway Electricians, Telephone Fitters, Radio Workers, Cable Jointers, Linesmen, Arc Lamp Trimmers, Electrical Labourers, Electric Crane Attendants, Rail Welders and their Assistants, Electric Welders whose work is associated with the work of an Electrician, and Electricians engaged or usually engaged or employed in running and maintaining Electric Plants, Dynamo, Motor and Switchboard Attendants, and all employees whose callings are peculiar to the Electrical Industry. Also all other persons whether employees in the industry or not as have been appointed officers of the Union and admitted as members thereof. (b) Notwithstanding the foregoing provisions of this rule, the union does not have the right to enrol as members, employees of Mount Isa Mines Limited covered by the Mount Isa Mines Limited Award and the Mount Isa Mines Limited Tracing Employees Industrial Agreement. -- 5 of 13 -- 6 (c) All categories of employees who are employed in or in connection with the generation of electricity at Gladstone Power Station, including employees of contractors and/or subcontractors, except for those employees of contractors and subcontractors employed in areas of contract commercial cleaning, contract catering and contract security. (d) Notwithstanding the foregoing rules, the following classes of person shall also be eligible for membership; all employees of sugar mills, refineries, distilleries, terminals, storage operations or other sectors of the sugar industry (herein called the ‘sugar industry’) who, on 16 December 1994 were eligible for membership of The Plumbers and Gasfitters Employees Union of Australia, Queensland Branch, Union of Employees and any persons employed in the sugar industry subsequent to 16 December 1994 who would have been eligible for membership of the abovementioned unions if so employed on 16 December 1994. (e) Notwithstanding any other provisions in these rules, a person employed in the Private Pathology Industry shall not be eligible to become a member of the Industrial Organisation. Section B (a) The Union shall consist of an unlimited number of persons eligible to be employed in the Railway Train Running Industry including Locomotive Drivers, Electric Train Drivers, Firemen, Electric-Helpers, Chargemen and Cleaners, Packers and Trimmers, Wash-out Men, Wash-out Men's Assistants, Motor Drivers and any other worker engaged in and about the working or management of or incidental to any Steam Locomotive, Diesel Electric Locomotives or Motor driven by electricity or other power used on the Railway. (b) Sub-rule (a) of this Section B shall apply provided that the Union shall only be eligible to represent members employed within Queensland." [12] It is not proposed to extend the existing organisations' eligibility rules beyond the current eligibility rules of both the ETU and the AFULE. The current eligibility rules of the ETU and the AFULE are contained in the eligibility rule of the proposed amalgamated organisation and there is, consequently, no particulars of any proposed amendments pursuant to s 58(1)(d) of the Regulation. [13] It is also not proposed to extend the existing organisations registered callings, with the callings of the ETU only being altered by adding the registered callings of the AFULE. In this regard the Applicants request that the Commission exercise the powers provided, in s 634 of the Industrial Relations Act 1999 (Act), to effect this amendment to the Registered Callings. [14] Insofar as s 58(1)(e) of the Regulation, the rules of the proposed amalgamated organisation (set out in the rules attached to the Application) provide for those matters that are required by the Act and the Scheme. The arrangements that will exist on amalgamation in relation to the assets and liabilities of the proposed deregistered organisation are, in accordance with s 58(1)(f) of the Regulation, set out at paragraphs 11, 12 and 13 of the Scheme and provide, in accordance with the Act, -- 6 of 13 -- 7 that the assets and liabilities of the deregistering entity become those of the proposed amalgamating industrial organisation. [15] Section 58(3) of the Regulation does not limit those matters to be stated in the Scheme. [16] Outline of Scheme: Section 61 of the Regulation provides, in relation to a Scheme, the Outline of the Scheme. Section 61 provides as follows: "61 Scheme Outline (1) A scheme outline must have no more than 3000 words, unless the commission approves otherwise. (2) The outline may, if the commission approves, include things other than words including, for example, diagrams, illustrations and photographs. (3) The commission may, before an amalgamation ballot begins, allow the existing organisations seeking amalgamation to amend the outline. (4) The commission may, before a withdrawal ballot begins, allow the constituent part seeking withdrawal to amend the outline. (5) The commission may amend the outline to - (a) correct factual errors; or (b) ensure it complies with the Act." [17] In accordance with s 61(1) of the Regulation, the Scheme Outline has 2930 words. The Outline of the Scheme provides all the necessary information. Rules, which appear compliant with the Act, have been prepared in accordance with the terms of the Scheme. [18] Rules of the Proposed Amalgamated Organisation: Rules, compliant with the Act have been prepared in accordance with the terms of the Scheme. Section 428 of the Act provides as follows: "428 Organisation must have complying rules (1) An organisation must have rules about the matters required of it under this part and part 4. (2) The organisation must give a copy of its rules to a person who asks for a copy and pays the amount prescribed under a regulation." [19] The Industrial Registry has had the benefit of reviewing the proposed Rules of the amalgamated organisation. The Industrial Registry has not identified any difficulties with the proposed rules. -- 7 of 13 -- 8 [20] Section 62 of the Regulation deals with the Application to Submit the Proposed Amalgamation to a Ballot and provides as follows: "62 Application to submit proposed amalgamation to ballot (1) An application may be made to the commission for an amalgamation ballot. (2) The application must be made jointly by the existing organisations and any association proposed to be registered as an organisation under the amalgamation. (3) The ballot application must - (a) be accompanied by - (i) a copy of the scheme for the proposed amalgamation; and (ii) a written scheme outline; and (b) nominate 1 of the applicants as the person authorised to receive on the applicants' behalf service of documents for the application, proposed amalgamation and each proposed alternative amalgamation; and (c) be signed by the president or secretary of each joint applicant; and (d) be accompanied by a copy of each resolution for the proposed amalgamation under section 57, signed by the president or secretary of the existing organisation whose management committee passed it; and (e) be accompanied by an affidavit by a member of each existing organisation's management committee stating that subsection (5)(b) has been complied with. (4) Service of a document on the applicant nominated under subsection (3)(b) is taken to be service on each of the applicants. (5) An application may be made only if each existing organisation's management committee has - (a) resolved to make the application; and (b) notify each member of the making of the resolution by - (i) giving the member a copy of the resolution; or -- 8 of 13 -- 9 (ii) including the resolution in a publication that the organisation gives to its members free of charge." [21] This Application has been made to the Commission for an amalgamation ballot pursuant to s 62(1) of the Regulation. The Application has been made jointly by the ETU and the AFULE pursuant to s 62(2) of the Regulation. The ballot application is accompanied by copies of the Scheme and the Outline as required by s 62(3)(a) of the Regulation. The ETU is nominated to receive on the Applicant's behalf service of documents for the application and the proposed amalgamation: see s 62(3)(b) of the Regulation. [22] Section 62(3)(c) of the Regulation has been complied with in that the Application is signed by the State Secretary of the ETU and the AFULE. The Application is accompanied by a copy of the resolution for the proposed amalgamation signed by the State President of the ETU and a similar resolution signed by the State Secretary of the AFULE: see s 62(3)(d) of the Regulation. In compliance with s 62(3)(e) of the Regulation, this Application is accompanied also by Affidavits of Mr Simpson, a member of the management committee of the ETU, and by Mr Smith, a member of the management committee of the AFULE. [23] I find that the requirements of an Application for Amalgamation Ballot have been made out given that the management committee of each of the ETU and the AFULE have resolved to make the Application pursuant to s 62(5)(a) of the Regulation, and further, that each member of both the ETU and the AFULE has been notified of the making of the resolution in accordance with s 62(5)(b) of the Regulation. [24] "Yes" Case: Section 69 of the Regulation provides as follows: "69 Filing 'yes' case (1) An existing organisation for a proposed amalgamation may file in the registry a written statement (a 'yes' case) supporting - (a) the proposed principal amalgamation; and (b) each proposed alternative amalgamation. (2) A constituent part that wants to withdraw from an amalgamated organisation may file a written statement (also a 'yes' case) supporting the withdrawal. (3) A 'yes' case must not be more than 2000 words. (4) A 'yes' case must be filed with the ballot application for the proposed amalgamation or withdrawal." [25] The Applicants have filed a "Yes" Case supporting the proposed amalgamation. The "Yes" Case is not more than 2000 words and was filed with this Application. [26] Section 72 of the Regulation provides as follows: -- 9 of 13 -- 10 "72 'Yes' or 'no' cases may include things other than words If the commission approves, a 'yes' or 'no' case may include things other than words, including, for example, diagrams, illustrations and photographs." [27] The Applicants seek the Commission's approval to include things other than words in the "Yes" Case. There is a tick included in the "Yes" Case. Approval is given, pursuant to s 72 of the Regulation, to include things other than words in the "Yes" Case. [28] In those circumstances, I find that the Applicants have complied with the requirements for the filing of a "Yes" Case. [29] Use of Resources for the Proposed Amalgamation: Section 631 of the Act provides as follows: "631 Using resources for proposed amalgamation (1) An existing organisation for a proposed amalgamation may use its financial and other resources to support the proposed amalgamation if - (a) its management committee has resolved to do so; and (b) the committee has given reasonable notice of its resolution to the organisation's members. (2) Subsection (1) does not limit an existing organisation's other powers to use its financial and other resources for the proposed amalgamation." [30] The State Executive of the ETU resolved on 8 August 2016 as follows: "15. the State Executive of the ETUQ, being the committee of management of the ETUQ, resolves that the ETUQ use its financial and other resources in support of the proposed amalgamation with the AFULEQ;". [31] The Committee of Management of the AFULE resolved on 28 July 2016 as follows: "15. the Committee of Management, being the committee of management of the AFULEQ, resolves that the AFULEQ use its financial and other resources in support of the proposed amalgamation with the ETUQ;". [32] The State Executive of the ETU and the Committee of Management of the AFULE have given notice of the resolution of the proposal to amalgamate to their members through notices being placed in their respective journals. I find that the notices in their respective journals is notice for the purposes of s 631(1)(b) of the Act. [33] In those circumstances I approve use of the financial and other resources of the ETU and the AFULE to support the proposed amalgamation. -- 10 of 13 -- 11 [34] Approval if no objection: Section 81 of the Regulation provides as follows: "81 Amalgamation ballot approval if no objections or objections withdrawn (1) At a hearing for a proposed amalgamation, the commission must allow the application and approve the submission of the amalgamation to ballot if it considers the application meets the following conditions (the ballot conditions) - (a) the application complies with section 62; (b) the amalgamation involves registering a proposed organisation; (c) a person ineligible for membership of an existing organisation for the amalgamation will not be eligible for membership of the amalgamated organisation; (d) if the name of the proposed amalgamated organisation is the same as another organisation's name or so similar to another organisations name as to be likely to cause confusion - the other organisation has consented in writing to the name; (e) the proposed amalgamated organisation's rules and any proposed amendment of an existing organisation's rules do not contravene the Act or an industrial instrument; (f) a proposed deregistration of an existing organisation complies with the Act. (2) If the commission considers the application does not meet the ballot conditions, it may allow the application only if satisfied the ballot conditions will be met by - (a) permitting the applicant to amend the scheme for the amalgamation; or (b) accepting the applicant's undertaking to amend the amalgamation scheme. (3) If the commission is not satisfied under either subsection (1) or (2) it must - (a) refuse the application; or (b) adjourn the proceeding. (4) A permission under subsection (2)(a) may - -- 11 of 13 -- 12 (a) despite an existing organisation's rules, allow the organisation to amend the scheme, including proposed alterations to the organisation's rules; and (b) provide for the procedure that, despite the rules, may or must be followed by the management committee for the application; and (c) be given on conditions stated by the commission. (5) If an undertaking under subsection (2)(b) or conditions under subsection (4) are contravened, the commission may - (a) amend the scheme; or (b) give orders or directions about - (i) holding the ballot; or (ii) the procedure for the amalgamation. (6) Subsections (3) and (5) do not limit the commission's other powers." [35] In circumstances where each of the ballot conditions contained in s 81(1)(a) to (f) of the Regulation have been met and no objection to the proposed amalgamation has been received by the Industrial Registry, I must allow the Application and approve the submission to ballot and I do so. Other Matters [36] Election Timetable: In view of my decision in RIO/2016/118 (delivered at the same time as this decision) where I exempted the ETU from holding a ballot of members in this proposed amalgamation, it is thus only a ballot of AFULE members that is required for the proposed amalgamation. I am in receipt of correspondence from the Electoral Commission of Queensland (Electoral Commission) to the effect that should I approve the application ballot, the Electoral Commission could accommodate the following ballot timetable:  Notice of Election forwarded to Members on Monday 13 February 2017;  Opening of the Ballot on Monday 20 February 2017; and  Closing of the Ballot on Friday 10 March 2017. [37] Section 108 of the Regulation however deals with who may vote in a ballot for a proposed amalgamation. I have been informed that the AFULE can do a snap shot of its list of members at any day. The roll cut-off date must be fixed by the Commission under s 108(1) of the Regulation. The day fixed must be at least 30 days and not more than 60 days before the ballot starts. On the timetable outlined in paragraph [36] hereof the ballot would open on 20 February 2017. In those circumstances I nominate the roll cut-off date at 20 January 2017. -- 12 of 13 -- 13 [38] A further issue arises with the timetable in paragraph [36] hereof. Under s 108(6) of the Regulation the manager of the ballot, the Electoral Commission, must ensure that the roll is completed no less than 14 days before the ballot starts. As this decision is only being released on 6 February 2017 it would be impossible for the Electoral Commission to have completed the roll no less than 14 days before the ballot starts. [39] In those circumstances I will amend the dates given to me by the Electoral Commission and order the following timetable for the conducting of the ballot in the proposed amalgamation:  Notice of Election forwarded to Members on Wednesday 15 February 2017;  Opening of the Ballot on Wednesday 22 February 2017; and  Closing of the Ballot on Monday 13 March 2017. [40] I am informed that this timetable is suitable to the Applicants. In those circumstances I approve the timetable in paragraph [39] hereof as the amalgamation ballot timetable. The roll cut-off date will remain at 20 January 2017. [41] List of Callings of the proposed amalgamated organisation: The Applicant organisations have also made application for the Commission to exercise its powers under s 634 of the Act to amend the Registered Callings of the amalgamated organisation. As outlined in paragraph [13] hereof, it is not proposed to extend the registered callings of the existing organisations i.e. the ETU and the AFULE. The Registered Callings of the amalgamated organisation will simply add the registered callings of the AFULE to the existing registered callings of the ETU. In the circumstances I am prepared to exercise the power in s 634 of the Act to incorporate the registered callings of the AFULE into the Registered Callings of the amalgamated organisation. -- 13 of 13 --