Application for a Declaration of a Community of Interest between The Electrical Trades Union of Employees Queensland, and the Australian Federated Union of Locomotive Employees, Queensland Union of Employees [2017] QIRC 5

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Re: Application for a Declaration of a Community of Interest between The Electrical Trades Union of Employees Queensland, and the Australian Federated Union of Locomotive Employees, Queensland Union of Employees [2017] QIRC 5 PARTIES: The Electrical Trades Union of Employees Queensland and Australian Federated Union of Locomotive Employees, Queensland Union of Employees (Applicants) CASE NO: RIO/2016/119 PROCEEDING: Application for a Declaration of a Community of Interest DELIVERED ON: 6 February 2017 HEARING DATE: 2 February 2017 HEARD AT: Brisbane MEMBER: Vice President Linnane ORDER: A Community of Interest Declaration is made between The Electrical Trades Union of Employees Queensland, and the Australian Federated Union of Locomotive Employees, Queensland Union of Employees. CATCHWORDS: Application for a Declaration of a Community of Interest - Application granted. CASES: Industrial Relations Act 1999 Industrial Relations Regulations 2011, s 54, s 56 The Queensland Public Sector Union of Employees and Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees (RIO/2010/170)<http://www.qirc.qld.gov.au -- 1 of 7 -- 2 The Federated Miscellaneous Workers Union of Australia and Federated Liquor and Allied Industries Employees Union of Australia (Print J8581) 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 Decision [1] On 22 November 2016 an application for a Declaration of a Community of Interest between The Electrical Trades Union of Employees Queensland (ETU) and the Australian Federated Union of Locomotive Employees, Queensland Union of Employees (AFULE) was filed in the Industrial Registry. Before considering the Community of Interest Application I must find that the Application for an Amalgamation Ballot has been made in accordance with the Industrial Relations Act 1999 (Act). [2] An Application for Amalgamation Ballot was also filed in the Industrial Registry on 22 November 2016 by the State President and State Secretary of the ETU and the State President and State Secretary of the AFULE: see s 54(2)(e) of the Industrial Relations Regulation 2011 (Regulation) That Application is RIO/2016/117. A decision in RIO/2016/117 is released at the same time as this decision. That decision makes a finding that the Application for an Amalgamation Ballot has been made in accordance with the Act. [3] Regulation 54 of the Regulation provides as follows: "54 Community of interest declaration (1) Existing organisations for a proposed amalgamation may jointly apply to the commission for a declaration under this section. (2) The application must - (a) state the grounds on which it is made; and (b) nominate 1 of the applicants as the person authorised to receive on the applicants' behalf service of documents for the application, a 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(4), signed by the president or -- 2 of 7 -- 3 secretary of the applicant whose management committee passed it; and (e) be filed in the registry before or with the ballot application for the proposed amalgamation. (3) Service of a document on the person nominated for subsection (2)(b) is taken to be service on each of the applicants. (4) If the application is filed before the ballot application, the commission must promptly fix a time and place to hear submissions on the application. (5) If, after a hearing under this section or section 80, the commission is satisfied there is a community of interest between the existing organisations about their industrial interests, it must make a declaration to that effect. (6) There is a community of interest between existing organisations about their industrial interests if - (a) a substantial number of members of 1 of the organisations are - (i) eligible to become members of the other organisation or each of the other organisations; or (ii) engage in the same work or industry or in aspects of the same or a similar work or industry as members (other members) of the other organisation or each of the other organisations; or (iii) bound by the same industrial instruments as other members; or (iv) for an employee organisation - employed in the same or similar work by employers engaged in the same industry as other members; or (b) the commission is otherwise satisfied there is a community of interest." [4] In terms of s 54(2)(a) of the Regulation, Schedule 1 to the Application states the grounds upon which this Application is made. Schedule 1 to the Application provides as follows: "1. An application for a Community of interest declaration must be filed in the registry before or with the ballot application for the proposed amalgamation. 2. The ETUQ and the AFULEQ have resolved to amalgamate. -- 3 of 7 -- 4 3. There is a community of interest existing between organisations about their industrial interests if: a) a substantial number of members of 1 of the organisations are: i) engaged in the same industry or in aspects of the same industry as members of the other organisation ("the other members"); or ii) bound by the same industrial instruments as the other members; or b) the commission is otherwise satisfied there is a community of interest. 4. The ETUQ and the AFULEQ make this application on the following grounds: a) there are: i) a substantial number of members of the ETUQ engaged in the same industry, or in aspects of the same industry, as members of the AFULEQ; and ii) a substantial number of members of the AFULEQ engaged in the same industry, or in aspects of the same industry, as members of the ETUQ; b) a substantial number of members of the ETUQ are engaged in industries in relation to which there is a community of interest with members of the AFULEQ as the organisations have a substantial number of members who are: i) working in the public rail sector; ii) working in the private rail sector; iii) performing work which requires a high level of technical skill; iv) employed in occupations where extensive experience and a high level of competency and responsibility are reflected in formal qualifications; and v) employed in shift work and/or are expected to work significant overtime; c) a substantial number of members of the AFULEQ are engaged in industries in relation to which there is a community of interest with -- 4 of 7 -- 5 members of the ETUQ as the organisations have a substantial number of members who are: i) working in the public rail sector; ii) working in the private rail sector; iii) performing work which requires a high level of technical skill; iv) employed in occupations where extensive experience and a high level of competency and responsibility are reflected in formal qualifications; and v) employed in shift work and/or are expected to work significant overtime; and d) for any other reason that the commission is otherwise satisfied that there is a community of interest." [5] The ETU is nominated to receive, on the Applicants’ behalf, service of documents for the Application: see s 54(2)(b) of the Regulation. The Application is signed by the State Secretary of both the ETU and the AFULE: see s 54(2)(c) of the Regulation. The Application is accompanied by a copy of each resolution for the proposed amalgamation which complies with s 54(2)(d) of the Regulation i.e. a resolution in support of amalgamation of the State Executive (management committee) of the ETU, signed by the President of the ETU, and a resolution in support of amalgamation of the Committee of Management (management committee) of the AFULE signed by the State Secretary of the AFULE. [6] Section 54(5) of the Regulation provides that, after a hearing, if I am satisfied that there is a community of interest between the existing organisations about their industrial interests, I must make a declaration to that effect. Section 54(6) of the Regulation then sets out when there is a community of interest between the existing organisations about their industrial interests. [7] The existing organisations place reliance on s 54(6)(ii) of the Regulation i.e. a substantial number of members of one organisation (the AFULE) is engaged in the same industry or in aspects of the same industry as members of the other organisation (ETU). The Commission was referred to the decision of Fisher C in Re: The Queensland Public Sector Union of Employees and Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees1 wherein it was stated that: "[3] The stated grounds of the application were that the QPSU maintains industrial interests in the same industry or aspects of the same or similar industry as members of the AMACSU as provided for in s 56(6)(a)(ii) of the Regulation. In addition, the AMACSU maintains industrial interests 1 The Queensland Public Sector Union of Employees and Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees (RIO/2010/170) – Decision <http://www.qirc.qld.gov.au> -- 5 of 7 -- 6 in the same industry or aspects of the same or similar industry as members of the QPSU as provided for in s 56(6)(a)(ii) of the Regulation. …” [12] A community of interest is established if one of the things mentioned in s 56(6) of the Regulation is shown. Based on the data and other information provided in the affidavits and having heard the submissions of the applicant unions I am satisfied that a substantial number of members of the QPSU and of the AMACSU are engaged in the same industry or aspects of the same or similar industry. On that basis the Commission is satisfied that the provisions of s 56(6)(a)(ii) have been met and there is a community of interest between the joint applicants about their industrial interests. Once satisfied the Commission must make a declaration to that effect. I so declare." [8] The ETU and the AFULE rely upon paragraph 4 of Schedule 1 to this Application (quoted in paragraph [4] hereof) in support of this Application. [9] The Affidavit of Greg Smith, the State Secretary of the AFULE, attests to the fact that all of the AFULE’s membership is engaged in either the private or public rail sector, with that membership being confined to train drivers, driver’s assistants and some limited number of train attendants. It is further submitted that the industry of the AFULE is the rail transport industry. According to the material filed in this Application, the AFULE has approximately 1,300 members. I am satisfied that rail transport is an industry. [10] The Affidavit of Peter Simpson, the State Secretary of the ETU, attest to the work performed by the relevant members of the ETU and to the industries in which they are engaged. The ETU has approximately 16,000 members and approximately 550 of those members are engaged working for private or public rail transportation operations. These roles include electrical fitters, signal electricians and/or electricians engaged in maintaining the physical infrastructure of the rail companies. I am further satisfied that the industry of these ETU members is the rail transport industry. Conclusion [11] Section 54(6)(a)(ii) of the Regulation provides that a community of interest will exist if a substantial number of members of one organisation work in the same industry or in aspects of the same industry or similar industries as members of the other organisation. It is only when a substantial number of members of one of the applicant unions shares the common relevant characteristic with members of the other applicant union that the requirement will be met. The substantial number requirement need only be present on one of the applicant organisations seeking amalgamation. [12] In Re The Federated Miscellaneous Workers Union of Australia and Federated Liquor and Allied Industries Employees Union of Australia2, a decision of Williams DP in the Australian Industrial Relations Commission, it was held: 2 The Federated Miscellaneous Workers Union of Australia and Federated Liquor and Allied Industries Employees Union of Australia M Print J8581 -- 6 of 7 -- 7 "For this purpose, "a substantial number of members" does not mean a majority of members but means a number of members that is of real importance or considerable as opposed to insubstantial or nominal when looked at in light of the total membership of the organisation concerned." [13] In this instance it is the whole of the membership of the AFULE that is engaged in the rail transportation industry. Whilst the membership of the AFULE is limited to 1,300 members it is the whole of that membership that is engaged in the rail transport industry. [14] Given the material contained in the Application itself and the submissions provided at the hearing of this application, I am satisfied that a substantial number of members of the AFULE are engaged in the same industry or aspects of the same industry as members of the ETU. Thus the requirements of s 54(6) of the Regulation have been met. I therefore declare a Community of Interest between the ETU and the AFULE about their industrial interests. -- 7 of 7 --