Construction, Forestry, Mining and Energy, Industrial Union of Employees, and Queensland and Australian Building Construction Employees and Builders' Labourers Federation (Queensland) Union of Employees [2014] QIRC 2

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Re: Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland and Australian Building Construction Employees and Builders' Labourers Federation (Queensland) Union of Employees [2014] QIRC 002 PARTIES: Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland and Australian Building Construction Employees Builders' Labourers Federation (Queensland) Union of Employees (Applicants) CASE NO/S: RIO/2013/160 RIO/2013/161 RIO/2013/162 PROCEEDING: Application for Amalgamation Ballot Application for Community of Interest Declaration Application for exemption from Ballot DELIVERED ON: 10 January 2014 HEARING DATE: 7 January 2014 MEMBER: Industrial Commissioner Fisher ORDERS: 1. The application for amalgamation ballot is allowed. 2. There is a community of interests between the CFMEUQ and the BLF about their industrial interests. 3. The CFMEUQ is exempted from the requirement to hold a ballot for the amalgamation. 4. Pursuant to s 634 of the Act that, upon the amalgamation taking effect in accordance with the Act, the list of registered callings of the BLF be added to those of the CFMEUQ. CATCHWORDS: INDUSTRIAL LAW - APPLICATION FOR AMALGAMATION BALLOT - APPLICATION FOR COMMUNITY OF INTEREST DECLARATION - APPLICATION FOR EXEMPTION FROM BALLOT - Scheme -- 1 of 8 -- 2 for proposed amalgamation - Written scheme outline - Resolution management committee - Assets and liabilities of the deregistering entity become those of proposed amalgamating industrial organisation - Application jointly made - Application meets ballot conditions - Application for amalgamation ballot allowed - Community of interest declaration made - Application for exemption from ballot stated the ground was the number of members - Included signed affidavit stating compliance - Management committee resolved to make application - Members notified - Proposed timetable for conduct of ballot submitted - Exemption from amalgamation ballot allowed. CASES: Industrial Relations Act 1999, s 618, s 620 (2), s 634 Industrial Relations Regulation 2011, Part 13, s 54, s 57, s 58, s 60, s 61, s 62, s 64, s 69, s 72, s 77, s 84, s 86 Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees and Queensland Blind Workers Union of Employees (2002) 171 QGIG 885 APPEARANCES: Mr J Payne, Hall Payne Lawyers. [1] The following three applications are before the Queensland Industrial Relations Commission (the Commission) for determination: 1. Application for Amalgamation Ballot: RIO/2013/160; 2. Application for Community of Interest Declaration: RIO/2013/161; and 3. Application for Exemption from Ballot: RIO/2013/162. [2] The proposed amalgamation is between the Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland (CFMEUQ) and the Australian Building Construction Employees and Builders' Labourers' Federation (Queensland) Union of Employees (BLF). [3] A public notice as required by s 77 of the Industrial Relations Regulation 2011 (the Regulations) was published in the "Courier Mail" and on the website of the Commission on 29 November 2013. The Notice provided for a period of 28 days from the date of publication for lodgement of Notices of Objection to the application to submit the proposed amalgamation to a ballot. No Notices of Objection were received by the Industrial Registry within the prescribed time frame. -- 2 of 8 -- 3 [4] Section 618 of the Industrial Relations Act 1999 (the Act) provides: "The commission may, by order, approve an amalgamation only if - (a) the procedure for carrying out an amalgamation prescribed under a regulation has been complied with; and (b) the rules of the amalgamated organisation comply with parts 3 and 4." [5] The relevant regulations are found in Part 13 of the Regulations. RIO/2013/160 Application for Amalgamation Ballot [6] Section 62(3) of the Regulations provides that an application to submit a proposed amalgamation to a ballot must be accompanied by a copy of the scheme for the proposed amalgamation and a written scheme outline. It is useful to address the Regulations governing these matters before the Commission considers the application for amalgamation ballot. [7] Section 57 of the Regulations provides that the scheme for a proposed amalgamation must be approved by resolution of the management committee of each existing organisation the scheme is about. The management committee of the CFMEUQ is the Management Committee Queensland: r A22 of the CFMEUQ. The approval for the amalgamation and the scheme was made by resolution of this body on 23 October 2013. The management committee of the BLF is the Executive Committee: r 14 of the BLF. Its approval for the amalgamation and the scheme was made by resolution on 9 October 2013. Accordingly, s 57 of the Regulations has been satisfied. [8] Section 58 of the Regulations sets out the requirements of the scheme for the proposed amalgamation. Section 58(1)(a) requires the general nature of the amalgamation to be shown. The scheme of the amalgamation is that the CFMEUQ is the host organisation and, on amalgamation, the BLF will be deregistered and the CFMEUQ will remain as the registered organisation and retain its name. [9] All members of the proposed deregistering organisation will become, on amalgamation, without the payment of an entrance fee, members of the CFMEUQ: s 58(b). [10] It is not proposed to extend the existing organisation's eligibility rules beyond the eligibility rules of both the CFMEUQ and the BLF which are contained in the eligibility rule of the proposed amalgamated organisation. As a result there are no particulars of any proposed amendments pursuant to s 58(1)(d) of the Regulations. [11] In accordance with s 58(1)(e) 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. [12] In accordance with s 58(1)(f) and (g), the arrangements that will exist on amalgamation in relation to the assets and liabilities of the proposed deregistering organisations are set out at paragraphs 11, 12 and 13 of the scheme and provide in -- 3 of 8 -- 4 accordance with the Act that the assets and liabilities of the deregistering entity become those of the proposed amalgamating industrial organisation. [13] From the above, the Commission is satisfied that relevant provisions of s 58 of the Regulations have been met. [14] Section 60 of the Regulations makes provision for the Commission to permit the amalgamating organisations to amend the amalgamating schemes including the proposed rules of the proposed amalgamated organisation: s 60(1) and (3). Here, the applicants seek amendments to the proposed rules: (i) clarifying that the real and personal property of the BLF will be transferred to the amalgamated organisation; (ii) ensuring consistency in the language of the rules with respect to Regional Rank and File Meetings; and (iii) formatting with respect to numbering. [15] The Secretary of the CFMEUQ and the Secretary of the BLF have both agreed to the proposed amendment to the transitional rule regarding property and the management committees of each of the amalgamating organisations have by resolution also approved the amendments to this transitional rule as part of the scheme. In the circumstances where the proposed amendments are primarily of a formal or clerical nature, the Commission approves the amalgamation scheme be amended in the manner sought and set out in the affidavit of James Steadman. [16] Section 61 of the Regulations makes provision for scheme outlines and at (1) provides that the scheme outline must have no more than 3000 words unless the Commission approves otherwise. Here, the outline has 3257 words and the applicants seek that the Commission approve the number of words. The Commission has perused the scheme outline and notes that it contains all relevant information as well as a table setting out the structure. The Commission considers that although the number of words exceeds that specified in s 61(1), it is appropriate to approve the number of words contained in the scheme. The Commission may also approve things, other than words appearing in the scheme outline: s 62(2). In the event that a table is considered to be a thing other than words, the Commission also approves its inclusion. [17] Section 62 of the Regulations sets out the requirements to be satisfied in relation to an application to submit a proposed amalgamation to a ballot. The Commission is satisfied that the application was jointly made by the existing organisations, viz., the CFMEUQ and the BLF: s 62(2). Certain things are required of the ballot application: s 62(3). [18] In relation to the procedural steps required to be taken the Commission received an affidavits filed by Michael Ravbar, a member of the Management Committee of the CFMEUQ. Having read the application and Mr Ravbar's affidavit the Commission is satisfied that the requirements listed in s 62(3)(a) to (e) and s 62(5) have been met. (Section 62(4) is not relevant for present purposes.) [19] Section 69 of the Regulations allows for the filing of a "yes" case in the Registry which the applicants have elected to do. It contains not more than 2000 words. -- 4 of 8 -- 5 Section 72 of the Regulations provides that things other than words, such as diagrams, illustrations and photographs may be included in the "yes" case with the approval of the Commission. The "yes" case seeks to include things other than words, in this case, ticks and boxes. Having viewed the "yes" case the Commission grants its approval for these things in the "yes" case. [20] Section 84 of the Regulations provides that 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 that certain conditions set out in (1)(a) to (f) of the section are met. Having read the material filed and the submission made in support of the application the Commission is satisfied that: (i) the application complies with s. 62 of the Regulation: s 84(1)(a) of the Regulation; (ii) a person ineligible for membership of an existing organisation for the amalgamation will not be eligible for membership of the amalgamated organisation: s 84(1)(c); (iii) the proposed amalgamated organisation's rules do not contravene the Act or an industrial instrument: s 84(1)(e); and (iv) a proposed deregistration, here, of the BLF, complies with the Act: s 84(1)(f). [21] In relation to the remaining provisions, s 84(1)(b) requires the ballot application meet the condition that the amalgamation involves registering a proposed organisation. As mentioned earlier, the scheme of the amalgamation is that the CFMEUQ is the host organisation and, on amalgamation, the BLF will be deregistered and the CFMEUQ will remain as the registered organisation. Section 620(2) of the Act recognises the circumstance where a proposed amalgamated organisation is already registered. This view was also accepted in Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees and Queensland Blind Workers Union of Employees.1 As the name of the host organisation will not change on amalgamation, s 84(1)(c) of the Regulations is not a relevant consideration. [22] For the above reasons the Commission is satisfied that the application meets the ballot conditions provided by s 84 of the Regulations. The Commission allows the application and approves the submission of the amalgamation to ballot. RIO/2013/161 Community of Interest Declaration [23] Section 54 of the Regulations sets out the requirements in order for the Commission to make a declaration about a community of interest between existing organisations about their industrial interests. The application which has been filed by both organisations meets the requirements of s 54(2). [24] Section 54(6) provides: "There is a community of interest between existing organisations about their industrial interests if - 1 Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees and Queensland Blind Workers Union of Employees (2002) 171 QGIG 885. -- 5 of 8 -- 6 (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) engaged 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." [25] The Applicants submit that a substantial number of members of the CFMEUQ are either: (i) eligible to become members of the BLF; (ii) engaged in the same work or industry or in aspects of the same or similar work or industry as members of the BLF; (iii) bound by the same industrial instruments as members of the BLF; and/or (iv) employed in the same or similar work by employers engaged in the same industry as members of the BLF. [26] Further, that a substantial number of members of the BLF are either: (i) eligible to become members of the CFMEUQ; (ii) engaged in the same work or industry or in aspects of the same or similar work or industry as members of the CFMEUQ; (iii) bound by the same industrial instruments as members of the CFMEUQ; and/or (iv) employed in the same or similar work by employers engaged in the same industry as members of the CFMEUQ. [27] Based on the information provided in the affidavits of Mr Ravbar and Mr Hanna, I am satisfied as to the accuracy of the submissions made by the applicants in respect of the above matters listed in (i) to (iv) in the two preceding paragraphs. Given my work in the Commission, I also note the present overlap between the CFMEUQ and the BLF in respect of the work or industry, industrial instruments and employers. For these reasons the Commission declares there is a community of interest between the existing organisations about their industrial interests: s 54(5). RIO/2013/162 Application for Exemption from Ballot [28] Given that the Commission has approved the application for the amalgamation ballot, consideration must now be given to the third application, viz., the application made by the CFMEUQ for exemption from ballot. Section 64(2) of the Regulations -- 6 of 8 -- 7 provides that an application may be made only on the ground that the number of persons that could become members of the proposed amalgamated organisation is not more than 25 per cent of the number of members of the applicant when the application was filed. [29] The application for exemption from ballot was filed together with the application for amalgamation ballot; stated that the ground was the number of members of the CFMEUQ; was signed by the Secretary of the CFMEUQ and was accompanied by an affidavit from Mr Ravbar stating that subsection (4)(b) of the Regulations had been complied with. That subsection requires that the application be made only if the applicant's management committee has resolved to make the application and had notified the members of the organisation in one of the ways set out in the subsection. The Commission is satisfied that the CFMEUQ has complied with the requirements of s 64(3) and (4) of the Regulations. [30] Mr Ravbar's affidavit attests to there being, at the time of filing the application, 22462 members of the CFMEUQ and to his belief that there were 4600 members of the BLF. It was therefore submitted by the CFMEUQ that because the number of members of the BLF was less than 25 per cent of the members of the CFMEUQ at the time of filing the Commission must allow the CFMEUQ an exemption from the requirement to hold a ballot for the amalgamation. [31] Section 86(2) of the Regulations provides that if the number of members of the proposed amalgamated organisation is not more than 25 per cent of the number of members of the applicant when the application was filed, the Commission must allow the ballot exemption unless special circumstances exist. Based on Mr Ravbar's affidavit, the Commission is satisfied the number of members of the BLF was less than the 25 per cent of the number of members of the CFMEUQ at the time the CFMEUQ filed the application. There are no special circumstances. Accordingly, the exemption from amalgamation ballot is allowed. [32] In light of this decision, the CFMEUQ's members are taken to have approved the proposed amalgamation: s 86(3). Ballot Timetable [33] At the hearing of these applications the Commission was provided with a proposed timetable for the conduct of the ballot of the BLF members. Pursuant to s 91 of the Regulations, the Commission has consulted with the Electoral Commission Queensland about fixing days and times for the ballot to start and finish and the roll cut-off day. Taking those matters into account I fix the following dates and times: Roll cut off day 10 January 2014 Ballot opens 9.00 am 11 February 2014 Ballot closes 4.00 pm 25 February 2014. -- 7 of 8 -- 8 Callings [34] The applicants seek that the Commission act pursuant to s 634 of the Act to effect an amendment to the registered callings of the CFMEUQ by adding the registered callings of the BLF. The Commission has considered the submission, which I have been advised is not inconsistent with past practice, and accepts it is a step necessary to give effect to the amalgamation. Accordingly, the Commission orders pursuant to s 634 of the Act that, upon the amalgamation taking effect in accordance with the Act, the list of registered callings of the BLF be added to those of the CFMEUQ. [35] The Commission makes the following orders: 1. The Commission allows the application for amalgamation ballot. 2. There is a community of interests between the CFMEUQ and the BLF about their industrial interests. 3. The CFMEUQ is exempted from the requirement to hold a ballot for the amalgamation. 4. Pursuant to s 634 of the Act that, upon the amalgamation taking effect in accordance with the Act, the list of registered callings of the BLF be added to those of the CFMEUQ. [36] Order accordingly. -- 8 of 8 --