Application for an Election Inquiry filed by John Norman Hockings [2013] QIRC 101

CITATION: Application for an Election Inquiry filed by John Norman Hockings (RIO/2013/30) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 500 - application for an election inquiry Application for an Election Inquiry filed by John Norman Hockings (RIO/2013/30) DEPUTY PRESIDENT O'CONNOR 18 July 2013 Application for an election inquiry - Election for positions of office within the QRTSA - Whether an "irregularity" occurred - Reasonable grounds to inquire found by Industrial Registrar - Matter referred to Commission for inquiry - Definition of "irregularity" - Irregularity found. DECISION [1] On 4 April 2013 Mr John Norman Hockings (the Applicant) filed an application in the Industrial Registry of the Queensland Industrial Relations Commission (the Commission) to conduct an election inquiry pursuant to s. 499 of the Industrial Relations Act 1999 (the Act). [2] On 5 September 2012 the Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers) (the QRTSA) lodged in the Registry, under s. 481 the Act, the information as prescribed in s. 34 of the Industrial Relations Regulation 2011 in relation to the conduct of an election by the Electoral Commission Queensland (the ECQ) for various positions of office. [3] On 11 September 2012 the Acting Industrial Registrar found that the election being sought was for positions of office within the meaning of the Act and required to be held under the Rules of QRTSA and under s. 482 of the Act, and made arrangements for the conduct of the elections for the various positions by the ECQ. (See decision RIO/2012/157) [4] On 19 March 2013, ECQ called for nominations from members of QRTSA for the aforementioned positions of office, with nominations opening Wednesday 20 March 2013 and closing no later than midday on Wednesday 17 April 2013. [5] On 8 April 2013 the Industrial Registrar determined that, in his view, reasonable grounds existed to inquire whether there has been an "irregularity" in the election process and thereby justifying a reference to the Commission. [6] The Industrial Registrar issued his decision on 8 April 2013 and set out the following reasons for referring the matter to the Commission pursuant to section of the Act: "[25] I am of the view that John Hockings was a member of QRTSA at the time ECQ called for nominations in the election. [26] I am aware that the statistical information of the number of members of QRTSA, filed in the Registry on 17 July 2012 states the number of Members as at 30 June 2012 was 835 (see s. 502(2) of the Act). The list provided by QRTSA to ECQ numbered 164. [27] It would appear that other persons who were members (and perhaps financial members) as at 31 December 2012 may have been removed from QRTSA's Register. [28] It appears that the Register of Members provided to ECQ by QRTSA for the purposes of ECQ notifying Members of the election of positions of office is incorrect. [29] It appears that an irregularity has occurred in a step in the election being conducted by ECQ in that QRTSA has contravened their Registered Rules by maintaining an incorrect Register of Members (see s. 409(a) of the Act). [30] I am satisfied that there are reasonable grounds to inquire whether there has been an irregularity in the election and I am satisfied that the circumstances justify an inquiry. [31] I have therefore decided to refer the matter to the Commission."1 1 John Norman Hockings (RIO/2013/30) - Decision <http://www.qirc.qld.gov.au>. -- 1 of 4 -- 2 [7] The Industrial Registrar found that an irregularity had occurred in a step in the election being conducted by ECQ in that QRTSA has contravened their Registered Rules by maintaining an incorrect Register of Members (see s. 409(a) of the Act). [8] The matter was referred to the Commission pursuant to s. 499 of the Act. [9] Section 499 of the Act provides as follows: "499 Commission may conduct election inquiry The commission may, on an application referred to it by the registrar under this part, conduct an inquiry (an election inquiry) about a claimed irregularity in an election for an organisation or branch." [10] Section 409 of the Act provides a definition for "irregularity" as follows: "409 Definitions for ch 12 ... irregularity includes— (a) a contravention of an organisation's rules; and (b) for an election or ballot, an act or omission by which the following is, or is attempted to be, prevented - (i) the full and free recording of votes by all persons who may record a vote and by no other persons; (ii) a correct working out or declaration of the results of the voting." [11] On 12 April 2013, after hearing submissions from the parties, the Commission made the following interim orders: "Pursuant to s. 504 of the Industrial Relations Act 1999, I order as follows: 1. That the Electoral Commission of Queensland be restrained from taking any steps to conduct an election for positions of office within the Queensland Retail Traders and Shopkeepers Association (Industrial Union of Employers) until such time as the referral from the Industrial Registrar dated 8 April 2013 is heard and determined by the Commission; 2. That within seven days of the date of this order, that the Secretary of the Queensland Retail Traders and Shopkeepers Association (Industrial Union of Employers) advise all members of the said organisation of the interim orders of the Commission and file with the Industrial Registry and serve on the applicant an affidavit certifying compliance with this order by no later than 4pm on Monday 22 April 2013; 3. That the Secretary of the Queensland Retail Traders and Shopkeepers Association (Industrial Union of Employers) within seven days of the date of this order, file in the Industrial Registry and serve on the applicant an affidavit exhibiting a certified copy of the Register of Members as and from 1 January 2012; 4. That this matter be adjourned until 2 pm on Friday 26 April 2013." [12] At paragraph 18 of the affidavit of Mrs Emma Jane Driscoll sworn on 23 April 2013, Mrs Driscoll states that the following motion was passed at a meeting of the Executive Committee on 30 November 2012: "… as at 26 October 2012 all IGA Group Subscription members of the QRTSA were to have their QRTSA membership cancelled and their names removed from the Register in accordance with Rule 12(a) of the Rules of the QRTA as in force from 12 September 2012." [13] In the affidavit of Mrs Driscoll sworn on 3 June 2013 she states: "6. Based upon the matters attested to in the aforementioned paragraphs of my said affidavit sworn 23 April 2013 and filed previously in these proceedings, and further discussions with Ferguson Cannon Lawyers, I am of the opinion that an irregularity occurred in relation to the calling of the election by the ECQ that resulted from the list of members that I provided to the ECQ being incorrect. This occurred as a result of discussions I had with QEC employees which resulted in me being provided incorrect information, as detailed in the aforementioned paragraphs of my said affidavit sworn 23 April 2013 and filed previously in these proceedings. -- 2 of 4 -- 3 7. The list of members that I provided to the ECQ was incorrect as it may not have included all members, as that term is defined by the Rules of the QRTSA as in force from 11 September 2012, due to the fact that if the Executive Committee had not cancelled the membership in accordance with Rules 12A that member’s name should have been recorded on the list even if that member had not paid the membership subscription fee unless that membership subscription fee had been outstanding for a period of two years (in which case the membership would have been cancelled in accordance with Rule 11)." [14] Mrs Driscoll accepted in her affidavit of 3 June 2013 that she had come to the opinion that an irregularity had occurred in the election process and it was appropriate for a fresh election to be called for the appointment of members to the Executive Committee of the QRTSA. Conclusions [15] Having considered the submissions and the material before the Commission, in particular, the affidavit of Emma Jane Driscoll sworn on 23 April 2013 and the further affidavit of Emma Jane Driscoll sworn on 3 June 2013, I find as follows: 1. That the meeting of the Executive Committee purportedly held on 30 November 2012 was an invalid meeting of the Executive Committee and was in contravention of the Constitution and Rules of the QRTSA; 2. That a quorum was not present, namely, five members of the Executive Committee in attendance; 3. That the meeting was not properly constituted in accordance with the Constitution and Rules of the QRTSA; 4. That no power exists either under the approved and registered Rules of the QRTSA or at common law to permit proxies; 5. That any resolution purportedly passed at the meeting of 30 November 2012 would have no effect; 6. That the Applicant was at the relevant time of calling the election for the Executive Committee, a member of the QRTSA as that term is defined by the Rules of the QRTSA; 7. That the Register of Members provided to ECQ by QRTSA for the purposes of ECQ notifying Members of the election of positions of office was incorrect. [16] In light of the above findings, I have concluded that an irregularity has occurred within the meaning of s. 409 of the Act. [17] If an irregularity is found, the Commission may, pursuant to s. 508 of the Act, make the following orders: "508 Orders if irregularity found (1) This section applies if the commission finds an irregularity has happened, or is likely to happen, in an election. (2) The commission may make an order— (a) for a fresh election or the repeat of a step in the election, including, for example, calling for and submitting nominations; or (b) amending the election rules of the relevant organisation or branch in a way it considers necessary to correct a procedural defect in the rules; or (c) directing safeguards it considers appropriate to stop irregularities in the election, fresh election or repeat step; or (d) appointing a returning officer to act with any returning officer appointed under the rules; or (e) providing for the powers of a returning officer appointed under paragraph (d). (3) Also, the commission may, by order, if it finds the election result may have been, or may be, affected by the irregularity or a similar irregularity, declare— (a) the election, or a step taken in or for it, to be void; or (b) a person apparently elected in the election not to have been elected; or (c) a person to have been elected at the election instead of a person declared not to have been elected. (4) The commission may make any other order that is consequential to an order under this section." Orders [18] Pursuant to s. 508 of the Industrial Relation Act 1999, I order as follows: -- 3 of 4 -- 4 1. That the conduct of the election of officers of the Queensland Retail Traders and Shopkeepers Association (Industrial Organisation of Employers) pursuant to the Decision of the Queensland Industrial Registrar to be conducted by the Electoral Commission of Queensland is void; and 2. That a fresh election of officers of the Queensland Retail Traders and Shopkeepers Association (Industrial Organisation of Employers) be conducted. D. L. O'CONNOR, Deputy President. Hearing Details: 2013 12 & 26 April 30 May 26 June Released: 18 July 2013 Appearances: Mr C. Dorber, Employment Advocacy Solutions, for the Applicant. Mr S. Barber & Ms Z. Kilmartin, Ferguson Cannon Lawyers, for Mrs Driscoll. No appearance for the Respondent. -- 4 of 4 --