Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland, Federated Engine Drivers' and Firemens' Association of Queensland, Union of Employees, and Queensland Colliery Employees Union of Employees [2013] QIRC 63

CITATION: Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland, Federated Engine Drivers’ and Firemens’ Association of Queensland, Union of Employees, and Queensland Colliery Employees Union of Employees (RIO/2012/188) (RIO/2012/189) (RIO/2012/190) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Regulation 2011 - s. 54 - Community of interest declaration for amalgamation Industrial Relations Regulation 2011 - s. 62 - Application to submit proposed amalgamation to a ballot Industrial Relations Regulation 2011 - s. 65 - Ballot exemption - recognition of federal ballot Industrial Relations Act 1999 - s. 618 - Commission to approve proposed amalgamation Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland, Federated Engine Drivers’ and Firemens’ Association of Queensland, Union of Employees, and Queensland Colliery Employees Union of Employees (RIO/2012/188, RIO/2012/189, RIO/2012/190) DEPUTY PRESIDENT BLOOMFIELD 17 April 2013 DECISION [1] The Queensland Industrial Relations Commission (the Commission) as presently constituted has before it for consideration and determination three applications which are jointly made by the following: • Mr Michael Ravbar, State Secretary of Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland (CFMEUQ); • Mr Tim Whyte, Secretary of Federated Engine Drivers’ and Firemens’ Association of Queensland, Union of Employees (FEDFAQ); and • Mr Steven Smyth, State President of Queensland Colliery Employees Union of Employees (QCEUE). [2] The joint applications are as follows: • Matter No. RIO/2012/188 - an application pursuant to s. 54 of the Industrial Relations Regulation 2011 (the Regulation) seeking a declaration that there is a community of interest between CFMEUQ, FEDFAQ and QCEUE; • Matter No. RIO/2012/190 - an application pursuant to s. 62 of the Regulation to submit a proposed amalgamation to a ballot; and • Matter No. RIO/2012/189 - an application pursuant to s. 65 of the Regulation for an exemption from the requirement to hold a ballot for a proposed amalgamation. [3] The nature of the primary application before me (RIO/2012/190) is conveniently set out in Attachment CFMEUQ4 to the Affidavit of Mr Ravbar which was filed with the primary application. This Attachment, which records the scheme of amalgamation, states: "Scheme of amalgamation of the CFMEUQ, FEDFAQ and QCEUE 1. The proposed amalgamation is an amalgamation between, and the applicants to the amalgamation are, the: a) Construction, Forestry, Mining & Energy Union (sic), Industrial Union of Employees, Queensland (“CFMEUQ”); b) Federated Engine Drivers’ and Firemens’ Association of Queensland, Union of Employees (“FEDFAQ”); and c) Queensland Colliery Employees’ Union of Employees (“QCEUE”). 2. The counterpart federal body of the CFMEUQ is the Construction, Forestry, Mining and Energy Union (“CFMEU”); 3. The counterpart federal body of the FEDFAQ is the CFMEU. 4. The counterpart federal body of the QCEUE is the CFMEU. 5. The purpose of the amalgamation is to reflect the amalgamations of organisations, registered in the commonwealth jurisdiction, to form the CFMEU, insofar as those amalgamations are relevant to the CFMEUQ, the FEDFAQ and the QCEUE. 6. The CFMEUQ is the proposed amalgamated industrial organisation. -- 1 of 7 -- 2 7. The proposed deregistering industrial organisations will be the: a) FEDFAQ; and b) QCEUE. 8. The CFMEUQ is authorised to receive on behalf of the applicants, service of documents in connection with the proposed amalgamation. 9. It is proposed that the proposed amalgamated industrial organisation will be named the Construction, Forestry, Mining & Energy Union, Industrial Union of Employees, Queensland. 10. All members of the FEDFAQ are to become, on the date prescribed by the Queensland Industrial Relations Commission as the day of amalgamation for the CFMEUQ, the FEDFAQ and the QCEUE (“amalgamation day”), without payment of an entrance fee, members of the proposed amalgamated industrial organisation. 11. All honorary/life members of the FEDFAQ are to become, on amalgamation day, without payment of an entrance fee, life members of the proposed amalgamated industrial organisation. 12. All retired members of the FEDFAQ are to become, on amalgamation day, without payment of an entrance fee, retired members of the proposed amalgamated industrial organisation. 13. The funds and property of the FEDFAQ will become those of the proposed amalgamated industrial organisation. 14. The liabilities of the FEDFAQ will become those of the proposed amalgamated industrial organisation. 15. All members of the QCEUE are to become, on amalgamation day, without payment of an entrance fee, members of the proposed amalgamated industrial organisation. 16. All retired members of the QCEUE are to become, on amalgamation day, without payment of an entrance fee, retired members of the proposed amalgamated industrial organisation. 17. The funds and property of the QCEUE will become those of the proposed amalgamated industrial organisation. 18. The liabilities of the QCEUE will become those of the proposed amalgamated industrial organisation. 19. The management of the funds, property and liabilities of the proposed amalgamated industrial organisation will be conducted in accordance with the rules of the proposed amalgamated industrial organisation. 20. The proposed amalgamation does not have the effect of extending the eligibility rules of the proposed amalgamated industrial organisation beyond those of the applicants. 21. It is proposed to alter the eligibility rules of the CFMEUQ by adding the eligibility rule of the FEDFAQ and the QCEUE to the existing eligibility rule of the CFMEUQ. This alteration will not result in any extension to the eligibility rules of the CFMEUQ, the FEDFAQ or the QCEUE. 22. The proposed amalgamation does not have the effect of extending the registered callings of the proposed amalgamated industrial organisation beyond those of the applicants. 23. It is proposed to alter the registered callings of the CFMEUQ by adding the registered callings of the FEDFAQ and the QCEUE to the existing registered callings of the CFMEUQ. This alteration will not result in any extension to the registered callings of the CFMEUQ, the FEDFAQ or the QCEUE. 24. The constitution of the CFMEUQ will be included in the rules of the proposed amalgamated industrial organisation. 25. The constitution of the FEDFAQ will be included in the rules of the proposed amalgamated industrial organisation. 26. The constitution of the QCEUE will be included in the rules of the proposed amalgamated industrial organisation. -- 2 of 7 -- 3 27. The rules of the proposed amalgamated industrial organisation will provide for: a) the deletion in their entirety of the current rules of the CFMEUQ to provide for rules in accordance with the Industrial Relations Act 1999 (Qld); b) a divisional structure comprising of two divisions, the: i) Construction and General Division; and ii) Mining, Energy and Ports District; c) providing for sub-divisional structures in both divisions; d) providing for the: • objects; • transition of: o officers; o members; o honorary/life members; o retired members; and o workplace representatives; • rights, and obligations, of: o members; o honorary/life members; o retired members; and o workplace representatives; • allocation of members, honorary/life members, retired members, and workplace representatives to divisions; • allocation of members to sub-divisions in the divisions; • autonomy of the divisions; • structure providing for the good government of the proposed amalgamated industrial organisation and its divisions; • control by the members of the proposed amalgamated industrial organisation, and its divisions; • election of the officers, and other positions, of the proposed amalgamated industrial organisation and its divisions; • determination of entrance fees, subscriptions, fees, levies and fines of the proposed amalgamated industrial organisation and its divisions; • management of the assets of the proposed amalgamated industrial organisation and its divisions; • management of the liabilities of the proposed amalgamated industrial organisation and its divisions; • audit of the proposed amalgamated industrial organisation and its divisions; • appointment of workplace representatives of the proposed amalgamated industrial organisation and its divisions; • engagement of employees, contractors and agents of the proposed amalgamated industrial organisation and its divisions; • resolution of disputes between: o divisions; o sub-divisions; and o members; • resolution of alleged misconduct of members and officers of the proposed amalgamated industrial organisation and its divisions; • execution of documents by the proposed amalgamated industrial organisation and its divisions; • notification of industrial disputes by the proposed amalgamated industrial organisation and its divisions; • taking of action and the issuing of proceedings on behalf of the proposed amalgamated industrial organisation and its divisions; • affiliations by the proposed amalgamated industrial organisation and its divisions; and • amendment of rules; e) providing for such other amendments and translations as are otherwise referred to in this scheme of amalgamation. 28. There is no alternative scheme of amalgamation. 29. The rules of the proposed amalgamated industrial organisation provide that officers of the CFMEUQ, the FEDFAQ or the QCEUE (an “existing officer”), who are translated into office in the proposed amalgamated industrial organisation, cannot hold office in the proposed amalgamated industrial organisation without an ordinary election for more than the longer of: a) an existing officer’s unexpired term of office on the day immediately preceding amalgamation day; or b) 2 years from amalgamation day. -- 3 of 7 -- 4 30. It is proposed that: a) all decisions of the QIRC that bind the CFMEUQ, the FEDFAQ or the QCEUE; b) all awards and agreements of the QIRC binding on the CFMEUQ, the FEDFAQ or the QCEUE; and c) all pending proceedings in the QIRC or elsewhere in relation to which the CFMEUQ, the FEDFAQ or the QCEUE are parties, will bind the proposed amalgamated industrial organisation, or the proposed amalgamated industrial organisation will be a party to the pending proceedings, as the case may be. 31. A person ineligible for membership of the CFMEUQ on the day immediately prior to amalgamation day, who was not on the day immediately prior to amalgamation day eligible for membership of the FEDFAQ or the QCEUE, will not be eligible for membership of the proposed amalgamated industrial organisation. 32. A person ineligible for membership of the FEDFAQ on the day immediately prior to amalgamation day, who was not on the day immediately prior to amalgamation day eligible for membership of the CFMEUQ or the QCEUE, will not be eligible for membership of the proposed amalgamated industrial organisation. 33. A person ineligible for membership of the QCEUE on the day immediately prior to amalgamation day, who was not on the day immediately prior to amalgamation day eligible for membership of the FEDFAQ or the CFMEUQ, will not be eligible for membership of the proposed amalgamated industrial organisation. 34. It is proposed that annual subscription fees for membership of the proposed amalgamated industrial organisation will, for a person mentioned in column A be the amount set out in the correspondence part of column B: A B Member of the CFMEUQ on the day prior to amalgamation day Level of subscription fees paid by that member on the day prior to amalgamation day Member of the FEDFAQ attached to the Construction and General Division on the day prior to amalgamation day Level of subscription fees paid by that member on the day prior to amalgamation day Members of the FEDFAQ attached to the Queensland Coal, Metaliferous & Energy Division on the day prior to amalgamation day Level of subscription fees paid by that member on the day prior to amalgamation day Members of the QCEUE on the day prior to amalgamation Level of subscription fees paid by that member on the day prior to amalgamation day.". [4] To alert potentially affected parties and persons to the nature of the applications, and to provide them an opportunity to object in accordance with ss. 74 and/or 75 of the Regulation, the Industrial Registrar caused (see s. 79(2) of the Regulation) for a suitable Notice to be published in the Courier Mail on 19 December 2012 as well as the Commission's website. This Notice informed any interested party or person that if they wished to file an objection in relation to any of the proposed applications they were required to do that by 4.00 p.m. on Tuesday 22 January 2013, in the form specified in s. 77 of the Regulation. No objections were filed and no party or person contacted the Registrar's office in relation to the Notice. Consequently, I am satisfied that no person or party has signified any objection, or possible objection, to any of the three applications presently before me. [5] In considering and determining the three applications, I am required to consider a range of matters recorded in both the Regulation and the Industrial Relations Act 1999 (the Act). In this regard, the Affidavit of Mr Ravbar, previously referred to, as well as Affidavits of Mr Whyte and Mr Smyth, when considered together, address all of the various matters I am required to consider. [6] Further, my consideration of the relevant legislative provisions has also been assisted by the very detailed and comprehensive submissions of Mr Payne, in both oral and written form, who represented the three Applicants. In particular, his outlines of submissions (contained in Exhibits ID1 and ID2) were extremely helpful. [7] Relying upon the Affidavits of Mr Ravbar, Mr Whyte and Mr Smyth, respectively, which I have no reason to doubt, I am satisfied that all of the necessary authorities, approvals, resolutions and the like, necessary to bring the respective applications before the Commission and have them approved, have been obtained, made, satisfied and complied with, as the case may be. Insofar as my consideration of specific provisions in the Regulation and/or the Act is concerned, I record my conclusions below. -- 4 of 7 -- 5 Amalgamation ballot [8] I record that, in respect of the application for an amalgamation ballot, I am satisfied that the requirements of the following Regulations have been met: • s. 57(1) • s. 57(3) • s. 57(4) • s. 57(5)(a), (b) and (c) • s. 58(1)(a)(i), (ii) and (iv) • s. 58(1)(b), (d), (f) and (g) • s. 59(1) - there is only one scheme of amalgamation • s. 61(1) - the scheme outlined has 3,128 words, which the Commission approves • s. 61(2) - the outline does not include anything other than words • s. 62(2) • s. 62(3)(a)(i) and (ii) • s. 62(3)(b), (c), (d) and (e) • s. 62(5)(a) and (b) The "Yes" case [9] In relation to the "Yes" case in support of the amalgamation, I am satisfied that the relevant requirements of s. 69 of the Regulation have been met and that the requisite resolutions under s. 631 of the Act have been made by each organisation. I am also satisfied that the respective memberships have been advised of such resolutions as required by s. 631(1)(b). Exemption from ballot [10] The joint Applicants have made application (Matter No. RIO/2012/189) pursuant to s. 65 of the Regulation, for an exemption from the requirement to conduct an amalgamation ballot on the basis the respective Applicants are counterpart organisations to federal bodies which have amalgamated within the meaning of the Regulation. Details of the grounds relating to the application for exemption are recorded at paragraphs 62-112 of Mr Payne's Outline of Submissions (ID1). [11] After considering his submissions, as well as those parts of the Affidavits of Mr Ravbar, Mr Whyte and Mr Smyth to which I have been referred, I record that I am satisfied that the three State-based organisations who have made this application for exemption are counterpart organisations to federal bodies which have amalgamated within the meaning of s. 65 of the Regulation. Notwithstanding that statement, in order to make the position clear, I record that I am satisfied that the following provisions of the Regulation have been satisfied: • s. 65(1)(a) and (b) • s. 65(2) • s. 65(3)(a), (b), (c) and (d) • s. 65(4)(a), (b) and (c) • s. 87(1)(a), (b), (c) and (d) [12] Pursuant to s. 87(3)(a) of the Regulation the members of the respective organisations are taken to have approved the amalgamation if the Commission grants an exemption from the requirement to conduct a ballot. Having previously done so on Transcript, I now confirm that I have granted such exemption. Accordingly, I record that the amalgamation is formally approved if, indeed, it is necessary for me to make such decision or pronouncement. [13] In passing, I also note from the figures contained in Attachment CFMEUQ5 to Mr Ravbar's Affidavit that the number of (dual) members of the counterpart federal organisations who voted in the federal amalgamation were more than the percentage that would have been required to approve the amalgamation under s. 117 of the Regulation had the Queensland voters been voting in a ballot for an amalgamation to which s. 117 applied. Amendment to the Rules - transitional provisions [14] Mr Payne highlighted that, after filing the respective applications, certain minor amendments were identified which needed to be made to the transitional rule, as provided for in Rule A62 of the rules of the proposed amalgamated organisation, so as to: -- 5 of 7 -- 6 • ensure consistency of language in the Rule; and • record the correct names and descriptions of bodies and committees that will be transitioned to the proposed amalgamated organisation. [15] To enable these amendments to be made, Mr Payne requested that I permit the respective committees of management of the three Applicant organisations some time to consider the proposed amendments and to approve them if they so resolved. [16] On the basis that the reason for each amendment was clear and that s. 60 of the Regulation provided me with the discretion to allow the three organisations to amend the amalgamation scheme, I approved Mr Payne's request. [17] In doing so, I authorised that the necessary resolutions be placed before the respective committees of management by way of flying minute by email, or facsimile, whichever was the easiest way for individual members of each committee to receive, consider and indicate their vote in favour of, or against, the proposed amendments. [18] Subsequently, in accordance with the timeframes I provided, Mr Payne informed me that each of the respective Applicants' committees of management (however described) had approved the proposed amendments to the transitional rule. [19] In such circumstances the amendments will be included in the new rules of the proposed amalgamated organisation's rules. Name of amalgamated organisation [20] In the course of preparing this Decision it came to my attention that at the time of the amalgamation of Amalgamated Society of Carpenters, Joiners, Bricklayers, Plasterers, Painters and Decorators of Australasia, Union of Employees, Queensland and The Federated Furnishing Trade Society of Australasia (Queensland Branch) Union of Employees in 1997 - to become the Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland - the name of the new organisation was (incorrectly) recorded as being The Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland. (Note the capital in "The"). [21] After searching the file in the above matter (U19/1997), and discussing the issue with Mr Payne as the representative of the respective parties in the earlier proceeding as well as the present one, I have established that whereas the host organisation in the proposed amalgamation has generally been referred to as the Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland, the organisation has always believed its official name to be "Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland", and wishes to continue to use that name. Indeed, that is the name reflected in the scheme of amalgamation (see paragraph [3] above). [22] In the circumstances, and in order to remove any possible doubt about the amalgamated organisation's name, I propose to adopt a pragmatic approach by allowing (see s. 58(1)(c) and s. 60 of the Regulation) the respective committees of management (however named) of the three Applicant organisations the opportunity to amend their respective resolutions concerning the name of the amalgamated organisation to delete any reference to "the" or "The". I also authorise such resolutions to be circulated, considered and returned in the same manner as recorded in paragraph [17] above within 10 days of the date of release of this Decision. [23] Upon receipt of advice of the outcome of such resolutions I shall cause for a short decision to be issued, before 1 May 2013, confirming the name of the amalgamated organisation. Community of interest declaration [24] On the basis that I indicated, on Transcript, my preparedness to approve the application for a ballot concerning the proposed amalgamation of the three organisations concerned, and then granted the requested exemption from the requirement to conduct such ballot, Mr Payne requested that I adjourn Matter No. RIO/2012/188 to the Registry as it was now not necessary to deal with that application. This request was approved. Callings [25] While the Regulation and the Act provide detailed guidance to the Commission as to how it must deal with applications for proposed amalgamations, both of them (somewhat surprisingly) are generally silent on how the issue of the "callings" of a union might be dealt with in a situation such as this. In this regard, Mr Payne informed me, and I accept, that President Hall has previously considered a similar issue and determined that the -- 6 of 7 -- 7 remedial power vested in the Commission by s. 634 of the Act was available to be exercised if the Commission encountered any "difficulties" during its consideration of an amalgamation application. [26] Accordingly, I decided to accept, and now confirm my acceptance of, Mr Payne's oral application that I utilise the powers available to me under s. 634 of the Act to make the requisite Orders to allow the proposed amalgamated organisation to amend its callings to include the callings of FEDFAQ and QCEUE. [27] In this regard, I have been assured by Mr Payne (and I accept) that the registered callings of FEDFAQ and QCEUE have simply been "blended into" the callings of CFMEU. The end result of this "blending" is that there is no change in callings of the amalgamating organisations, when considered overall. If a person was eligible to join one of the three organisations, they will be eligible to join CFMEU. If a person was ineligible to join one of the three organisations that person remains ineligible to join the amalgamated organisation. Amalgamation day [28] Section 136(1) of the Regulation requires that the Commission set a day on which the proposed amalgamation is to take effect (the amalgamation day). In the circumstances, I set the amalgamation day as 1 May 2013, roughly two weeks away. [29] In fixing the amalgamation day I have complied with s. 136(4)(a) and (c) of the Regulation. I have also examined the proposed amalgamated organisation's rules, as well as consulted with the Industrial Registrar about them, and now record that I am satisfied (see s. 136(4)(b)) that they comply with the Act. In accordance with my decisions at paragraphs [20] to [23] above it will be necessary to revise the name of the amalgamated organisation to remove the reference to "the" or "The". [30] Upon publication of this decision approving the application for exemption from the requirement to conduct a ballot as well as the amalgamation, the Industrial Registrar is required to take certain steps as recorded at s.136(6) of the Regulation to advertise the amalgamation day. Summary [31] For the foregoing reasons I approve the amalgamation of CFMEUQ, FEDFAQ and QCEUE and determine that the proposed amalgamation does not need to be submitted to a ballot. The name of the amalgamated organisation is proposed to be (see paragraphs [22] and [23] above) "Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland". (Note: the inverted commas are for emphasis only and are not part of the organisation's name). [32] As a result of my approval of the amalgamation, which will formally take effect on 1 May 2013 (the amalgamation day), it follows that each of FEDFAQ and QCEUE will need to be de-registered. In this respect, Mr Payne has foreshadowed that the necessary discussions with the Registrar (see s. 620(5) of the Act) will be had once the amalgamation takes effect. [33] The Commission determines and orders accordingly. A.L. BLOOMFIELD, Deputy President Hearing Details: 2013 1 February (Hearing) 14 February (amendments to transitional rule confirmed) Released: 17 April 2013 Appearances: Mr J. Payne and Ms L. Fraser-Hardy of Hall Payne Lawyers for Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland; Federated Engine Drivers' and Firemens' Association of Queensland, Union of Employees; and, Queensland Colliery Employees' Union of Employees (the Applicants). -- 7 of 7 --