Australian Community Services Employers' Association, Queensland Union of Employers [2013] QIRC 48

CITATION: Australian Community Services Employers' Association, Queensland Union of Employers - (RIO/2013/14) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - Chapter 12 - Part 14 - Division 3 - orders about invalidity or its effects Australian Community Services Employers' Association, Queensland Union of Employers (RIO/2013/14) COMMISSIONER FISHER 8 April 2013 Application for declaration of invalidity - Orders - Management and Administration - Board elections did not take place as required - Seeking all acts of the Board prior to the making of these Orders are valid - Constitution of Board - Affidavit - Declared invalidity happened - Orders made remedying effects of invalidity. DECISION [1] This is an application, as amended, by Kim Teague, President and Allan Fazldeen, Secretary of the Australian Community Services Employers' Association, Queensland Union of Employers (ACSEA) and being duly authorised by ACSEA seeking the following relief: "1. A declaration pursuant to section 613 of the Industrial Relations Act 1999 (the Act) that an invalidity has occurred in the management and administration of ACSEA, by reason that Board elections did not take place in 2011 as required by the Association's rules. 2. An Order pursuant to section 615 of the Industrial Relations Act 1999 that, from September 2011 until the date on which new Board members are appointed as a result of elections currently underway, the ACSEA Board be constituted by the following persons: President Kim Teague Vice President Deborah Ponting Secretary Allan Fazldeen Treasurer Jennifer O'Brien Board Member Laurie Moloney Board Member Barry Bicknell 3. An Order pursuant to section 615 of the Industrial Relations Act 1999 that all acts of the Board prior to the making of these Orders are valid, having been done in good faith and without substantial injustice to the organisation, a member or creditor, or any person dealing with ACSEA.". The Invalidities [2] The following facts and circumstances have given rise to the invalidities. [3] On 13 February 2012 the ACSEA received correspondence from the Queensland Industrial Registry (the Registry) informing the ACSEA that it was overdue for Board elections for the 2011 election year. Rule 20 of the ACSEA's Rules provides that Board elections are held every three years and that elected Board members assume office in September of each election year. [4] The ACSEA last held Board elections in 2008 in accordance with its Rules. Elected Board members assumed office in September 2008 and continue to hold office at the time of this application. These Board members are named at item 2 of paragraph [1] above. [5] On 23 February 2013 the ACSEA informed the Registry they were seeking legal advice on obtaining an exemption from conducting elections on the basis that the ACSEA has a counterpart federal body in accordance with section 411 of the Industrial Relations Act 1999 (the Act) [6] Upon reviewing the ACSEA's position their Solicitors identified a number of Rule issues that required resolving before a counterpart arrangement could be introduced, including a number of Rule changes. [7] After meeting with Registry staff on 24 July 2012 the ACSEA agreed to call for a new election as soon as possible. -- 1 of 3 -- 2 [8] The ACSEA caused for a new Board election to be conducted by the Electoral Commission of Queensland (ECQ) with nominations closing on 25 February 2013. Successful candidates will assume office as soon as the election results are declared. [9] In the interim, the Board seeks an invalidities certificate pursuant to section 613 of the Act declaring that an invalidity has occurred in the administration and management of the Association. [10] The Board also seeks an Order pursuant to section 615 of the Act validating the term and the acts of the currently constituted Board, from 2011 until the date the newly elected Board members assume office, on the basis that the acts were done in good faith and without substantial prejudice to others. Affidavit of Charles Hardy [11] An affidavit was filed by Charles Hardy, Executive Director of the ACSEA. Mr Hardy has held this position since October 2003 and his role involves overseeing the administration and management of ACSEA. He reports to ACSEA Board members who are elected in accordance with the Rules of the ACSEA. [12] Rules 20 and 21 provide for the Election of Board Members. [13] Mr Hardy stated that an election was held in accordance with the Rules of the ACSEA in 2008. On 27 June 2008 the ECQ declared the following persons be elected to the Board: (A copy of the Certificate of Election issued by the ECQ is attached to Mr Hardy's affidavit). President Kim Leslie Teague Vice President Deborah Ponting Secretary Allan Daniel Fazldeen Treasurer Jennifer O'Brien Committee Member Barry Bicknell Committee Member Laurie E. Moloney [14] Mr Hardy said that in 2011 the ACSEA did not hold an election because it erroneously believed that it was part of a counterpart arrangement with the ACSEA's federal office, the Australian Community Services Employers' Association, Union of Employers. The federal office held an election that year and as a result of that election the persons named in paragraph [13] were re-elected to their respective offices. A copy of the Declaration of Results for Uncontested and Contested Offices issued by the Australian Electoral Commission for the federal office dated 29 September 2011 is also attached to Mr Hardy's affidavit. [15] On 13 February 2012 the ACSEA received correspondence from the Registry advising the ACSEA was overdue to conduct an election for the 2011 election year. Mr Hardy said he responded on 23 February 2012 stating that the ACSEA intended to seek an exemption from holding an election pursuant to s. 580 of the Act. The Registry advised that the ACSEA was not eligible to seek an exemption as requested but that it could do so if it performed a number of steps including amending its registered Rules. A separate application has been filed in this regard. Declaration of invalidities [16] Section 613 of the Act provides that the Queensland Industrial Relations Commission (the Commission) may decide whether an invalidity has happened as follows: "613 Commission may decide (1) The commission may, on application, decide whether an invalidity has happened in - (a) the management or administration of an organisation's affairs; or (b) the election or appointment of an officer of an organisation; or (c) the making, amending or repealing of a rule of an organisation. (2) In deciding the application, the commission may declare whether or not an invalidity has happened.". The application [17] An application may be made by an organisation: s. 614(a) of the Act. In this case the ACSEA, through its President and Secretary has made the application. In the circumstances s. 614(a) of the Act has been satisfied. [18] At the hearing Mr Coonan, on behalf of ACSEA, made submissions in relation to the invalidity which has occurred. From the affidavit of Mr Hardy and the submissions made by Mr Coonan, the Commission is satisfied -- 2 of 3 -- 3 that invalidities have happened in the management and administration of the ACSEA in respect of the matters contained in the application at paragraph [1]. [19] In accordance with s. 613(1)(a) of the Act the Commission decides that invalidities have happened in the management or administration of the affairs of the ACSEA. [20] The application also seeks that the Commission make a declaration to that effect pursuant to s. 613(2) of the Act. In the circumstances the Commission so declares. Orders [21] Having so decided and declared that such invalidities have happened the Commission must then consider s. 615 of the Act which enables the Commission to make an order remedying the effects of the invalidity. That section provides: "615 Orders about effects of invalidity (1) This section applies if, on the hearing of the application, the commission declares an invalidity has happened. (2) The commission may make an order it considers appropriate to - (a) remedy the invalidity or to cause it to be remedied; or (b) change or prevent, or cause to change or prevent, the effects of the invalidity; or (c) validate an act, matter or thing made invalid by or because of the invalidity. (3) The commission may also make another order consequential to an order under subsection (2). (4) The commission must not make an order under this section if the order would cause substantial injustice to - (a) the organisation that the invalidity concerns; or (b) a member or creditor of the organisation; or (c) a person dealing with or who has dealt with the organisation.". [22] The orders sought by the ACSEA are set out in paragraphs 2 and 3 of their application and are recited at paragraph [1] of this decision. The Commission considers that these are appropriate orders to make in the circumstances of this case. In making the orders the Commission is satisfied that they would not cause substantial injustice to any of the persons or organisations mentioned in s. 615(4) of the Act. [23] The orders are to take effect as and from 8 April 2013. [24] The Registrar will be advised of this decision. [25] Order accordingly. G.K. FISHER, Commissioner. Hearing Details: 2013 15 March and 3 April Appearances: Mr M.G. Coonan and with him Mr T. Tran, Herbert Smith Freehills. Released: 8 April 2013 -- 3 of 3 --