Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees AND 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 [2010] QIRC 75

CITATION: Re: Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees and 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/2010/169)and (RIO/2010/171) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Regulation 2000 - s. 427 - change of callings Industrial Relations Act 1999 - s. 618 - commission to approve proposed amalgamation Re: Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees (RIO/2010/169) and 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/2010/171) COMMISSIONER FISHER 1 December 2010 DECISION [1] By application filed on 3 September 2010 Julie Bignell, the Branch Secretary of the Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees (AMACSU) applied for a change to the list of callings of that organisation. That application was given the Case No. RIO/2010/169 (the callings application). [2] Notices of Objection to the proposed change to the list of callings were received from the following organisations: • Federated Clerks' Union of Australia, North Queensland Branch, Union of Employees (FCUNQ); • Queensland Nurses' Union of Employees (QNU); • Queensland Services, Industrial Union of Employees (QSU); and • The Electrical Trades Union of Employees Queensland (ETU). [3] On 3 September 2010 The Queensland Public Sector Union of Employees (QPSU) and the AMACSU jointly applied for approval to submit a proposed amalgamation to ballot. That application was given the Case No. RIO/2010/171 (the amalgamation application). [4] Notices of Objection to the amalgamation application were received from those organisations that had objected to the proposed change to the list of callings (see paragraph [2] above). [5] A letter advising of objection to the amalgamation application was also received from the Australian Municipal, Administrative, Clerical and Services Union (the federal ASU). [6] The Application for a change to the list of callings of the AMACSU was listed for Mention after the Notices of Objection were received. At that Mention the Objectors, the AMACSU and the QPSU advised of their intentions to have discussions to try to resolve the objections. The matter was listed for further Mention on 25 November 2010. [7] On that date the Commission received correspondence from the QNU advising that its objections to both the callings application and the amalgamation application had been resolved and requesting that the Deed of Agreement entered into between the QNU and the QPSU and the AMACSU be placed on the Commission's file. [8] At the Mention the Commission was advised by the remaining Objectors that agreements were close to finalisation. An adjournment to the following day was requested to allow discussions to be finalised and Deeds of Agreement to be signed. [9] On 26 November 2010 Mr Herbert, who was appearing for the QSU and the FCUNQ, advised that both of his clients were in a position to withdraw their objections to the amalgamation subject to certain orders being made by the Commission. -- 1 of 4 -- 2 [10] Mr Payne, who was appearing for the federal ASU in RIO/2010/171, also advised that the objection would be discontinued on the basis of the same orders to which Mr Herbert referred being issued. [11] Mr Green, appearing for the ETU, advised that the ETU was not a party to any of the agreements that had been mentioned. However, on the basis of those agreements being reached and subject to the orders being made, the ETU was prepared to discontinue its objections in respect of RIO/2010/169; RIO/2010/170 (the community of interest declaration application) and RIO/2010/171. [12] In making submissions in support of the orders sought, Mr Herbert referred to the joint application for amalgamation where it was said in the joint affidavit of Alexander Scott, General Secretary of the QPSU, and Kevin Place, Acting Branch Secretary of the AMACSU that: "It is not proposed to amend the eligibility rule of the existing organisations. AMACSU will be renamed Unite Queensland Industrial Union of Employees and its eligibility rule will reflect the existing eligibility rules of the QPSU and AMACSU.". [13] Mr Herbert said that while that statement was technically correct there had been for many years an understanding between the FCUNQ and the AMACSU of a "geographical demarcation". That geographical demarcation, although well understood, was not defined in the rules of the AMACSU except to the extent that its eligibility was expressed as being "all members … resident in Central and Southern Queensland". Mr Herbert explained that because the rules of the AMACSU will become part of the amalgamated organisation's rules (assuming the ballot for the amalgamation was successful) it was important to ensure that debate did not arise in the future about what was meant by the northern boundary of Central Queensland within the AMACSU rules to be found in the new rules. [14] The eligibility rule of the FCUNQ ia geographically limited to all members resident in Queensland north of 22 degrees 30 minutes south latitude from the western border of Queensland to the eastern sea coast. The FCUNQ and the QSU reached an agreement with the applicants in the amalgamation application to insert the particular line of latitude, which appears in the rules of the FCUNQ, into the rules of the amalgamated organisation, Unite Queensland. It was submitted that this resolution provides clarity and precision and will give effect to the scheme of amalgamation, that is, that it is not proposed to amend the eligibility rule of the existing organisations. [15] Mr Herbert advised that written agreements had been entered into between his clients and the proposed amalgamating organisations and once executed, they would be forwarded to the Commission together with the request that they be placed on the Commission's file. In addition, to give effect to the agreed position appearing in the eligibility rules of Unite Queensland and to ensure the discontinuance of the objections, it was proposed that the Commission use its powers under s. 634 of the Industrial Relations Act 1999 (the Act) to issue certain orders. [16] This section provides as follows: "Commission may resolve difficulties (1) A person with sufficient interest may apply to the commission for an order - (a) if a difficulty arises, or is likely to arise, in carrying out or giving effect to an amalgamation or withdrawal or in applying this part to another matter; or (b) for the taking of a step necessary to give effect to the amalgamation or withdrawal. (2) The commission may make an order it considers appropriate to resolve the difficulty or to give effect to a step necessary for the amalgamation or withdrawal. (3) The order has effect despite the rules of an organisation.". [17] Mr Herbert submitted that an objector on the record with a valid objection constitutes a person with sufficient interest. Further, the step necessary to give effect to the amalgamation was to remove the real impediment to the amalgamation which existed as a result of the valid objection(s). The agreed step, which the objectors appearing in these proceedings and the proposed amalgamating organisations had formulated, would allow the amalgamation to proceed with the "minimum of fuss and the maximum of expedition". It would achieve an expeditious withdrawal of the relevant objections and ensure that the amalgamation process is allowed to proceed unhindered. Put simply, it would resolve a technicality which has the potential to derail the amalgamation. [18] The agreed step is for the Commission to issue orders pursuant to s. 634 of the Act to ensure that the "geographical demarcation" is inserted into the eligibility rule and the list of callings of the amalgamated organisation. The first two proposed orders are self-executing in that the wording concerning the "geographical demarcation" would only be inserted into the eligibility rule and list of registered callings upon the amalgamation taking effect. -- 2 of 4 -- 3 [19] The third of the proposed orders concerns a new sub-rule 8(k) in substitution of the sub-rule which appears in the application for amalgamation. Mr Herbert explained that the proposed new rule is also contained in the Deed of Agreement between the federal body and the applicants and is designed to correct errors in drafting to ensure that it is legally effective. [20] Ms Ralston, appearing for the QPSU, and Mr Rich, for the AMACSU, advised of their support for the submissions of Mr Herbert. [21] Prior to this decision being released the Commission received correspondence from Hall Payne Lawyers advising that the QSU and the FCUNQ have now withdrawn their objections in both applications and the ASU has withdrawn its objection in RIO/2010/171. This, it was said, "reflects the goodwill between the parties that have achieved resolution, and the terms of the various agreement entered into". [22] The Commission has given consideration to the submissions which have been made and to the orders which have been proposed by way of resolution to the objections by those organisations which appeared in the Commission on 26 November 2010. [23] In respect of the first two proposed orders the Commission has had regard to the existing rules of the AMACSU and is satisfied that those rules do not contain the "geographical demarcation" referred to by Mr Herbert. The Commission also accepts that the "geographical demarcation" has been understood and applied by the AMACSU and the FCUNQ for many years. On that basis the Commission can well understand the benefit that would accrue into the future for all relevant organisations were that "geographical demarcation" to be inserted and preserved in the rules of the amalgamated organisation, Unite Queensland. By so doing the Commission is satisfied that the rules and callings are not being expanded or otherwise fundamentally altered. The intention is to clarify the existing arrangements moving forward. [24] In respect of the third proposed order the Commission is satisfied it is designed to ensure that the rule can be legally effective, which if allowed to remain unchanged, would not be the result. The Commission further accepts that legal ineffectiveness is not the intention of the amalgamating organisations. [25] Given the purposes of the proposed orders and in the circumstances where agreement which has been reached between industrial organisations involved about the form and content of those orders the Commission considers that it appropriate to exercise its powers under s. 634 of the Act to issue the orders sought. In so doing the Commission is satisfied that it is appropriate to give effect to the step necessary for the amalgamation, that step being the resolution of technicalities which had the potential to derail the amalgamation. Finally, the Commission records it may not have been amenable to using its powers under s. 634 of the Act had the purpose of the orders been to alter rules or callings other than in a technical or formal sense. [26] The following Deeds of Agreement which have been forwarded to the Commission will be placed on the main file for the relevant application, which, on completion, will be held by the Registry and available for search: • Deed of Agreement dated 25 November 2010 made between the QNU and the QPSU and the AMACSU; • Deed of Agreement dated 26 November 2010 between the QSU and the QPSU and the AMACSU;and • Deed of Agreement made on 26 November 2010 by the FCUNQ and the QPSU and the AMACSU. [27] The Commission orders accordingly. ORDER 1. The Commission orders pursuant to s. 634 of the Industrial Relations Act 1999 (the Act) that, upon the proposed amalgamation taking effect in accordance with the Act, the eligibility rule of the proposed amalgamating organisation contain the following words at the end thereof: "provided that this sub-rule C does not make eligible for membership any person who would otherwise be eligible under this part, but who carries out their employment in the portion of the State of Queensland north of the line which is 22 degrees 30 minutes of south latitude extending from the western border to the sea coast.". 2. The Commission further orders pursuant to s. 634 of the Act that, upon the proposed amalgamation taking effect in accordance with the Act, the list of registered callings of the proposed amalgamating organisation shall include the following words at the end of Group 3: -- 3 of 4 -- 4 "The callings provided for by Group 3 are confined to those callings where they are carried out in the portion of the State of Queensland south of the line which is 22 degrees 30 minutes of south latitude from the western border to the sea coast.". 3. The Commission further orders pursuant to s. 634 of the Act that, upon the proposed amalgamation taking effect in accordance with the Act, sub-rule 8(k) of the Rules of the proposed amalgamating organisation shall be deleted, and shall be replaced with the following words: "(k)(i) Notwithstanding anything contained in this rule, the Union may reach agreement with the Federal Organisation, which agreement may provide for automatic membership of the Federal Organisation for members of the Union and conversely the automatic membership of members of the Federal Organisation in the Union. (ii) Automatic membership and the waiving of the requirement to pay contributions in whole or in part, of the Union may, by agreement or unilaterally, be granted to any class of members of the Union. (iii) Further, "automatic membership" when used in this sub-rule shall mean membership granted to a member free of the payment of any contribution in circumstances where the person applying for membership having been notified that membership would be granted unless objected to, has not signified objection to that membership.". G.K. FISHER, Commissioner. Hearing Details: 2010 18, 25 and 26 November Released: 1 December 2010 Appearances: Mr A. Rich, Slater & Gordon Lawyers on behalf of the Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees. Ms D. Ralston and with her Mr A. Scott and Ms K. Flanders on behalf of The Queensland Public Sector Union of Employees. Mr L. Forsyth on behalf of the Queensland Nurses' Union of Employees. Mr A. Herbert, Counsel and also Mr J. Payne, Hall Payne Lawyers on behalf of the Queensland Services, Industrial Union of Employees and the Federated Clerks' Union of Australia, North Queensland Branch, Union of Employees. Mr B. Green, Hall Payne Lawyers on behalf of The Electrical Trades Union of Employees Queensland. Mr J. Payne, Hall Payne Lawyers on behalf of the Australian Municipal, Administrative, Clerical and Services Union. -- 4 of 4 --