Federated Clerks' Union of Australia, North Queensland Branch, Union of Employees [2010] QIRC 68

CITATION: Federated Clerks' Union of Australia, North Queensland Branch, Union of Employees (RIO/2010/179) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 613 - orders about invalidity or its effects Federated Clerks' Union of Australia, North Queensland Branch, Union of Employees (RIO/2010/179) COMMISSIONER FISHER 26 October 2010 Application for declaration to remedy invalidities - Change the effects of the invalidities - Validate decisions - Other applications made to address and regularise affairs - Commission declared invalidities have happened in the management and administration and election and appointment of officers - Orders determined as sought. DECISION [1] This an application by Margaret Ann Dale (Applicant), a member of the Interim Committee of the Federated Clerks' Union of Australia, North Queensland Branch, Union of Employees (FCUNQ) filed on 21 September 2010. The Applicant was authorised by the Interim Committee to represent the FCUNQ and is seeking the following relief: "1. A Declaration pursuant to s. 613 of the Industrial Relations Act (Qld) 1999 (the 'Act') that: a. invalidities have happened in the management and administration of the FCUNQ by reason of the fact that: i) subscription fees of members of the FCUNQ have not been sought or paid; ii) no election has been conducted in accordance with the rules of the FCUNQ; iii) meetings of the FCUNQ have not occurred in accordance with the rules of the FCUNQ; iv) a register of officers of the FCUNQ has not been kept; v) a register of members of the FCUNQ has not been kept; vi) audit reports, and relevant accounts, of the FCUNQ have not been filed; vii) decisions have not been made in accordance with the rules; viii) persons have acted without authority in the management of the FCUNQ; (the 'Invalidities') b. in all the circumstances it is appropriate to make orders to remedy the Invalidities, to change the effects of the Invalidities and to validate any acts, matters, agreements or things rendered invalid by the Invalidities and to make other consequential orders as the Commission considers necessary and appropriate; c. orders that may be made remedying the Invalidities, and/or changing the effect of the Invalidities and/or validating acts, matters, agreements or things would not do substantial injustice to the FCUNQ, its members or creditors or any other person having dealings with the FCUNQ. 2. An order that: a. the following decisions unanimously made by: • Ms Margaret Dale; • Ms Jeanine Orzani; • Ms Nicole Burrell, (the 'Interim Committee') on 15 September 2010, be treated as having validly been made by the FCUNQ: i) to appoint Margaret Ann Dale, Jeanine Orzani and Nicole Burrell as an Interim Committee of the FCUNQ; ii) that the Interim Committee act, in the absence of an elected quorate Branch Executive or Branch Council, of the FCUNQ, as the committee of management of the FCUNQ; iii) that the Interim Committee appoint Margaret Ann Dale as its Chair; -- 1 of 7 -- 2 iv) that the Interim Committee amend the rules of the FCUNQ; v) that the Interim Committee meet in accordance with the rules of the FCUNQ that provide for meetings of the Branch Council subject to the following: 1. that meetings may be called by the Chair of the Interim Committee, or any 2 other members, with such notice and by such means as can be practicably given; 2. that meetings may be conducted in person or by telephone or any other means where the members of the Interim Committee can communicate with each other without physically being in each others presence; 3. that quorum of Interim Committee meetings will be 2 members; 4. that the Interim Committee will appoint, when it meets, one of its members other than the Chair of the Interim Committee to be a minute secretary for the purposes of recording the minutes of the meeting concerned; 5. each member will have 1 vote and the Chair of the Interim Committee does not have a casting vote; vi) that the Interim Committee direct the Chair of the Interim Committee, or the Chair of the Interim Committee and Jeanine Orzani to make application for certification of amendments to the rules of the FCUNQ; vii) that the Interim Committee direct the Chair of the Interim Committee and/or Jeanine Orzani to make application for exemption from election; viii) that the Interim Committee appoint the Chair and/or Jeanine Orzani to make application for exemption from complying with: 1. the accounting and audit provisions; 2. the requirement to keep a register of members; 3. the requirement to keep a register of officers; pursuant to the Act; ix) that the Interim Committee accept as members of the FCUNQ all persons who have applied for membership of the FCUNQ but who may not, as a result of the Invalidities, have been lawfully accepted into membership; x) that on, and from, 15 September 2010 and until officers are elected to, and take office subsequent to the determination of this application in accordance with the rules of the FCUNQ and the Act and sufficient offices of the FCUNQ are filled to ensure the Branch Council and the Branch Executive are quorate that the Applicant be authorised to accept applications for membership of the FCUNQ; xi) that the Interim Committee waive, to the extent that may be lawfully required, the payment of any entrance fees, contributions or levies that may be due from and owing by members subject to these orders; xii) that the Interim Committee ratify and adopt any decisions made by the Branch Secretary, the Branch Executive and the Branch Council of the FCUNQ, or any persons or bodies (as the case may be) purporting to act as the Branch Secretary, Branch Executive or Branch Council of the FCUNQ, which decisions may not, as a result of the Invalidities, have been lawfully made; xiii) to ratify and adopt all agreements entered into by the Branch Secretary, the Branch Executive and the Branch Council of the FCUNQ, or any persons or bodies (as the case may be) purporting to act as the Branch Secretary, Branch Executive or Branch Council of the FCUNQ, which agreements may not, as a result of the Invalidities, have been lawfully entered into; b. the Interim Committee be treated as the committee of management of the FCUNQ for all purposes, subsequent to the determination of this application, until the officers the FCUNQ are elected to, and take office and sufficient offices of the FCUNQ have been filled to ensure the Branch Council and the Branch Executive of the FCUNQ are quorate, in accordance with the rules of the FCUNQ and the Act; c. the Applicant and/or Jeanine Orzani be the persons able to make applications and sign documents on behalf of the FCUNQ, until officers are elected to, and take office and sufficient offices of the FCUNQ have been filled to ensure the Branch Council and the Branch Executive of the FCUNQ are quorate, -- 2 of 7 -- 3 subsequent to the determination of this application, in accordance with the rules of the FCUNQ and the Act; ca. that all persons who applied for membership of the FCUNQ prior to 15 September 2010, and who were, but for the invalidities accepted into membership of the FCUNQ, have been validly accepted into membership; (Note: the Application was amended at the hearing on 11 October 2010 to include this paragraph). d. the Applicant be able to accept applications for membership of the FCUNQ between 15 September 2010 and the date of officers being elected to, and taking office and sufficient offices of the FCUNQ have been filled to ensure the Branch Council and the Branch Executive of the FCUNQ are quorate, subsequent to the determination of this application, in accordance with the rules of the FCUNQ and the Act; e. the application made to the Registrar, on the date of this application, to amend the rules of the FCUNQ be treated as having been validly made for, and on behalf of, the FCUNQ; f. the roll of members of the FCUNQ as at the date of this application, is those persons who, on the date of this application, appear on the register of members (the 'Roll') of the Australian Municipal, Administrative, Clerical and Services Union (the 'ASU') as financial members attached to the North Queensland Clerical and Administrative Branch (the 'NQ Branch') of the ASU; g. the auditor for the FCUNQ be the auditor for the NQ Branch; h. the application made to the Registrar on the date of this application for an exemption from election of the FCUNQ, be treated as having been validly made for, and on behalf of, the FCUNQ; i. in the event that the Registrar does not grant an exemption from election pursuant to s. 580 of the Act that an application then be promptly made by the Applicant to conduct an election using the membership comprised in the Roll, together with such additional members who have been accepted by the Applicant in accordance with these orders; j. the application made to the Registrar on the date of this application for certification of amendment to the rules of the FCUNQ, be treated as having been validly made for, and on behalf of, the FCUNQ; k. the applications made to the Registrar, on the date of this application, by the Applicant for: (i) an exemption from complying with the accounting and audit provisions by the FCUNQ; (ii) exemption from keeping a register of members; (iii) exemption from keeping a register of officers, be treated as having been validly made for, and on behalf of, the FCUNQ; l. the FCUNQ be bound by any decisions made by the Branch Secretary, Branch Executive or the Branch Council, or any persons or bodies (as the case may be) purporting to act as the Branch Secretary, Branch Executive or Branch Council of the FCUNQ, which decisions may not, as a result of the Invalidities, have been lawfully made; m. the FCUNQ be bound by all agreements entered into by he Branch Secretary, the Branch Executive and the Branch Council of the FCUNQ, or any persons or bodies (as the case may be) purporting to act as the Branch Secretary, Branch Executive or Branch Council of the FCUNQ, which agreements may not, as a result of the Invalidities, have been lawfully entered into; n. any entrance fees, contributions or levies due, and owing, from members of the FCUNQ to the FCUNQ that have not, as a consequence of the Invalidities, been sought by the FCUNQ prior to the date of this order, be waived.". [2] The object of the application is to change the effect of the invalidities that have occurred, to validate the decisions of the FCUNQ and to regularise the FCUNQ's rules, the conduct of elections, the filling of offices and the management and administration of the FCUNQ. -- 3 of 7 -- 4 The Applicant [3] Because there was uncertainty about whether Margaret Dale, the person who made the application, was properly a member of the FCUNQ, it was submitted that the application was made pursuant to s. 614(c) of the Act. This section provides: "614 Who may apply The application may be made only by - (a) the organisation; or (b) a member of the organisation; or (c) another person the commission considers has a sufficient interest in the subject matter of the application.". [4] In the affidavit included in the application Ms Dale deposes to her history of involvement with the FCUNQ and the NQ Branch of the Australian Municipal, Administrative, Clerical and Services Union (ASU). In particular, Ms Dale deposes to becoming a member of those two organisations in 1982 and to having continuously been a member since that time. Ms Dale said she was first elected as Vice-President and Branch Councillor of the Unions in 1993 and held office until 1999. She was elected as the Branch Secretary of the Unions in 1999 and subject to the invalidities, continues to hold that office. She is currently a full-time officer of the Unions. [5] However, because the FCUNQ and the counterpart federal body, the NQ Branch of the ASU, have exactly the same membership, Mr Payne, on behalf of Ms Dale, suggested that there may be some doubt about whether Ms Dale is properly a member of the FCUNQ. On that basis it was submitted that given Ms Dale's long history of active involvement in the FCUNQ, she satisfies the requirements of being a person with sufficient interest in the subject matter of the application so as to have been entitled to have made the application. Having read the affidavit and heard the submissions the Commission is satisfied that Ms Dale meets the requirements of s. 614(c) of the Act. The Application [6] Mr Payne submitted that the invalidities have arisen as a result of a failure to comprehend fully the dual registration system of industrial organisations that exists. The consequence of this is that errors have occurred in respect of such matters as membership, financial membership, conduct of meetings, rules, elections, finances and property. The purpose of this application is to give the FCUNQ a fresh start in the Queensland jurisdiction and to allow it to move into the future. [7] Ms Dale's affidavit addresses the present circumstances of the FCUNQ as they relate to the relationship between the FCUNQ and the NQ Branch of the ASU. An exemption from holding an election for the FCUNQ offices that corresponded with the offices of the NQ Branch was granted by Registrar Ewald on 15 August 2003. Since that time no elections were held in 2007 when elections were held in the counterpart federal body. The members elected to office in the FCUNQ continued in office subject to their resignation or removal from office. [8] There is no disparity of eligibility between the FCUNQ and the ASU as far as the NQ Branch is concerned and the members of the FCUNQ and the members of the ASU attached to the NQ Branch are the same (the Queensland Members). [9] Ms Dale says that historically, the FCUNQ has been administered for all practical purposes as the NQ Branch of the ASU, being the branch of the organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth). The commercial and administrative dealings engaged in on behalf of Queensland Members, including the holding of real and personal property and the holding of funds is entangled as between the FCUNQ and the NQ Branch. [10] Mention is made of an "unwritten administrative agreement" between the two organisations which allows for commercial and administrative dealings, including property, engaged in on behalf of Queensland Members to be transacted through the ASU on behalf of the NQ Branch of the ASU. The consideration for the administrative agreement is that the FCUNQ does not seek the payment of subscription fees to it. [11] Ms Dale addresses the establishment of the Interim Committee. Having been made aware that issues exist in relation to the administration and management of the FCUNQ, including that elections have not been conducted in accordance with the rules, Ms Dale considered that she was duty bound, as far as she was able, to rectify the situation. To this end Ms Dale took steps to establish an Interim Committee, comprised of herself (appointed as Chair by the Committee) and two other long-standing members of the FCUNQ who presently hold office in the NQ Branch of the ASU. The purpose of the Committee was to regularise the affairs of the FCUNQ. -- 4 of 7 -- 5 Accordingly, a number of resolutions were passed at a meeting of the Committee on 15 September 2010 and are included in the minutes of that meeting which are attached to Ms Dale's affidavit as Annexure MD3. [12] The Interim Committee considered matters that demonstrate that the FCUNQ and the NQ Branch of the ASU have always conducted themselves as if they were a "joint" entity and which have led to the confusion surrounding the administration of the FCUNQ. Ms Dale also considered how these matters could be dealt with so as to facilitate validation and the proper management and administration of the Unions. These matters are set out in some detail in her affidavit and address the current practices and difficulties and, in relevant instances, outline the steps taken to address the problem. The matters identified and addressed by Ms Dale are: • membership applications; • meetings; • employers; • employees; • property; • industrial representation; • transitional recognition; • membership services; • contributions; • officer return; • members; • auditor; • audit reports; • rules; and • elections. [13] Having set out the various matters Ms Dale states that a number of invalidities exist in relation to the FCUNQ: • rules; • financiality of membership; • conduct of elections; • keeping a register of officers; • keeping a register of members; • provision of financial statements; • conduct of meetings; • making of decisions; and • such other invalidities as the Commission may find. [14] Ms Dale further states that, being aware of the existence and the extent of the invalidities, a number of matters are required to be addressed to regularise the affairs of the FCUNQ so as to cure the invalidities from which the FCUNQ currently suffers. Those matters include: 1. amending the rules of the FCUNQ to provide for consistency of office and structure as between the FCUNQ and its counterpart federal body; 2. amending the rules of the FCUNQ to provide for the financiality of members who are financial members of the ASU who area attached to the NQ Branch; 3. amending the rules of the FCUNQ to provide for corresponding offices for the purposes of making an application for exemption; 4. making an application for invalidities; 5. making an application for exemption from elections; 6. making applications for exemption from keeping a register of members, from keeping a register of officers and from filing audit reports and relevant accounts; 7. appointing the auditor of the NQ Branch as auditor of the FCUNQ; and 8. ratifying and adopting all agreements entered into on behalf of the FCUNQ. [15] In respect of the above the Commission was advised by Mr Payne and also by the Industrial Registrar that the following applications have already been made by the FCUNQ: RIO/2010/180 - Exemption from keeping an officer register; RIO/2010/181 - Exemption from keeping a member register; RIO/2010/182 - Exemption from keeping an accounting or audit provisions; RIO/2010/183 - Exemption due to federal election; and RIO/2010/184 - Rule amendment. -- 5 of 7 -- 6 Declaration of invalidities [16] Section 613 provides that 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.". [17] From the affidavit of Ms Dale and the submissions made by Mr Payne, the Commission is satisfied that invalidities have happened in the management and administration of the FCUNQ in respect of the matters contained in the application at paragraph 1.a. as follows: "i) subscription fees of members of the FCUNQ have not been sought or paid; ii) no election has been conducted in accordance with the rules of the FCUNQ; iii) meetings of the FCUNQ have not occurred in accordance with the rules of the FCUNQ; iv) a register of officers of the FCUNQ has not been kept; v) a register of members of the FCUNQ has not been kept; vi) audit reports, and relevant accounts, of the FCUNQ have not been filed; vii) decisions have not been made in accordance with the rules; and viii) persons have acted without authority in the management of the FCUNQ.". [18] Ms Dale made an admission in her affidavit that elections have not been held in accordance with the rules and also stated that one of the invalidities is that no election has been conducted in accordance with the rules. At the same time it appears that appointments have continued to be made e.g. to the Interim Committee. For these reasons, and although no express application has been made in this respect, I consider it more than likely that an invalidity has occurred within the terms of s. 613(1)(b) of the Act. I therefore declare that invalidities have happened in the election and appointment of officers to the organisation. Orders [19] Having 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.". [20] Mr Payne informed the Commission that, although there was no order to do so, an advertisement was placed in the public notices section of "The Courier-Mail" on 21 September 2010 stating that the application had been made for a decision about invalidity and consequential orders. The invalidities as stated in paragraph [13] above were listed in the advertisement. No objection to the application had been received nor has any interested person, other than the Applicant, appeared in these proceedings. Members have the same rights and services regardless of whether it was the FCUNQ or the NQ Branch that was assisting them. Mr Payne also advised there -- 6 of 7 -- 7 were no creditors. On that basis the Commission could be satisfied that no injustice would be suffered by any other person or organisation. [21] In light of the declarations made and the further submissions of Mr Payne the Commission makes the orders sought in paragraph 2 of the application (as amended) and as set out in paragraph [1] of this decision. In my view these orders are sufficient to remedy the declared invalidity with respect to the election or appointment of an officer of the organisation. If, however, after reading this decision, Ms Dale considers a further order is required in this respect, advice of such proposed order should be forwarded to the Industrial Registrar within fourteen days of the date of release of this decision and the Commission will then consider the matter. [22] In making the orders as sought the Commission is satisfied that the orders would not cause substantial injustice to any of the persons or organisations mentioned in s. 165(4) of the Act. [23] The orders are to take effect as and from 26 October 2010. [24] The Registrar will be advised of this decision so that he might deal with the applications referred to in paragraph [15] above. [25] Order accordingly. G.K. FISHER, Commissioner. Hearing Details: 2010 13 October Released: 26 October 2010 Appearances: Mr J. Payne of Hall Payne Lawyers for the Federated Clerks' Union of Australia, North Queensland Branch, Union of Employees. -- 7 of 7 --