Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch [2010] QIRC 31

CITATION: Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch (RIO/2010/44) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 613 - orders about invalidity or its effects Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch (RIO/2010/44) COMMISSIONER THOMPSON 24 May 2010 DECISION [1] An application was filed on 28 April 2010 by Les Moffitt (the applicant) a Member of the Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch (RTBUQ) and an Elected Officer of the State Management Committee seeking the following Declarations and Orders (as amended on 18 May 2010): "Declarations A Declaration pursuant to s. 613 of the Industrial Relations Act (Qld) 1999 (the 'Act') that: (a) Invalidities have happened in the: (i) management and administration of the RTBUQ's affairs; and (ii) the election or appointment of an officer of the RTBUQ; and (iii) the making, amending or repealing of a rule of the RTBUQ, by reason of the fact that: 1. subscription fees of members of the RTBUQ have not been sought or paid; 2. no election has been conducted for the Branch Council or Branch Executive in accordance with the rules of the RTBUQ; 3. meetings of the Branch Council and the Branch Executive have not occurred in accordance with the rules of the RTBUQ; 4. a register of officers of the RTBUQ has not been kept; 5. a register of members of the RTBUQ has not been kept; 6. audit reports, and relevant accounts, of the RTBUQ have not been filed; 7. decisions have not been made in accordance with the rules; 8. persons have acted without authority in the management of the RTBUQ; (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 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 or things would not do substantial injustice to the RTBUQ, its members or creditors or any other person having dealings with the RTBUQ. Orders An Order that: (a) the following decisions unanimously made by: • Les Moffitt; • Craig Allen; • Noel Morris; • David Matters; • Shayne Kummerfeld; (the 'Interim Committee') -- 1 of 5 -- 2 on 15 April 2010, be treated as having validly been made by the RTBUQ: (i) to appoint Les Moffitt, Craig Allen, Noel Morris, David Matters and Shayne Kummerfeld as an Interim Committee of the RTBUQ; (ii) that the Interim Committee act, in the absence of an elected Branch Executive and/or Branch Council, as the management committee of the RTBUQ; (iii) that the Interim Committee appoint Les Moffitt as its chairman; (iv) that the Interim Committee amend the rules of the RTBUQ; (v) that the Interim Committee meet in accordance with the rules of the RTBUQ that provide for meetings of the Branch Executive subject to the following: 1. that meetings may be called by the chairman, or any two 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 three members; 4. that the Interim Committee will appoint, when it meets, one of its members other than the chairman to be a minute secretary for the purposes of recording the minutes of the meeting concerned; and 5. each member will have one vote and the chairman does not have a casting vote. (vi) that the Interim Committee direct the chairman, or in the absence of the chairman Mr Matters, to make application for exemption from election; (vii) that the Interim Committee appoint the chairman, or in the absence of the chairman Mr Matters, to make application for exemption from complying with: 1. the accounting and audit provisions; 2. the requirement to keep a register of members; and 3. the requirement to keep a register of officers pursuant to the Act; (viii) that the Interim Committee accept as members of the RTBUQ all persons who have applied for membership of the RTBUQ but who may not, as a result of the Invalidities, have been lawfully accepted into membership; (ix) that on, and from, 15 April 2010 and until officers are elected to, and take office subsequent to the determination of this application, in accordance with the rules of the RTBUQ and the Act that the chairman be authorised to accept applications for membership of the RTBUQ; (x) that the Interim Committee waive, to the extent that may be lawfully required, the payment of any entrance fees, subscriptions or Branch levies that may be due from and owing by members subject to these orders; (xi) that the Interim Committee ratify and adopt any decisions made by the Branch Council or the Branch Executive which decisions may not, as a result of the Invalidities, have been lawfully made; (b) the Interim Committee be treated as the management committee of the RTBUQ for all purposes until the officers of Branch Council and Branch Executive are elected to, and take office subsequent to this application, in accordance with the rules of the RTBUQ and the Act; (c) the chairman be the person able to make applications and sign documents on behalf of the RTBUQ, until officers are elected to, and take office subsequent to the determination of this application, in accordance with the rules of the RTBUQ and the Act; (d) the chairman be able to accept applications for membership of the RTBUQ between 15 April 2010 and the date of officers being elected to, and taking office subsequent to this application, in accordance with the rules of the RTBUQ and the Act; -- 2 of 5 -- 3 (e) the applications made to the Registrar, on the date of this application, on behalf of the Interim Committee to amend the rules of the RTBUQ be treated as having been validly made for, and on behalf of, the RTBUQ; (f) the roll of members of the RTBUQ 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 RTBU attached to the Queensland Branch of the RTBU; (g) the auditor for the RTBUQ be Adrian Bellotti; (h) the application made, on the resolution of the Interim Committee, to the Registrar on the date of this application for an exemption from election of the RTBUQ, be treated as having been validly made for, and on behalf of, the RTBUQ; (i) in the event that the Registrar does not grant an exemption from election pursuant to s. 580 the Act that an application then be promptly made by the Interim Committee to conduct an election using the membership comprised in the Roll, together with such additional members who have been accepted by the chairman in accordance with these orders; (j) the applications made, on the resolutions of the Interim Committee, to the Registrar, on the date of this application, by the Interim Committee for: (i) an exemption from complying with the accounting and audit provisions by the RTBUQ; (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 RTBUQ; (k) the RTBUQ be bound by any decisions made by the Branch Executive or the Branch Council, which decisions may not, as a result of the Invalidities, have been lawfully made; and (l) any subscription, entrance fees, and/or branch levies due, and owing, from members of the RTBUQ to the RTBUQ that have not, as a consequence of the Invalidities, been sought by the RTBUQ prior to the date of this order, be waived.". [2] The relevant sections of the Act to be considered by the Commission in applications of this nature are: "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. 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. 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 -- 3 of 5 -- 4 (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.". [3] The Applicant has been a member of the RTBU and RTBUQ (and predecessor organisations) for approximately 27 years having served on the Branch Council and Executive for 20 of those years. He provided to the proceedings an affidavit (Exhibit 1) containing extensive detail relating to the application under the following headings: • My History; • Present Circumstances of the RTBUQ; • Membership Application; • Meetings; • Employers; • Employees; • Industrial Representation; • Transitional Registration; • Membership Services; • Subscriptions; • Officer Return; • Members; • Auditor; • Audit Reports; • Rules; • Elections; • Invalidities; and • Rectification. [4] Further evidence before the proceedings supportive of the application was tendered in affidavit form on behalf of David Matters and Casey Sullivan. [5] David Matters is a member of the RTBU and RTBUQ since 1992, prior to that being a member of the Australian Tramway and Motor Omnibus Employee Association, Brisbane Branch, Union of Employees (ATMOEAQ) and the Australian Railways Union of Employees Queensland Branch (ARUEQ) from 1981. He has served continually in positions on the Branch Council and Branch Executive for a period of 18 years including to the present date. [6] The material before the proceedings by way of his affidavit featured under the following headings: • Employers; • National System; • Industrial Representation; and • Employment. [7] Casey Sullivan, a Trainee Lawyer employed by Hall Payne Lawyers, tendered an affidavit for the purposes of presenting applications filed in respect of ss. 580 and 586 of the Act and referred to in the affidavit of Les Moffitt at paragraph 49. [8] Whilst the Commission has not published in this Decision the full content of the three affidavits aforementioned, the material contained within the affidavits has been considered in its fullness and accepted by the Commission as forming a true and correct account of the circumstances pertaining to the application. Conclusion [9] In consideration of the application, I firstly find that the applicant is a "member of the organisation" and accordingly is a person eligible under s. 614(b) of the Act to make such application. -- 4 of 5 -- 5 [10] In relation to s. 613 of the Act, the Declaration sought in the application clearly set out the matters said to be the Invalidities for the purposes of the application and it is without question that on the evidence before the proceedings, that s. 613(1)(a), (b) and (c) of the Act have been enlivened. [11] Therefore, in accordance with s. 613(2) of the Act, I declare that Invalidities have occurred on the part of the RTBUQ in respect of the following obligations as listed: • Subscription fees of members; • Branch Council and Branch Executive - no elections in accordance with the Rules; • Branch Council and Branch Executive - no meeting in accordance with the Rules; • Register of Officers not kept; • Register of Members not kept; • Audit reports and relevant accounts not filed; • Decisions not made in accordance with the Rules; and • Persons have acted without authority in the management of the RTBUQ. [12] Having declared that an Invalidity has occurred in accordance with s. 613 of the Act, it is then necessary to address the provisions of s. 615 of the Act whereby the Commission may make an Order to remedy the effects of the Invalidity taking particular care that any order such made would not cause substantial injustice to the organisation, a member or creditor or a person dealing with or has dealt with the organisation. [13] The absence of objectors in the proceedings and the evidence contained in the affidavit of the Applicant that there are no issues existing in relation to creditors is sufficient to grant the application (in the amended form) effective from 18 May 2010. [14] I so order. J.M. THOMPSON, Commissioner. Hearing Details: 2010 18 May Appearances: Mr. J. Payne of Hall Payne Lawyers for the Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch. Released: 24 May 2010 -- 5 of 5 --