Application to Appeal by Bryan Jackson [2010] ICQ 29

CITATION: RE: Application to Appeal by Bryan Jackson (C/2010/15) - Decision <http://www.qirc.qld.gov.au> INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 - s. 341(1) - appeal against decision of industrial registrar RE: Application to Appeal by Bryan Jackson (C/2010/15) PRESIDENT HALL 23 July 2010 DECISION [1] The Queensland Real Estate Industrial Organisation of Employers (the Organisation) is an organisation of employers under the Industrial Relations Act 1999 (the Act). It was initially registered under the Industrial Conciliation and Arbitration Act 1961. The regime about the registration of organisations established by the Industrial Conciliation and Arbitration Act 1961 was quite different to that established by the present Act. [2] By late 2009, the Committee of Management of the Organisation was aware that the Secretary/Treasurer of the Organisation was ineligible to be a member and ineligible to recontest an election for the position. In those circumstances the committee of Management set about the exercise of amending the rules of the Organisation to ensure that the Secretary/Treasurer was eligible to be a member and eligible to contest the next election. [3] To overcome the difficulty about eligibility for membership, the eligibility rule was amended to provide: "If the Secretary/Treasurer is not already a member of the association then upon election the Secretary/Treasurer will be deemed to be a member of the association while holding that office.". Consistently with s. 474 of the Act, that amendment came before the Queensland Industrial Relations Commission constituted by the Vice-President. Approval was granted. The operative date of the amendment was 4 March 2010. There has been no appeal against that decision. It is necessary to note only that implicit in the amendment which was allowed is the assumption that a person who is not a member of the Organisation might be elected to the position of Secretary/Treasurer. [4] To overcome the problem about eligibility to be a candidate, the Committee of Management sought to amend the rule about the conduct of elections so that, whilst in ordinary circumstances a candidate is required to be an "eligible member", an exception is created "where the nominee has nominated to be elected to the office of Secretary/Treasurer only in which case the nominee need not be an eligible member.". Consistently with ss. 477 to 479 of the Act, the question whether that amendment should be approved was dealt with by the Industrial Registrar. The Industrial Registrar declined to grant approval. This is an appeal against the decision of the Industrial Registrar. Because the Industrial Registrar abides the decision of the Court and an intervention by the Attorney-General, Minister for Justice and Industrial Relations has been withdrawn, it is an Appeal without a contravenor. [5] The starting point must be that the Industrial Registrar has no general authority to supervise the content of the rules of industrial organisations to ensure that the rules comply with what might be seen as "preferable, desirable or ideal"; compare Municipal Officers Association of Australia v Lancaster and Anor1 at 589 per Deane J, dealing with the analogous situation under the Conciliation and Arbitration Act 1904 (Cth). The Industrial Registrar is confined to the issues raised by s. 478 of the Act. The issue raised by s. 478(2)(b) appears not to be an issue in this case. In that circumstance, regularity should be presumed. The critical issue is whether the proposed amendment flouted s. 478(2)(a) of the Act in that it contravened s. 435 of the Act or another law. Section 435 provides: "435 General restrictions (1) An organisation's rules must not - (a) contravene this Act, another law or an industrial instrument; or (b) prevent members of the organisation from - (i) complying with this Act or another law, an industrial instrument or decision; or (ii) entering into a written agreement under an industrial instrument or decision; or 1 Municipal Officers Association of Australia v Lancaster and Anor (1981) 37 ALR 559 -- 1 of 2 -- 2 (c) impose on its members, or membership applicants, conditions, obligations or restrictions that are oppressive, unreasonable or unjust. (2) An eligibility rule does not contravene subsection (1)(c) only because it requires reasonable minimum standards for the conduct of the businesses or callings of its members or membership applicants.". [6] The essential point taken by the Industrial Registrar, though one may query whether the Industrial Registrar's reasons were sufficiently exposed to satisfy s. 655(2)(b) of the Act, was that the proposed amendment was contrary to the objects of the Act. Whilst I accept that contravention of the Act may be brought about by an omission in the rules as well as by an express provision of the rules, compare The Queen v Commonwealth Court of Conciliation and Arbitration; ex parte Amalgamated Engineering Union Australian Section2 at 649 per Dixon CJ, Webb, Fullagar and Kitto JJ, it would seem to me to be involved in the word "contravene" that breach of, or disobedience to a substantive provision is the target of s. 435(1)(a) of the Act. Inconsistency with the objects clauses of the Act or with a judicial assessment of the Acts "objects" derived on a reading the Act as a whole, would seem to me to be insufficient. The history of s. 435 is instructive. Section 337 of the Industrial Relations Act 1990 dealt with rules which were "contrary" to the Act. That expression may well have picked up a rule which conflicted with the objects of the Act without breaching a substantive provision. Section 22 of the Industrial Organisations Act 1997 abandoned "contrary" in favour of "contravene" but spoke of contravention of "this Act or its objects". That formulation may well have justified the Industrial Registrar's decision not to approve the amendment. However, as noted, s. 435 of the Act is in starkly different terms. (It is useful to know also that Chapter 12 Part 4 of the Act, which deals with election rules, distinguishes between "eligible members", who may vote, and "persons" who may nominate and become a candidate.) In my view, the Industrial Registrar misunderstood the test in which he was to apply to the proposed amendment and in so doing, fell into jurisdictional error; compare Re: Patterson; ex parte Taylor 3 at 419 per Gaudron J. [7] It was for those reasons that on 21 July 2010, I made Orders, the effect of which was to overturn the decision of the Industrial Registrar. Dated 23 July 2010. D.R. HALL, President. Released: 23 July 2010 Appearances: Mr K. Watson, directly instructed, for the Appellant. 2 The Queen v Commonwealth Court of Conciliation and Arbitration; ex parte Amalgamated Engineering Union Australian Section (1953) 89 CLR 636 3 Re: Patterson; ex parte Taylor (2001) 207 CLR 391 -- 2 of 2 --