Australian Institute of Marine and Power Engineers' Union of Employees, Queensland District [2008] QIRC 44 (2008) 188 QGIG 54

[Extract from Queensland Government Industrial Gazette, Dated 23 May 2008, Vol. 188, No. 4, pages 54-57] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 613 - orders about invalidity or its effects Australian Institute of Marine and Power Engineers' Union of Employees, Queensland District (RIO/2008/15) VICE PRESIDENT LINNANE 16 May 2008 DECISION [1] This is an application by Peter John Toohey (Applicant) of the Australian Institute of Marine and Power Engineers' Union of Employees, Queensland District (AIMPEQ) seeking the following relief:  a declaration pursuant to s. 613 of the Industrial Relations Act 1999 (Act) that invalidities have occurred in the management and administration of AIMPEQ on, and from, 2001 to date, by reason of the fact that no election was conducted for AIMPEQ in accordance with the registered rules of the AIMPEQ;  a declaration pursuant to s. 613 of the Act that invalidities have occurred in the election or appointment of officers of AIMPEQ since 16 December 1992;  a declaration pursuant to s. 613 of the Act that invalidities have happened in the making, amending or repealing of rules of the AIMPEQ;  an order that the decisions of the office bearers of AIMPEQ, as constituted prior to the date of this order, that may have been affected by invalidities, so that any act, matter or thing was rendered invalid, be remedied and validated;  an order that the office bearers of the AIMPEQ shall, on and from the date of this order, be constituted by: o Peter John Toohey, Secretary; o Trevor Graham Ward, President; o Anthony Michael Richardson, Treasurer, and that the persons above shall be treated as the Committee of Management of the AIMPEQ for all purposes until the term of office of those office bearers either expires or ends;  an order that all acts, matters and things done purportedly on behalf of the AIMPEQ since 16 December 1992 to the date of this order, be declared valid acts, matters or things done on behalf of the AIMPEQ;  an order that application RIO/2008/13 to the Industrial Registrar made by the Applicant on behalf of AIMPEQ for a new set of rules for AIMPEQ be taken to have been properly authorised and validly made;  an order that application RIO/2008/14 to the Industrial Registrar made by the Applicant on behalf of AIMPEQ for an exemption from election be taken to have been properly authorised and validly made; and  an order that the letter of response from the Applicant on behalf of AIMPEQ (dated 29 November 2007) to the Industrial Registrar to formerly amend the rules of the AIMPEQ in RIO/2007/154 be taken to have been properly authorised and validly made. [2] The object of the application is to remedy the invalidities that have occurred, to change the effects of the invalidities and to validate any act, matter or thing rendered invalid by the said invalidities. [3] A Certificate Protecting Against Invalidity, issued under s. 6 of the then Industrial Relations (Protection from Invalidities) Act 1991, was granted on 18 December 1992: see (1993) 142 QGIG 239. That Certificate noted that one of the invalidities that existed at that time was "the election of officers and other officials" of the AIMPEQ. Whilst the organisation appears to have filed a Register of Officers of an Industrial Organisation since 1992, it would appear that the requirements of the Act have not been complied with in the conducting of any such election since the granting of the Certificate. The Rules of the AIMPEQ provide for elections of officers on an annual basis. [4] In matter U21 of 2000, the AIMPEQ applied for, and was granted, an exemption from holding an election for three positions only i.e. the President, Secretary and Treasurer. No exemption was sought, or granted, for the positions of the three Vice-Presidents, five Trustees and seven Committee members. The application was granted on the basis that the three positions (President, Secretary and Treasurer) corresponded to three positions for which an election -- 1 of 4 -- 2 was held under the Workplace Relations Act 1996 and the offices were to be filled by persons elected in that federal election: see Australian Institute of Marine and Power Engineers' Union of Employees, Queensland District (2001) 166 QGIG 17. There was no federal counterpart for the positions of Vice-President, Trustee or Committee member and so an exemption from election for those positions was not sought, and therefore not granted. [5] This position was obviously known to the AIMPEQ officials at or around this time as there is draft correspondence on the Registry file addressed to All Honorary Officials which proposed rule changes to overcome the difficulty. Nothing appears to have been done with the rules at that time. [6] Since the granting of that exemption no further applications have been made to the Industrial Registrar seeking further exemptions from election for the positions of President, Secretary and Treasurer until matter RIO/2008/14 was filed on 4 March 2008. That application seeks only an exemption from election for those three positions. I have been advised that this application is in order should I validate the filing of the application in RIO/2008/14. The difficulty, however, is that the current rules provide for an additional fifteen officers of the organisation for which no exemption can be granted i.e. the three Vice-Presidents, five Trustees and seven Committee members. [7] Application RIO/2008/13 filed on 19 February 2008 is an application for a new set of rules. I have been advised by the Industrial Registry that should I validate the making of the application that the proposed rules are in order (other than the decision making body being referred to in alternative terms i.e. sometimes the Committee of Management and other times the Executive) and that the application can be progressed immediately thereafter. In the proposed rules the Committee of Management/Executive is to consist of three officers only i.e. the President, Secretary and Treasurer. Each of those positions corresponds respectively with the Branch President, Branch Secretary and Branch Treasurer of the counterpart federal organisation. [8] In respect of this application, Mr Toohey caused a notice to be published in the Courier Mail of 18 March 2008 advising of the date and time of the hearing of the application. The Industrial Registrar received no contact from any person interested in the matter. [9] The evidence of Mr Toohey is that all members of AIMPEQ are also members of the counterpart federal union, the Australian Institute of Marine and Power Engineers. That organisation is registered under the Workplace Relations Act 1996 and it operates a Queensland Branch from the same registered office as AIMPEQ. Both entities have operated to harmonise management and administration of their affairs as far as practical. According to Mr Toohey, the AIMPEQ also has no debts, creditors or orders in existence or pending and approval of the application would not prejudice the AIMPEQ members or any other person or organisation. [10] Section 613 of the Act provides 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.". [11] The failure on the part of the AIMPEQ in not properly conducting elections for the officers of the Queensland District, in accordance with the Act and the Industrial Relations Regulation 2000 (Regulation), since the granting of the Certificate Protecting Against Invalidity on 18 December 1992, are invalidities in the management or administration of the organisation's affairs and/or in the election or appointment of an officer of the organisation within the terms of s. 613(1) of the Act. I consider Mr Toohey to be a person able to make application under s. 613 of the Act by virtue of s. 614(b) of the Act. I therefore declare that invalidities have happened in the management and administration of the AIMPEQ and/or in the election or appointment of officers of the AIMPEQ as and from 18 December 1992 to date, by reason of the fact that whilst some elections have been conducted, the requirements of the Act and the Regulation have not been met. [12] Having declared that invalidities have happened, it is then s. 615 of the Act which deals with the orders about the effect of any such declaration. Section 615 of the Act provides as follows: -- 2 of 4 -- 3 "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.". [13] Having read the application filed on 19 February 2008, the further Affidavit of Peter John Toohey filed on 27 March 2008 and having heard from Mr Yates on behalf of the AIMPEQ, I make the following orders: 1. that the decisions taken, or purported to be taken, by various persons acting, or purporting to act, as officers of the Queensland District of the AIMPEQ on and from 18 December 1992 be treated as having validly been made by the AIMPEQ; 2. that the application made to the Industrial Registrar to seek an exemption from holding an election (RIO/2008/14) be treated as having validly been made by the AIMPEQ; 3. that the application made to the Industrial Registrar to amend the rules of the AIMPEQ (RIO/2008/13) be treated as having validly been made by the AIMPEQ; 4. that the letter of response from Peter John Toohey on behalf of the AIMPEQ dated 29 November 2007 to the Industrial Registrar's proposal to formally amend the rules of AIMPEQ in RIO/2007/154 be treated as having validly been made by the AIMPEQ; and 5. that the Committee of Management of the AIMPEQ shall, on and from 16 May 2008 be constituted by the following persons: President Trevor Graham Ward Secretary Peter John Toohey Treasurer Anthony Michael Richardson. [14] I do not believe that the abovementioned orders would cause substantial injustice to the AIMPEQ, any member or creditor of the AIMPEQ or to any person dealing with or who has dealt with the AIMPEQ: see s. 615(4) of the Act. [15] In ordering that the Committee of Management for the future only comprise the President, Secretary and Treasurer I have ensured that the Industrial Registrar approves applications RIO/2008/13 and RIO/2008/14 at the same time as release of this decision. This avoids the necessity to include the three Vice-Presidents, five Trustees and seven Committee members. [16] Officers of the AIMPEQ have been advised over a number of years of anomalies in the election of officers of the organisation. A Certificate Protecting Against Invalidity was granted in 1992 and a declaration that invalidities have occurred has now been made in 2008. Officers of the AIMPEQ should now ensure that the provisions of the Act, the Regulation and the Rules of the AIMPEQ are complied with in future in respect of the election of officers. -- 3 of 4 -- 4 [17] The operative date of this decision is 16 May 2008. D.M. LINNANE, Vice President. Hearing Details: 2008 7 April Appearances: Mr. G. Yates of the Australian Institute of Marine and Power Engineers' Union of Employees, Queensland District. Released: 16 May 2008 Government Printer, Queensland The State of Queensland 2008. -- 4 of 4 --