Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees [2006] QIRC 105 (2006) 183 QGIG 522

[Extract from Queensland Government Industrial Gazette, dated 8 September, 2006, Vol. 183, No. 6, pages 522-524] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 613 - orders about invalidity Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees (RIO/2006/1) VICE PRESIDENT LINNANE 24 August 2006 DECISION [1] This is an application by Julie Anne Bignell of the Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees (AMACS) seeking the following relief:  a declaration pursuant to s. 613 of the Industrial Relations Act 1999 (Act) that invalidities have happened in the management and administration of AMACS on and from April 2003 to date, by reason of the fact that no election was conducted for the state Union in accordance with the registered rules of AMACS;  an order that decisions taken, or purported to be taken by Julie Bignell (Secretary), Mary-Anne O'Neill (Assistant Secretary), Michael Bentley (President) and Terry Heinemann (Vice-President) acting, or purporting to act, as the Officers of AMACS from April 2003 onwards, be treated as having validly been made by AMACS;  an order that the persons elected to the Offices in April 2003 of the Australian Municipal, Administrative, Clerical and Services Union Central and Southern Queensland Clerical and Administrative Branch (the Branch of the federal Union) be validated as the elected Offices of AMACS for all purposes until an election is held or an application for exemption from election is approved; and  an order that the consequential vacancies (detailed in Schedule 2 to the application) which have occurred since April 2003, and which were filled in accordance with the rules of AMACS be treated as valid. [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] On 9 April 2003 the Returning Officer for the Australian Electoral Commission declared an election for Offices of the Branch of the federal Union. Ms Bignell was elected Branch Secretary. Those persons successfully elected to the Branch of the federal counterpart Union assumed the Offices in AMACS, i.e. the state Union. Ms Bignell states that whilst there was an intention to seek an exemption from election for AMACS no such application was filed in the Industrial Registry. [4] Members of the Branch Conference, Branch Council and Branch Executive of the federal Union have met regularly since April 2003 with such meetings purporting to be held for both the federal Union and AMACS. Ms Bignell states that all decisions taken by these bodies have been taken in good faith for both the federal Union and AMACS. The decisions have been identical. [5] AMACS has no creditors and no commercial and/or business dealings with any person or organisation as Ms Bignell states that all commercial and similar dealings which the Union has engaged in since April 2003 have been transacted through the federal Union. [6] On 14 February 2006 an advertisement was placed in the Courier Mail which drew attention to the fact that this application had been filed and that invalidities had occurred by reason of the fact that an election had not been held although there was no legislative requirement to advertise. The advertisement also advised that the application was listed for hearing in March 2006 (see Exhibit) 1 and advised any person wishing to object to the application to notify the Industrial Registrar by 28 February 2006. The Industrial Registry received no objections and no person appeared at the hearing to oppose the application. [7] At the hearing in March 2006 Mr Healy, appearing for AMACS, sought orders rectifying the position for the future i.e. until the next election for the federal Union which was scheduled for March 2007. No application had been filed seeking exemption from holding an election. The matter was then adjourned to enable Mr Healy to seek further instructions. The matter was reconvened on 11 April 2006 at which time I advised that I would reserve my decision pending confirmation by the Industrial Registrar that an application to amend a rule of AMACS had been approved which enabled the Union to seek an exemption, and that an application for an exemption from ballot had been filed. -- 1 of 3 -- 2 [8] I was advised by the Industrial Registrar on 22 August 2006 that he had that day approved a new Rule 37A - Exemption from Election in the Rules of AMACS and that the organisation had filed an application for an exemption from ballot. [9] 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.". [10] The failure on the part of AMACS in not conducting an election for the Committee of Management of AMACS in 2003 is an invalidity in the management or administration of AMACS's affairs within the terms of s. 613(1)(a) of the Act. I consider Ms Bignell to be a person able to make application under s. 613 of the Act by virtue of s. 614(c) of the Act. I therefore declare that invalidities have happened in the management and administration of AMACS on and from April 2003 to date, by reason of the fact that no election was conducted for the Committee of Management in accordance with the registered rules of AMACS. [11] 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: "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.". [12] This application was advertised in the Courier Mail of 14 February 2006. There appears to be no objection by any other organisation or person to the orders sought in the application. The material before me would indicate that no substantial injustice would result from the orders sought to; AMACS, a member or creditor of AMACS, or any person dealing with, or who has dealt with AMACS during the relevant period. As such I am not prevented from making any order by s. 615(4) of the Act. [13] Having read the application and having heard from Mr Healy on behalf of AMACS I make the following orders: 1. That decisions taken, or purported to be taken by Julie Bignell (Secretary), Mary-Anne O'Neill (Assistant Secretary), Michael Bentley (President) and Terry Heinemann (Vice-President) acting, or purporting to act, as the Officers of AMACS from April 2003 onwards, be treated as having validly been made by AMACS; -- 2 of 3 -- 3 2. That the persons elected to the Offices in April 2003 of the Australian Municipal, Administrative, Clerical and Services Union Central and Southern Queensland Clerical and Administrative Branch (the Branch of the federal Union) be treated as having validly been elected as Offices of AMACS for all purposes until an application for exemption from election is determined by the Industrial Registrar; 3. That the consequential vacancies (detailed in Schedule 2 to the application) which have occurred since April 2003, and which were filled in accordance with the rules of AMACS be treated as having validly been made until an application for exemption from election is determined by the Industrial Registrar; 4. That the application (RIO/2006/30) made to the Industrial Registrar on 6 June 2006 seeking an amendment to the Rules of AMACS be treated as having validly been made by AMACS; and 5. That the application (RIO/2006/29) made to the Industrial Registrar on 6 June 2006 seeking an exemption from election be treated as having validly been made by AMACS. Order accordingly. Dated 24 August 2006 D.M. LINNANE, Vice President. Hearing Details 2006 19 January 16 March 11 April 22 August (Notification by Industrial Registrar) Appearances: Mr. M. Healy of Counsel, directly instructed by the Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees. Released: 25 August 2006 Government Printer, Queensland The State of Queensland 2006. -- 3 of 3 --