Australian Service, Industrial Union of Employees (Queensland Local Government, Energy, Ports, Information Technology, Social and Community Services Branch) v Australian Social Welfare Union of Employees (Qld) [1994] QIRC 314 (1994) 146 QGIG 599

598 QUEENSLAND GOVERNMENT INDUSTRIAL GA ZETT E [8 July, 1994 8 July, 199 41 QUEENSLAND GOVERNM ENT f DUST RI AL GAZETTE 599 #################### ######## # ###### # ################### ()ULENSI.,\ ,n INDll'il RIAL REI.A I IOK COM\!ISSION lndusmal Relmions 1<1 /990 s 398 application for apprO\ al for submission of amalgamation for b,1ll01 ~ 397 - application for declaration of comm unit) of mtcrest s 400 applica11on for exemption from ballot Australian Service, Industrial Union of Emplo) ccs (()uccm, land Loca l (iovemmcn t, l·ncrgy. Porb. Information Tcchnolol!}. Soc1JI .ind Commun1t) Sen ice, Branch) AN D Australian Social Welfare Lnion of 1.mplo}ec, (Qld) (l\'o 11r of 199./) Cllfl·r INDL SI RIAL CO~1MISSIOXER H \L L 29 June 199-l Amalgamation Suhmission to Ballot Approved lkclaration of Communit) ot lnh.:rcst \l ade Construction of s. 4 17 h:cmption from fiallot granted to ho:.t Or11.inisauon 111 Reliance ons 416 DI CISION On 3 Ma) I991. the Al"1ralian Sen ices lndu~tnJI Union of 1·mplo)ees (Queensland I ocal Go\cmmen t. Fncrg). Pons. lnfonnauon l edrnolog). Social and Communuy Sen 1c.:s Branch) fhcrea11er ASlJ) and the \u,tralian Socaal Welfare l mon of Fmplo)ees (Qfd) (hereafter A S\\'l , ) joint!) applied for JpprO\ al to submat a propo,ed amalgamation for ballot An application for a communtt} of interest declaratmn ,,as lodi,:cd with thc application for Jppro, al to ,uhmat for ballot. as ,,as an application under s.400 seeking e,emption from ballm for each of!\ Sl and A. \\l' Application for approval for sub1111H11111 of amalga111mio11 to ballot I am satisfied that - (a) the proposed amalgamation does not invol\'C the regi,tra11on of an a,\1,ciation as an industrial organisatton. (b) that a person \\ ho " not clig1blc ror membership ol A U or of AS\\'lJ will not be eligible for membership of the propo,cd amalgamated organi~auon immediate!) afler the amalgnmation takes cfTecL (c) that the proposed de-registration of ASWl 1 complies \'Ith the Act and is not othcmise contrar) to la\\. (d) that the industri al organisation of w hi ch members of the AS WU wi ll become members if th e amalgama ti on is appro\'ed. name!) !\ 'ilJ. is not to alter its name as an incident of !he amalgamation. and (c) th at the proposed a herations to the rules of ASU comply with. and arc not co ntr ary to. the Act and awards, indu,trr.11 agreemcnh. cenificd agreements and enterprise ne,1b1l1t) agreements. and arc not 01hen\i~e contra') to law. In the premises. I must grnnt the applica11on; and (a) appnl\e the submission of the am,1lgamation to ballot. or (b) if the application under s. 400 1s successful. grant an exemptton under s 4 16 ors. -l 17 Appl1c(l[1011for Dec/ara1io11 o/Co111muni~1• /111erer1 Ila, mg read the affida\lt of Ra) Seib) Sccreta1: of A L1 and the aflida\·it of Michelle Robenson an Industrial Officer of ASWl . I am satisfied thai a substaniia l number of members of the ASU and or the AS WU are engaged in th e ,ame work or in aspects of"thc same or sunilar \\Ori. and are bound hJ the ,.une 3\\atd,. industrial a!?rccments or cen1fied agr~-cments. In the premise,; f must be sa11sficd and must declare that there is a communtt) of interest bciwccn ASU and AS WU in relation to th ei r industria l interests, see s 397(4) and (5) I do so declare. App/1muo11for f.wmp1io11from Ballot ASU and ASWU rely upon on s. 4 17 In my opinion that section docs not authori,c grant ol the c,emption ,ought Section 4 17(2) pro\ 1de~: ·The prnpo,ed amalgamated orgam~a11on ma) appl) to the Commission under, 4 00 for an c,emption from the requirement that a ballot of its members be held 111 relation to the amalgamation·•. rhe e,prcssinn ··proposed amalgamated organisation·· is defined b) s 390 as lolfows: •·proposed amalgamated organisation. in relation to a proposed amalgamation. mean the 1ndus1rial organisation or proposed indu,tnal organ1,a11on of \,h1ch members of the proposed dcregistered organisations arc proposed to become members under th is Division:·. In !his case it 1, propo-cd that AS\\ U shall dereg1stcr and that the members of A \\ lJ shall become mcm~rs of ASL In those circumstances, it is ASU ,,h 1ch is ··the proposed amalgamated organi!,ation" fi.>r the purposes of s. 4 17(2) It follov,s that ASU ma) appl} for an cxempllon from the requiremcnt that a ballot of ASl' •s members be held m relation to the amalgama11on AS\\ P. not being ··1hc proposed amali,:amated orj!an1sation··. lllil) nm make application fo r an exemp ti on under s. 417(2). Neither ma) /\SU make application on ASWU's behalf ASU is restricted to ,cc king an -- 1 of 2 -- 600 QUEENSLAND GOVERNMENT INDUSTR IAL GAZETTE [8 July, 1994 exemption from the requirement that a ballot of its (ASU's) members be held in relation to the amalgamation. The more d ifficult question is whelher the application should be granted in part. Having regard to the express admonition at s. 389(b) that the Act should be app lied to amalgamations in a way wh ich is "a fa ir, practical, quick non legalistic" I am prepared to read the ap pl ication for exemption as seeking exemption for both ASU and ASWU and, in the a lternative. for ASU and, in the furU1cr alternative, fo r ASWU. Regrettably, that seems to me to avail ASU not at al l. The ditlJculty is that when the a lleged federa l counterpart of ASU amalgamated wi th the a ll eged federal counterpart of ASWU only the members of the later organisation participated in the ballo t. The alleged fe dera l counterpart of ASU made application under s. 244 of the Industrial Relations Act 1988 (Commonwealtl1) for exemption from the requirement that a ba ll ot of i ts members be held in relation to the amalgamation. Bys. 417(1 ), the section ap pl ies if: " (a) counterpart federal bodies of industrial organisations have amalgamated after conducti ng a ba ll ot under the Commonwealth Act (the "federal ballot"); and (b) the industrial organisations are proposed to amalgamate under thjs Act.". As a matter of first impression, as th ese thing often are, it seems to me that what is env isaged is the situation in which each of the alleged counterpart federal bod ies has conducted a ballot. lt is true that if the subsection is read litera ll y all that is required is "a ba ll ot". But is impossible for two organisations registered under the industrial Relations Act I 988 (Commonweal th) to amalgamate without, at least, the deregistering organisation conducting a ballot of its members. lf tlle subsection is read li terally, the words "a fter conducting a ballot" add nothing. Further, both the section heading (wh ich is part of the Act, Acls /nlerpretation Act 1954, s. 14(1)) and the Minister's Second Reading Speech (to which I am enti tled to have regard, Acts Interpretation Act 1954, s. ]4(b)(l)(c) and s. 14(B)(3)(f)) suggest that the section is about the recognjtjon of federal ballot(s). Ifs. 4 17( I) is read as limi ting the section to the situation in which each of the counte rp art federal bodies has conducted a ballot under the Commonwealth Act, the one may say of the section that it provides for partial recognition of the process followed under the Commonwealth Act, by pcm1itting any existing industrial organisation which is to be the host in the amalgamation to rely upon the ballot conducted by its federal counterpart whilst 111s1stmg that any proposed deregistering organisation or organisations must conduct a ballot under the Industrial Relations Act 1990. That, if! might say so , is exactly the policy pursued bys . 416 wh ich pennits the proposed host organisation to seek exemption from the requi rement that a ballot be held of its members on the ground that the total number of members which might flow to it from the deregistering organisation(s) docs not exceed 25% of its existing membership. Ifs. 4 17( I) is read as applying s. 4 17 to situations in which U1e federal counterpart of one industrial organisation conducted a ballot and the federal counterpart of tl1e other did not, it seems to me to have little to do with recognition. Assume that one of the industrial organisations registered under the Industrial Relations Act 1990 which is proposing to ama lgamate is AQ, and that its federal counterpart was AF. Assu me that the other industrial organisation registered under the industrial Refalions Act 1990 which is proposing to amalganiate is BQ, and that its feder al counterpart was BF. Assume that for the purposes of the federal amalgamation AF was the host, that BF was the deregistering organisation and that AF was granted exemption from the requirement that it conduct a ballot. If the scheme of amalgamation fi led under the industrial Relations Act !990 shows that BQ is to be the host and that AQ is to deregister, to grant BQ exemption from tl1e requirement that it conduct a ballot pursuant to s. 4 17(2) wou ld not recognise anyth ing which had occurred under the Commonwealth Act. If on the other hand AQ is proposed as the host, and BQ is proposed to be the deregistering organisation, the grant of exemption to AQ pursuant to s. 417(2) would be replication rather than recognition of that which occurred federally. Although the application under s. 400 was pressed under s. 417, it is apparent from the Statement of Claim at Schedule I and the affidavit of Ray Selby filed 14 June 1994, that the total number of members that could be adm itted to membe rship of ASU on and because of the proposed amalgamation, does not exceed 25% of ASU 's members on the day, viz. 3 May 1994, that the app lication was filed. The are no special circumstances. It fo ll ows that the requ irements of s. 4 I6 are satisfied. It seems to me that fairness, practicality and expedition (s. 389(b)) will best be served by granting ASU exemption from the requi remen t that ba ll ot be held with its members pursuant to s. 4 16. Miscellaneous Matters I fix J2 July 1994 as the opening day of the ballot and 2 August 1994 as the closing day of the ballot. I recommend that the ballot close at 10 .00 a.m. I approve the "yes'' case which is exhib it " !" to the s. 398 application. Pursuant to s. 4 13(7) I approve the inclusion 111 that "yes" case of boxes con ta ining ticks. l grant approval for the proposed amalgamation to be submitted to ballot of the members of ASWU and exempt ASU from the requirement that a ballot be held of its members. Dated this twenty-nintl1 day of .l une, 1994. D.R. HALL, Chie fl ndustrial Commissioner Ha ll. Appearances: Mr J. Payne of Peter Channel and Associates. Solicitors, and with him, Mr R.Selby and Ms M. Robertson of the Australian Services Industrial Union of Employees (Queensland Loca l Government, Energy, Ports, Jnfonnation Techno logy, Social Community Services Branch) and Australian Social We l fa re Union of Em pl oyees (Qld). Mr G. Wiltshire for the Electoral Commission of Queensland. Operative Date 29 June 1994 Decision - Amalgamation Released: 29 June 1994 8 July, 1994) QUEENSLAND GOVERNMENT [NDUSTRIAL GAZETTE 601 l: I -- 2 of 2 --