Australian Railways Union of Employees Queensland Branch v The Australian Tramway and Motor Omnibus Employees' Association, Brisbane Branch, Union of Employees [1994] QIRC 255 (1994) 146 QGIG 309

308 QUEENSLAND GOVE RNMENT INDUSTRIAL GAZETTE [3 June , 1994 3 Jw1e , 1994] QUEENSLAND GOVE RNMENT INDUSTRIAL GAZETTE 309 #################################################### QUEENSLAND IN DUSTRI AL RELATIONS COMM ISS ION Industrial Relations Act 1990 s. 397 - application for a commun ity oi inter est declaration s. 398 - applica ti on for approval to submit a proposed amalgamation to ba l lo t s. 4 00 - applicat ion for exemption from ballot of proposed amalgamated organisat io n s. 40 1 - application for ballot not conducted under s. 41 9 Aust ra lian Ra i lways Union of Employees Queensland Branch AND The Austra lian Tramway and Motor Omn ibus Em ployees' Association, Brisbane Branch, Union of Employees (No. U20 of 1994) CH IEF INDUSTRIAL COMM ISSIONER HALL 25 May 1994 Application ior Approval for Submission to ballot of a Proposed Amalgamation - Application for a Declaration of Communi ty oi Interest - Application for Exemption from Ballot on basis of earlier Federal Ballot and Ear lier State Ba l lot - App lication for a Ballot other than a Postal Ba llot DEC ISION On the 30 March 1994 listing the Australian Rai lways Union oi Emp loyees Queensland Branch and The Austral i an Tramway and Motor Omn ibus Employees' Associa ti on, Brisbane Branch, Un ion of Emp loyees jointly applied under s. 398 of the Industrial Relations Ace 1990 for approval for submission to ballot of a proposed amalgamation ot the two industrial organisations. An application under s. 397 for a commun ity of mterest declaration was lodged with the s. 398 application. Additionally th e Australian Railways Union of Employees Queensland Branch lod ged application under s. 400 for exemption from the requiremen t that a ballot be held in relation the proposed amalga ma tion and rhe Australian Tramway and Motor Omnibus Employees' Association, Brisbane Branch, Union of Emp loyees applied under s. 401 for exemption from the requ i rement that any ball ot be a postal ba l lot. APPROVAL FOR SUBMISSION OF AMALCAMA TJON TO BALLOT I am satisfied that:- (a) The proposed amalgamat ion does not involve the re g,stralion of an association as an organisation, and (b) a person who is not eligi ble for membership of one or other of the Austral i an Railways Union of Employees Queensland Bran ch or The Australian Tra mway and Motor Omnibus Employees' Association, Brisbane Branch, Un ion of Emp loyees will not be eligible for membership of the proposed amalgamated organisation immediately after the amalgamation takes effect, and (c) the proposed alteration oi the name of the Austral ian Rai lways U n ion of Employees Queensland Branch to the Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch will not res u lt in the amalgamated organisation having a name that is the same as the name of another organisation or so sim,lar to the name of another organi sat ion as to be likely to cause confusion, and (d) the proposed deregistration of The Australian Tramway and Motor Omnibus Employees' Association, Brisbane Branch, Union of Employees complies of the Act and is not otherwise contrary to law. Save as to one matter I consider that the proposed alterations to the rules of the Australian Rai l ways Union of Emp loyees Queensland Bra nch comply w i th, and are not contrary to, the Act and the awards made and agreements reg istered and certi fied there under, or otherwi se contrary to law. The one matter to which I refer arises in the fol l owing way. The Austral i an Tramway and Motor Omnibus Employees' Association, Brisbane Branch, Unio n of Employees is currently the beneficiary of the gran t of an exemption of s. 340 (3) from requi rement that the ru les of an industrial organisation must provide that any ba l lot necessary under a direct voti ng sys tem w il l be a secret ballot. Ru le 59 of the rules of the proposed amalgamated organisation assumes that the Tram and Bus Division of the proposed amalgama ted organisation wil l enjoy the benefit oi a similar exemption. So indeed it may, but I cannot rely on a forecast of the futu re. Mr Dawson who appears for the Applicants indicates that they are prepared to vary rule 59 by inserting a new subrule (JA) in the following te rms:- "S ubject to an exempt io n being ob tained under s. 340(3) of the Industrial Relations Acl 1990, ba l lots for the Tram and Bus Divis io n w il l be conducted in accordance with Rule 58 of these rules and upon the gran t of such exempt io n will be conducted in accordance with this Rule 59.". By s. 389 the Commi ss io n is required to discharge its functions under Part 14 Division 9 of the Act in a way wh ich is "fair, pract ical, quick and non legalistic". I am told, and I accept, that the Applicants are anxious to fina li se the proposed amalgamation. In the circumstance I have decided to permit the committee of management of the Australian Rai lways Union of Employees Queensland Branch lo alter the propos<>d alterations of its Ru l es by the insertion of a Ru le 59(1A) in the te rms descri bed above and to approve submission of the proposed amalgamation to ballot conditional ly on that alteration to the proposed alteratio ns 10 the Ru l es being made. DECLARATION RE: COMMUNl7Y OF INTEREST Having read the affidavit of Les: ie Lawrence Crofton, Branch Secretary oi the Austral i an Ra ilways Union of Employees Q ueensland Branch and the Affidav it of David Matters, Branch Secreta,y of rhe Australi an Tramway and Mo tor Omn ibus Employees' Association, Brisbane Branch, Union of Employees I am satisfied that a substantial number of members of each of the organ isations are directly engaged in the provis ion an d the maintenance of transport fac i lit ies to the general public. In the premis es, I must be sat isfied that there is a commun ity of interest between the two industrial organisations (see s. 397(5)(d) and (e)) and must so declare (s. 397(4)). I do so declare. EXEMPT/ON FROM BALLOT As at 29 March 1994 the membership of the Australian Railways Union of Employees Q ueensland Branch was 8, 178. At abou t the same tim e the membership oi The Austra li an Tramway and Motor Omnibus lmployees' Association, Brisbane Branch, Union of Employees was 1,141 . It fol lows that the total number of members that could be admitted to membership of the -- 1 of 2 -- 310 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [3 June, 1994 proposed amal gamated organisation on, and because of the amalgamation does not exceed 25% of th e number of members of the Australian Ra il ways U nio n of Employees Queensland Branch on the day which the application under s. 400 was lodged, vi z., 30 March 1994. I am not aware of any special ci rcumstance wh ich would justify refusa l of the exemption sought. I grant that the Australian Ra i lways Un ion of Employees Queensl and Branch exemption from ba l lo t. An attempt was made to persuade me that no ballot should be held Re liance was placed upon a ba l lot conducted in December 1992 on a proposed amalgamation under the Industrial Relations Ad 1988 (C'th) i nvolving the Australian Ra ilways Un ion, the Fede rated Union of Locomotive Enginemen, The Austral i an Tramway and Motor Omn i bus Employees Association and the Nat ional Union of Ra i lworke rs . It is argued that the Austra li an Ra i lways Un ion of Emp loyees Queensland Branch is the counterpart of the State Branch of the Austral i an Rai lways U n io n and that The Australian T ra mway and Motor Omnibus Em ployees' Association, Brisbane Branch, U nion of Em ployees is the counterpart of the State Bra nc h of The Australi an Motor Omn ibus Emp loyees Association. It is apparent from a breakdown of the Queensland figur es undertaken by the Australian Elector al Commission that an overwhelming majority of each of the al l eged co unterpart bodies vo ted in favour of the amalgamation. It is argu ed that in th e circumstance I should grant exemp ti on pursuant to s. 417. I am not disposed to adopt that co u rse . One cannot, without more, infer that a member was prepared to vote for the amalgamation of each of four organi sat i ons regi ste red under the Industrial Relations Act 1988 (C' th ), wou ld support an amalga mat io n of the State re gistered counterparts of two only of them. The argumen t can not be im proved up by pointing to the recent ballot co nducted by the Queensland Electoral Comm iss io n upon a proposed amalgamation of the Austra li an Ra i lways Un ion of Employees Queensland Branch, The Australian Tramway and Mo tor O mnibus Employees' As sociation, Brisbane Branch, Union of Em ployees and The Australian Federated Union of locomot ive Eng inemen, Queensland "Union of Employees". Once agai n, the circumstance that an overwhelming majority of members of each of the Aust ra lian Ra i lways U nion of Employees Queensland Branch and The Australian Tra mw ay and Motor Om nib us Employees' Association, Brisbane Branch, Union of Employees voted in favour of ama lgamation of all three i ndustrial organisatio ns, does not support an inference that the members would so respond to a proposal involving two of the industrial organisations only. I should note that in this case the "appl ication" for exempt io n from ballot based on recognition of the federal ballot was made from the bar table. In my vi ew it is plain from the terms of s. 398(2) that such an application must be reduced to wr iting an d filed with the appl icatio n under s. 398. It may be that if the applications are fil ed at different tim es , the non comp liance may be waived. Where the application for exemption from ballot posed on recognition of a federal ba l lot is not fi l ed at all, i t is impossible for the Commission to cause any notice of the application to be given and impossible fo r any member of the proposed amalgamated organisation to exerci se the right to object vested by s. 417(3). That regrettably is the ca se here. It is not material that the "regulat ions" contemplated by s. 417(3)(b) have yet to be made. Non comp li ance with the regu lations may be waived. Here is the right to object and to be heard vested by the Act has in fact been denied to the members of the proposed amalgamated or gan isation. If there be power to forgive the om ission, which I doubt, I would not be prepared to exercise it on the basis of the matters put before me in this case. It was also argued that the Commission had been given wide powers to waive compliance w ith ru les of industri al organisations, the Industrial Relat ions Regu lation 1990 and, in appropriate cases, the Act itself. It was argued that the powe rs were vested for the purpose on ensuring the attainment of the obj ects described s. 3(j) and (I) . I do no t so construe th e Act. In my vi ew a ba l lot is not a "difficul ty", procedural or otherwis e. In my opin ion a ballot may be dispensed on ly in the circumstances descri bed at s. 416 and s. 417. APPL/CATION FOR A NON POSTAL BAI.LOT The Australian Tramway and Motor Omn ibus Employ ees ' Association, Brisbane Branch, Union of Emplo yees seeks exemption from the requi re ment that the ballot be a postal ba llot. I have considered the proposals submi tted. In my view provided that the sc heme of the amalgamation and the '' yes" case are distr ib uted prior tO the proposed si te ballot date, the proposal is practicab le and is likely to achieve the resu l ts described in s. 418(c)(ii)(A) and (8 ). I ha ve consulted the Electoral Commiss io n wh ich concurs in that view. On the undertak ing of The Australian Tramway and Motor Omn ibus Employees' Association, Bri sbane Br an ch, Un ion of Emp loyees to make the necessary arrangements for the distribution of the scheme for the amalgamati on and the "yes" statement prio r to the date fixed to the si te ba llot, I approve the proposal contained i n the s. 401 application of The Australian Tramway and Motor Omnibus Emp loyees· Association, Brisbane Branch, Union of Employees fi led 30 March 1994. OUTLINE OF THE SCHEME Sect ion 398(2)(b) requires the applicat io n for approval for the submission of the ama lgama ti on to ba llo t to be accompanied by both a copy of the scheme for the amalgamat io n and outline of the scheme. The App lication here w as accompanied by a copy of the scheme for the amalgam at i on but was not accompani ed by a written outline of the scheme. I am told and I accept that the scheme for the amalgamation, which does not exceed 3000, words is to be used both as as a scheme and as the outline of the sc heme. In particular, as I L1n derstand, the scheme for the amalgamation is to be distributed to the members prior to the date of the si te ballot. In those circumstances I waive the non comp liance with s. 398(2)(b) and grant permission for the scheme for amalgamation to be utilised as if it were the out line of the scheme. 0A TE OF BALLOT I direct that the ballot be held on 20 June 1994 and that the ba ll ot commence at 7.00 in the forenoon and close at 5.00 in the afternoon. Dated this twenty-fifth day of May, 1994. D .R. HALL, Chief Industrial Commissioner. Appearances:- Mr F. Dawson of Cleary and Hoare Hart Grant, Sol ic itor s, for the Australi an Railways Union of Employees Queensland Branch and The Austral ian Tramway and Motor Omnibus Employees' Assoc iation, Brisbane Branch, Union of Employees. Mr D . Gottke for the Queensland Electoral Commission. Operative Date: 25 May 1994 Decision - Amalgamat ion Ballots Released: 25 May 1994 #### #### ############ ## ############ # ########## # ###### 3 June, 1994] QUEENSLAND GOV ERNMENT IND US TRIAL GAZETTE 31 1 I -- 2 of 2 --