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CITE

Unreported Judgment

Re: The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees[2016] QIRC 100Member Fisher IC
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Re: The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees[2016] QIRC 100

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Re: The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees [2016] QIRC 100
PARTIES:	The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees (Applicant)
CASE NO:	RIO/2016/95
PROCEEDING:	Orders about invalidity or its effects
DELIVERED ON:	28 September 2016
HEARING DATE:	16 September 2016
MEMBER:	Industrial Commissioner Fisher
ORDER:	The Application is granted.
CATCHWORDS:	INDUSTRIAL LAW – QUEENSLAND – INDUSTRIAL ORGANISATIONS – APPLICATION FOR DECLARATION AND ORDERS ABOUT INVALIDITY – where invalidities have occurred in the management or administration, election of officers and the making, amending or repealing of the rules – where object of application to remedy the invalidities – where declaration made invalidities have happened – where orders made remedying the effects of the invalidity.
CASES:	Industrial Relations Act 1999, s 613, s 614(b), s 615 The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees (RIO/2013/21) - Decision
APPEARANCES:	Mr J. Payne, Hall Payne Lawyers for the Applicant.

Decision

[1]
This is an application by Ralph Martin, a Member of The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees and being duly authorised by the Association seeking the following relief:

A declaration pursuant to s. 613 of the Industrial Relations Act (Qld) 1999 that:

(a)
The Commission declares that an invalidity has happened in:

(i)
the management or administration of APESMAQ’s affairs;

(ii)
the election or appointment of an officer of APESMAQ; and

(iii)
the making, amending or repealing of a rule of APESMAQ.

(b)
The Commission declares without limitation to the declaration contained in paragraph (a) that invalidities have occurred in the management or administration, elections of officers and the making, amending or repealing of the rules of APESMAQ as:

(i)
no election has been conducted for the State Committee in accordance with the rules of APESMAQ;

(ii)
no election has been conducted for the State Executive in accordance with the rules of APESMAQ;

(iii)
meetings of the State Committee have not occurred in accordance with the rules of APESMAQ;

(iv)
meetings of the State Executive have not occurred in accordance with the rules of APESMAQ;

(v)
there has been no means provided for persons eligible for membership of APESMAQ to become members of APESMAQ;

(vi)
applicants for membership have not been admitted to membership of APESMAQ;

(vii)
persons entitled to be members and who have been treated as members have not been accepted into membership of APESMAQ in accordance with the rules of APESMAQ;

(viii)
members of APESMAQ who have resigned remain on the membership register;

(ix)
the register of members of APESMAQ has not been kept, or properly kept in accordance with the Act;

(x)
the register of officers of APESMAQ has not been kept, or properly, kept in accordance with the Act;

(xi)
returns of officers have not been filed in accordance with the Act;

(xii)
accounts have not been kept, or properly kept, in accordance with the rules of APESMAQ;

(xiii)
financial returns have not been authorised, or properly authorised, in accordance with the rules of APESMAQ;

(xiv)
financial returns have not been filed in accordance with the Act;

(xv)
registers required by the Act to be filed have not been filed in accordance with the Act;

(xvi)
decisions have not been made, or properly made, in accordance with the rules of APESMAQ; and

(xvii)
persons have acted without authority in the management of APESMAQ;

(together "the Invalidities")

(c)
in all the circumstances it is appropriate to make orders to remedy the Invalidities, to change the effect of the Invalidities and to validate acts, matters or things rendered invalid by the Invalidities and to make other consequential orders as the Commission considers necessary and appropriate; and

(d)
orders that may be made remedying the Invalidities, and/or changing the effect of the Invalidities and/or validating acts, matters or things would not do substantial injustice to APESMAQ, its members or creditors or any other person having dealings with APESMAQ.

[2]
An order pursuant to s 615 of the Act in the following terms:

(a)
The following determinations that have unanimously been made by:

Ralph Martin;
John Klowss; and
Guy Boughton.

on 24 August 2016, be treated as having validly been made by APESMAQ, that:

(i)
Ralph Martin, John Klowss and Guy Boughton be appointed as the Interim Committee of APESMAQ (the Invalidity Committee);

(ii)
the Invalidity Committee act, in the absence of an elected, or properly elected, State Committee and/or State Executive, as the management committee of APESMAQ;

(iii)
the Invalidity Committee appoint Ralph Martin as its Chairman (the Chairman);

(iv)
the Invalidity Committee amend the rules of APESMAQ;

(v)
the Invalidity Committee meet in accordance with the rules of APESMAQ that provide for meetings of the State Executive subject to the following, that:

A meetings may be called by the Chairman, or the two (2) other members of the Invalidity Committee, with one (1) day's notice and by the means that can be practicably given;

B meetings may be conducted in person or by telephone or other means where the members of the Invalidity Committee can communicate with each other without physically being in each others presence;

C the quorum for Invalidity Committee meetings is two (2) members of the Invalidity Committee;

D the Invalidity Committee will appoint, when it meets, one (1) of its members, other than the Chairman, to record the minutes of the meeting concerned; and

E each member of the Invalidity Committee has one (1) vote and the Chairman does not have a casting vote;

(vi)
the Invalidity Committee direct the Chairman, or in the absence of the Chairman, Guy Boughton, to make application for exemption from election;

(vii)
the Invalidity Committee accept and treat as members of APESMAQ all persons who have applied for membership of APESMAQ but who may not, as a result of the Invalidities, have been lawfully accepted into membership and who appear on the register of members (the Membership Register) of The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) as persons who work within the eligibility of APESMA in the State of Queensland other than those members of APESMA who are attached to the Collieries Staff (CSA) Division and the Managers and Professionals (Managers) Division;

(viii)
the Invalidity Committee enrol members of APESMA who work within the eligibility provided of APESMA in the State of Queensland other than those members of APESMA who are attached to the CSA Division and Managers Division into the membership of APESMAQ and to accept and treat those persons as members of APESMAQ subject to those persons being given an opportunity to opt out of membership of APESMAQ;

(ix)
on, and from, 24 August 2016 and until officers are elected to, and take office in, APESMAQ subsequent to the determination of this application in accordance with the rules of APESMAQ and the Act, that the Chairman be authorised to accept applications for membership of APESMAQ;

(x)
the Invalidity Committee waive the payment of subscriptions, fees, fines, or levies (if any) that may, subject to the granting of these orders, be due and owing by members to APESMAQ;

(xi)
the Invalidity Committee ratify and adopt decisions (if any) made by the State Committee which decisions may not, as a result of the Invalidities, have been lawfully made;

(xii)
the Invalidity Committee ratify and adopt decisions (if any) made by the State Executive which decisions may not, as a result of the Invalidities, have been lawfully made;

(xiii)
the Invalidity Committee be treated as the management committee of APESMAQ for all purposes until, in accordance with the rules of APESMAQ and the Act, officers are elected to and take office in, APESMAQ subsequent to this application;

(xiv)
the Chairman, or in the absence of the Chairman Guy Boughton, be the person able to make applications, sign registers and sign documents on behalf of APESMAQ, until, in accordance with the rules of APESMAQ and the Act, officers are elected to, and take office in, APESMAQ subsequent to the determination of this application;

(xv)
the applications (sic) made to the Registrar, on the date of this application, on behalf of the Invalidity Committee to amend the rules of APESMAQ be treated as having been validly made for, and on behalf of, APESMAQ;

(xvi)
the register of members of APESMAQ (Register) as at the date of this application, is those persons who, on the date of this application, appear on the register of members (the Membership Register) of APESMA as persons who work within the eligibility provided by sub-rule 2 of APESMA in the State of Queensland other than those members of APESMA who are attached to the CSA Division and the Managers Division subject to those persons, who have not previously applied for membership of APESMA being given the opportunity to opt out of membership and provided those persons who are eligible for membership of APESMAQ but have resigned from APESMA will not be included in the Register;

(xvii)
the Invalidity Committee appoints as the auditor of APESMAQ Sandy Lawson of Grant Thornton Australia and that appointment be treated as having been validly made;

(xviii)
the application made, on the resolution of the Invalidity Committee, to the Registrar on the date of this application for an exemption from election of APESMAQ, be treated as having been validly made for, and on behalf of, APESMAQ;

(xix)
in the event that the Registrar does not grant an exemption from election pursuant to section 580 of the Act that an application then be promptly made by the Invalidity Committee to conduct an election using the membership comprised in the Register, together with such additional members who have been accepted by the Chairman in accordance with these determinations;

(xx)
that an application then be promptly made by the Invalidity Committee to conduct an election for the offices that do not correspond with offices of the APESMA using the membership comprised in the Register, together with such additional members who have been accepted by the Chairman in accordance with these orders;

(xxi)
that the registers required to be filed by APESMAQ in the QIRC be promptly prepared and filed;

(xxii)
APESMAQ be bound by decisions made by the Management Committee or the Executive (if any) which decisions may not, as a result of the Invalidities, have been lawfully made;

(xxiii)
subscriptions, fees, fines or levies (if any) due, and owing, from members of APESMAQ to APESMAQ that have not, as a consequence of the Invalidities, been sought by APESMAQ prior to the date of this order, be waived; and

(xxiv)
the Chairman, or in the Chairman's absence Guy Boughton, is directed to promptly make the application seeking to validate and cure the Invalidities.

Declaration of invalidities

[3]
Section 613 provides that the Commission may decide whether an invalidity has happened 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

(2)
In deciding the application, the commission may declare whether or not an invalidity has happened.

The application

[4]
The object of the application is to remedy the invalidities that have occurred, to change the effect of the invalidities and to validate any act, matter or thing rendered invalid by the said invalidities.

[5]
An application may be made by an organisation, a member of the organisation or another person the Commission considers has a sufficient interest in the subject matter of the application: s 614 of the Act. In this case the application has been made by Ralph Martin, a member of the organisation, and accordingly the Commission is satisfied that the application was made pursuant to s 614(b) of the Act.

[6]
Mr Martin's affidavit attached to the application addressed at some length the issues that exist in relation to APESMAQ and are conveniently summarised in paragraph 8:

"(a) applications for membership of APESMAQ have not been sought or approved (Membership Applications Issue);

(b)
resignations from membership have not been processed (Membership Resignation Issue);

(d)
meetings have not been conducted in accordance with the rules (Meetings Issue);

(e)
elections have not been held (Election Issue);

(f)
persons have acted without authority in the management of APESMAQ (Authority Issue);

(g)
determinations have not been made or properly made (Determinations Issue);

(h)
financial and other returns have not been prepared, authorised filed (Financial Returns Issue); and

(i)
generally there has not been an adherence to the requirements of the Act in relation to compliance (General Compliance Issue)."

[7]
At the hearing Mr Payne also made submissions on the invalidities that have occurred, following the above list. He identified the reason each of the particular invalidities had occurred and the proposed action to ensure that the situation did not reoccur. Each of his submissions was directed to the matters set out in paragraphs [1] and [2] of this decision.

[8]
The action to be taken assumed some importance given this is the fourth application filed by APESMAQ seeking a declaration for invalidities and remedies. Further, the orders issued by the Commission on the last occasion^[1] were not given effect by APESMAQ. Because of this, Mr Payne made submissions about how the affairs of APESMAQ might be managed to ensure compliance with the Act in future. These matters are addressed more fully below.

[9]
As the invalidities are numerous it is not possible in this decision to address each of them. However, having read the affidavit of Mr Martin and heard the submissions of Mr Payne, the Commission is satisfied, and so decides pursuant to s 613(1) of the Act, that invalidities have happened in each of the management and administration of APESMAQ; the election or appointment of an officer of the organisation and the making, amending or repealing of a rule of the organisation because of those matters set out in 1(b) of paragraph [1] of this decision.

[10]
The application also seeks that the Commission make a declaration to that effect pursuant to s 613(2) of the Act. In the circumstances the Commission so declares.

Orders

[11]
Having so decided and declared that such invalidities have happened the Commission must then consider s 615 of the Act which enables the Commission to make an order remedying the effects of the invalidity. That section provides:

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

(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

[12]
The orders sought by APESMAQ are set out in their application and recited at paragraph [2] of this decision.

[13]
All orders are appropriate in the circumstances of the matter and, accordingly are made. In making the orders the Commission is satisfied that they would not cause substantial injustice to any of the persons or organisations mentioned in s 615(4) of the Act.

[14]
The orders are to take effect on and from 28 September 2016.

Future Compliance

[15]
Mr Payne acknowledged in his submissions that APESMAQ has had a history of non‑compliance with its rules and the Act. In order to avoid history repeating, Mr Payne tendered a timetable, (also attached as Appendix RM10 to Mr Martin's Affidavit) setting out the dates by which certain actions were required to be taken by APESMAQ. Mr Payne noted that not all dates could be inserted because some actions were dependent on the appropriate orders being granted.

[16]
Although the Commission has now granted the application, I could not let it pass unremarked at the hearing that this is the fourth invalidities application submitted by APESMAQ, the latest of which was in 2013 and was heard by the Commission as constituted. This repeated non-compliance by APESMAQ with the Act and its rules is disturbing and may have serious ramifications were it to continue. The Commission went on to make a number of remarks, and to warn APESMAQ about the implications of any future non-compliance. The essence of my remarks are captured below.

[17]
Although the Commission accepts APESMAQ has had the best of intentions, history shows that it has an abysmal record in the administration of its affairs and compliance with the Act.

[18]
The current application identified that the situation has been, and is, much worse than previously understood. Compliance by APESMAQ with the Act has been negligible and that state of affairs has existed for a long period of time. It seems past Orders made by the Commission have not been complied with by APESMAQ and in fact raises issues about whether the orders directed to curing the past invalidities acts were implemented.

[19]
APESMAQ has sought legal advice as to the extent of its non-compliance and how these matters might be addressed. For the second time the Commission is prepared to try to get APESMAQ back on track and remain compliant. Some supervision of the organisation is required to ensure this. The timetable submitted by Mr Payne will be monitored by the Registry who will advise me whether the dates and actions set out have been met. Should there be any non‑compliance the Commission will list a further hearing. APESMAQ is put on notice that multiple failures will result in consideration being given to whether more formal action should be taken in relation to its continuation in this jurisdiction.

[20]
The Registrar will be advised of this decision.

[21]
Order accordingly.

Footnotes

[1] The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees (RIO/2013/21) - Decision

Editorial Notes

Published Case Name:
Re: The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees
Shortened Case Name:
Re: The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees
MNC:
[2016] QIRC 100
Court:
QIRC
Judge(s):
Member Fisher IC
Date:
28 Sep 2016

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Re: Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch	[2020] QIRC 218	2 citations
Re: Transport Workers' Union of Australia, Union of Employees, Queensland Branch	[2022] QIRC 247	2 citations

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Re: The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees[2016] QIRC 100