Queensland Master Builders Association, Industrial Organisation of Employers
[2017] QIRC 93
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- Queensland Master Builders Association, Industrial Organisation of Employers[2017] QIRC 93
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Queensland Master Builders Association, Industrial Organisation of Employers[2017] QIRC 93
Queensland Master Builders Association, Industrial Organisation of Employers[2017] QIRC 93
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Queensland Master Builders Association, Industrial Organisation of Employers [2017] QIRC 093 |
PARTIES: | Queensland Master Builders Association, Industrial Organisation of Employers (Applicant) |
CASE NO: | RIO/2017/114 |
PROCEEDING: | Orders about invalidities and their effects |
DELIVERED ON: HEARING DATE: | 16 October 2017 20 September 2017 |
HEARD AT: | Brisbane |
MEMBER: | Industrial Commissioner Black |
ORDER: |
|
CATCHWORDS: | INDUSTRIAL ORGANISATIONS – ORDERS ABOUT INVALIDITIES – application by industrial organisation of employers – failure to file prescribed election information prior to the commencement of elections – declaration that invalidities have occurred – orders to remedy invalidities – election results validated. |
CASES: | Industrial Relations Act 2016, s 669, s 817, s 818, s 835, s 837. Industrial Relations Regulation 2011, s 34 |
APPEARANCES: | Mr M. Belfield of the Queensland Master Builders Association, Industrial Organisation of Employers for the Applicant. |
Decision
Background
- [1]This is an application made by Grant Galvin in his capacity of Chief Executive Officer of the Queensland Master Builders Association, Industrial Organisation of Employers (QMBA). The application complies with s 836 of the Act.
- [2]The object of the application is to remedy 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]The application seeks the following relief:
- a declaration pursuant to s 835 of the Industrial Relations Act 2016 (Act) that invalidities have occurred in relation to the notification by QMBA to the Industrial Registrar of Prescribed Information for the QMBA by-elections commenced in January 2017;
- a declaration pursuant to s 835 of the Act that invalidities have occurred in relation to the notification by QMBA to the Industrial Registrar of the appointment of a Returning Officer for the QMBA by-elections commenced in 2017;
- a declaration pursuant to s 835 of the Act that invalidities have occurred in relation to the notification by the QMBA Returning Officer to the Industrial Registrar of the results of the QMBA by-elections commenced in 2017;
- an order pursuant to s 837 of the Act that the Electoral College and Board of QMBA shall from the date of this order be constituted by the persons set out below for all purposes in accordance with the rules of the QMBA:
Queensland Master Builders Association ELECTORAL COLLEGE AND BOARD 2017 BOARD | |
President | Ralf Dutton |
Housing Sector Committee Chairperson | Ross Hogno |
Construction Sector Committee Chairperson | Mark Spry |
General Board Members | Nick Herron |
| Drew Brockhurst |
| Geoff Baguley (Div. Rep.) Peter Schriek (Div. Rep.) |
| Adrian Gabrielli |
DIVISIONAL REPRESENTATIVES | |
Far North Queensland | Kim Grossman |
North Queensland | John Wilkinson |
Mackay & Whitsunday | Geoff Baguley (General Board) |
Central Queensland | John O'Sullivan |
Wide Bay Burnett | Desmond Bowes |
Sunshine Coast | Patrick Burns |
Downs & Western | Peter Schriek (General Board) |
Gold Coast | Glenn Raine |
Institute of Building Consultants | Michael Decman |
OTHER ELECTORAL COLLEGE MEMBERS | |
| Wayne Cavallaro |
| Donald Close |
| Steve Coates |
| William Cover Donald Dixon |
| Tony Froio |
| Barry Green |
| Rody Harder Ben Hilder Michael Johnson Brett Johnston John Kirkwood Wayne Kleidon John Mahlouzari Colin Matthews Lev Mizikovsky Andrew Murchie John Ogilvie Ken Ogilvie Yvonne Pengilly Craig Petersen Glenn Rashleigh Bede Roebuck Lewis Saragossi Shane Summers Christopher Taylor Lawrie Turner Ronald Veraa Jesse Zielke |
- an order pursuant to s 837 of the Act that the Electoral College and Board of QMBA as set out below shall continue in office until the completion of the next election of Electoral College and Board of QMBA;
- an order pursuant to s 837 of the Act that all acts, matters and things done on behalf of, or purported to be done on behalf of, persons acting, or purporting to act as, the Electoral College and Board of QMBA since 31 March 2017 are, to the date of this Order, declared valid acts, matters or things done on behalf of QMBA; and
- an order pursuant to s 837 of the Act that all acts, matters and things done on behalf of, or purported to be done on behalf of, persons acting, or purporting to act as, the Electoral College and Board of QMBA from the date of this order to the date of the election of a new Electoral College and Board of QMBA, declared valid acts, matters or things done on behalf of QMBA.
- [4]In support of the application, Mr Galvin relies upon an Affidavit of Paul Bidwell, the QMBA Deputy Chief Executive Officer, sworn on 13 September 2017, and an Affidavit of Kathryn Hester, Returning Officer, sworn on 6 September 2017.
- [5]QMBA had completed its scheduled election for a new electoral college and board in September 2016. However, by the end of the year two casual vacancies had arisen. One vacancy was for a board position, and one vacancy was for a divisional representative and a member of the electoral college. Because of the intervening Christmas/New Year period it was decided to commence the casual vacancy election process in late January 2017. Subsequently, on 12 January 2017 an election time table was developed.
- [6]As at 12 January 2017, QMBA was unaware that the prescribed election information required under s 669 of the Act had not been filed, and the omission was not known until after the election had commenced. In this regard, it is accepted that the failure to provide the s 669 information could not be remedied by supplying the information after the election process had commenced.
- [7]Invalidities also occurred arising from the failure of the QMBA to notify the registry of the appointment of a returning officer pursuant to s 817 of the Act, and the failure to lodge an election result report pursuant to s 818 of the Act.
- [8]QMBA said that the election process was commenced in good faith and in the belief that the rules and the relevant Act provisions were satisfied. Both Mr Bidwell and Ms Hester affirm in their Affidavits that they do not believe that the granting of this application would not cause any prejudice to the QMBA membership. There is no evidence to suggest that the making of the orders sought by the applicant would cause a substantial injustice to any of the entities mention in s 837(4) of the Act.
- [9]Section 669 of the Act provides that when an organisation proposes to conduct an election it must, before the prescribed day, file prescribed information in the Industrial Registry:
669 Organisation or branch must file prescribed election information
- (1)If an organisation or a branch of an organisation proposes to conduct an election, the organisation or branch must file the information prescribed by regulation for the election in the registry.
- (2)The information must be filed before the day prescribed by regulation.
- (3)However, the registrar may, on application, allow the information to be filed before a later stated day.
- [10]The Industrial Relations Regulation 2011 specifies the prescribed information and defines when the information must be filed:
34 Prescribed information for elections—Act, s 669
- (1)For section 669(1) of the Act, the following information is prescribed—
- (a)the name of each office for which an election is required;
(b) whether the election is because—
- (i)the term of the office will be ending; or
- (ii)there is a casual vacancy in the office; or
- (iii)of a new office created under the organisation’s or branch’s rules;
(c) the number of offices for election;
(d) the membership figures, if any, used to calculate the number of offices if—
- (i)more than 1 office for which an election is required has the same name; and
- (ii)the number of the offices can, under the organisation’s or branch’s rules, be calculated before the prescribed day under subsection (4);
- (e)if the electorate consists only of members of a branch, section or other division of an organisation—the name of the branch, section or division;
- (f)the day and time of the start and end of the term for each office for which an election is required;
- (g)whether the organisation or branch has adopted the model election rules without change;
- (h)if the organisation or branch has not adopted the model election rules or has adopted the model election rules with changes—
- (i)whether the voting system for the election is a direct voting system or a collegiate electoral system; and
- (ii)how the organisation’s or branch’s rules require the result of the election to be decided.
- (2)The information under subsection (1)(h) may be given by giving the registrar a copy of the provisions of the organisation’s or branch’s rules that contain the information.
- (3)The prescribed information must be accompanied by a statement signed by an authorised officer of the organisation or branch stating the information is being filed under section 669(1) of the Act.
- (4)For section 669(2) of the Act, the prescribed day is the day 2 months before the first day on which a person may become a candidate in the election under the organisation’s or branch’s rules.
- [11]Having regard to information contained in the 2017 Election Report (Schedule C to the Affidavit of Paul Bidwell), nominations for the position of Central Queensland Divisional Representative were called on 18 January 2017, and nominations for the board position to be taken by the Construction Sector Chair were invited on 7 February 2017. It follows from this information that the prescribed election information should have been provided to the Industrial Registry two months before 18 January 2017 in the case of the divisional representative vacancy, and two months before 7 February 2017 in the case of the board vacancy.
- [12]In the circumstances, I conclude that invalidities in the election process would have emerged on and from 18 November 2016.
- [13]Only one nomination was received for the Divisional Representative position and the nominee was duly appointed to that position on 3 February 2017. A ballot was required for the vacant board position and the successful candidate was declared and appointed on 31 March 2017. It follows that if the invalidities are to be validated from a common date, the validation should occur on and from 3 February 2017.
- [14]Section 835 of the Act provides as follows:
835 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.
- [15]The failure on the part of the QMBA to file the prescribed election information before 18 November 2016 (or 7 December 2016 in the case of the board vacancy), as required by s 669 of the Act, is an invalidity in the election or appointment of an officer or an organisation within the terms of s 835(1)(b) of the Act. Further, the failure to notify the Industry Registry of the appointment of a returning officer, and the failure to lodge with the Registry an election result report, also amount to invalidities.
- [16]I therefore declare that invalidities have happened in the election or appointment of officers of QMBA, on and from 19 November 2016, by reason of the fact that the QMBA failed:
- to provide the Industrial Registry with the information prescribed by regulation 34 and pursuant to s 669 of the Act before the prescribed day which was either 7 December 2016 or 19 November 2016;
- to provide the Industrial Registry with a notice of appointment of returning officer;
- to provide the Industrial Registry with an election result report within 14 days of the declaration of the result of the election.
- [17]The current application seeks to remedy these invalidities. In this regard, s 837 of the Act deals with the orders about the effect of invalidities. Section 837 of the Act provides as follows:
837 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 -
(a) to remedy the invalidity or to cause it to be remedied; or
- (b)to change or prevent, or cause to change or prevent, the effects of the invalidity; or
- (c)to validate an act, matter or thing made invalid by or because of the invalidity.
- (3)The commission may also make another order consequential on 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.
- [18]Having read the application, including the Affidavit of Mr Bidwell and the Affidavit of Ms Hester, and having heard from Mr Belfield on behalf of the QMBA, I make the following orders:
- That the Electoral College and Board of QMBA shall from 16 October 2017 be validly constituted by the following persons for all purposes in accordance with the rules of the QMBA:
BOARD | |
President | Ralf Dutton |
Housing Sector Committee Chairperson | Ross Hogno |
Construction Sector Committee Chairperson | Mark Spry |
General Board Members | Nick Herron |
| Drew Brockhurst |
| Geoff Baguley (Div. Rep.) Peter Schriek (Div. Rep.) |
| Adrian Gabrielli |
DIVISIONAL REPRESENTATIVES | |
Far North Queensland | Kim Grossman |
North Queensland | John Wilkinson |
Mackay & Whitsunday | Geoff Baguley (General Board) |
Central Queensland | John O'Sullivan |
Wide Bay Burnett | Desmond Bowes |
Sunshine Coast | Patrick Burns |
Downs & Western | Peter Schriek (General Board) |
Gold Coast | Glenn Raine |
Institute of Building Consultants | Michael Decman |
OTHER ELECTORAL COLLEGE MEMBERS | |
| Wayne Cavallaro |
| Donald Close |
| Steve Coates |
| William Cover Donald Dixon |
| Tony Froio |
| Barry Green |
| Rody Harder Ben Hilder Michael Johnson Brett Johnston John Kirkwood Wayne Kleidon John Mahlouzari Colin Matthews Lev Mizikovsky Andrew Murchie John Ogilvie Ken Ogilvie Yvonne Pengilly Craig Petersen Glenn Rashleigh Bede Roebuck Lewis Saragossi Shane Summers Christopher Taylor Lawrie Turner Ronald Veraa Jesse Zielke |
- That the Electoral College and Board of QMBA comprising of the following persons shall validly continue in office until the completion of the next election of the Electoral College and Board of QMBA:
BOARD | |
President | Ralf Dutton |
Housing Sector Committee Chairperson | Ross Hogno |
Construction Sector Committee Chairperson | Mark Spry |
General Board Members | Nick Herron |
| Drew Brockhurst |
| Geoff Baguley (Div. Rep.) Peter Schriek (Div. Rep.) |
| Adrian Gabrielli |
DIVISIONAL REPRESENTATIVES | |
Far North Queensland | Kim Grossman |
North Queensland | John Wilkinson |
Mackay & Whitsunday | Geoff Baguley (General Board) |
Central Queensland | John O'Sullivan |
Wide Bay Burnett | Desmond Bowes |
Sunshine Coast | Patrick Burns |
Downs & Western | Peter Schriek (General Board) |
Gold Coast | Glenn Raine |
Institute of Building Consultants | Michael Decman |
OTHER ELECTORAL COLLEGE MEMBERS | |
| Wayne Cavallaro |
| Donald Close |
| Steve Coates |
| William Cover Donald Dixon |
| Tony Froio |
| Barry Green |
| Rody Harder Ben Hilder Michael Johnson Brett Johnston John Kirkwood Wayne Kleidon John Mahlouzari Colin Matthews Lev Mizikovsky Andrew Murchie John Ogilvie Ken Ogilvie Yvonne Pengilly Craig Petersen Glenn Rashleigh Bede Roebuck Lewis Saragossi Shane Summers Christopher Taylor Lawrie Turner Ronald Veraa Jesse Zielke |
3. That all acts, matters and things done on behalf of, or purported to be done on behalf of, persons acting, or purporting to act as, the Electoral College and Board of QMBA during the period from 3 February 2017 to 16 October 2017, are declared valid acts, matters or things done on behalf of QMBA; and
4. That all acts, matters and things done on behalf of, or purported to be done on behalf of, persons acting, or purporting to act as, the Electoral College and Board of QMBA from 16 October 2017 to the date of the election of a new Electoral College and Board of QMBA, are declared valid acts, matters or things done on behalf of QMBA.
- [19]The operative date of this declaration and these orders is 16 October 2017.