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Re: Transport Workers' Union of Australia, Union of Employees, Queensland Branch[2022] QIRC 247

Re: Transport Workers' Union of Australia, Union of Employees, Queensland Branch[2022] QIRC 247

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Re: Transport Workers' Union of Australia, Union of Employees, Queensland Branch [2022] QIRC 247

PARTIES:

Transport Workers' Union of Australia, Union of Employees, Queensland Branch

(Applicant)

CASE NO:

RIO/2022/108

PROCEEDING:

Application for decision and declaration that an invalidity has happened and for orders about the effect of invalidity

DELIVERED ON:

24 June 2022

HEARING DATE:

22 June 2022

HEARD AT:

Brisbane

MEMBER:

McLennan IC

ORDERS:

The declarations and orders made appear at the end of these reasons for decision

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – INDUSTRIAL ORGANISATIONS – application by organisation for decision and declaration about invalidity in respect of the management or administration of the organisation's affairs and / or the election or appointment of an officer or officers of the TWUQ – application for orders about invalidity or its effects – appointment of branch secretary and branch president – decision that invalidities have occurred – declarations made – orders made to remedy invalidities

LEGISLATION &

OTHER INSTRUMENTS:

Industrial Relations Act 2016 (Qld) s 835, s 836, s 837

Rules of the Transport Workers' Union of Australia, Union of Employees, Queensland Branch r 56, r 67

CASES:

Re: Agforce Queensland Industrial Union of Employers [2019] QIRC 030

Re: Australian Institute of Marine and Power Engineers' Union of Employees, Queensland District [2018] QIRC 144

Re: Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch [2020] QIRC 218

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

Re: Queensland Master Builders Association, Industrial Organisation of Employers [2017] QIRC 093

The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees [2006] QIRC 131

APPEARANCES:

Mr R. Tate of Maurice Blackburn Lawyers and with him Mr R. Olsen and Mr J. Millroy of the Transport Workers' Union of Australia, Union of Employees, Queensland Branch on behalf of the Applicant.

Reasons for Decision

  1. [1]
    The TWUQ has made an application, pursuant to ch 12, pt 13, div 3 of the Industrial Relations Act 2016 (Qld) (the IR Act).
  1. [2]
    The Application filed on 27 May 2022 states that:

The Applicant is applying to the Commission to decide if invalid acts occurred pursuant to section 835(1) subsections (a) and (b) of the Industrial Relations Act 2016 (Qld) ("the Act").  This application concerns an invalidity or invalidities that relate to:

  1. a)the management or administration of the Transport Workers' Union of Australia, Union of Employees ("TWUQ") affairs; and / or
  2. b)the election or appointment of an officer or officers of the TWUQ.

The Applicant applies to the Commission to make orders pursuant to section 837(2) subsections (a) and (b) of the Act, should an invalidity or invalidities have occurred, to:

  1. a)remedy the invalidity or to cause it to be remedied; and / or
  2. b)validate and act, matter or thing made invalid by or because of the invalidity.

There would be no substantial injustice, pursuant to sections 827 and 837(4) of the Act, should the Commission make the order.

The Applicant requests that, should the Commission be minded to make an order, if an invalidity or invalidities have occurred, the order pursuant to section 837 of the Act have the following effect:

  1. a)to make the decisions of the office bearers of the TWUQ as constituted prior to the date of the order, that may have been affected by the invalidities, so that any act, matter or thing that was rendered invalid, be remedied and validated;
  2. b)to constitute the offices of the Secretary and President of the TWUQ as held by Richard Olsen and Anthony Matthews respectively, on and from the date of such an order, until the term of office of those office bearers either expires or ends; and
  3. c)all acts, matters or things that may be invalid, to the date of this order, be declared valid acts, matters or things done on behalf of the TWUQ.

The Applicant's Secretary, Richard Olsen, has prepared an affidavit that accompanies this application.

Outcome sought by Applicant

  1. [3]
    The TWUQ requested that the Commission make a declaration that:
  1. 1.An invalidity happened in the management and administration of the Transport Workers' Union of Australia, Union of Employees (Queensland Branch) ("the TWUQ"), as, Richard Olsen and Anthony Matthews were not, at the time of their appointment to fill casual vacancies to the positions of Branch Secretary and Branch President, eligible to hold those positions, as, a rule change to ensure their eligibility, had not as yet taken effect.
  2. 2.An invalidity or invalidities happened in the management and administration of the TWUQ because the TWUQ Branch Committee of Management appointed, due to casual vacancies, Richard Olsen and Anthony Mathews to the positions of Branch Secretary and Branch President and made decisions, both in those positions and as part of the Branch Committee of Management, when they were ineligible to hold those positions, and, while the Branch Committee of Management was not properly constituted, as, a rule change had not as yet taken effect.[1]
  1. [4]
    The TWUQ requested that the Commission make orders that:
  1. 1.The decisions of the office bearers of the Transport Workers' Union of Australia, Union of Employees (Queensland Branch) ("the TWUQ") as constituted prior to the date of this order, that may have been affected by the invalidities, the subject of the declarations referred to at paragraph 1 and paragraph 2 above, are remedied and validated so that all acts, matters or things made invalid by or because of those invalidities are remedied and validated.
  2. 2.On and from the date of this Order, the following persons shall be the holders of the following officers of the TWUQ:
  1. a.
    Richard Olsen, Branch Secretary; and
  2. b.
    Anthony Matthews, Branch President.
  1. 3.On and from the date of this Order, the persons holding the offices referred to in Order 2 shall be treated as the Branch Secretary and Branch President of the TWUQ for all purposes until the term of office of the office bearers either expires or ends.
  2. 4.All acts, matters, or things that may be invalid, from the date of the appointment of the Branch Secretary and Branch President, up to the date of this Order, because of the invalidities the subject of the declarations referred to in paragraph 1 and 2, are valid acts, matters or things done on behalf of the TWUQ.[2]

Questions to be decided

  1. [5]
    The questions for my determination are:
  • have invalidities happened, such that I should make declarations to that effect?

and, if so

  • should orders be made to remedy the invalidities or cause the invalidities to be remedied and should orders be made to validate an act, matter or thing made invalid by or because of the invalidities?

Decision

  1. [6]
    For the reasons that follow, I have determined that I should declare that invalidities have happened in the management or administration of the TWUQ's affairs and that I should make orders to remedy the invalidities and to validate acts, matters or things made invalid by or because of the invalidities.
  1. [7]
    It was reasonable and appropriate for the TWUA National Council to take the steps it did to protect members' interests and ensure their ongoing access to union support at work, in circumstances where the Queensland branch was beset by governance challenges in the relevant period.

The IR Act

  1. [8]
    Chapter 12 of the IR Act deals with industrial organisations and associated entities. 
  1. [9]
    Chapter 12, pt 13 of the IR Act deals with circumstances where certain acts of organisations, or of an organisation's officers, are deemed to be valid.
  1. [10]
    Chapter 12, pt 13, div 3 of the IR Act deals with circumstances where certain persons may apply for the Commission to decide and declare that an invalidity has happened and for the Commission to make orders about the effects of such an invalidity.  That division provides:

835 Commission may decide

  1. (1)
    The commission may, on application, decide whether an invalidity has happened in-
  1. (a)
    the management or administration of an organisation's affairs; or
  2. (b)
    the election or appointment of an officer of an organisation; or
  3. (c)
    the making, amending or repealing of a rule of an organisation.
  1. (2)
    In deciding the application, the commission may declare whether or not an invalidity has happened.

836 Who may apply

The application may be made only by-

  1. (a)
    the organisation; or
  2. (b)
    a member of the organisation; or
  3. (c)
    another person the commission considers has a sufficient interest in the subject matter of the application.

837 Orders about effects of invalidity

  1. (1)
    This section applies if, on the hearing of the application, the commission declares an invalidity has happened.
  2. (2)
    The commission may make an order it considers appropriate-
  1. (a)
    to remedy the invalidity or to cause it to be remedied; or
  2. (b)
    to change or prevent, or cause to change or prevent, the effects of the invalidity; or
  3. (c)
    to validate an act, matter or thing made invalid by or because of the invalidity.
  1. (3)
    The commission may also make another order consequential on an order under subsection (2).
  2. (4)
    The commission must not make an order under this section if the order would cause substantial injustice to-
  1. (a)
    the organisation that the invalidity concerns; or
  2. (b)
    a member or creditor of the organisation; or
  3. (c)
    a person dealing with or who has dealt with the organisation.
  1. [11]
    Chapter 12, pt 13, div 1 of the IR Act defines:

In this part –

act includes decision.

collective body, of an organisation, means –

  1. (a)
    its management committee; or
  2. (b)
    a conference, council, committee, panel or other body of or within the organisation.

invalidity includes defect.

organisation includes a branch of an organisation.[3]

Exhibits

  1. [12]
    The following documents were admitted as exhibits in this matter:
  • Exhibit 1

Affidavit of Mr Richard Olsen, affirmed 26 May 2022

  • Exhibit 2

Rules of the Transport Workers' Union of Australia, Union of Employees, Queensland Branch

  • Exhibit 3

Rules of the Transport Workers' Union of Australia

  • Exhibit 4

Transitional Rule – Eligibility for Positions[4]

  • Exhibit 5

Casual Vacancies[5]

Relevant Authorities

  1. [13]
    The Applicant referred me to the following authorities, in support of the application:
  • Re: Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch [2020] QIRC 218;
  • Re: Agforce Queensland Industrial Union of Employers [2019] QIRC 030;
  • Re: Australian Institute of Marine and Power Engineers' Union of Employees, Queensland District [2018] QIRC 144; and
  • Re: Queensland Master Builders Association, Industrial Organisation of Employers [2017] QIRC 093.

Mr Olsen's evidence

  1. [14]
    Mr Olsen's affirmed affidavit evidence was unchallenged at the Hearing.
  1. [15]
    Mr Olsen leads union members through the following positions:
  • he is State Secretary of the Transport Workers' Union of Australia, Union of Employees (Queensland Branch) (the TWUQ);
  • Mr Olsen also sits on the federally registered Transport Workers' Union of Australia (the TWUA) National Council; and
  • further, he is also the Branch Secretary of the Transport Workers' Union of Australia, NSW/Qld (Interim Governance) Branch.
  1. [16]
    Describing the disbanding of the former TWUA Queensland Branch, Mr Olsen's evidence was that:
  • on 23 July 2021, the TWUA National Council resolved to disband the Federal TWUA Queensland Branch (TWUA Queensland) because of management / operation problems and governance issues.  That was permitted under the TWUA Rules in the particular circumstances;
  • there was no evidence of fraud or misappropriation of monies in TWUA Queensland;
  • the TWUA had treated the TWUA Queensland and TWUQ as the same organisation (the Queensland Branch) because of the overlap of office holders and trustees, despite the two arms of the Queensland Branch being subject to different legislation;
  • the TWUA National Council acted to provide the (former) TWUA Queensland members with an appropriate means to participate in the affairs of the TWUA and to promote the efficient management.  That was achieved by attaching the (former) TWUA Queensland members to the Federal NSW TWUA Branch;[6] 
  • in order to be inclusive of the TWU membership across both states, the TWUA National Council changed the name of the Federal NSW TWUA Branch to the Federal NSW/QLD (Interim Governance) Branch;[7]
  • the TWUA National Council decided to add ten extra members to the Federal NSW/QLD (Interim Governance) Branch Committee of Management (NSW/QBCOM), to ensure proportional governance representation for Queensland members;[8]
  • the TWUA National Council appointed seven of the former NBCOM members to the NSW/QBCOM on 23 July 2021;
  • further, the TWUA National Council appointed three additional National Councillors from the (former) Queensland membership as well;
  • the TWUA National Council took those actions because:
  1. (i)
    the Queensland Branch had effectively ceased to function;
  2. (ii)
    TWUA members based in Queensland needed continuity of high-level service and campaigning support from their union;
  3. (iii)
    the TWUA National Council would re-establish a Federal Queensland Branch as soon as one could operate in an appropriate, effective and stable manner;
  4. (iv)
    until a Federal Queensland Branch is re-established, the National Council would have a stewardship role through its oversight governance of the Federal NSW/QLD Interim Branch (in accordance with its powers to do so under r 25(1) of the TWUA Rules); and
  5. (v)
    in this undertaking, the TWUA National Council will have regard to Stewardship Principles developed by Deloitte.
  • on 6 December 2021, the TWUA National Council met and passed resolutions altering the TWUA Rules to give effect to the above matters, with the changes to operate retrospectively on and from 23 July 2021.  The Fair Work Commission subsequently certified the rule changes;
  • since 23 July 2021, all former members of the QBCOM appointed to the NSW/QBCOM remaining have been supported with further governance training;
  • if not for the actions of the TWUA National Council to immediately disband the TWUA Queensland Branch, irreparable damage to that branch would have occurred; and
  • whilst the TWUQ Rules do not allow the same immediate action as that permitted for the TWUA Queensland, because the vast majority of the (then) Queensland branch members were members of the federally registered branch, the steps were taken quickly to protect the majority of members who could be affected by the issues and problems identified.
  1. [17]
    Regarding office holders and casual vacancies, Mr Olsen's evidence was that:

President

  • on 7 May 2021, the TWUA Queensland Branch President and TWUQ President resigned from those offices;
  • on 21 September 2021, Mr Anthony Mathews was appointed to the position of TWUQ Branch President by the QBCOM.  Mr Matthews is the Federal NSW/QLD (Interim Governance) Branch President.  That provides consistency across both organisations;

Secretary

  • on 23 July 2021, the then TWUA Queensland Branch Secretary resigned from that office.  As that branch was disbanded, Mr Olsen remained Secretary of the (branch renamed as the) Federal NSW/QLD (Interim Governance) Branch;
  • on 21 September 2021, the then TWUQ Branch Secretary resigned from that office, creating a casual vacancy; and
  • then further on 21 September 2021, Mr Olsen was appointed to the position of TWUQ Branch Secretary by the QBCOM.  That provides consistency across both organisations.
  1. [18]
    With respect to the current status of the TWUQ, Mr Olsen explains in his evidence that:
  • whilst immediate action was required by the TWUA National Council to secure high-level union support for Queensland-based members, this application is about curing any invalidities in governance matters with respect to the TWUQ;
  • he TWUQ is also introducing a series of TWUQ Rule changes, the first of which took effect on 7 April 2022.  Those rule changes facilitate office holders of the Interim Governance Branch and TWUQ holding comparable positions across both organisations; harmonisation and stewardship – with the ultimate aim being the re-establishment of a federally-registered TWUA Queensland Branch; and
  • this application aims to:
  1. (i)
    validate the decisions by the QBCOM to appoint Mr Olsen and Mr Matthews to the positions of TWUQ Branch Secretary and Branch President respectively because they were not eligible to hold those offices until the rule change took effect on 7 April 2022; and
  2. (ii)
    since Mr Olsen has acted as Branch Secretary since 21 September 2021, there are a number of decisions and acts, constituting the management and administration of the TWUQ approved by him, that are technically invalid and need to be made valid.

Have invalidities happened in the management or administration of the TWUQ's affairs, such that I should make declarations to that effect?

  1. [19]
    Having considered the affidavit of Mr Olsen, I have decided that invalidities have happened in the management or administration of the TWUQ's affairs within the meaning of s 835(1) of the IR Act.
  1. [20]
    There is no reason why I should not make declarations to that effect.

Should orders be made to remedy the invalidities or cause the invalidities to be remedied and should orders be made to validate an act, matter or thing made invalid by or because of the invalidities?

  1. [21]
    As Deputy President Merrell recently observed:[9]

In general terms, the object of applications, such as the present, 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 invalidities that has occurred.[10]

The principal consideration, in respect of whether or not I should make orders pursuant to s 837 of the Act about the effects of an invalidity, is whether such an order would cause substantial injustice to the ARTBUQ, to a member or creditor of the ARTBUQ, or a person dealing with or who has dealt with the ARTBUQ.

  1. [22]
    Those comments are apposite in this matter and I follow his Honour's reasoning here.
  1. [23]
    Mr Olsen's evidence was unchallenged at the Hearing.
  1. [24]
    No other person appeared before the Commission, on the day of the Hearing, to oppose the TWUQ's application or to claim that substantial injustice would be caused to them if I was to make orders, about the effects of the invalidities, as sought by the TWUQ.
  1. [25]
    As such, there is no evidence before me that making the orders sought would cause any substantial injustice.
  1. [26]
    Therefore, I am satisfied that any orders I may make, in that regard, would not cause substantial injustice to the TWUQ, to a member or creditor of the TWUQ or to any person dealing with or who has dealt with the TWUQ. 
  1. [27]
    There is no reason why I should not make orders, that I consider appropriate, to remedy the invalidities or to cause the invalidities to be remedied.
  1. [28]
    I will make the declaration and orders sought by the TWUQ.

Declarations and Orders

  1. [29]
    I make the following declarations:

Pursuant to s 835(2) of the Industrial Relations Act 2016 ('the Act'):

  1. 1.I declare that an invalidity happened in the management and administration of the Transport Workers' Union of Australia, Union of Employees (Queensland Branch) ("the TWUQ"), as, Richard Olsen and Anthony Matthews were not, at the time of their appointment to fill casual vacancies to the positions of Branch Secretary and Branch President, eligible to hold those positions, as, a rule change to ensure their eligibility, had not as yet taken effect.
  2. 2.I declare that an invalidity or invalidities happened in the management and administration of the TWUQ because the TWUQ Branch Committee of Management appointed, due to casual vacancies, Richard Olsen and Anthony Mathews to the positions of Branch Secretary and Branch President and made decisions, both in those positions and as part of the Branch Committee of Management, when they were ineligible to hold those positions, and, while the Branch Committee of Management was not properly constituted, as, a rule change had not as yet taken effect.
  1. [30]
    I make the following orders:

Pursuant to s 837(2) of the Act, I make the following orders:

  1. 1.The decisions of the office bearers of the Transport Workers' Union of Australia, Union of Employees (Queensland Branch) ("the TWUQ") as constituted prior to the date of this order, that may have been affected by the invalidities, the subject of the declarations referred to at paragraph [29] above, are remedied and validated so that all acts, matters or things made invalid by or because of those invalidities are remedied and validated.
  2. 2.On and from the date of this Order, the following persons shall be the holders of the following offices of the TWUQ:
  1. a.Richard Olsen, Branch Secretary; and
  2. b.Anthony Matthews, Branch President.
  1. 3.On and from the date of this Order, the persons holding the offices referred to in Order 2 shall be treated as the Branch Secretary and Branch President of the TWUQ for all purposes until the term of office of the office bearers either expires or ends.
  2. 4.All acts, matters, or things that may be invalid, from the date of the appointment of the Branch Secretary and Branch President, up to the date of this Order, because of the invalidities the subject of the declarations referred to in paragraph [29] above, are valid acts, matters or things done on behalf of the TWUQ.

Footnotes

[1] Draft Minute of Order filed by the Applicant on 20 June 2022.

[2] Ibid.

[3] Industrial Relations Act 2016 (Qld) s 826.

[4] Rules of the Transport Workers' Union of Australia, Union of Employees, Queensland Branch r 67.

[5] Ibid r 56.

[6] as at 23 July 2021.

[7] as at 23 July 2021.

[8] as at 23 July 2021.

[9] Re: Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch [2020] QIRC 218, [19] – [20].

[10] Re: The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees [2016] QIRC 100, [4].

Close

Editorial Notes

  • Published Case Name:

    Re: Transport Workers' Union of Australia, Union of Employees, Queensland Branch

  • Shortened Case Name:

    Re: Transport Workers' Union of Australia, Union of Employees, Queensland Branch

  • MNC:

    [2022] QIRC 247

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    24 Jun 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Agforce Queensland Industrial Union of Employers [2019] QIRC 30
2 citations
Jump To
Cite 1 - [2019] QIRC 30
Cite 2 - [2019] QIRC 30
Australian Institute of Marine and Power Engineers' Union of Employees, Queensland District [2018] QIRC 144
2 citations
Jump To
Cite 1 - [2018] QIRC 144
Cite 2 - [2018] QIRC 144
Queensland Master Builders Association, Industrial Organisation of Employers [2017] QIRC 93
2 citations
Jump To
Cite 1 - [2017] QIRC 93
Cite 2 - [2017] QIRC 93
Re: Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch [2020] QIRC 218
3 citations
Jump To
Cite 1 - [2020] QIRC 218
Cite 2 - [2020] QIRC 218
Cite 3 - [2020] QIRC 218
Re: The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees [2016] QIRC 100
2 citations
Jump To
Cite 1 - [2016] QIRC 100
Cite 2 - [2016] QIRC 100
The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees [2006] QIRC 131
1 citation
Jump To
Cite 1 - [2006] QIRC 131

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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