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Amerena and Ors v Queensland Teachers Union of Employees and Ors[2023] QIRC 302

Amerena and Ors v Queensland Teachers Union of Employees and Ors[2023] QIRC 302

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Amerena and Ors v Queensland Teachers Union of Employees and Ors [2023] QIRC 302

PARTIES:

Amerena, Oliver

(First Applicant)

and

Arnot, Tim

(Second Applicant)

and

Barrigos, Rebecca

(Third Applicant)

v

Queensland Teachers Union of Employees

(First Respondent)

and

Ruttiman, Kate

(Second Respondent)

CASE NO:

RIO/2023/193

Amerena, Oliver

(First Applicant)

and

Arnot, Tim

(Second Applicant)

and

Barrigos, Rebecca

(Third Applicant)

v

Queensland Teachers Union of Employees

(First Respondent)

and

Ruttiman, Kate

(Second Respondent)

and

Richardson, Cresta

(Third Respondent)

and

Olsson, Leah

(Fourth Respondent)

and

Cleary, Josh

(Fifth Respondent)

CASE NO:

RIO/2023/194

PROCEEDING:

Applications in existing proceedings

DELIVERED ON:

19 October 2023

HEARING DATE:

17 October 2023

MEMBER:

Merrell DP

PLACE OF HEARING:

Brisbane

ORDERS:

The orders contained in paragraph [116] of these reasons for decision.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – INDUSTRIAL ORGANISATIONS – ELECTIONS – Applicants are candidates in an election for the offices of President, Vice President (Full–Time) and Vice President (Honorary) of the Queensland Teachers Union of Employees  – Applicants commenced proceedings for the Queensland Industrial Relations Commission to direct the Queensland Teachers Union of Employees and its General Secretary to give effect to or to comply with the Rules of the Queensland Teachers Union of Employees, namely, to provide to the Applicants, electronically, a list of the members of the Queensland Teachers Union of Employees eligible to vote in the election inclusive of the voting members' email addresses  – Applicants also made an Election Inquiry application, pursuant to s 687 of the Industrial Relations Act 2016, on the basis an irregularity has happened in the election, namely, the refusal to give the Applicants a list of voting members inclusive of their email addresses – Election Inquiry application referred by Industrial Registrar to the Queensland Industrial Relations Commission – Queensland Teachers Union of Employees and its General Secretary applied, pursuant to s 541(b)(ii) of the Industrial Relations Act 2016, for orders dismissing the Applicants' two applications and further, or in the alternative, that the Queensland Industrial Relations Commission refrain from hearing or further hearing or deciding the Applicants' two applications because further proceedings are not necessary or desirable in the public interest – whether, in respect of the Applicants' two applications, further proceedings by the Queensland Industrial Relations Commission are not necessary or desirable in the public interest – further proceedings by the Queensland Industrial Relations Commission, in respect of the Applicants' two applications,  are not necessary or desirable in the public interest because they cannot succeed as a matter of law – no obligation on any person to give effect to or to comply with the Rules of the Queensland Teachers Union of Employees – no irregularity within the meaning of s 595 of the Industrial Relations Act 2016 –  Applicants' two applications dismissed

INDUSTRIAL LAW – QUEENSLAND – INDUSTRIAL ORGANISATIONS – RULES – GENERALLY – whether a policy made by the Conference or the Council of the Queensland Teachers Union of Employees under r 7.5 or 8.2(b) of the Rules of the Queensland Teachers Union of Employees expressly or implicitly means that the Policy is in full force and effect under those Rules for the purposes of s 646(1)(b) of the Industrial Relations Act 2016  – whether effect can be given to those rules pursuant to s 646(1)(b) of the Industrial Relations Act 2016 in respect of a policy made in pursuance of them – no such effect under the Rules of the Queensland Teachers Union of Employees or under the Industrial Relations Act 2016 – Commission's discretion, pursuant to s 646(1)(b) of the Industrial Relations Act 2016, not enlivened

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – general principles of statutory construction – meaning of 'industrial cause' and 'the public interest' in s 541(b)(ii) of the Industrial Relations Act 2016 – meaning of 'irregularity' in s 595 of the Industrial Relations Act 2016

LEGISLATION AND OTHER INSTRUMENTS:

Associations Incorporation Act 1981, s 72

Conciliation and Arbitration Act 1904 (Cth), s 4, s 58E, s 170

Fair Work (Registered Organisations) Act 2009 (Cth), s 6 and s 190

Industrial Relations Act 1999, s 331 and s 409

Industrial Relations Act 2016, s 541, s 595, s 599, s 607, s 610, s 614, s 617, s 620, s 623, s 633, s 646, s 666, s 670, s 687, s 689, s 690, s  695, s 713, s 714, s 740, s 744 and sch 5.

Queensland Teachers Union of Employees Constitution and Rules, r 3, r 4, r 6, r 7, r 8 and r 9

Workplace Relations Act 1996, sch 1B

CASES:

Allen v Townsend [1977] FCA 10; (1977) 16 ALR 301

Becker, in the matter of an application for an inquiry in relation to an election for offices in the Australian Education Union, Queensland Branch [2004] FCA 1534

Campbell v State of Queensland (Department of Justice and Attorney General) [2019] ICQ 18; (2019) 291 IR 171

Carovska, in the matter of an application for an inquiry in relation to an election for offices in the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, NSW Branch [2023] FCA 1129

Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378

Clancy, in the matter of an application for an inquiry in relation to an election for offices in the Australian Nursing and Midwifery Federation [2017] FCA 460

Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503

Koc v Diamond (No 2) [2022] FCA 640

McJannett, in the matter of an application for an inquiry in relation to an election for offices in the Construction, Forestry, Mining and Energy Union, Western Australian Branch (No 2) [2009] FCA 1015

Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619

O'Connell v Greenhill; Re Federated Liquor and Allied Trade Employees Union of Australasia (1937) CAR 605

O'Grady v Northern Queensland Co Ltd [1990] HCA 16; (1990) 169 CLR 356

O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210.

Pine Rivers, Caboolture & Redcliffe Training Scheme Inc v Group Training Association Queensland & Northern Territory [2013] QCA 358; (2015) 1 Qd R 542

Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

R v A2 [2019] HCA 35; (2019) 269 CLR 507

R v Commonwealth Court of Conciliation and Arbitration; ex parte Barrett [1945] HCA 50; (1945) 70 CLR 141

R v Gray; Ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351

Re Collins; Ex parte Hockings [1989] HCA 42;  (1989) 167 CLR 522

Re An Application By Dannie Richard Davidson of An Inquiry Into An Election of An Office In the Musicians' Union of Australia, Newcastle Branch [1990] FCA 129; (1990) 22 FCR 449

Re Post; Re Election for Offices in Transport Workers Union of Australia, Western Australian Branch [1992] FCA 15; (1992) 40 IR 162

Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 72 ALR 1

Scott v Jess [1984] FCA 289; (1984) 3 FCR 263; (1984) 8 IR 317

Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees v Minister for Industrial Relations and Retailers’ Association of Queensland Limited, Union of Employers [2003] ICQ 33; (2003) 173 QGIG 1342

State of Queensland v Lockhart [2014] ICQ 006

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362

APPEARANCES:

Mr M. Amerena of Counsel, instructed by Hall Payne Lawyers for the Applicants in Matter No. RIO/2023/193 and in Matter No. RIO/2023/194

Mr S. Reidy of Counsel, instructed by Holding Redlich for the First and Second Respondents in Matter No. RIO/2023/193 and in Matter No. RIO/2023/194

No appearance by the Third, Fourth and Fifth Respondents in Matter No. RIO/2023/194

Ms M. Johanson, on her own behalf as an interested person in Matter No. RIO/2023/194

Mr J. Kapeleris, General Counsel for the Electoral Commissioner of Queensland in Matter No. RIO/2023/194

Reasons for Decision

Introduction

  1. [1]
    The Queensland Teachers Union of Employees ('the QTU') is an employee organisation registered under ch 12 of the Industrial Relations Act 2016 ('the IR Act').
  1. [2]
    The supreme control of the QTU is vested in two bodies[1] established under the QTU's Constitution and Rules ('the Rules'), namely, the Conference[2] and the Council.[3]
  1. [3]
    Between meetings of the Council, the management of the QTU is vested in the Executive[4] which consists of a number of persons including the Senior Officers of the QTU.[5] The Senior Officers of the QTU consist of the President, Vice President (Full-time), Vice President (Honorary), the General Secretary and two Deputy General Secretaries.[6]
  1. [4]
    Elections for the position of offices within the QTU are conducted by the Electoral Commission of Queensland ('the ECQ').[7]
  1. [5]
    By decision dated 25 May 2023, the Industrial Registrar, pursuant to s 670 of the IR Act, determined that elections for the positions of President, Vice President (Full-time), and Vice President (Honorary) of the QTU were required to be held under the Rules.[8]
  1. [6]
    On 21 July 2023, the ECQ gave written notice of an election for those offices and invited financial members of the QTU to nominate as candidates for those offices.[9]
  1. [7]
    Mr Oliver Amerena, Mr Tim Arnot and Ms Rebecca Barrigos ('the Amerena parties') are, respectively, candidates for the offices of President, Vice President (Full-time) and Vice President (Honorary). Those offices are contested.  The election for those offices, by a secret postal ballot of members of the QTU eligible to vote ('voting members') opened on 6 October 2023 and will close at midday on 16 November 2023 ('the Election').
  1. [8]
    On 27 September 2023, the Amerena parties made two applications. The first is an application made to the Commission, pursuant to s 646 of the IR Act, to direct the QTU and its General Secretary, Ms Kate Ruttiman ('the QTU parties'), to give effect to or comply with the Rules ('the Rules application'). The Amerena parties apply to the Commission to order the QTU parties to give effect to and comply with the Rules, by providing them with a list of voting members in the Election, inclusive of each such voting member's email address, electronically in Excel, within 24 hours of the time and date of the order or within such other further longer period determined by the Commission.
  1. [9]
    The second application, made to the Industrial Registrar, is an Election Inquiry Application, made pursuant to s 687 of the IR Act ('the Election Inquiry application'). The irregularity in the Election is said to be the refusal by the QTU parties, to provide the Amerena parties, following their request, a list of QTU members eligible to vote in the Election, inclusive of the email address of each member. The respondents to the Election Inquiry application are the QTU parties and the other candidates for the offices. Ms Madonna Johanson is also a candidate for the office of Vice President (Honorary).
  1. [10]
    On 29 September 2023, pursuant to s 690 of the IR Act, the Industrial Registrar referred the Election Inquiry application to the Commission.
  1. [11]
    By two applications filed on 29 September 2023, the QTU parties applied, pursuant to s 541(b) of the IR Act, for orders dismissing the Rules application and dismissing the Election Inquiry application, and further, or in the alternative, that the Commission refrain from hearing, further hearing or deciding the Rules application and the Election Inquiry application.
  1. [12]
    These applications are made by the QTU parties on the basis that further proceedings in respect of the Rules application and the Election Inquiry application are not necessary or desirable in the public interest.
  1. [13]
    The questions for my determination are:
  • should I exercise discretion pursuant to s 541(b)(ii) of the IR Act and dismiss the Rules application and the Election Inquiry application because further proceedings are not necessary or desirable in the public interest? or, in the alternative
  • should I exercise discretion pursuant to s 541(b)(ii) of the IR Act and refrain from hearing, further hearing or deciding the Rules application and the Election Inquiry application because further proceedings are not necessary or desirable in the public interest?
  1. [14]
    For the reasons that follow, I will order that, pursuant to s 541(b)(ii) of the IR Act, the Rules application and the Election Inquiry application be dismissed.

Background

The Rules

  1. [15]
    Rule 7 of the Rules deals with the Conference. Sub-rules 7.4 and 7.5 provide:

7.4 Powers of Conference:

Conference shall have the authority to exercise all of the powers and functions given to Council by these rules.  Conference shall determine the policy of the Union.

7.5 Decisions of Conference:

Each and every resolution, decision or determination of Conference shall be deemed to be in full force and effect, unless and until set aside or varied by a subsequent meeting of Conference or Council in accordance with the rules.  Except that Union Policy adopted by Conference shall only be varied by a subsequent Conference or a subsequent Council where at that Council policy is varied by a 2/3 majority of Councillors present and voting thereon.

  1. [16]
    Rule 8 of the Rules deals with the Council.
  1. [17]
    Sub-rule 8.2 relevantly provides:

8.2 Powers:

  1.  The Council shall have the following powers, namely:-

…

  1.  To determine the policy of the Union where no policy exists.
  1.  Each and every resolution, decision or determination of Council shall be deemed to be in full force and effect unless and until set aside or varied in accordance with these rules by a subsequent meeting of Council or Conference.

The Policy

  1. [18]
    The election for the offices of President, Vice President (Full-time) and Vice President (Honorary) is constituted by a direct election amongst QTU members who were financial members on the thirtieth day prior to the opening of nominations for candidates for those offices.[10]
  1. [19]
    At all material times, the QTU has had a policy entitled 'Structures, procedures and services policy' ('the Policy') which, amongst other matters, deals with the elections for the offices of President, Vice President (Full-time) and Vice President (Honorary).
  1. [20]
    The Policy relevantly provides:
  1. 16.
    Union elections
  1. 16.1
    Presidential/Vice-President (full-time)/Vice-President (honorary) elections

Each candidate shall be given access to maximum of one full page in each of the Queensland Teachers' Journals (up to a maximum of three) printed between the close of nominations and the close of the ballot. Such materials shall include a notice that the information supplied is the opinion of the author.

  1. 16.2
    Membership lists

Candidates or prospective candidates in an election for a Union position may request a list of names, postal addresses and other relevant information of members (or sub-groups) in the electorate. The request must be made to the General Secretary in writing.

The information may be provided in paper form, as a set of labels or in an electronic form. The cost of producing the information will be met by the candidate. The membership information must only be used for the election for which it is provided. The candidate must provide a written commitment to that effect.

A prospective candidate (who has provided a statutory declaration of their candidacy) may obtain the information up to five months prior to the close of nominations for QTU presidential elections, or two months in the case of other elections.

  1. 16.3
    Election material

All election material, being any publication (whether in hard copy or distributed by email, social media or other electronic means) which is able to, or intends to affect, the result of an election or influence a member in relation to their vote, shall include the name of the person or people responsible for printing and publishing it. Breach of this policy amounts to an improper act under the rules, which may result in disciplinary consequences as determined by the QTU Constitution and Rules.

  1. [21]
    The Policy was determined by the Conference.[11]
  1. [22]
    On 26 August 2023, the Council, by a two thirds majority, amended the Policy and added a further final paragraph to cl 16.2, namely:

The information provided by the QTU to those seeking election to a QTU position is only to be used for the purposes of written or telecommunications to members only.[12]

The relevant events

  1. [23]
    The relevant recent events leading to the Rules application and the Election Inquiry application are:
  • on 31 July 2023, Mr Arnot emailed the QTU and Ms Ruttiman and, with a supporting statutory declaration, requested, pursuant to cl 16.2 of the Policy, 'electronically in excel' a list of the postal addresses and workplaces of all members of the QTU, the identification of which members were workplace representatives and '… Any other contact information available to prospective candidates for members';[13]
  • on 1 August 2023, a Deputy General Secretary of the QTU, Ms Leah Mertens, sent an email to Mr Arnot:
  1. –advising that it had come to the attention of Ms Mertens that Mr Arnot had been provided an email containing an excel spreadsheet with the email addresses of all QTU members and all QTU union representatives, that those email addresses had been provided in error and that it was '… a breach of the privacy legislation … to use these email addresses';
  2. –requesting that Mr Arnot to delete the email with the accompanying attachments containing the email addresses of all QTU members and all QTU union representatives; and
  3. –further advising that he (Mr Arnot) would be resent the list of the members he requested;[14]
  • by further email sent on 3 August 2023 to Mr Arnot, Ms Mertens:
  1. –advised Mr Arnot that upon Ms Ruttiman's review of the Policy, he was able to use the email addresses of all QTU union representatives for the purposes of sending election material and a revised list containing that information was attached; and
  2. –reminded Mr Arnot that he was not to use the email addresses that had been previously provided to him as that would be in breach '… of the Federal Privacy legislation';[15]
  • by email sent on 3 August 2023, Mr Arnot responded to Ms Mertens confirming that the email addresses sent to him would not be used and had been deleted;[16] and
  • between about 6 September 2023 and 21 September 2023, the QTU parties and the Amerena parties resolved a number of matters raised by the Amerena parties in connection with the Election, other than the request made by the Amerena parties for the provision of each voting member's email address.[17]

The Rules application

  1. [24]
    The Rules application is made by the Amerena parties pursuant to s 646 of the IR Act.[18] That section is contained in ch 12, pt 5 ('Validity and compliance with rules') of the IR Act.
  1. [25]
    Section 646 provides:
  1. 646
    Powers of commission
  1.  The commission may, on application (a rules application)–
  1.  decide whether an organisation’s rules comply with section 623; or
  1.  direct a person obliged to give effect to or comply with an organisation’s rules to give effect to or comply with the rules.
  1.  However, a direction must not be made if it invalidates–
  1.  an election or purported election; or
  1.  a step for an election or purported election.
  1.  In deciding the rules application, the commission may declare–
  1.  the whole, or a part of, the rules comply with or contravene section 623; or
  1.  the rules contravene section 623 in a stated way.
  1. [26]
    The Amerena parties contend that:
  1. Upon the true construction of the Rules, the conference and alternatively the council had the express or alternatively implicit power to, and did, determine and make clause 16.2 as policy binding upon, and enforceable amongst the QTU, its officers and members, but that policy was valid only to the extent that clause 16.2: -
    1. was not contrary to the Industrial Relations Act 2016 (Act); and
    2. further and alternatively, was not contrary to the Rules; and
    3. further and alternatively, was determined by conference or alternatively council bona fide and:
  1. for the purposes for which the power to determine policy was conferred upon the conference and the council; and
  2. for the benefit of and in the interests of the members of the QTU as a whole.
  1. Clause 16.2 insofar as it provides that:

The cost of producing the information will be met by the candidate.

is invalid and of no force and effect, as it is contrary to section 633(h) of the Act and further and alternatively contrary to Rule 6.9(d).

  1. Otherwise, clause 16.2 is a valid exercise of the power of conference or alternatively council under and as part of the Rules to determine and make policy binding upon and enforceable amongst the QTU, its officers and members.
  1. Upon the true construction of clause 16.2, the phrase 'other relevant information of members' includes the email addresses of members entitled to vote in the current election ('voting members').
  1. The Commission has the power, pursuant to section 646(1)(b) of Act [sic] to direct the QTU and its general secretary, Ms Ruttiman, as persons obliged to give effect to or comply with the Rules, to give effect and comply with those Rules by providing a list electronically in Excel of voting members inclusive of each such voting member's email address to the applicants.
  1. [27]
    The final relief sought is:
  1. That the Commission, pursuant to section 646(1)(b) of the Act, order the QTU and its general secretary, Ms Ruttiman, to give effect to and comply with the Rules of the QTU by providing a list of voting members in the current election, inclusive of each such voting member's email address, to the applicants, electronically in Excel within 24 hours of the time and date of this order or within such other further longer period which the Commission thinks fit.

The Election Inquiry application

  1. [28]
    The  Election Inquiry application is made by the Amerena parties pursuant to s 687 of the IR Act. That section is contained in ch 12, pt 8 ('Election inquiries').
  1. [29]
    Section 687 of the IR Act provides:
  1. 687
    Commission may conduct election inquiry

The commission may, on an application referred to it by the registrar under this part, conduct an inquiry (election inquiry) about a claimed irregularity in an election.

  1. [30]
    Section 595 of the IR Act non-exhaustively defines the noun 'irregularity' in the following manner:

irregularity includes–

  1.  a contravention of an organisation’s rules; and
  1.  for an election or ballot, an act or omission by which the following is, or is attempted to be, prevented–
  1.  the full and free recording of votes by all persons who may record a vote and by no other persons;
  1.  a correct working out or declaration of the results of the voting.
  1. [31]
    In part 3 of the Election Inquiry application, the Amerena parties contend that:
  1. The irregularity claimed in this election is the refusal of the QTU and its general secretary, Kate Ruttiman, to provide to the applicants a list of QTU members eligible to vote in the current election inclusive of the email address of each member which refusal constitutes:
  1. a contravention of the QTU Rules; and further and alternatively
  2. an act or omission which prevents or attempts to prevent a full and free recording of votes by all persons who may record a vote; and further and alternatively
  3. an unreasonable restriction of the true choice that members are entitled to when voting in the current election because it limits the opportunity of those members to gain an appreciation of the available alternatives in the current election.

The Commission's power pursuant to s 541(b)(ii) of the IR Act

  1. [32]
    Section 541 of the IR Act provides:
  1. 541
    Decisions generally

The court or commission may, in an industrial cause do any of the following–

  1.  make a decision it considers just, and include provision for preventing or settling the industrial dispute or dealing with the industrial matter to which the cause relates, without being restricted to any specific relief claimed by the parties to the cause;
  1.  dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers–
  1.  the cause is trivial; or
  1.  further proceedings by the court or commission are not necessary or desirable in the public interest;
  1.  order a party to the cause to pay another party the expenses, including witness expenses, it considers appropriate.

Industrial cause

  1. [33]
    Having regard to the text of s 541 of the IR Act, the discretion conferred on, relevantly, the Commission can only be in an 'industrial cause'. Schedule 5 ('Dictionary') provides a non-exhaustive definition of the phrase 'industrial cause' to include, at paragraph (d), '… any other matter within the jurisdiction of the commission.'
  1. [34]
    It was not disputed that the Commission has jurisdiction to hear and determine the Rules application and the Election Inquiry application and, as such, those matters are industrial causes.

Public Interest

  1. [35]
    The QTU parties referred to O'Sullivan v Farrer[19] as authority for the proposition that the expression 'public interest' when used in a statute:

[C]lassically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only "in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view".[20]

  1. [36]
    It may also be the case that the ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and will very much be a question of fact and degree.[21]
  1. [37]
    Section 541(b)(ii) of the IR Act recognises that in a particular case, the public interest may displace a litigant’s normal right to have a case heard and determined.[22]

Onus of proof

  1. [38]
    The onus lies on an applicant to persuade the Commission to exercise discretion and override the prima facie right of a party, who has invoked the Commission's jurisdiction, to refrain from hearing or determining a proceeding.[23]

The process for consideration of an application under s 541

  1. [39]
    In Campbell v State of Queensland (Department of Justice and Attorney General) ('Campbell'),[24] Martin J, President relevantly stated:

[28] The process for consideration of an application under s 541 does not require that the respondent’s case be taken at its highest. The cognate provisions in federal legislation were frequently considered by Full Benches of the federal tribunal, the Federal Court of Australia and the High Court of Australia. The accepted approach was that the applicant bore the onus of making the claim for relief. But the ascertainment in any particular case of where the public interest lay often depended on a balancing of interests, including competing public interests, and was very much a question of fact and degree.

[29] As the power given to the Commission by s 541 can prevent a party from pursuing relief otherwise available under the Act it is one which is to be exercised with due circumspection on a proper consideration of relevant materials. A “proper consideration” cannot be made where the case for the respondent is simply taken at its highest. While the onus remains on an applicant, the requirement to consider the “public interest” cannot be satisfied if an artificial inflation of the respondent’s case is applied. Indeed, to take a respondent’s case at its highest would almost always result in the dismissal of an application under this section. On an application of this type, a respondent is not relieved of any requirement to advance a case.[25]

  1. [40]
    Further, in respect of the application of s 541 of the IR Act:
  • in considering the public interest, regard must be had to the legislative basis of the principal relief sought and the evidence before the Commission;[26] and
  • the value judgment incorporated in s 541(b)(ii) of the Act is a broad one.[27]

Should the Rules application be dismissed or not heard pursuant to s 541(b)(ii) of the IR Act?

The submissions of the QTU parties

  1. [41]
    In written submissions, the QTU parties submitted that:
  • the premises of the Rules application include that cl 16.2 of the Policy is treated as a binding rule;[28]
  • the crux of the case pressed by the Amerena parties is that the obligation of the QTU parties, to provide the list of voting members and their email addresses, arises from the Policy, not the Rules;[29]
  • the premises that cl 16.2 of the Policy is a binding rule, and that the Commission can direct the QTU parties to comply with the Rules by providing the Amerena parties with the email addresses, are false, ignoring the language of s 646 of the IR Act;[30]
  • the effect of s 646(1) of the IR Act is that the Commission must be satisfied that the complaint is justified by non-observance of a rule by a person who is obliged to observe the rules;[31]
  • consequently, in the primary proceeding, the Amerena parties bear the onus of establishing for each of the QTU parties:
  1. –the rule that is sought to be enforced;
  2. –the respect or respects in which the rule has been breached;
  3. –that the rule being relied on is binding; and
  4. –the obligation to perform or observe the Rules that are sought to be enforced, that is, as a matter of construction, that the identified rule requires the QTU parties to do something;[32] and
  • the Amerena parties fail on each of the above elements because:
  1. –the Rules are silent on handing over confidential information such as emails;
  2. –the Policy is not a binding rule and the statutory scheme and the QTU's constitutional arrangements would be usurped if policies could be made that had the effect of altering the Rules;
  3. –the Rules do not impose an obligation about emails on the QTU parties; and
  4. –there are discretionary reasons for not proceeding on the Rules application.[33]
  1. [42]
    In oral submissions, the QTU parties submitted:
  • the Amerena parties must establish that the QTU and Ms Ruttiman are obliged to give effect to the Rules;
  • s 646(1)(b) of the IR Act, the particular provision sought to be enlivened by the Amerena parties, is only amenable to natural persons who have obligations under the Rules;
  • the passages of R v Commonwealth Court of Conciliation and Arbitration; ex parte Barrett[34] ('Barrett'), relied upon by the Amerena parties in their written submissions –  that s 646 of the IR Act, and its many analogues, make not just a particular rule, but the 'effect' of rules, enforceable by direction of the Commission to a person obliged to give effect to the rules[35] –  do not support that submission because those passages in Barrett do not deal with the jurisdiction of the relevant tribunal to intervene, but are concerned with its power when a rule was not observed, such that the submission confuses jurisdiction with power;[36]
  • under ch 12 of the IR Act policies are afforded different purposes to rules;
  • ch 12 of the IR Act says very little about policy and there is nothing that provides that a policy of a registered organisation is a rule of the registered organisation;
  • the contention that a policy can have the same effect as the rules of a registered organisation is contrary to the statutory scheme established under ch 12, pt 6 of the IR Act for the amendment of a registered organisation's rules;
  • there is no authority for the Amerena parties' case; and
  • if the Amerena parties are correct, every one of the QTU's policies[37] would be amenable to an application pursuant to s 646 of the IR Act.

The submissions of the Amerena parties

  1. [43]
    In written submissions, the Amerena parties submitted that:
  • the Rules contain provisions empowering the Conference, and in certain circumstances the Council, to determine the QTU's policy, namely r 7.4, r 7.5, r 8.2(a)(viii) and r 8.2(b) and these rules provide that such policy, once determined 'shall be deemed to be in full force and effect' – which the Amerena parties refer to as 'the relevant rule' – unless and until set aside;[38]
  • the power to determine or make valid policy is recognised in the IR Act and, in this regard, reference was made to s 599, s 617, s 713, s 714, s 740 and s 744 of the IR Act;[39]
  • the relevant rule – that policy once determined '… shall be deemed to be in full force and effect' – implicitly, if not expressly, means that valid policies are binding upon and enforceable amongst the QTU, its officers and members;[40]
  • this relevant rule imperatively invokes such policy as having '… the maximum application permissible within the law' and the relevant statutory context provides the answer as to what that maximum application is, by reason of  s 646(1)(b) of the IR Act';[41]
  • s 646 of the IR Act, and its many analogues:
  1. –confer jurisdiction and powers of a wide nature upon the Commission;[42]
  2. –make not just a particular rule, but the 'effect' of rules, enforceable by direction of the Commission to a person obliged to give effect to the rules.[43]
  1. [44]
    It was then submitted:
  1. It is submitted one gives "effect" to the relevant rule by treating valid policy as binding upon and enforceable amongst the QTU, its officers and members pursuant to s 646(1)(b) of the IR Act.
  1. The use of the word "deemed" fortifies the construction contended for at paragraph 15 hereof. The word "deemed" should be understood as having its ordinary and popular denotation of "judged" or "concluded"; cf Statutory Interpretation in Australia by Pearce and Geddes. No fiction is involved, given the reality of the wide jurisdiction and powers of the commission under s. 646(1)(b); see Hunter, Douglas Australia Pty Ltd v Perma Blinds.
  1. The construction contended for at paragraph 15 hereof appropriately takes into account the consensual element in the relationship between the QTU, its officers and members. It promotes their solidarity, both internally and externally. This construction accords the QTU Rules a sensible practical operation which tends to avoid inconvenience and injustice.

…

  1. Otherwise, it is submitted the Commission should treat Clause 16.2 as a valid exercise of the power of conference or alternatively council under and as part of the Rules to determine and make policy binding upon and enforceable amongst the QTU, its officers and members.[44]
  1. [45]
    In oral submissions, the Amerena parties submitted:
  • primarily, the Rules are enforceable amongst the QTU's officers and members and they play a prominent role in the management and affairs of the QTU;
  • the policy (of a registered organisation) is mentioned in various sections of the IR Act, including s 599(d)(i) and s 617(2)(b)(ii);
  • s 646(1)(b) confers a power on the Commission to direct a person obliged to give effect to or comply with the organisation's rules '…. to give effect to  … the rules';
  • on the authority of Allen v Townsend,[45] rules may have implied contents which are applied for the purposes of the organisation;
  • such implications can arise in other ways, namely, in the present case, from r 7.5 of the Rules which provides that '[e]ach and every resolution, decision or determination of the Conference shall be deemed to be in full force and effect unless and until set aside or varied by a subsequent meeting of Conference or Council';
  • if the Policy is '… deemed to be in full force and effect' as provided for in r 7.5, that implicitly and explicitly means that the Policy is in full force and effect under the Rules;
  • if a policy made by the Conference pursuant to r 7.5 of the Rules is '… deemed to be in full force and effect' then the Commission is empowered, '… to give effect … to the rules' pursuant to s 646(1)(b) of the IR Act, namely, to give effect to the Rules as a whole which includes any policy made which is deemed to be in full force and effect under the Rules;
  • on the authority of Barrett,[46] and the decision of the Queensland Court of Appeal in Pine Rivers, Caboolture & Redcliffe Group Training Scheme Inc v Group Training Association Queensland & Northern Territory,[47] the Rules can be validly enforced as they relate to policy; and.
  • any such binding policy cannot run counter to the statutory scheme in ch 12 of the IR Act.

The discretion contained in s 646(1)(b) of the IR Act cannot be enlivened in the present circumstances

  1. [46]
    The proposition of the Amerena parties is that:
  • because the Policy, made by the Conference under r 7.5 of the Rules (or as amended by the Council under r 8.2(b)) '… shall be deemed to be in full force and effect', that expressly or implicitly means that the Policy is in full force and effect under the Rules; and
  • as a consequence, the Commission is empowered, pursuant to s 646(1)(b) of the IR Act,  to give effect to r 7.5 or r 8.2(b) of the Rules, being the rules under which the Policy was made and amended ('the rules proposition').
  1. [47]
    I cannot accept the rules proposition.
  1. [48]
    There are a number of reasons for this.
  1. [49]
    First, if the Policy is '… deemed to be in full force and effect' as provided for in the Rules, which then implicitly or explicitly means that the Policy is in full force and effect under the Rules, that would be contrary to the statutory scheme under ch 12 of the IR Act.
  1. [50]
    Chapter 12 of the IR Act deals with industrial organisations and associated entities. Upon application for registration as an employee or employer organisation, s 607(1)(c) of the IR Act provides that the Commission may grant the application only if satisfied the rules the applicant proposes to have as an organisation comply with ch 12, pt 3 and pt 4 and are not contrary to the IR Act or another law.
  1. [51]
    Section 610(1) of the IR Act provides that if the Commission grants a registration application, the applicant immediately becomes an organisation and s 610(2) provides that the rules for which the application was granted take effect as the organisation's rules.
  1. [52]
    Section 614(1)(b) of the IR Act provides that the Industrial Registrar must keep a copy of each organisation's rules and s 614(2) provides that they are open to inspection by a person paying the fee as stated by the rules of court. Chapter 12, pt 3 of the IR Act deals with the general content of the rules of an organisation which includes s 617(1)(n) which provides that the rules must state how the rules may be amended.
  1. [53]
    Importantly, ch 12, pt 6 of the IR Act deals with the amendment of the rules of an organisation. Division 2 deals with amendments made by organisations and sub-div 1 confers discretion on the Commission to significantly amend an organisation's name and to amend an eligibility rule. Sub-division 2 confers discretion on the Industrial Registrar for other amendments proposed to be made by organisations. Such amendment may only be made if the Industrial Registrar approves the amendment which can only be given if the amendment does not contravene s 623 of the IR Act or another law and the amendment has been proposed under the organisation's rules.[48]
  1. [54]
    In my view, if a resolution, decision or determination made by a body, such as a conference or council, under an organisation's rules is '… deemed to be in full force and effect' and the resolution, decision or determination was implicitly or explicitly in full force and effect under those rules, that would have the practical effect of allowing an organisation to amend or alter its rules without the necessary approval under the IR Act. It is no answer, to that consequence, to say that such a resolution, decision or determination would only have such an effect if it was not inconsistent with the IR Act or another law. This is because the IR Act does not provide for amendment to an organisation's rules by that circuitous path.
  1. [55]
    Secondly, the provisions of ch 12 of the IR Act, such as those referred to above, expressly deal with the rules of an organisation. Chapter 12 also expressly deals with policies of organisations, such as s 617(2)(b)(iii). However, there is no provision in ch 12 of the IR Act that provides that a policy made under a registered organisation's rules has the effect as if the policy is in full force and effect under the rules.
  1. [56]
    Further, having regard to the rules proposition, there is no provision in ch 12 of the IR Act that provides that a valid policy made under an organisation's rules which, by a specific rule, is given full force and effect, such that 'effect' can be given to such a specific rule pursuant to, or for the purposes of, s 646(1)(b) of the IR Act.
  1. [57]
    Thirdly, Barrett is not an authority that supports the rules proposition. That case concerned a complaint, made under s 58E of the Conciliation and Arbitration Act 1904 (Cth) ('the CA Act'), by the federal executive of the Federated Clerks' Union of Australia ('the Union') and others (the prosecutors),  that certain persons were not duly elected to certain offices in the Victorian branch of that Union. The prosecutors contended that other persons, including some of the prosecutors, were duly elected to offices in the Victorian branch. The relief sought by the prosecutors was an order giving directions for the performance or observance of the rules of the Union by those who were under an obligation to perform or observe them.[49]
  1. [58]
    Before the High Court, one of the issues was whether s 58E of the CA Act applied when rules, for which performance or observance was sought, were the rules of a branch of the Union and not of the Union itself.[50] It was held by Chief Justice Latham that branch rules, though they applied only to a particular branch, were rules of the Union.[51] However, the facts of that case are different to the present. As Dixon J held:

The second reason given in support of the contention that the order made by the Chief Judge is not authorized by s. 58E is that the section relates only to the rules of an organization, and that the rules with which the order deals are those of the Victorian branch and not of the organization. In my opinion, this objection was rightly answered that, within the meaning of s. 58E, the rules of the organization called the "Federated Clerks' Union of Australia" comprise both Federal and branch rules.

Rule 24 of the Federal rules provides that the union shall consist of members throughout Australia, and may have a branch in each State, the formation of which is to be decided by the Federal conference or executive. It confers upon the branches power to make rules for their own internal management, and authorizes them to conduct their own election of delegates to the Federal conference. Rules 25 and 26 deal with the revenues and meetings of the branches, and rule 5 (a) and (f) and rule 6 show that membership and entrance fee are branch matters. Rule 10 enumerates the branches. It follows that the union is organized in branches, and that the rules of the branches are made in the exercise of a power delegated or conferred by the Federal rules. Under such a constitution, the expression "rules of an organization" comprises the whole rules, both Federal and branch rules.[52]

  1. [59]
    That is, because of the nature of that Union as a federal organisation, and because of its very specific rules referred to by Dixon J,  the branch rules were the rules of the Union. There is no meritorious analogy in the present case. The QTU is not a federal organisation of the same nature as the Union in Barrett and the Rules do not contain rules of the same nature as in Barrett. That is, r 7.5 and r 8.2(b) of the Rules are not of the same nature as in Barrett.
  1. [60]
    Other than that, I accept the QTU parties' submissions that the passages in Barrett referred to by the Amerena parties[53] do not deal with the jurisdiction of the relevant tribunal to intervene, but go to the power that may be exercised, when a person who was obliged to give effect to or comply with a rule, failed to do so.
  1. [61]
    The passages relied on in the decision of the Queensland Court of Appeal in Pine Rivers, Caboolture & Redcliffe Group Training Scheme Inc v Group Training Association Queensland & Northern Territory[54] do not assist the Amerena parties. Those passages go to the power of the Supreme Court, to make a direction under s 72(1) of the Associations Incorporation Act 1981, about the performance and observance of an incorporated association's rules where it was accepted that there are duties owed by members of a governing body which are implicit in the rules. For the reasons given below, those are not the circumstances in the present case.
  1. [62]
    Fourthly, the effect of the rules proposition is that r 7.5 and r 8.2(b) are to be read as containing the additional words 'under these rules' or 'as part of these rules' immediately after the words '… shall be deemed to be in full force and effect' and before the words '… unless and until set aside or varied'.
  1. [63]
    Fifthly, I accept that the rules of registered organisations are not to be construed as though they had been drafted by skilled technicians and are to be given a sensible practical construction.[55] As to any implication that a resolution, decision or determination of the Conference or Council is in full force and effect under the Rules, r 3.2 provides for the alteration of the Rules. That rule provides:
  1. 3.2
    Alteration of Rules:
  1.  Rules may be added to, rescinded, or amended by Conference or by Council.  Any such alteration to the rules only takes effect in accordance with the relevant provisions of industrial relations legislation applying at the time.
  1.  Proposed additions, rescissions or alterations submitted by Branches must be in the hands of the General Secretary not later than nine (9) weeks prior to the first day of Conference or day of Council.
  1.  Council may submit to Conference proposed additions, rescissions or alterations at any of its meetings.
  1.  No addition to or alteration of the Rules shall be made unless 28 days' notice of the proposal has been given to the Branches.
  1.  No alteration, amendment of, or addition to these Rules shall be effective unless approval by a two-thirds majority of Conference or Council voting thereon.
  1. [64]
    It would not be giving the Rules a sensible construction, to the effect that a policy made by the Conference or Council, implicitly meant that the policy was in full force and effect under the Rules or that effect could be given to r 7.5 or r 8.2(b) such that the policy made pursuant to them has the same legal status as a rule, when the framers of the Rules made express provision about a procedure for the addition to, rescission of or amendment to the Rules under r 3.2.
  1. [65]
    Sixthly, there was no authority cited for the proposition that where a registered organisation's rules provides that a resolution, decision or determination made by a body such as a conference or council is '… deemed to be in full force and effect' then the resolution, decision or determination is implicitly or explicitly in full force and effect under those rules.
  1. [66]
    Finally, there was no authority cited for the proposition that a policy made under the rules of a registered organisation could be the subject of a direction made to a person under s 646(1)(b) of the IR Act, or its cognate provisions in other industrial legislation, on the basis that the policy was implicitly or explicitly in full force and effect under the rules of the organisation; and no authority was cited for the proposition that a valid policy made under rules like r 7.5 or r 8.2(b) is of a nature that effect can be given to such rules, so that a policy made in pursuance of them can be the subject of a direction under s 646(1)(b) of the IR Act.
  1. [67]
    For these reasons, my view is that the Commission has no discretion that can be exercised under s 646(1)(b) of the IR Act because the Rules application does not seek to direct a person, obliged to give effect to or comply with the Rules, to give effect to or comply with the Rules.

The Rules application should be dismissed pursuant to s 541(b)(ii) of the Act

  1. [68]
    The Amerena parties submitted that:
  • this is the type of case that needs a full hearing on the merits in accordance with the normal interlocutory processes;
  • the Commission would have to accept that the case is hopeless or there is no prima facie case;
  • ordinarily a party ought not be denied the opportunity to place its case before a tribunal and therefore the Commission should take their case at face value; and
  • their case was not a case of artificial inflation and it is not so hopeless that the Commission should dismiss it.
  1. [69]
    I disagree.
  1. [70]
    The parties made full argument on the point of whether the rules proposition was valid under the IR Act. No further facts are required to be considered to determine the validity or correctness of the rules proposition.
  1. [71]
    For the reasons I have given, the Rules application cannot succeed. The Commission has no discretion that can be exercised under s 646(1)(b) of the IR Act because the Rules application does not seek to direct a person, obliged to give effect to or comply with the Rules, to give effect to or comply with the Rules.
  1. [72]
    For this reason, I consider that further proceedings in the Rules application are not necessary or in the public interest because the application cannot succeed under s 646(1)(b) of the IR Act. Such an approach has been taken by the Industrial Court of Queensland under s 331(b)(ii) of the Industrial Relations Act 1999 ('the 1999 Act') being the predecessor to s 541(b)(ii) of the IR Act.[56]

Should the Election Inquiry application be dismissed or not heard pursuant to s 541(b)(ii) of the IR Act?

The submissions of the QTU parties

  1. [73]
    In written submissions, the QTU parties addressed the three grounds for the Amerena parties' Election Inquiry application as contained in paragraphs 6(a)-(c) of that application.
  1. [74]
    Each ground concerns the failure of the QTU parties to provide the Amerena parties with a list of QTU members eligible to vote in the Election inclusive of the email address of each member ('QTU parties' failure').
  1. [75]
    The QTU parties submitted[57] that s 689(b)(ii) of the IR Act required the Amerena parties to state the irregularity that is claimed to have happened; and the Amerena parties, by reference to the definition of 'irregularity' in the IR Act, rely upon:
  • at paragraph 6(a), a claimed contravention of the Rules;[58] and
  • at paragraphs 6(b) and (c), for an election or ballot, an act or omission by which the full and free recording of votes by all persons who may record a vote and no other persons is, or is attempted to be, prevented.[59]
  1. [76]
    In respect of ground 6(a), for the same reasons as given in respect of the Rules application, the QTU parties submit that by their failure, they have not contravened the Rules.
  1. [77]
    The QTU parties also submit that grounds 6(b) and 6(c) can be dealt with together and that ground 6(c) is thematically identical to ground 6(b) as it goes to electoral choices of members on exposure to electioneering.[60]
  1. [78]
    The QTU parties then submit:[61]
  • the question of whether there has been an 'irregularity in an election' lies at the heart of the Commission's jurisdiction;[62]
  • the expression 'full and free recording of votes' has long been held to refer to the processes involved in obtaining and marking a ballot paper and returning it to the returning officer whose function is to receive ballot papers, and it does not refer to the process of deciding for whom to vote,[63]  which is the very basis of the Election Inquiry application;
  • ground 6(b) is misconceived, as is ground 6(c) because:
  1. –the words of the definition do not refer to the mental processes in making a choice between candidates preceding the formal act of completing the ballot paper and returning it;
  2. –an 'irregularity' in relation to an election or ballot does not include steps taken to affect voting intentions,[64] and consequently the words are not apt to refer:
  • to any steps or activities directed to that mental process; and
  • in particular, to obtaining confidential information beyond that provided in the Roll in order to allow a candidate to influence the mental process of making a choice;
  1. –access to the confidential information can do no more than assist the Amerena parties in their quest to influence members to vote for them;
  2. –citing the decision in Re Collins; Ex parte Hockings ('Hockings'),[65] the noun 'irregularity' in the statutory context is associated with the machinery provisions and processes and the formal steps involved in an election;
  3. –the word 'election' when used in the IR Act does not encompass the activities involved in electioneering[66] and words in s 595(b)(i) of the IR Act do not extend to activities by which a particular candidate is promoted to voters,[67] otherwise, an inquiry would involve a substantial intrusion into the secrecy of the ballot;
  4. –the extended meaning of 'irregularity' in the non-exhaustive definition in the IR Act covers:
  • a want of conformity to a rule;
  • deviation from a violation of a rule, law, or principle; or
  • deviation from what is usual or normal and it involves the idea of some departure from some rule, established practice or generally excepted principle governing the conduct of the election.[68]
  1. [79]
    The QTU parties then submitted that the answer to the question of whether the conduct is an irregularity requires a consideration of exactly what conduct is claimed to have been irregular and there is simply no rule or principle that a candidate is entitled to be given email addresses of members, whether or not it is confidential information or covered by privacy principles.[69]
  1. [80]
    In oral submissions, the QTU parties submitted:
  • the Amerena parties' case is that because the statutory words used '… in relation to' in the definition of irregularity contained in s 4(1) of the CA Act, which was the relevant provision in Hockings, are absent in the definition of 'irregularity' in s 595 of the IR Act, then the meaning of 'irregularity' in Hockings can be ignored;
  • there is no material difference between the definition of 'irregularity' contained in s 6(1) of the Fair Work (Registered Organisations) Act 2009 (Cth) ('the FWRO Act') and the definition of 'irregularity' contained in s 595(b)(i) of the IR Act and when the definition of 'irregularity' contained in s 6(1) of the FWRO Act was recently considered in Carovska, in the matter of an application for an inquiry in relation to an election for offices in the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, NSW Branch ('Carovska'),[70] where Raper J applied Hockings;[71]
  • Gibbs J in R v Gray; Ex parte Marsh,[72] stated that the definition of irregularity in s 4(1) of the CA Act, in so far as it referred to '…recording of votes' does not refer to the process of deciding for whom to vote;[73]
  • in Hockings,[74] Gaudron J stated that:
  1. –the fact that the word 'election' may and perhaps ordinarily encompasses the various formal steps from calling the election through to the declaration of the results, provides no basis for saying that it encompasses those activities involved in electioneering,[75] being a statement that has application to s 687 of the IR Act; and
  2. –s 170(5) of the CA Act –  which provided that '… the Industrial Registrar or Deputy Industrial Registrar ... may conduct the election ... or may make arrangements with the Electoral Commissioner for the conduct of the election by an Australian Electoral Officer or a member of the staff of the Australian Electoral Commission' – when speaking of '… the conduct of [an] election' contemplated the machinery processes or the formal steps involved in the holding of an election, being a statement that has application to s 687 and 695 of the IR Act.[76]

The submissions of the Amerena parties

  1. [81]
    In written submissions,[77] the Amerena parties submitted:
  • Hockings is distinguishable in that the ratio was based upon the Court's construction of the definition of 'irregularity' in s 4(1) of the CA Act when seen in the context of the other provisions in that Act;
  • in Re an application by Dannie Richard Davidson of an inquiry into an election of an office in the Musicians' Union of Australia, Newcastle Branch ('Davidson'),[78] the consequent position in respect to the availability of election inquiries, mandated by the decision in Hockings, was described by Wilcox J as 'highly unsatisfactory' which led to statutory reform in the FWRO Act;[79]
  • the nature of those reforms retained in the definition of 'irregularity' in s 6 of the FWRO Act of the restrictive words that had been critical in Hockings, namely, '…in relation to an election or ballot';
  • in these circumstances, the fact that the critical words in the definition of 'irregularity' in Hockings, namely, 'in relation to an election or ballot' are conspicuously absent from the definition of 'irregularity' in s 595 of the IR Act is of considerable importance;
  • the omission of these words strongly militates in favour of 'irregularity' for the purpose of this case as including circumstances which go to electioneering as well as to the machinery provisions and the processes and formal steps in an election;
  • this is particularly so if the definition in s 595 of the IR Act is inclusive and 'irregularity' should be construed according to its ordinary, quite wide meaning;[80] and
  • accordingly, at the very least, there is a prima facie case of 'irregularity' and the material permits that conclusion in respect of all the matters set out in paragraph 6(a), (b) and (c) of Part 3 of the Election Inquiry application.
  1. [82]
    In oral submissions, the Amerena parties submitted:
  • the Queensland Parliament chose not to follow the federal statutory reforms and that the Parliament, in enacting the definition of irregularity in s 595 of the IR Act, must have been aware of the criticisms of Hocking made by Wilcox J in Davidson and of the federal statutory reforms;
  • unlike the CA Act considered in Hocking, which did not contain a definition of 'election', s 595 of the IR Act does contain a definition of 'election', namely, 'election means an election for an office for an organisation or branch of an organisation';
  • the definition of 'irregularity' and of 'election' in s 595 of the IR Act means that an irregularity in the nature of electioneering is contemplated;
  • their complaint is about their capacity to communicate by email, in circumstances where the incumbents (in the offices) have the benefit of incumbency; and
  • s 687 and s 695 of the IR Act:
  1. –should be construed by those provisions being given their ordinary meaning which envisage both electioneering and the process of machinery and the formal steps of an election; and
  2. –as beneficial provisions, they should be construed as broadly as the words of the provisions allow.

The QTU parties' failure to provide a list of members eligible to vote, inclusive of their email addresses, is not an irregularity within the meaning of s 595 of the IR Act

  1. [83]
    The contention is that the failure of the QTU parties to provide a list of members eligible to vote, inclusive of their email addresses, constitutes:
  • a contravention of the Rules for the same reasons advanced in the Rules application; or in the alternative
  • an act or omission which prevents or attempts to prevent a full and free recording of votes by all persons who may record a vote; and further and alternatively;
  • an unreasonable restriction of the true choice that members are entitled to when voting in the Election because it limits the opportunity of those members to gain an appreciation of the available alternatives in the current election.
  1. [84]
    The proposition of the Amerena parties is that while the impugned conduct of the QTU parties is about electioneering, or in other words, the process of deciding for whom to vote,[81] and not the machinery provisions of elections, the text used in the definition of 'irregularity' in s 595 of the IR Act, together with the inclusion of the definition of 'election' in s 595 of the IR Act, means that an irregularity in the nature of electioneering is also contemplated ('the irregularity proposition').
  1. [85]
    I cannot accept the irregularity proposition.
  1. [86]
    There are a number of reasons for this.
  1. [87]
    First, in respect of paragraph 6(a) of part 3 of the Election Inquiry application, for the reasons I have given earlier in respect of the Rule application, the refusal by the QTU parties not to provide the Amerena parties with a list of members eligible to vote, inclusive of their email addresses, is not a contravention of the Rules.
  1. [88]
    Secondly, in respect of paragraphs 6(b) and (c) of part 3 of the Election Inquiry application, in my view, the construction of the definition of 'irregularity' in s 595 does not include electioneering and only contemplates irregularities concerning machinery provisions and processes of an election and the formal steps in an election.
  1. [89]
    In SZTAL v Minister for Immigration and Border Protection,[82] Kiefel CJ, Nettle and Gordon JJ summarised the modern approach to statutory construction:

14 The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.[83]

  1. [90]
    Consideration of the context includes the statute's surrounding provisions, what may be drawn from other aspects of the statute, the statute as a whole and it extends to the mischief which it may be seen that the statute is intended to remedy.[84]
  1. [91]
    The meaning of a provision in a statute must be determined by reference to the language of the instrument viewed as a whole[85] and the legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.[86] The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions.[87]
  1. [92]
    A consideration of the context of statutory text includes the legislative history and extrinsic materials, and understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text; but legislative history and extrinsic materials cannot displace the meaning of the statutory text, nor is their examination an end in itself.[88] It is still the fundamental duty of a court to give meaning to the legislative command according to the terms in which it is been expressed and legislative history and references to pre‑existing law should not deflect from the duty of a court of resolving an issue of statutory construction which ultimately is always a text-based activity.[89]
  1. [93]
    At the federal level, an 'irregularity' in relation to an election involves the idea of some departure from some rule, established practice or generally accepted principle governing the conduct of an election.[90] 
  1. [94]
    In McJannett, in the matter of an application for an inquiry in relation to an election for offices in the Construction, Forestry, Mining and Energy Union, Western Australian Branch (No 2) ('McJannett'),[91] Barker J relevantly stated:

23 The applicant draws attention to the legislative history of s 190 and that it was introduced for the first time as part of Sch 1 of the WR Act and did not exist under earlier industrial legislation dealing with inquiries into irregularities.  The applicant says that s 190 was introduced to remedy the defects in the previous law considered to be revealed by Re Collins; Ex parte Hockings (1989) 167 CLR 522 (Re Collins) where the High Court held that a breach of the rules of the union relating to activities involved in electioneering was not an irregularity as defined in the legislation.  The Commonwealth of Australia Joint Standing Committee on Electoral Matters Industrial Elections in Parliamentary Report (1997) at [5.77] to [5.88] (pp 85 – 88) discussed the decision in Re Collins and recommended as follows:

5.88  Recommendation 16:

That the Government consult with the AEC [Australian Electoral Commission] and with peak union and employer organisations with a view to developing legislation prohibiting the use of union resources for electioneering purposes, except as permitted by the WR Act and Regulations or by model rules developed in accordance with Recommendation 4.

(Emphasis in original)

24 The applicant says the recommendation was implemented by the passage of s 190.  I accept s 190 followed this recommendation.

  1. [95]
    In September this year, Justice Raper in Carovska, in the matter of an application for an inquiry in relation to an election for offices in the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, NSW Branch ('Carovska'),[92] relevantly stated:

[22] However, an “irregularity” in relation to an election or ballot does not include steps taken to affect voting intentions: Clancy, in the matter of an application for an inquiry in relation to an election for offices in the Australian Nursing and Midwifery Federation [2017] FCA 460 at [69]–[72], citing Re Collins; Ex parte Hockings (1989) 167 CLR 522 and Re Post; Re Election for Offices in Transport Workers Union of Australia, Western Australian Branch (1992) 40 IR 162. This limitation is justified on the basis that otherwise the inquiry would include the discernment of whether or not particular advocacy in favour of a particular candidate or particular candidates had a causative influence on the voting decisions of electors or some of them. It would also include “the question whether there was an impact or likely impact on the election result [which] could only be ascertained by a very substantial intrusion into the secrecy of the ballot”: Re Collins, per Gaudron J at 531.

  1. [96]
    In the first place, I cannot accept the submission that the Parliament, when enacting the IR Act and including the present definitions of 'irregularity' and 'election', intended to extend the definition of irregularity, contrary to the clear approach taken in the federal jurisdiction, to mean that the definition includes electioneering.
  1. [97]
    The irregularity proposition proceeds on the basis that, having regard to the criticisms made of the decision in Hocking by Wilcox J in Davidson, and the consequent federal legislative reforms referred to above, the Queensland Parliament made the precise legislative determination to not follow those reforms and, by not including the words of connection 'in relation to' in the definition of 'irregularity' in s 595 of the IR Act (where the words used in s 595 of the IR Act are '.. for an election or ballot') and including a definition of 'election', that statutory text extended the meaning of 'irregularity' to include electioneering.
  1. [98]
    The Amerena parties did not refer to any extrinsic material that assists in fixing the meaning of the statutory text as asserted by them.
  1. [99]
    In fact, the definition of 'irregularity' in  s 595 of the IR Act was the same as that in s 409 of the 1999 Act when it was enacted and immediately before its repeal with the enactment of the IR Act. The definition of 'election' in s 409 of the 1999 Act was substantially the same as the definition in s 595 other than by not including the words 'of an organisation' after the word 'branch'. The definitions of 'irregularity' and 'election' in s 409 of the 1999 Act did not change from those contained in the Industrial Relations Bill 1999 ('the 1999 Bill').
  1. [100]
    The 1999 Bill followed on from an Industrial Relations Taskforce ('the Taskforce') established to review Queensland's industrial laws which, in December 1998, produced a report entitled 'Review of Industrial Relations Legislation in Queensland' ('the 1998 report').[93] Of the 166 recommendations made by the Taskforce, the Queensland government adopted 150.[94] In the part of the 1998 report dealing with elections for industrial organisations (pages 79-83),  no reference was made as to what amounts to an irregularity in an election for an office and no recommendation was made about that matter.
  1. [101]
    The Industrial Relations Bill 2016 ('the 2016 Bill') followed on from a December 2015 report of the Industrial Relations Legislative Reform Reference Group entitled 'A review of the industrial relations framework in Queensland' ('the 2015 report').[95] The 2015 report, in chapter 10, dealt with the regulation of industrial organisations. No reference was made to what amounts to an irregularity in an election for an office and no recommendation was made about that matter.
  1. [102]
    In the Explanatory Notes to the 2016 Bill, two matters may be noted.
  1. [103]
    One, it was stated that clause 595 preserves s 409 of the 1999 Act and clause 595 defined the terms used in ch 12 of the Bill.[96]
  1. [104]
    Two, the following was stated:

Consistency with legislation of other jurisdictions

The Bill is specific to the State of Queensland, and is not required to be uniform with or complementary to legislation of the Commonwealth or another state. However, in developing the provisions of the Bill consideration has been given to relevant provisions of the Commonwealth’s FW Act and FWRO Act. Where appropriate the Bill’s provisions have been drafted to reflect similar regulation. Examples of this approach can be found in those parts of the Bill that deal with minimum employment standards, general protections against adverse action, access to an anti-workplace bullying jurisdiction and in the financial reporting and training obligations of registered industrial organisations and officers.[97]

  1. [105]
    While the part of the Explanatory Notes to the 2016 Bill referred to in the last paragraph does not expressly refer to the provisions of the FWRO Act in respect of what is an irregularity, the approach referred to is generally inconsistent with the irregularity proposition.
  1. [106]
    The above legislative history and extrinsic material does not persuade me that, for the reasons advanced by the Amerena parties, the Parliament, when including the present definitions of 'irregularity' and 'election' in the IR Act, intended to extend the meaning of 'irregularity' to include electioneering.
  1. [107]
    In the second place, the plain words used in the definition of 'irregularity', namely, 'irregularity includes … for an election or ballot', are more consistent with a legislative intention that it is only the process of an election or ballot that amounts to an irregularity. After all, the phrase 'in relation to' is an expression of broad import[98] whereas the present text is narrower. Further, having regard to the irregularity proposition, if the Parliament, by enacting the 1999 Act or the IR Act, intended to legislate in a manner contrary to the federal law and to expand the meaning of 'irregularity' to include electioneering, then it may reasonably have been expected that clear words would have been used to achieve that legislative intention.   
  1. [108]
    I also note that a contention that the federal reforms meant that the ordinary meaning of 'irregularity in relation to an election for an office' extended to conduct affecting voting intentions, was rejected in Becker, in the matter of an application for an inquiry in relation to an election for offices in the Australian Education Union, Queensland Branch[99] where Cooper J stated:

13 The ordinary meaning of ‘irregularity’ in the Industrial Relations Act 1988 (Cth) which uses the phrase ‘irregularity in relation to an election for an office’ (the same phrase as used in the present Act) was no different from the meaning of the phrase in the 1904 Act which was the subject of the decision in Ex parte Marsh and the decision in Ex parte Hockings:  see Re Post at 168; Re Davidson (1990) 31 IR 102.

14 The applicant submitted that the introduction of s 190 into Sch 1B of the Act[100] had the effect that the ordinary meaning of the term ‘irregularity in relation to an election for an office’ was extended to include conduct affecting voting intentions.  In my opinion the extension of a statutory definition to include conduct which did not otherwise fall within the ordinary meaning of the phrase ‘irregularity in relation to an election’ does not alter the ordinary meaning of the phrase; it simply gives the meaning of the phrase an extended operation it would not otherwise have had.

15 The ordinary meaning of the phrase in Pt 3 of ch 7 of Sch 1B of the Act, in my opinion, remains as stated by Gibbs CJ in Ex parte Marsh and as applied in Ex parte Hockings.  The question is whether any of the conduct particularised in the application as the irregularities did depart from some rule, established practice or generally accepted principle governing the conduct of the election.

  1. [109]
    For all these reasons, my opinion is that the impugned conduct of the QTU parties concerns conduct affecting voting intentions and that such conduct is not an irregularity within the meaning of s 595 of the IR Act.
  1. [110]
    The Election Inquiry application is not competent.

The Election Inquiry application should be dismissed pursuant to s 541(b)(ii) of the IR Act

  1. [111]
    The reasons advanced by the Amerena parties for the Commission, not to exercise discretion pursuant to s 541(b)(ii) of the IR Act in respect of the Election Inquiry application, are essentially the same as they advanced in respect of the Rules application.
  1. [112]
    I consider that it is in the public interest that the Election Inquiry application be dismissed pursuant to s 541(b)(ii) of the IR Act. This is because, for the reasons given earlier, the impugned conduct of the QTU parties does not amount to an irregularity within the meaning of s 595 of the IR Act, with the consequence that it would be fruitless for the Commission to inquire and decide if an irregularity has happened in the Election within the meaning of s 695 of the IR Act.
  1. [113]
    The parties have made full argument on the point as to whether the impugned conduct of the QTU parties amounts to an irregularity within the meaning of s 595 of the IR Act. No further evidence is required for me to determine that question.
  1. [114]
    As such, it is not in the public interest that the Election Inquiry application proceeds. It should be dismissed pursuant to s 541(b)(ii) of the IR Act.

Conclusion

  1. [115]
    For the reasons I have given, pursuant to s 541(b)(ii) of the IR Act:
  • the Rules application should be dismissed; and
  • the Election Inquiry application should be dismissed.

Orders

  1. [116]
    I make the following orders:
  1. Pursuant to s 541(b)(ii) of the Industrial Relations Act 2016, the application filed on 27 September 2023 by Oliver Amerena, Tim Arnot and Rebecca Barrigos, and made pursuant to s 646 of the Industrial Relations Act 2016, is dismissed.
  1. Pursuant to s 541(b)(ii) of the Industrial Relations Act 2016, the application filed on 27 September 2023 by Oliver Amerena, Tim Arnot and Rebecca Barrigos, and made pursuant to s 687 of the Industrial Relations Act 2016, is dismissed.

Footnotes

[1] Constitution and Rules, Queensland Teachers Union of Employees (at 31 May 2021) ('the Rules'), r 3.1(a).

[2] The Rules, r 7.

[3] The Rules, r 8.

[4] The Rules, r 9.2(a).

[5] The Rules, r 9.1(a).

[6] The Rules, r 4.1(a).

[7] The Rules, r 6.1(a).

[8] The affidavit of Ms Kate Ruttiman filed on 12 October 2023 ('Ms Ruttiman's affidavit'), exhibit 'KR-2', page 55.

[9] Ms Ruttiman's affidavit, exhibit 'KR-2', page 56.

[10] The Rules, r 6.2(a) and 6.6(b)(i).

[11] Ms Ruttiman's affidavit, the second para. 23.

[12] Ms Ruttiman's affidavit, para. 30.

[13] Ms Ruttiman's affidavit, exhibit 'KR-9', page 71.

[14] Ms Ruttiman's affidavit, exhibit 'KR-11', page 83.

[15] Ms Ruttiman's affidavit, exhibit 'KR-12', page 85.

[16] Ms Ruttiman's affidavit, exhibit 'KR-13', page 86.

[17] Ms Ruttiman's affidavit, the first paras. 23-27.

[18] It is not in dispute that the Amerena parties have standing to bring the Rules application.

[19] [1989] HCA 61; (1989) 168 CLR 210.

[20] Ibid 216 (Mason CJ, Brennan, Dawson and Gaudron JJ).

[21] Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 72 ALR 1 ('QEC'), 5 (Mason CJ, Wilson and Dawson JJ), in respect of the similar provision in s 41(1)(d)(iii) of the Conciliation and Arbitration Act 1904 (Cth).

[22] Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees v Minister for Industrial Relations and Retailers’ Association of Queensland Limited, Union of Employers [2003] ICQ 33; (2003) 173 QGIG 1342, 1343 (President Hall) in respect of the s 331(b)(ii) in the Industrial Relations Act 1999.

[23] QEC (n 21) 13 (Deane J).

[24] [2019] ICQ 18; (2019) 291 IR 171 ('Campbell').

[25] Citations omitted.

[26] Campbell (n 24) [30].

[27] Ibid [32].

[28] The written submissions of the QTU and Ms Ruttiman filed on 12 October 2023 ('the QTU parties' submissions'),  para. 10 (c).

[29] The QTU parties' submissions, para. 11.

[30] The QTU parties' submissions, para. 11.

[31] Citing O'Connell v Greenhill; Re Federated Liquor and Allied Trade Employees Union of Australasia (1937) CAR 605 ('O'Connell'), 608-609 (Dethridge CJ).

[32] The QTU parties' submissions, para. 17.

[33] The QTU parties' submissions, paras. 19-31.

[34] [1945] HCA 50; (1945) 70 CLR 141 ('Barrett').

[35] The written submissions of Mr Amerena, Mr Arnot and Ms Barrigos filed on 16 October 2023 ('the Amerena parties' submissions'), para. 17.

[36] The decision of the Queensland Court of Appeal in  Pine Rivers, Caboolture & Redcliffe Training Scheme Inc v Group Training Association Queensland & Northern Territory [2013] QCA 358; [2015] 1 Qd R 542 ('Pine Rivers') was also relied upon in support of this submission.

[37] The QTU has 15 policies which are listed in Ms Ruttiman's affidavit, the second para. 26.

[38] The Amerena parties' submissions, para. 11.

[39] The Amerena parties' submissions, para. 12.

[40] The Amerena parties' submissions, para. 14.

[41] The Amerena parties' submissions, para. 15.

[42] Citing as authority for this proposition Scott v Jess [1984] FCA 289; (1984) 3 FCR 263; (1984) 8 IR 317, 321 (Evatt and Northrop JJ).

[43] Citing as authority for this proposition, Barrett (n 34) 156-157 (Latham CJ) and Pine Rivers (n 36) [43]-[44] (Fraser JA, Margaret McMurdo P at [1] and Atkinson J at [55] agreeing).

[44] Citations omitted.

[45][1977] FCA 10; (1977) 16 ALR 301, 349-350 (Evatt and Northrop JJ).

[46] Barrett (n 34), 149, 151-152, 156-157 (Latham CJ), 160 (Starke J), 170-171 (Dixon J)  and 174 (McTiernan J).

[47] Pine Rivers (n 36).

[48] Industrial Relations Act 2016, s 666.

[49] Barrett (n 34) 149.

[50] Ibid 157.

[51] Ibid.

[52] Ibid 170. See also 160 (Starke J).

[53] Ibid 156-157 (Latham J), 160 (Starke J), 170 (Dixon J) and 174 (McTiernan J).

[54] Pine Rivers (n 36).

[55] Koc v Diamond (No 2) [2022] FCA 640, [45] and the authorities cited therein (Bromberg J).

[56] State of Queensland v Lockhart [2014] ICQ 006, [25]-[26] (Deputy President O'Connor).

[57] The QTU parties' submissions, paras. 34-35.

[58] Industrial Relations Act 2016, s 595 (definition of 'irregularity' at para. (a)).

[59] Industrial Relations Act 2016, s 595 (definition of 'irregularity' at para. (b)(i)).

[60] The QTU parties' submissions, para. 37.

[61] The QTU parties' submissions, paras. 38-43.

[62]Citing Re Post; Re Election for Offices in Transport Workers Union of Australia, Western Australian Branch [1992] FCA 15; (1992) 40 IR 162, 166 (French J).

[63] Citing R v Gray; Ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351 ('Gray'), 366 (Gibbs CJ, with Mason J at 374, Wilson J at 377, Brennan J at 382, Deane J at 383 and Dawson J at 392 agreeing).

[64] Citing Clancy, in the matter of an application for an inquiry in relation to an election for offices in the Australian Nursing and Midwifery Federation [2017] FCA 460, [69]-[72] (Siopis J) and Carovska, in the matter of an application for an inquiry in relation to an election for offices in the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, NSW Branch [2023] FCA 1129, [21]-[22] (Raper J.)

[65] [1989] HCA 42;  (1989) 167 CLR 522 ('Hockings') 531 (Gaudron J with the other members of the Court substantially agreeing).

[66] Ibid 531 (Gaudron J).

[67] Ibid.

[68] Gray (n 63), 367-368.

[69] The QTU parties' submissions, para. 44.

[70] Carovska (n 64).

[71] Ibid [20]-[22].

[72] Gray (n 63), 366.

[73] Ibid.

[74] Hockings (n 65).

[75] Ibid 530.

[76] Hockings (n 65), 530-531.

[77] The Amerena parties' submissions, paras. 27-31.

[78] [1990] FCA 129; (1990) 22 FCR 449, 454-455 (Wilcox J).

[79]Namely, the introduction of s 190 Fair Work (Registered Organisations) Act 2009, which provides that an organisation or branch commits an offence if it uses, or allows to be used, its property to help a candidate against another in an election for an office or other position. See McJannett, in the matter of an application for an inquiry in relation to an election for offices in the Construction, Forestry, Mining and Energy Union, Western Australian Branch (No 2) [2009] FCA 1015 ('McJannett') [22]-[24] (Barker J).

[80] Citing Gray (n 63), 365, 367 and 368 (Gibbs J).

[81] Gray (n 63) 366 (Gibbs J).

[82] [2017] HCA 34; (2017) 262 CLR 362.

[83] Citations omitted.

[84] R v A2 [2019] HCA 35; (2019) 269 CLR 507, [33] (Kiefel CJ and Keane J, with Nettle and Gordon JJ at [148] generally agreeing).

[85] Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, [69] (McHugh, Gummow, Kirby and Hayne JJ).

[86] Ibid [70].

[87] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378, [26] (French CJ and Hayne J).

[88] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ).

[89] Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619, [16] (Gummow A-CJ and Kirby J).

[90] Gray (n 63), 368 and (Gibbs CJ) and Carovska (n 64) [21] (Raper J) in respect of s 6 of the Fair Work (Registered Organisations) Act 2009 (Cth). Section 6 of the Fair Work (Registered Organisations) Act 2009 (Cth) provides:

irregularity, in relation to an election or ballot, includes:

(a) a breach of the rules of an organisation or branch of an organisation; and

(b) an act or omission by means of which:

(i) the full and free recording of votes by all persons entitled to record votes and by no

other persons; or

(ii) a correct ascertainment or declaration of the results of the voting;

is, or is attempted to be, prevented or hindered; and

(c) a contravention of section 190

[91] McJannett (n 79).

[92] Carovska (n 64).

[93] Queensland, Parliamentary Debates, Legislative Assembly, 25 May 1999, 1828 (Paul Braddy, Minister for Employment Training and Industrial Relations).

[94] Ibid.

[95] Queensland, Parliamentary Debates, Legislative Assembly, 29 November 2016, 4661 (Grace Grace, Minister for Employment and Industrial Relations, Minister for Racing and Minister for Multicultural Affairs).

[96] Explanatory Notes, Industrial Relations Bill 2016, 92.

[97] Ibid 6.

[98] O'Grady v Northern Queensland Co Ltd [1990] HCA 16; (1990) 169 CLR 356, 347 (Toohey and Gaudron JJ).

[99] [2004] FCA 1534.

[100] Section 6 (c) of Sch 1B of the Workplace Relations Act 1996 provided that an irregularity in relation to an election or ballot included a contravention of s 190. Section 190 of Sch 1B of the Workplace Relations Act 1996 relevantly provided:

190 An organisation or branch commits an offence if it uses, or allows to be used, its property or resources to help a candidate against another candidate in an election under this Part for an office or other position.

Close

Editorial Notes

  • Published Case Name:

    Amerena and Ors v Queensland Teachers Union of Employees and Ors

  • Shortened Case Name:

    Amerena and Ors v Queensland Teachers Union of Employees and Ors

  • MNC:

    [2023] QIRC 302

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    19 Oct 2023

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
Allen v Townsend (1977) 16 ALR 301
2 citations
Jump To
Cite 1 - (1977) 16 ALR 301
Cite 2 - (1977) 16 ALR 301
Allen v Townsend [1977] FCA 10
2 citations
Jump To
Cite 1 - [1977] FCA 10
Cite 2 - [1977] FCA 10
Australian Nursing and Midwifery Federation [2017] FCA 460
3 citations
Jump To
Cite 1 - [2017] FCA 460
Cite 2 - [2017] FCA 460
Cite 3 - [2017] FCA 460
Becker, in the matter of an application for an inquiry in relation to an election for offices in the Australian Education Union, Queensland Branch [2004] FCA 1534
2 citations
Jump To
Cite 1 - [2004] FCA 1534
Cite 2 - [2004] FCA 1534
Campbell v State of Queensland (Department of Justice and Attorney General) (2019) 291 IR 171
2 citations
Jump To
Cite 1 - (2019) 291 IR 171
Cite 2 - (2019) 291 IR 171
Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18
2 citations
Jump To
Cite 1 - [2019] ICQ 18
Cite 2 - [2019] ICQ 18
Carovska, in the matter of an application for an inquiry in relation to an election for offices in the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, NSW Branch [2023] FCA 1129
2 citations
Jump To
Cite 1 - [2023] FCA 1129
Cite 2 - [2023] FCA 1129
Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56
2 citations
Jump To
Cite 1 - [2012] HCA 56
Cite 2 - [2012] HCA 56
Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378
2 citations
Jump To
Cite 1 - (2012) 248 CLR 378
Cite 2 - (2012) 248 CLR 378
Commissioner of Taxation (Cth) v Consolidated Media Holdings Ltd (2012) 250 CLR 503
2 citations
Jump To
Cite 1 - (2012) 250 CLR 503
Cite 2 - (2012) 250 CLR 503
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55
2 citations
Jump To
Cite 1 - [2012] HCA 55
Cite 2 - [2012] HCA 55
Koc v Diamond (No 2) [2022] FCA 640
2 citations
Jump To
Cite 1 - [2022] FCA 640
Cite 2 - [2022] FCA 640
Northern Territory v Collins (2008) 235 CLR 619
2 citations
Jump To
Cite 1 - (2008) 235 CLR 619
Cite 2 - (2008) 235 CLR 619
Northern Territory v Collins [2008] HCA 49
2 citations
Jump To
Cite 1 - [2008] HCA 49
Cite 2 - [2008] HCA 49
O'Connell v Greenhill; Re Federated Liquor and Allied Trade Employees Union of Australasia (1937) CAR 605
2 citations
Jump To
Cite 1 - (1937) CAR 605
Cite 2 - (1937) CAR 605
O'Grady v Northern Queensland Co Ltd [1990] HCA 16
2 citations
Jump To
Cite 1 - [1990] HCA 16
Cite 2 - [1990] HCA 16
O'Grady v Northern Queensland Co Ltd (1990) 169 C.L.R, 356
2 citations
Jump To
Cite 1 - (1990) 169 C.L.R, 356
Cite 2 - (1990) 169 C.L.R, 356
O'Sullivan v Farah [1989] HCA 61
2 citations
Jump To
Cite 1 - [1989] HCA 61
Cite 2 - [1989] HCA 61
O'Sullivan v Farrer (1989) 168 CLR 210
2 citations
Jump To
Cite 1 - (1989) 168 CLR 210
Cite 2 - (1989) 168 CLR 210
Pine Rivers, Caboolture and Redcliffe Group Training Scheme Inc v Group Training Association Queensland & Northern Territory Inc[2015] 1 Qd R 542; [2013] QCA 358
4 citations
Jump To
Cite 1 - [2013] QCA 358
Cite 2 - [2013] QCA 358
Cite 3 - [2015] 1 Qd R 542
Cite 4 - [2015] 1 Qd R 542
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
2 citations
Jump To
Cite 1 - [1998] HCA 28
Cite 2 - [1998] HCA 28
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
R v A2 [2019] HCA 35
2 citations
Jump To
Cite 1 - [2019] HCA 35
Cite 2 - [2019] HCA 35
R v A2 (2019) 269 CLR 507
2 citations
Jump To
Cite 1 - (2019) 269 CLR 507
Cite 2 - (2019) 269 CLR 507
R v Commonwealth Court of Conciliation and Arbitration [1945] HCA 50
2 citations
Jump To
Cite 1 - [1945] HCA 50
Cite 2 - [1945] HCA 50
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141
2 citations
Jump To
Cite 1 - (1945) 70 CLR 141
Cite 2 - (1945) 70 CLR 141
Re An Application By Dannie Richard Davidson of An Inquiry Into An Election of An Office In the Musicians' Union of Australia, Newcastle Branch [1990] FCA 129
2 citations
Jump To
Cite 1 - [1990] FCA 129
Cite 2 - [1990] FCA 129
Re an application by Dannie Richard Davidson of an inquiry into an election of an office in the Musicians' Union of Australia, Newcastle Branch ('Davidson') (1990) 22 FCR 449
2 citations
Jump To
Cite 1 - (1990) 22 FCR 449
Cite 2 - (1990) 22 FCR 449
Re Collins; Ex parte Hockings [1989] HCA 42
2 citations
Jump To
Cite 1 - [1989] HCA 42
Cite 2 - [1989] HCA 42
Re Collins; Ex parte Hockings (1989) 167 CLR 522
4 citations
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Cite 1 - (1989) 167 CLR 522
Cite 2 - (1989) 167 CLR 522
Cite 3 - (1989) 167 CLR 522
Cite 4 - (1989) 167 CLR 522
Re Davidson (1990) 31 IR 102
1 citation
Jump To
Cite 1 - (1990) 31 IR 102
Re McJannett (No 2) [2009] FCA 1015
2 citations
Jump To
Cite 1 - [2009] FCA 1015
Cite 2 - [2009] FCA 1015
Re Post; Re Election for Offices in Transport Workers Union of Australia, Western Australian Branch [1992] FCA 15
2 citations
Jump To
Cite 1 - [1992] FCA 15
Cite 2 - [1992] FCA 15
Re Post; Re Election for Offices in Transport Workers Union of Australia, Western Australian Branch (1992) 40 IR 162
3 citations
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Cite 1 - (1992) 40 IR 162
Cite 2 - (1992) 40 IR 162
Cite 3 - (1992) 40 IR 162
Re Queensland Electricity Commission & Ors; ex parte Electrical Trades Union of Australia (1987) 72 ALR 1
2 citations
Jump To
Cite 1 - (1987) 72 ALR 1
Cite 2 - (1987) 72 ALR 1
Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27
2 citations
Jump To
Cite 1 - [1987] HCA 27
Cite 2 - [1987] HCA 27
Scott v Jess (1984) 3 FCR 263
2 citations
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Cite 1 - (1984) 3 FCR 263
Cite 2 - (1984) 3 FCR 263
Scott v Jess [1984] FCA 289
2 citations
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Cite 1 - [1984] FCA 289
Cite 2 - [1984] FCA 289
Scott v Jess (1984) 8 IR 317
2 citations
Jump To
Cite 1 - (1984) 8 IR 317
Cite 2 - (1984) 8 IR 317
Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees v Minister for Industrial Relations & Anor [2003] ICQ 33
2 citations
Jump To
Cite 1 - [2003] ICQ 33
Cite 2 - [2003] ICQ 33
State of Queensland v Lockhart [2014] ICQ 6
2 citations
Jump To
Cite 1 - [2014] ICQ 6
Cite 2 - [2014] ICQ 6
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
2 citations
Jump To
Cite 1 - (2017) 262 CLR 362
Cite 2 - (2017) 262 CLR 362
Sztal v Minister for Immigration and Border Protection (2017) HCA 34
2 citations
Jump To
Cite 1 - (2017) HCA 34
Cite 2 - (2017) HCA 34
The Queen v Gray; Ex parte Marsh (1985) 157 CLR 351
2 citations
Jump To
Cite 1 - (1985) 157 CLR 351
Cite 2 - (1985) 157 CLR 351
The Queen v Gray; Ex parte Marsh [1985] HCA 67
2 citations
Jump To
Cite 1 - [1985] HCA 67
Cite 2 - [1985] HCA 67
Union of Employees v Minister for Industrial Relations and Retailers' Association of Queensland Limited, Union of Employers (2003) 173 QGIG 1342
2 citations
Jump To
Cite 1 - (2003) 173 QGIG 1342
Cite 2 - (2003) 173 QGIG 1342

Cases Citing

Case NameFull CitationFrequency
Chilcott v Townsville Hospital and Health Service [2025] QIRC 322 citations
Johanson v Queensland Teachers Union of Employees [2024] QIRC 1572 citations
Johanson v Queensland Teachers Union of Employees (No. 3) [2025] QIRC 1706 citations
Talbot v State of Queensland (Queensland Police Service) [2025] QIRC 2001 citation
1

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