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  4. Johanson v Queensland Teachers Union of Employees - [2024] QIRC 157

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Johanson v Queensland Teachers Union of Employees[2024] QIRC 157

Johanson v Queensland Teachers Union of Employees[2024] QIRC 157

INDUSTRIAL REGISTRAR

CITATION:

Johanson v Queensland Teachers Union of Employees and Ors [2024] QIRC 157

PARTIES:

Johanson, Madonna

(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/2024/137

PROCEEDING:

Application for an election inquiry

DELIVERED ON:

24 June 2024

HEARING DATE:

On the papers

MEMBER:

Industrial Registrar Shelley

ORDERS:

Pursuant to s 690 of the Industrial Relations Act 2016, the application filed on 9 May 2024 will not be referred to the Commission to conduct an election inquiry.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – REGISTERED INDUSTRIAL ORGANISATIONS – Application for an election inquiry – Industrial Registry may refer the application to the Commission – Industrial Registrar needs to be satisfied there are reasonable grounds to inquire – whether there has been an irregularity – what are reasonable grounds – definition of "irregularity" – whether application is one for referral to the Commission for an election inquiry – not referred

LEGISLATION:

Industrial Relations Act 2016, s 687, s 688, s 689, s 690

Queensland Teachers Union of Employees Constitution and Rules

CASES:

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

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

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

George v Rockett [1990] HCA 26; (1990) 170 CLR 104

In the matter of an application by William Robert Jacomb for an Inquiry relating to an election for office in the Australian Municipal Administrative Clerical and Services Union [2000] 180 ALR 134

Nimmo, in the matter of an application for an inquiry relating to an election for an office in the Australian Education Union (NT Branch) [2011] FCA 38

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

White, in the matter of an election for an office in Transport Workers' Union of Australia, Queensland Branch [2019] FCA 2131

Reasons for Decision

Introduction

  1. [1]
    On 9 May 2024, Ms Madonna Johanson (Applicant) filed in the Industrial Registry an application for an election inquiry pursuant to s 687 of the Industrial Relations Act 2016 (the Act) with regards to an election held by the First Respondent, Queensland Teachers Union of Employees (QTU).
  1. [2]
    A Directions Order issued on 17 May 2024 was vacated and was followed by a Further Directions Order issued on the same day requiring the Applicant to submit the relevant Rule for each of the 21 identified alleged irregularities within the Application by 22 May 2024.  The Respondents were given an opportunity to file a statement in response by 29 May 2024.
  1. [3]
    On 21 May 2024, the Applicant filed submissions identifying the relevant Rule applicable to each of the identified alleged irregularities in Schedule A of the application.
  1. [4]
    On 29 May 2024, the QTU filed a statement in response.
  1. [5]
    For the reasons that follow, I am not satisfied that there are reasonable grounds to inquire whether there has been an irregularity in the election that may have affected, or may affect, the election result and that the circumstances justify an election inquiry.

Background

The Election

  1. [6]
    The QTU filed the prescribed information for an election on 24 May 2023 and I issued a decision on 25 May 2023 instructing the Electoral Commission of Queensland (ECQ) to conduct an election for the QTU for the following positions:

OfficeNo. of Positions

President1

Vice-President (Full-time)1

Vice-President (Honorary) 1

  1. [7]
    On 4 December 2023, the ECQ confirmed in correspondence, that as a result of my decision in RIO/2023/88, the ECQ was to conduct an election for positions of office within the QTU with nominations closing on 31 August 2023 and they were required to conduct three ballots which were completed. The ECQ issued a Certificate of Election reporting on the conduct of the election which contained the formal declaration of the results.  A copy of that Certificate was enclosed with the correspondence and was also forwarded to the General Secretary of the QTU.
  1. [8]
    The ECQ, in issuing the Certificate of Election, outlined the following:
  1. That a Notice of Election and Nomination Form detailing the election arrangements was distributed to members in the QTU journal on 21 July 2023.  The timetable for the election was advertised as follows:
  • Nominations open on 21 July 2023;
  • Nominations close a midday on 31 August 2023;
  • Postal ballot, if required, to open 6 October 2023;
  • Postal ballot, if required, to close at midday 16 November 2023.
  1. The ECQ accepted the nomination of all candidates as inquiries with the QTU's membership records revealed that they were eligible for election to the position of office contested. 
  1. The ECQ conducted a postal ballot to declare the positions of President, Vice-President (Full-time) and Vice-President (Honorary), with the ballots being counted under the Optional Preferential voting system.
  1. The following were results for Vice-President (Honorary) in ballot paper order –

Candidates

Votes @ Count 1

Votes gained

Total

Status

CLEARY, Joshua

3,217

227

3,444

Elected

BARRIGOS, Bec

2,343

403

2,746

 

JOHANSON, Madonna

1,115

  

Excluded

Formal votes

6,675

630

6,190

 

Exhausted votes

 

485

485

 

Informal votes

67

 

67

 

Total votes

6,742

1,115

6,742

 
  1. At the conclusion of Count 1, the Applicant had the lowest number of votes so, where applicable, her votes were distributed to the other candidates.
  1. [9]
    Included in the Certificate of Election was a declaration of Ms Suzanne Ball (Returning Officer for the ECQ) declaring that the QTU election was conducted in accordance with the Queensland Teachers Union of Employees Rules ("Rules") and that the following nominees were elected:
  • Cresta Richardson – President;
  • Leah Olsson – Vice-President (Full-time); and
  • Joshua Cleary – Vice-President (Honorary).

The Application

  1. [10]
    At the time of making the application, the Applicant was a financial member of the QTU.  The Applicant filed the application pursuant to s 687 of the Act within the six-month period after the election had ended as required under s 689(a)(ii)(A) of the Act.
  1. [11]
    In the application, the Applicant outlined the following:
  1. This is an Election Inquiry Application under s 687 of the Industrial Relations Act 2016 (Act).
  2. The applicant is a current financial member of the Queensland Teachers' Union (QTU) in accordance with s 688 of the Act.
  3. The applicant was a candidate for Vice-President (Honorary) in the 2023 election.
  4. The election period was between the opening of nominations on 21 July 2023 and the close of the ballot at midday 16 November 2023.
  5. This application is in accordance with s 689 of the Act.
  6. The application rely [sic] on the facts set out in the Affidavits filed with this application. The applicant hereby requests that the Register read that material.
  7. There are 21 irregularities claimed in the election that are not contained in Appendix A to this application.
  8. These irregularities are:
  1. a contravention of QTU Rules, namely 1.2(e), 6.2(a), 6.6(a), 3.3(a) and others; and
  1. 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.
  1. On the above basis the applicant contends the Registrar should refer as soon as possible under s 690 of the Act this election inquiry application to the Commission as the Registrar out to be satisfied on the bases that:
  1. there are reasonable grounds to inquiry whether there has been an irregularity in the election that may have affected or did in fact affect the election result;
  1. the circumstances justify an election inquiry;
  1. the registrar may consider other relevant information of which the registrar has knowledge.
  1. [12]
    In response to the Further Directions Order issued on 17 May 2024, further submissions identifying the relevant Rule against each alleged irregularity were filed by the Applicant as follows: 
  1. The requirement for candidate Ms Johanson, to complete a Statutory declaration rather than the written commitment required in Policy A 16.2, in order to access the Membership List (Rules: 1.2(d); 1.2(e); 3.3(a)(i), 3.3(a)(iii); 3.3(a)(v); 3.3(a)(ix); 4.2(iii); 4.4(a)(iv); 6.6(a); 6.6(a)(i); 6.9(d)(ii).
  1. The repeated delay of the provision of Policy 16.2 Membership Lists information names, postal addresses and "any other relevant information", including union reps and workplaces, to candidate Ms Johanson (Rules: 1.2(d); 1.2(e); 3.3(a)(i), 3.3(a)(iii); 3.3(a)(v); 3.3(a)(ix); 4.2(iii); 4.4(a)(iv); 6.6(a); 6.6(a)(i); Code of Ethics Part A, Code of Ethics Part B 3; 4).
  1. The moving and carrying of the amendment to Policy A 16.2 at State Council on 26 August 2023 to add: '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' to prevent Fightback candidates' door knocking when incumbents were not door knocking (Rules: 1.2(d); 1.2(e); 3.1(b); 3.3(a)(i), 3.3(a)(iii); 3.3(a)(ix); 4.2(iii); 4.3(b); 4.4(f); 6.6(a); 6.6(a)(i); 8.2(b); Standing Order 22, Code of Ethics Part A, Code of Ethics Part B 3; 4; 5).
  1. The deferral of Ms Johanson's motion at November State Council, to strike out the August Council Policy A 16.2 amendment, until March 2024 council, despite the August amendment continuing to disproportionately limit Ms Johanson's ability to campaign, as compared to the incumbents who were visiting schools and workplaces as part of the 'Yes' and 'For Every Child' campaigns (Rules: 1.2(d); 1.2(e); 3.1(b); 3.3(a)(i), 3.3(a)(iii); 3.3(a)(ix); 4.2(iii); 4.3(b); 4.4(f); 6.6(a); 6.6(a)(i); 8.2(b); Code of Ethics Part B 3; 4).
  1. The publishing of commentary against the Fightback team door knocking in an 'Editorial: by Kate Ruttiman, General Secretary' under the heading 'QTU Policy on doorknocking' in the November QTU journal on 2 November 2023 (Rules: 1.2(d); 1.2(e); 3.3(a)(i), 3.3(a)(iii); 3.3(a)(ix); 4.4(a)(vi); 4.4(f); 6.6(a); 6.6(a)(i)).
  1. The increased QTU coverage on social media of the YPT presidential candidates, particularly the President and Vice-President participating in 'Yes' and 'For Every Child' campaigns, during an election campaign, (Rules: 1.2(d); 1.2(e); 3.3(a)(i), 3.3(a)(iii); 3.3(a)(ix); 4.2(iii); 4.4(a)(vi); 4.6(f); 4.6(g); 5.1(b); 6.6(a); 6.6(a)(i)).
  1. The creation, approval and running of a QTU affiliated Facebook group called 'QTU Fightback - rank and file members in solidarity' from 31 July 2023 until 9 August 2023, to mislead members searching for the Facebook page 'QTU Fightback - rank and file members for change', (Rules: 1.2(d); 1.2(e); 3.3(a)(i), 3.3(a)(iii); 3.3(a)(ix); 4.2(iii); 4.4(a)(vi); 4.6(f); 4.6(g); 5.1(b); 6.6(a); 6.6(a)(i)).
  1. The distribution of YPT election campaign materials at the TAFE Council held inside the QTU building on Saturday 12 August 2023, (Rules: 1.2(d); 1.2(e); 3.3(a)(i), 3.3(a)(iii); 3.3(a)(ix); 4.2(iii); 4.3(b); 4.4(a)(iv); 6.6(a); 6.6(a)(i)).
  1. The Acting employee/member, lobbying Facebook group 'QLD Teachers' Admin, on 1 and 3 August 2023, to not allow election posts by candidates to a large audience with no cost, where Fightback members often post and the incumbents do not, (Rules: 1.2(d); 1.2(e); 3.3(a)(i), 3.3(a)(iii); 3.3(a)(ix); 4.2(iii); 4.6(f); 4.6(g); 6.6(a); 6.6(a)(i)).
  1. The alleged removal of Fightback election material from a school by a QTU organiser before or on 14 September [2023], (Rules: 1.2(d); 1.2(e); 3.3(a)(i), 3.3(a)(iii); 3.3(a)(ix); 3.3(b); 3.3(c); 4.2(iii); 4.4(f); 4.6(g); 6.6(a); 6.6(a)(i); Code of Ethics Part A, Code of Ethics Part B 3; 4; 5).
  1. YPT's production and publishing of a video on Facebook and 'yourqtuteam.org' on or about September 11 [2023], in which the incumbent President stated that other candidates were extremists (Rules: 1.2(d); 1.2(e); 3.3(a)(i), 3.3(a)(ii); 3.3(a)(iii); 3.3(a)(vi); 3.3(a)(ix); 4.2(iii); 6.6(a); 6.6(a)(i); Code of Ethics Part A; Code of Ethics B 3; 4; 5).
  1. YPT procuring and publishing a sponsored link that directed a Google search from 'QTU Fightback' to 'yourqtuteam.org' on or about 17 September 2023, to mislead members searching for Fightback (Rules: 1.2(d); 1.2(e); 3.3(a)(i), 3.3(a)(iii); 3.3(a)(ix); 4.2(iii); 4.3(b); 6.6(a); 6.6(a)(i)).
  1. The publishing of negative statements in the QTU Presidential election special on 5 October 2023, in the article 'Josh Cleary for Honorary Vice‑President' about the election inquiry application (Rules: 1.2(d); 1.2(e); 3.3(a)(i), 3.3(a)(iii); 3.3(a)(vi); 4.2(iii); 4.4(a)(vi); 4.4(f); 6.6(a); 6.6(a)(i)).
  1. The publishing of negative statements about the election inquiry application, in the YPT election article in the QTU November journal (Rules: 1.2(d); 1.2(e); 3.3(a)(i), 3.3(a)(iii); 3.3(a)(vi); 3.3(a)(ix); 4.2(iii); 4.3(b); 4.4(a)(vi); 4.4(f); 6.6(a); 6.6(a)(i)).
  1. The publishing of statements in the QTU Presidential election special, in the General Secretary's message, under the heading 'QIRC application seeking access to member email addresses', rather than report to November State Council as per Rule 4.4(f) (Rules: 1.2(d); 1.2(e); 3.3(a)(i), 3.3(a)(iii); 4.2(iii); 4.3(b); 4.4(a)(vi); 4.4(f); 6.6(a); 6.6(a)(i)).
  1. The publishing of statements in the 'Editorial: by Kate Ruttiman, General Secretary' in QTU November journal, under the heading 'Election challenge - dismissed', rather than report to November State Council as per Rule 4.4(f) (Rules: 1.2(d); 1.2(e); 3.3(a)(i), 3.3(a)(iii); 4.2(iii); 4.3(b); 4.4(a)(vi); 4.4(f); 6.6(a); 6.6(a)(i)).
  1. The production, publishing and distribution of YPT campaign materials to union reps at workplaces, with 'Ballot Checklist' instructions 5 'Schedule a ballot meeting between the 16th and 17th of October', encouraging reps to communicate with members and encourage them to bring along their ballot papers (Rules: 1.2(d); 1.2(e); 3.3(a)(i), 3.3(a)(iii); 3.3(a)(ix); 4.2(iii); 4.3(b); 6.2(a); 6.6(a); 6.6(a)(i); 6.6(b)(iii); 6.6(b)(vi); 6.6(c)(vii)).
  1. The production, publishing and distribution of YPT campaign materials to union reps at workplaces, with 'Ballot Checklist' instructions 6 'Hold the ballot meeting', and 7 'Post the ballots back', letting union reps know that they can share who they are voting for and why, and encouraging union representatives to collect and post the ballot papers of members or for members to give a ballot record to someone else (Rules: 1.2(d); 1.2(e); 3.3(a)(i), 3.3(a)(iii); 3.3(a)(ix); 4.2(iii); 4.3(b); 6.2(a); 6.6(a); 6.6(a)(i); 6.6(b); 6.6(b)(iii); 6.6(b)(vi); 6.6(c)(vii)).
  1. The collection and posting of ballot envelopes of at least two other members, by a member of Executive/Acting employee, on or about 11 October 2023 (Rules: 1.2(d); 1.2(e); 3.3(a)(i), 3.3(a)(iii); 3.3(a)(ix); 4.2(iii); 4.3(b); 4.6(f); 6.2(a); 6.6(a); 6.6(a)(i); 6.6(b); 6.6(b)(iii); 6.6(b)(vi); 6.6(c)(vii)).
  1. The collection and posting of six ballot envelopes from members at Raceview State School, on or about 17 October 2023, by a member of State Council, (Rules: 1.2(d); 1.2(e); 3.3(a)(i), 3.3(a)(iii); 3.3(a)(ix); 4.2(iii); 4.3(b); 6.2(a); 6.6(a); 6.6(a)(i); 6.6(b); 6.6(b)(iii); 6.6(b)(vi); 6.6(c)(vii)).
  1. The secret faction 'The Group' play a role in the election that could constitute an irregularity (Rules: 1.2(d); 1.2(e); 3.1(a); 3.1(b); 3.3(a)(i), 3.3(a)(iii); 3.3(a)(ix); 4.2(iii); 4.3(b); 4.4(a)(xv); 4.4(f); 6.2(a); 6.6(a); 6.6(a)(i); 6.6(b); 6.6(b)(iii); 6.6(b)(vi); 6.6(c)(vii); Code of Ethics Part A; Code of Ethics B 3; 4; 5); and raises other questions about conduct during the election.

The First Respondent's (QTU) Statement in Response

  1. [13]
    On 29 May 2024, the QTU's statement in response contends that in summary, the law is unequivocal that:
  1. The Registrar cannot be satisfied there are reasonable grounds there has been an irregularity that may have affected the election result if the grounds alleged cannot amount to an "irregularity", the allegations of fact do not themselves provide good grounds, or if the grounds depend upon speculation, and the election result "as a matter practical reality" could not have been affected by the alleged irregularities.
  1. In light of the large margins of the successful candidates (in both raw and percentage terms) there is no reasonable possibility that the Registrar can be satisfied as a matter practical reality that the irregularities alleged may have affected the election results.
  1. Even leaving that issue aside, the vast bulk of the irregularities as alleged relate solely to steps taken to affect voting intentions, not involving the machinery provisions and the formal steps involved in an election.  Such conduct, even if it occurred as alleged, cannot as a matter of law amount to irregularities.
  1. Even leaving both of those issues aside, the Rules the application relies upon in connection with the alleged irregularities are primarily aspirational, descriptive, dependent or simply irrelevant so any alleged failure to comply with them could never amount to an irregularity.
  1. Finally, of the handful of Rules relied upon that do relate to the conduct of the election, they only impose obligations on the Returning Office and no allegations have been raised in the Application that the Returning Officer failed to comply with their obligations under such Rules.
  1. The Applicant is misconceived, it does not identify any irregularities at law and it must be dismissed.

The relevant provisions of the Act

  1. [14]
    Section 687 of the Act provides:

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. [15]
    Section 688 of the Act provides:

688 Who may apply

An application for an election inquiry may be made only by –

  1. a financial member of the organisation in which the election was conducted; or
  2. a person who was a financial member of the organisation within 1 year before the application is made.
  1. [16]
    Section 689 of the Act provides:

689 Requirements for application

The application -

  1. may be filed only during the period that -
  1. starts on the day the information, prescribed by regulation, for the election is filed under section 669(1); and
  2. ends -
  1. 6 months after the election has ended; or
  2. if the registrar, on application, allows the application to be filed before a later stated day - on the later stated day; and
  1. must state -
  1. the election for which the application is made; and
  1. the irregularity that is claimed to have happened; and
  1. the facts relied on to support the application; and
  1. must be accompanied by an affidavit by the applicant stating the facts claimed in the application are true to the best of the applicant's knowledge and belief.
  1. [17]
    Section 690 of the Act provides:

690 Referral to commission

  1. The registrar may refer the application to the commission only if satisfied -
  1. there are reasonable grounds to inquire whether there has been an irregularity in the election that may have affected, or may affect, the election result; and
  2. the circumstances justify an election inquiry.
  1. In deciding whether to refer the application, the registrar may consider other relevant information of which the registrar has knowledge.
  1. An election inquiry is taken to have been started in the commission when the application is referred.
  1. [18]
    Section 595 of the Act defines "irregularity" as:

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 voting.

That section of the Act also defines "election" as:

election means an election for an office for an organisation or branch of an organisation.

Considerations

  1. [19]
    Section 690(1)(a) of the Act, as outlined above, states that the Registrar may refer the application to the commission only if satisfied:

…there are reasonable grounds to inquire whether there has been an irregularity in the election that may have affected, or may affect, the election result. [emphasis added]

Only if satisfied

  1. [20]
    In submissions, the QTU referred to a decision of French J in Re Post; Re Election for Offices in Transport Workers Union of Australia, Western Australian Branch[1] as authority for what tests apply to determining satisfaction:

The question for the Court mandated by s. 219(b) of the Industrial Relations Act 1988 is whether it is satisfied that there is reasonable ground for the application. It will not be so satisfied if the grounds relied upon could not, even if made out, constitute "an irregularity in relation to an election for an office in the organisation"…..Nor will it be so satisfied if the allegations of fact relied upon in the application do not at least offer good grounds for suspicion that there has been such an irregularity. The Court will not entertain an application of a speculative nature based upon the applicant's opinion that there has been irregularity unless that opinion rests upon some substantial factual foundation.

Reasonable Grounds

  1. [21]
    The ordinary meaning taken from the Macquarie Dictionary[2] states:

reasonable…2.  agreeable to reason or sound judgement…

3. not exceeding the limit prescribed by reason; not excessive.

ground…5.  (often plural) the foundation or basis on which a theory or action rests; motive…

  1. [22]
    In George v Rockett[3] the High Court relevantly provided:

When a statute prescribes that there must be "reasonable grounds" for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.

Irregularity

  1. [23]
    The QTU submitted that under the comparable federal legislation, "…what amounts to an irregularity has been consistent for many years".  They relied on a recent decision of Merrell DP in Amerena and Ors v Queensland Teachers Union of Employees and Ors[4] ('Amerena') in which they say the definition of irregularity is confirmed as continuing to apply to the Act.  They submitted the following:
  1. An irregularity includes (a) a contravention of an organisation's rules and (b) an act or omission by which the full and free recording of votes by all persons who may record a vote and by no other persons is prevented (or attempted) (s. 595).
  1. [24]
    Further to this, the QTU submitted that there is no claim in the application that the other limb of the definition outlined in s 595 of the Act is relevant as there has not been any interference in the working out or declaration of the election results. They go on to submit:
  1. For the purposes of both limbs of the definition, an irregularity include a departure from some rule, established practice or generally accepted principle governing the conduct of an election.[5]
  1. However, an "irregularity" in relation to an election or ballot does not include steps taken to affect voting intentions.  Conduct which constitutes a breach of the rules of an organisation but which goes no further than supporting the candidature of members of a particular "team" amounts to an irregularity but it does not give rise to an irregularity in or in connexion [sic] with an election because it does not involve a departure from some rule, practice or principle governing the conduct of the election".[6]
  1. The expression "full and free recording of votes" refers 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. "Irregularity" is limited to the machinery provisions and processes and the formal steps involved in an election.[7]
  1. Irregularity does not refer to the process of deciding for whom to vote.  The word "election" when used in the Act does not encompass the activities involved in electioneering and does not extend to activities by which a particular candidate is promoted to voters.[8]
  1. [25]
    In Amerena, Merrell DP states:

[88] … 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.

And further in that decision, Merrell DP states:

[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. [9]

...

[106] The above legislative history and extrinsic material does not persuade me that … 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.

Election and election result

  1. [26]
    As stated earlier, s 595 of the Act defines 'election' as an election for an office for an organisation or branch of an organisation.
  1. [27]
    This was an election for offices within the QTU.
  1. [28]
    In Re Collins; Ex parte Hockings[10], Gaudron J stated:

Similarly, s. 170(5) provides that, following a request in accordance with that section, "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". These provisions, in speaking of "the conduct of (an) election", contemplate the machinery processes or the formal steps involved in the holding of an election. Within this  context it may be noted that s. 170(1) speaks of a request "that an election … be conducted under this section with a view to ensuring that no irregularity occurs in or in connection with the election", thus suggesting that, bribery, intimidation and coercion aside, irregularities are directly associated with the machinery processes or formal steps involved in an election."

  1. [29]
    The QTU in their submissions at [29] cited the decision Raper J 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[11], submitting that Raper J relevantly stated at [22]:

…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. [30]
    The jurisdiction in determining whether there has been an irregularity falls with the Commission, however I need to be satisfied there are reasonable grounds to inquire whether there has been an irregularity.

Policies

  1. [31]
    The Applicant submitted alleged irregularities relating to actions taken or not taken as required in the QTU's policies, specifically policy A16.2 (as outlined in [12] of this decision).
  1. [32]
    As held in Amerena, Merrell DP stated:

[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.

[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.

…

[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.

[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.

[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.

[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. [33]
    Even if a policy could be taken to be a Rule within the organisation's Rules and/or there has been a breach of the Rules, it would still not meet the test of being an irregularity by preventing the full and free recording of votes by all persons who may record a vote or the correct working out or declaration of the results of the voting.

Coverage and publishing of statements  - Journals/Social Media; Campaign Materials at workplaces

  1. [34]
    Regarding alleged irregularities submitted by the Applicant as outlined at [12](e), (f), (g), (h), (i), (j), (k), (l), (m), (n), (o), and (p) above, having regard to coverage and publishing of statements and videos etc within QTU journals or on social media sites whether affiliated or not to the QTU; as well as the alleged irregularities submitted by the Applicant outlined at [12](q) and (r) above, having regard to the production, publishing, and distribution of YPT campaign materials to union reps at workplaces, the QTU submitted:
  1. Whether "the result of the election may have been affected has to be assessed as a matter of 'real not merely theoretical possibilities'" to determine whether the result could "as a matter practical reality have been affected by the irregularity."[12]
  1. In these circumstances where the raw vote margins, the percentage result margins and the flow of preferences are clear, it is bordering on the absurd to suggest "as a matter of practical reality" there could be any reasonable grounds to satisfy the Registrar any irregularities individually or cumulatively, may have affected the election result.
  1. An "appropriate approach to considering whether there was a 'real' possibility of the irregularity or irregularities affecting the result of the election is to consider the margin between the 'lowest scoring elected person and the highest scoring unelected person'".[13]

…

  1. There is no suggestion in the application itself or in the material accompanying the application that even begins to propose that any such massive alteration in the number of electors casting a vote or the pattern of voting results would have occurred if not for the alleged irregularities.  Even if all of the alleged regularities [sic] did occur, there is nothing in the application or its materials that identify the basis for speculation on that grand scale; to make the submission would not merely be speculation but would be reckless conjecture.
  1. Further multiple alleged irregularities involve at most a potential handful of members and handful of potential votes and so could have not any possible effect on the election result even if there were "irregularities" under the Act…
  1. The size of the winning margins in the election make it impossible for the Registrar to be satisfied on any reasonable grounds that any or all of the alleged irregularities referred to in the Application, even if they did meet the requirements of the Act for "irregularities", may have affected the election results.
  1. [35]
    As previously mentioned, Merrell DP in Amerena states that the present definitions of "irregularity" and "election" in the Act, do not include electioneering.
  1. [36]
    If the alleged irregularities were proved to be in breach of the Rules, I am not satisfied it meets the test of being an irregularity by preventing the full and free recording of votes by all persons who may record a vote, or the correct working out or declaration of the results of the vote.  Further these alleged irregularities form part of the electioneering process and not the conduct of the election itself.

The collection and posting of ballot envelopes

  1. [37]
    With regards to the alleged irregularities submitted by the Applicant and as outlined at [12](s) and (t) above having regard to the collection and posting of ballot envelopes of at least two other members and from members at Raceview State School by an Executive member/Acting employee or proxy member of State Council respectively, the QTU submitted:
  1. The only Rules identified in the application potentially relevant to an allegation of irregularity are the following elements of Rule 6:

6.2(a) election is by secret postal ballot of financial members.

  1. The rule is merely descriptive of the processes set out in detail elsewhere in Rule 6, and is not itself proscriptive of what must not [sic] or must not be done such that it can be breached, other than by the breach of some other specific element of Rule 6.  More importantly, the Application makes no allegation that the election was not secret or postal or not of financial members and there is no basis for the Registrar to be satisfied there are "good grounds for suspicion" there has been an irregularity that may have affected the result.[14]

6.6(a) & 6.6(a)(i) the ballot shall be conducted in accordance with the Act and Regulations…by a secret postal ballot of members eligible to vote

  1. Again, subject to an allegation made and "good grounds for suspicion" that a relevant provision of the Act or regulations have been breached, or that the ballot was not secret, postal or of eligible members, reliance upon the Rule cannot ground an irregularity.

6.6(b)(iii) the returning officer must send ballots by post to financial members

6.6(b)(vi) the returning office must provide a locked ballot box at the designation Post Office

6.6(c)(vii) the returning officer must collect completed ballot papers and declare the ballot.

  1. Those provisions cast an obligation on the returning officer to undertake certain steps.  There are no allegations in the Application that the returning officer failed to perform any of those steps and so failed to comply with the Rules.
  1. [38]
    Should a rule have been breached due to the collection of the ballot papers by a person other than the person casting the vote, there is no material produced by the Applicant to suggest that there has been an act or omission by which the full and free recording of votes was or was attempted to be prevented. Further there is no submission that those ballot papers were cast by a person other than the voter to whom the ballot papers were addressed.  The returning officer, in her declaration of the election result, confirmed that the conduct of the election was undertaken in accordance with the Rules. 

The secret faction "The Group"

  1. [39]
    With regards to the alleged irregularity submitted by the Applicant and outlined at [12](u) above referring to the secret faction "The Group" having played a role in the election that could constitute an irregularity, the QTU submitted:
  1. The final irregularity in paragraph (u) of the Application is, starkly symptomatic of the approach taken throughout the Application. The Applicant speculates, without reliance upon any factual material whatsoever, that an unidentified group of individuals exists, with an unidentified improper purpose, who did unidentified improper things, at unidentified times, that for unidentified reasons might constitute an irregularity, and then lists an array of Rules that might have been breached by the unknown activities of unknown people at some unknown times.
  1. [40]
    I agree with that submission in that the Applicant speculates without reliance upon any factual material that an unidentified group of individuals exists, that they carried out unidentified actions which was in breach of the Rules and prevented or attempted to prevent the full and free recording of votes by all persons who may record a vote or the correct working out or declaration of the results of the vote.

Conclusion

  1. [41]
    Pursuant to s 690 of the Act, on consideration of all of the information and material before me, and for the reasons provided above, I am not satisfied there are reasonable grounds to inquire whether there has been an irregularity in the election that may have affected the election result.  Further, I do not believe there are any circumstances justifying a referral to the Commission for an election inquiry.

Order

  1. [42]
    I make the following order:

Pursuant to s 690 of the Industrial Relations Act 2016, the application filed on 9 May 2024 will not be referred to the Commission to conduct an election inquiry.

Footnotes

[1] Re Post; Re Election for Offices in Transport Workers Union of Australia, Western Australian Branch (1992) 40 IR 162 at 166

[2] Macquarie Dictionary (online at 24 June 2024) 'reasonable' (def 2 and 3 ) and 'ground' (def 5)

[3] George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at [8]

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

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

[6] 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 Re Collins; Ex parte Hockings [1989] HCA 42; (1989) 167 CLR 522 (Toohey & McHugh JJ)

[7] Citing Re Collins; Ex parte Hockings [1989] HCA 42; (1989) 167 CLR 522 (Toohey & McHugh JJ) 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)

[8] Citing Re Collins; Ex parte Hockings [1989] HCA 42; (1989) 167 CLR 522 at 531 (Toohey & McHugh JJ)

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

[10] Re Collins; Ex parte Hockings [1989] HCA 42; (1989) 167 CLR 522 at 531 (Gaudron J with the other members of the Court substantially agreeing)

[11] 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)

[12] Citing Nimmo, in the matter of an application for an inquiry relating to an election for an office in the Australian Education Union (NT Branch) [2011] FCA 38 at [69] and In the matter of an application by William Robert Jacomb for an Inquiry relating to an election for office in the Australian Municipal Administrative Clerical and Services Union [2000] 180 ALR 134 at [54]

[13] Citing White, in the matter of an election for an office in Transport Workers' Union of Australia, Queensland Branch [2019] FCA 2131

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

Close

Editorial Notes

  • Published Case Name:

    Johanson v Queensland Teachers Union of Employees and Ors

  • Shortened Case Name:

    Johanson v Queensland Teachers Union of Employees

  • MNC:

    [2024] QIRC 157

  • Court:

    QIRC

  • Judge(s):

    Shelley

  • Date:

    24 Jun 2024

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
Amerena and Ors v Queensland Teachers Union of Employees and Ors [2023] QIRC 302
2 citations
Jump To
Cite 1 - [2023] QIRC 302
Cite 2 - [2023] QIRC 302
Australian Nursing and Midwifery Federation [2017] FCA 460
2 citations
Jump To
Cite 1 - [2017] FCA 460
Cite 2 - [2017] FCA 460
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
4 citations
Jump To
Cite 1 - [2023] FCA 1129
Cite 2 - [2023] FCA 1129
Cite 3 - [2023] FCA 1129
Cite 4 - [2023] FCA 1129
George v Rockett (1990) 170 CLR 104
2 citations
Jump To
Cite 1 - (1990) 170 CLR 104
Cite 2 - (1990) 170 CLR 104
George v Rockett [1990] HCA 26
2 citations
Jump To
Cite 1 - [1990] HCA 26
Cite 2 - [1990] HCA 26
In the matter of an application by William Robert Jacomb for an Inquiry relating to an election for office in the Australian Municipal Administrative Clerical and Services Union [2000] 180 ALR 134
2 citations
Jump To
Cite 1 - [2000] 180 ALR 134
Cite 2 - [2000] 180 ALR 134
Nimmo, in the matter of an application for an inquiry relating to an election for an office in the Australian Education Union (NT Branch) [2011] FCA 38
2 citations
Jump To
Cite 1 - [2011] FCA 38
Cite 2 - [2011] FCA 38
Re Collins; Ex parte Hockings [1989] HCA 42
5 citations
Jump To
Cite 1 - [1989] HCA 42
Cite 2 - [1989] HCA 42
Cite 3 - [1989] HCA 42
Cite 4 - [1989] HCA 42
Cite 5 - [1989] HCA 42
Re Collins; Ex parte Hockings (1989) 167 CLR 522
5 citations
Jump To
Cite 1 - (1989) 167 CLR 522
Cite 2 - (1989) 167 CLR 522
Cite 3 - (1989) 167 CLR 522
Cite 4 - (1989) 167 CLR 522
Cite 5 - (1989) 167 CLR 522
Re Post; Re Election for Offices in Transport Workers Union of Australia, Western Australian Branch [1992] FCA 15
1 citation
Jump To
Cite 1 - [1992] FCA 15
Re Post; Re Election for Offices in Transport Workers Union of Australia, Western Australian Branch (1992) 40 IR 162
3 citations
Jump To
Cite 1 - (1992) 40 IR 162
Cite 2 - (1992) 40 IR 162
Cite 3 - (1992) 40 IR 162
The Queen v Gray; Ex parte Marsh (1985) 157 CLR 351
1 citation
Jump To
Cite 1 - (1985) 157 CLR 351
The Queen v Gray; Ex parte Marsh [1985] HCA 67
3 citations
Jump To
Cite 1 - [1985] HCA 67
Cite 2 - [1985] HCA 67
Cite 3 - [1985] HCA 67
White, in the matter of an election for an office in Transport Workers' Union of Australia, Queensland Branch [2019] FCA 2131
2 citations
Jump To
Cite 1 - [2019] FCA 2131
Cite 2 - [2019] FCA 2131

Cases Citing

Case NameFull CitationFrequency
Johanson v Queensland Teachers Union of Employees (No. 2) [2025] QIRC 512 citations
Johanson v Queensland Teachers Union of Employees (No. 3) [2025] QIRC 1702 citations
Johanson v Queensland Teachers Union of Employees and Ors [2024] QIRC 2722 citations
1

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